Shardale Pty Ltd and Molgate Pty Ltd v The Crown
[1991] QLC 5
•15 March 1991
|
BRISBANE
15th March, 1991
Re:Claims for Compensation -
Resumptions for Environmental Park
purposes -
A90-50/51
Shardale Pty Ltd (A90-50)
and
Molgate Pty Ltd (A90-51)
v.
The Crown
J U D G M E N T
By Proclamation published in the Government Gazette of 12th September, 1987, the Crown resumed for Environmental Park purposes land in the county of Ward, parish of Coomera, owned by the claimants as follows:
Lot 85 on Plan W31501 and Lot 89 on Plan W311103 containing an area of 72.8434 hectares, the fee simple of which was held by Shardale Pty Ltd; and
Portion 84 containing an area of 195.1 hectares, the fee simple of which was held by Molgate Pty Ltd.
Shardale and Molgate are sister companies wholly owned by Pacific Ventures Pty Ltd which is wholly owned by Mangrovite Industries. The controlling interest in Mangrovite (60% of issued shares) is held by family companies and members of the family of Mr L.T. Ward. Mr Ward is a qualified accountant and a company director by occupation. He has had extensive experience in numerous business activities including hotels, food outlets, mining ventures and real estate development. He has resided continuously on the Gold Coast since 1970 and a number of his business activities have been in this region. Shardale acquired the fee simple of Lots 85 and 89 by contract dated 20th March, 1986, and Molgate acquired Portion 84 by contract dated 23rd May, 1986. These portions adjoin. The portions were, at the date of resumption and have always been, the only freehold land on Coomera Island. The combined area of the land resumed is 267 hectares. The combined area of the island is 1037 hectares. The lands were purchased for $1,792,640 via transactions under which the purchaser bore the costs of sorting out difficulties hovering over titles to the lots. The costs of clearing these difficulties and obtaining clear title is put at $621,888. The sum advanced as the sum representing the purchase price of the land is therefore $2,414,528 which represents a price per hectare of about $9,000. The evidence of Mr Ward is that negotiations for the purchase were opened in early 1985 through Mr Paul Ryland, a real estate consultant employed by the companies, when he informed Mr Ward that he had been approached by a Mr Steley and that Coomera may be able to be purchased. The purchase was completed in May, 1986. Mr Steley was managing director of the company or companies with control of the land sold. His connection with the island dates back to the 1960s and, in so far as is relevant, began when approval in principle was sought from the Albert Shire Council to a scheme of development (a quays-type project) covering the whole of the island. When that application was made (13th December, 1967) and the applicant was by letter dated 4th March, 1968, advised by Council - "That the Council at present views with approval in principle the proposal submitted subject to" - numerous conditions - the applicant held from the Crown a Special Lease over the Crown land section of the island (Portion 91) comprising an area of about 770 hectares. This lease was for a term of four years from 1st July, 1967, and was granted for the purposes of "Business (Investigation of Development Potential)". The development potential was never proved, at least not to the relevant authorities, with the result that the lease expired and was not renewed despite attempts made by Mr Steley to have it renewed. By December, 1986 - some seven months after completion of the purchases of the subject lands and having weighed the representations made by Mr Steley as vendor of the relevant lands and having done some homework, Pacific Ventures which is the management company in respect of all group projects put a submission before the Premier seeking his assistance in respect of a proposal to develop the freehold land and a substantial part of the Crown land (about 181 hectares) under a project called "Port Coomera". The applicant was referred to the local Member of Parliament who informed the company that the land was required for conservation purposes. The Notices of Intention to Resume the land issued in March, 1987. The owners objected to the resumption but were unsuccessful. The land was resumed in September, 1987.
Expenses incurred by the owners in the period between the date of purchase and the resumption, in planning, research, etc., and including expenses incurred in objecting to the resumption, were estimated in the sum of $591,542 (subject to refinement made during the proceedings) and together with interest thereon is put forward as a claim for "special value" to the owner.
Claims for compensation were served on the Constructing Authority (the Crown) in July, 1988, for $3,031,964 in respect of Lots 85 and 89, and $8,121,036 in respect of Portion 84. On 16th July, 1990, the reference to the Court stated that the sums claimed comprised -
Lots 85 and 89 - Land $6,155,267
Disturbance $123,149
Portion 84 - Land $16,485,950
Disturbance $329,851
At the commencement of the proceedings, leave was sought to further amend the claims to a combined claim of -
Land - $ 6,000,000
Special Value - $ 822,242
The sum so claimed was the sum assessed by Sir Frank Moore, registered valuer, and Chairman of the Taylor Byrne group of valuers. Briefly stated, he valued the resumed land (which was vacant and unimproved) as a site suitable for an integrated resort-type of development and related the land value to sales of land on Hope Island and other areas of the mainland which were purchased for that or a comparable type of usage. The Crown, through Mr G.J. Coonan, a registered valuer in the employ of the Department of Lands, led evidence to an assessment of compensation in the sum of $1million. Mr Coonan was of the opinion that the highest and best use of the land was for single homesite purposes and the sum of $1 million represented his opinion of the value of the land for that purpose. Advances against compensation were made in the sum of $572,000 on 5th October, 1990, and $428,000 on 8th January, 1991. It is agreed that legal and valuation fees incurred for the purpose of the formulation and lodgment of the claims may be determined in the sum of $13,500.
Witnesses called on behalf of the claimants were Mr L.T. Ward, Mr J.D.A. Punch, solicitor, Mr G.A. Lambert, a director of the claimant companies, Mr R.M. Windsor, a civil engineer and director of the firm, Burchill Bate Parker and Partners, Dr Margaret Greenway, environmental consultant and senior biologist with Hollingsworth Dames and Moore, Mr D.R. McInnes, consultant town planner, Sir Frank Moore and Mr G.H. Burchill, consulting engineer. For the respondent, besides Mr Coonan, evidence was given by Mr D.J. Rudd, engineer and a director of Kinhill Cameron McNamara, Mr J.R. Humphreys, consultant town planner, Mr R. Chapman, civil engineer with Kinhill Cameron McNamara, Mr R.M. Woods of Horwath and Horwath, tourism and property consultants, Mr J.P. Beumer, Manager, Marine Resources, Fisheries Branch, Department of Primary Industries, and Mr D.B.L. Arbon, town planner in the employ of the Albert Shire Council. This list of expertise brought with it a mass of material and opinion which, when condensed, left the Court with the one question - how would the hypothetical prudent purchaser view the prospects of development of the subject land at the relevant date? If he took the view that he could be reasonably certain of obtaining approval to a development of the like forming the basis of the assessment made by Sir Frank Moore, then the sum he advanced became a matter of serious consideration. If the hypothetical prudent purchaser took the view that his prospects of obtaining consent to a proposal of that nature were of no value, then compensation should be assessed in the sum advanced by Mr Coonan. In between these parameters lies the purchase of the resumed land for about $2.4 million including legal costs. This evidence is relevant, so it seems, only if a conclusion is drawn that at the relevant date the hypothetical prudent purchaser would give himself some chance of obtaining approval for a development of the kind the claimants had in mind, for it is contended by Mr Coonan and not disputed, that of the alternatives (apart from the primary question) which he investigated - use of the property as an exclusive single residential site; subdivision of the land into a number of rural residential sites of an area of about 20 hectares; or use of the property for low-key tourist resort purposes - the highest and most valuable use was the first. Conversely there is no suggestion in the evidence of the claimants that any hypothetical prudent person would pay $2.4 million for the area to use it for any of those purposes.
The subject land is situated on Coomera Island which is located at the mouth of the Coomera River and is bounded by the north and south arms of the river and otherwise by a strip of water and islands known as the Broadwater. The land is within the Local Authority area of the Shire of Albert. The Local Authority area adjoining on the south is that of the Gold Coast City. The City of Gold Coast ends on its northern Local Authority boundary at a point between Coombabah Creek on the west and the Broadwater on the east. The point is known as Paradise Point. Within the Broadwater just to the north and east of Paradise Point there are the islands formerly known as Andy's and Griffin and Ephraim and to the east lies the southern part of South Stradbroke Island. These islands and the southern part of South Stradbroke Island are within the Local Authority area of the City of Gold Coast. To the north of South Stradbroke Island is Stradbroke Island. The bar between is known as Jumpinpin. If a line is taken from there north-westerly to the mouth of the Logan River and returned to Paradise Point down the mainland foreshore (inclusive of Hope Island as mainland), the belt of water and islands within the area (including Coomera Island) is part of an area known as the Broadwater. This area is within the Local Authority area of Albert. So also are the mainland areas running westerly to and beyond the Pacific Highway. Rivers and creeks which enter the Broadwater from the mainland travelling northerly from Coombabah Creek comprise Saltwater Creek, the Coomera River, McCoys Creek, Pimpama River and the Logan River. Coomera Island as a whole is immediately to the north of Paradise Point and is separated therefrom by the south arm of the Coomera River. The north arm of the river snakes its way along the north-western boundary of the island which in the northern section actually comprises a group of islands. To the north of that and separated from Coomera by a channel which could loosely be described as the south arm of the Pimpama River is Woogoompah Island. To the north of Woogoompah is Kangaroo Island and to the north again is Tabby Tabby Island. To the east of these islands relatively speaking there lie numerous small islands. A fair picture of the relevant part of the Broadwater may be gained from Appendices A and B. The location of the resumed land to the mouth of the Coomera River can be clearly seen on Appendix B. The resumed land comprises an area of mangrove land, saltmarsh land and an area of forest most of which had been cleared and was heavily infested with groundsel at the date of the resumption. In the evidence of one witness (Doctor Margaret Greenway) 165 hectares of the land may be classified as wetland. The land has a maximum elevation of about RL 1.5m AHD. The whole of the land is subject to flooding. There are no structural improvements on the land and no services have been connected. Access is by boat or helicopter. At one time the land was used for grazing cattle. At the date of resumption the land was zoned Rural C under which the minimum lot size is 20 hectares.
To the south-west of the subject land and across the Coomera River there lies a large parcel of land which is known as Hope Island. This land has been linked to the mainland since about the 1950s and comprises a large block of land of wedge shape taking up the area between Coombabah and Saltwater Creek on the south and the Coomera River and extending inland to near the Pacific Highway at Oxenford. Historically there existed on Hope Island a rural/residential type subdivision at Boykambil (in the south-east) and a residential subdivision at Santa Barbara (in the north-west). The island was generally used for grazing purposes and generally retained a rural character until 1984 when approval was given to the development of Sanctuary Cove. This development was subject to a development agreement regarding the provision of services. In December, 1985, the State Government enacted the Sanctuary Cove Resort Act which incorporated the land which had been approved for rezoning in July, 1984, together with adjoining land on the north-eastern foreshores of Hope Island under its own legislation outside the Albert Shire Council's Town Planning Scheme. Later amendments to the Act have incorporated the land to the south and other adjoining land. The development provided for under the Act was similar to that approved by Council. With this development came a bridge linking Hope Island with Paradise Point through Boykambil. In Mr Coonan's recollections of talking with Mr Mike Gore, the developer of Sanctuary Cove, there was comment from Mr Gore that "the direct bridge link was extremely important to him in making a decision to go there". There is general consensus that this development formed the catalyst for the development of Hope Island and for mainland frontage properties to the north and south. Approval for the Hope Island resort which takes up the greater part of the western area of the island was given in September, 1989. On the south bank of Saltwater Creek there are Oyster Cove and Monterey Keys which were approved in December, 1988, and June, 1990, and then there is a River Link which is between the Hope Island resort site and Oxenford. On the north bank of the Coomera River and on the mainland frontage, Pennant Holdings and Royal Albert Quays take up the frontage between the Coomera River and McCoy's Creek. Approvals here were obtained in October, 1987. North of these areas is Bobcorp which was approved in April, 1990, and north again is General Nurseries which was approved in August, 1990, and finally on the north bank of the Pimpama River and opposite General Nurseries is Peakhurst. The location of these lands can be seen on Appendix C. With this flurry of activity came a trend in values which can be demonstrated from the evidence of Sir Frank Moore. During the 1986 era he was of the opinion that a level of value for large parcels of Rural C zoned land in the locality was about $12,000 to $15,000 per hectare. By 1987 particularly towards the latter part of 1987, a level of $30,000 to $40,000 per hectare was established and above that a level of $70,000 to $80,000 per hectare for land fully zoned or conditionally sold. At the date of resumption the subject land was zoned Rural C and was a large parcel of land. It is separated from Sanctuary Cove by the Coomera River. Prima facie, therefore, there are grounds to argue that the land had a value of $30,000 per hectare on the assumption that the land had vehicular access to the mainland. Sir Frank valued the area at that rate or $8 million in round figures from which he deducted an estimate of construction costs of a bridge - $1.5 million - and acquisition costs of land for the approaches to the bridge at $295,000 which, together with interest on works at 13 percent for six months, left a net land value in round figures of $6 million. The valuation assumes that the subject land had the same potential for development approval as those lands forming the basis of the assessment. This brings me to the question of the history of the zoning laws and the establishment of the Broadwater as an area for preservation.
At the time Mr Steley made application to the Albert Shire in 1967, the Council had no formal town planning scheme. Land development was controlled by a subdivision of land by-law which was gazetted in 1952. This by-law merely covered the formalities of a subdivision such as metes and bounds. etc. An interim development by-law was gazetted in 1969 and a draft town planning scheme adopted in 1970. In March 1973, the Council adopted the South Albert Shire Strategic Plan as a policy document. The Town Plan was gazetted in May of that year. In that plan the subject land is zoned "Rural". The Strategic Plan was approved as a basic policy document "which is intended to provide the planning framework for the area, recognising and relating to social, economic and physical systems". The approach was not intended to relate to a specific time period "but rather to establish a long range concept of growth and conservation". The following are some extracts from the document:
"The nature and location of recent subdivision approvals, and current applications for new communities in Albert Shire, together with a very real need to identify and protect environmental assets in the Shire called for a special approach in preparation of the Strategic Plan. It was decided to take a long-term look at the Shire and to endeavour to determine what the physical capacity of the area to absorb development and population is, in the foreseeable future. It was also vital to establish which areas must be conserved for amenity, resource and other environmental reasons in order to maintain those very attractions which are bringing people to the area. Policies can then be established with regard to the amount of development which the Shire wishes to accommodate and for which it can provide an appropriate level of services. If a long-range concept of growth, location and strategy for achieving a desirable environmental quality through control and guidance is not established, the result could be the disorder, monotony and abuse of the land so evident in Florida and California.
The Plan endeavours to identify therefore those areas which should in essence, be conserved in perpetuity in order to safeguard diminishing and non-replaceable natural resources and those which may be developed for urban purposes. The Plan aims to relate the available resources such as water, natural recreation areas and landscape to the potential population capacity of the study area, in the light of the limits of our knowledge and skills today and the strict limitations of this study. Future studies may well indicate that a greater population can and (perhaps) must be accommodated. However, it is a responsibility to the future generations that the best controls available, despite limitations of our current social philosophies and systems, be applied to prevent the disastrous effects of too rapid growth.
In view of the detailed studies of population growth carried out for the Gold Coast Strategic Plan, there seemed little to be gained by further, involved studies of population trends. The rate of growth is very difficult to forecast accurately as it depends to a large extent on private sector development, which in turn depends on general economic conditions and political policies, nationally and internationally. The forecasts made in the Gold Coast Strategic Plan of 1970 and the arguments which support them can be accepted as a reasonable indication of future growth for the purpose of this Plan. However, present trends indicate that growth could be extremely rapid and it is often the case that success in sales and promotion will accelerate growth even further. The Plan should then, show how far the Shire wishes to go and where it will not allow the space and resource needs of the future population to be secondary to the special wishes of minorities for the sake of 'growth'. The mistakes of California and Florida provide appropriate lessons despite some individual examples of outstanding development. "
Under the heading "Land Use" is found the following paragraph:
"In the Coomera River Valley, both west of the Pacific Highway towards Upper Coomera, and east on the flood plain to Hope Island, there are grazing and pasture lands for beef and dairy operations. The watercourses and waterways in the Coomera River, Saltwater Creek, Pimpama River and island areas around Hope Island, Jacobs Well and the Broadwater are popular for fishing and boating, picnics and other water-oriented recreation. In addition, these flat lands, marshes, mangroves and islands are the habitat of many species of birds and waterfowl. There is little development other than a few cottages on south Stradbroke Island and small, recreation service centres with boat docks and launching ramps at Jacobs Well, Cabbage Tree Point and two locations on Hope Island. "
That part of the plan dealing with the resources of the Shire, such as the extraction of sand and gravel and metal, begins with the words that "the resources of the south Albert Shire are both physical and environmental and sometimes the exploitation of one is in direct conflict with the other". The final two paragraphs of this part of the plan read as follows:-
"A vital environmental resource, which is now in danger of serious encroachment through development, is the area of coastal islands, mangroves and mud flats formed by the estuaries of the Coomera, Pimpama and Logan rivers.
This area, which penetrated inland as far as the Pacific Highway at Coomera and Lake Coombabah, is amongst other things, the habitat of birds, waterfowl, fish and crabs. Adjoining areas in the Gold Coast, around Lake Coombabah and the southern end of South Stradbroke island are proposed to become National Parks in the Gold Coast Strategic Plan. The entire area, despite shallow waters, is ideal for water recreation for both the tourist and the urban dweller from the Gold Coast and Brisbane. As such, and as a wild-life habitat it is an asset where the emphasis should be on conservation rather than for somewhat exclusive subdivision development. Any development should be related to its primary use for conservation and recreation. Development of any type should be strictly limited and controlled in accordance with an overall plan, which should include an Environmental Impact Study. "
In discussing the growth concept the Plan identified a need to provide a buffer between urban growth coming southerly from Brisbane and northerly from the Gold Coast. This was the concept:
"Most hilltops, and ridge crests will be preserved to avoid destruction of the beautiful backdrop behind the urban area, but rural residential areas will locate on foothills and lower slopes to affect a gradual transition into the more dramatic, wooded hill ranges around. River valleys will be the major open space wedges penetrating into the rural interior. The eventual goal is the creation of a compact urban region, with rural fringes and open spaces linking to the inland hills. This urban region should be clearly and distinctly separated from Greater Brisbane through conservation of the Coomera River Valley, the estuaries and the coastal islands.
This major conservation area will act as a regional open space and greenbelt between Brisbane and the Gold Coast - Albert Shire urban region. The Coomera River valley widens as the river flows into the Broadwater and joins with the estuaries of the Pimpama and Logan Rivers, to form an extensive area of waterways. The purpose of this open space is to ensure that the rapidly multiplying future population of the Brisbane southern corridor and of the Gold Coast - Albert Shire urban region will have a recreation area and that an important element of the area environment will be preserved. "
Towards the end of this part and in discussing transportation, it is found, inter alia, that the transportation system (road network) included, in addition to the Pacific Highway, a road described as a parkway which was intended to provide a major north/south route with the Pacific Highway. The diagram shows the parkway coming from the north and swooping towards the coast at Jacobs Well which is a small township on the mainland north of the Pimpama River, then crossing the Pimpama River and travelling through lands now held by General Nurseries, Bobcorp and Royal Albert Quays, then crossing the Coomera River west of what is now known as Sanctuary Cove and swinging towards the south-east and crossing Saltwater Creek and Coombabah Creek in the vicinity of the area now known as Oyster Cove before continuing southerly to link up with the Pacific Highway. A bridge linking Hope Island with Paradise Point was shown at about the location of the link which actually took place following the development of Sanctuary Cove. The Coomera and Islands Conservation Area came in for special consideration. This part of the Plan reads as follows:
"One of the most vital and far-reaching proposals in the Plan for South Albert Shire is the designation of an area of about 70 square miles of land and water as a Conservation Area with the special protection that this implies.
A number of important factors contribute to the arguments for this strategy and they include:
-The need to conserve extensive areas, partly held by the Crown for the benefit of the majority of the vastly increased population anticipated in the Shire, the Gold Coast and Brisbane.
-The need to conserve and protect a vital water body with its mangroves, channels and flats for wildlife protection.
-The need to protect a visual break with a belt of open country between the Brisbane and the Gold Coast urban regions, to prevent the merging of the cities into the amorphous sprawl so familiar in similar growth areas elsewhere.
-The need to restrict residential development in any area which forms part of an airport approach zone.
No further development in the designated area other than infilling in designated village zones should be permitted until such time as a Conservation Area Action Plan preceded by or integrated with appropriate environmental impact studies, is prepared. The Plan should stress the conservation element, for example, by delineating wildlife conservation and protection zones, but should also indicate where service facilities, picnic areas, jetties, boat storage, launching ramps etc. should be provided and located, in relation to the ever-growing number of waterborne recreational users. An area or areas should be identified where a National Park can be designated in order to preserve for posterity the natural environment. A National Park might well include Lake Coombabah, South Stradbroke Island and its fine, ocean-front beaches and other islands on the Broadwater, as far north as Jacobs Well. Desirably, the Plan should also take into account areas to the north in the adjoining Moreton Bay.
Uses which may be acceptable in the Conservation area are specified agricultural uses, which do not use those fertilizers or other materials likely to cause pollution. Also, certain recreational uses such as golf courses, riding clubs and other such uses as may be defined in a Conservation Area Action Plan for the area, should be permitted. Mineral extraction should only be permitted in accordance with an overall plan, under the strictest control, indicating modes of restoration and future use as defined in the Conservation Area Action Plan. Large scale, canal-type residential developments generally should not be permitted.
In areas adjacent to the Coomera Valley and also surrounding the Coombabah and Saltwater Creeks, no development of rural residential areas should be permitted until the Council is satisfied, following appropriate Environmental Impact Studies, that there will be no detrimental effects on the creeks and thus the ecology of the Conservation Area. If necessary, special provisions should be made, for servicing such rural areas, although lot sizes under 1 acre generally, should not be allowed in order to preserve the rural character.
Efforts should be made to persuade the appropriate Government agencies to assist in establishing the Conservation Area, under the jurisdiction of a suitable Conservation Authority or similar body. This body should have powers and funds to purchase key areas of land and authority to administer Crown lands which may be in the area, with the dual objectives of conservation of the area and the enhancement of its recreational opportunities wherever the objectives are compatible. "
The idea which Mr Steley had in mind for Coomera Island (freehold and leasehold) was before the Council in 1967. The Council had resolved to prepare a town planning scheme in 1964. The scheme was approved by Council in October, 1970. Objections closed in June, 1971. In June, 1972, preparation of the Strategic Plan commenced. The Plan was adopted in March, 1973. I might make this observation before proceeding. Nowhere in these plans can I find one word of recognition of the idea which Mr Steley had put to the Council in 1967.
The next phase in the planning process is found in Exhibit 15 which is a lengthy report entitled "Planning of the Area between the Jumpinpin Bar and the Nerang River Bridge". The report is dated October, 1974. The report followed a decision made by Cabinet on 12th October, 1970. Paragraphs 1 and 2 of the Cabinet decision read as follows:"' (1)That it be approved, in principle, that subject to existing leases and other alienations of land, the Spit, South Stradbroke Island and all islands, banks and waters between the Jumpinpin Bar and the Nerang River Bridge be used as far as practicable and desirable for recreation and kindred purposes.
(2)That a working committee be formed to study land ownership and mining tenements in the area, including land on or near the mainland foreshores, with a view to preparing general guide lines for long term usage of the area for the approval of the Gold Coast City and Albert Shire Councils and for the consideration of Cabinet; the guide lines to indicate proposals for -
(a)areas acceptable for real estate development.
(b)areas acceptable for industrial development.
(c)fisheries habitat reserves.
(d)oystering areas for licensing.
(e)anchorages.
(f)water ski reaches.
(g)boat harbour sites.
(h)boat ramp sites.
(i)reserves for recreation.
(j)reserves for picnic and camping.
(k)reserves for landing and jetties.
(l)proposed channels.
(m)proposed bridges.
(n)fauna sanctuaries.
Approved planning be introduced where possible by Government reservation and Local Government Town Planning. ' "
The Working Committee comprised members of the Departments of Lands, Local Government, Harbours and Marine, Primary Industries, Co-Ordinator-General of Public Works, Mines, Forestry and the Queensland Government Tourist Bureau. Representatives of the Gold Coast City and Albert Shire Councils were also members of the committee. The limits of the region under review covered the area I have attempted to describe previously as the Broadwater. The area was defined in the report as follows:
"..... the area north to the Logan River as far as the Albert Shire Boundary, south to the Nerang River Bridge, inland, a distance of twenty chains, from the mainland foreshore and all the islands and waterways and river banks to the east of that line. "
A distinction is drawn throughout the report between mainland and islands. Hope Island is dealt with as mainland. Coomera, Woogoompah and Kangaroo Islands are dealt with as islands. The Committee was not unmindful of the fact that some land on these islands was held under freehold title. The introduction to the report contains some background material and a precis of a report submitted by the Director, Department of Harbours and Marine (after Committee meetings with interested Government departments and representatives of the Local Authorities) which preceded the decision of Cabinet. This report covered "the matter of planning the development of the Broadwater, its islands and foreshores and land adjacent thereto". These paragraphs of the report are of interest:
"The tidal lands were described in the Report as a basic habitat for marine life supplying the fishing needs for an ever growing permanent and tourist population, as well as the livelihood for professional fishermen.
The waters of the Broadwater form a well protected area between the Mainland and South Stradbroke Island in which swimming, boating and water-skiing, as well as fishing, can be enjoyed by residents of nearby towns and districts, thereby adding considerably to the tourist attractions of the area. It is the Mecca of boating and angling enthusiasts and the playground of all who revel in marine sports and the open salt air way of life.
The many islands of the region can be easily visited and explored. They abound in various forms of bird life and wild flowers. South Stradbroke Island has an extensive sand dune formation on the Pacific Ocean side and sea beaches that offer shell collectors many opportunities.
Interference with the mangroves at the mouths of rivers and fringing the mainland banks and islands and also with the offshore weed banks by dredging or reclamation operations has a detrimental effect on the feeding of fish and other marine life, which results in a reduction of the resources available to fishermen, both amateur and professional.
Pollution of rivers by industrial wastes, sewage effluents and insecticides will further reduce marine life and limit the areas available for productive angling.
It was therefore considered that a factual assessment of the community value of marine resources by the Department of Primary Industries would assist in enabling all the above factors to be taken into account when planning the future of this area, so that the ever present conflict between reclaimers and conservationists can be better resolved.
There appeared to be no major objection in this area to the present form of canal estate development on freehold land behind the foreshore (which allows the spread of urbanisation into areas of poor natural drainage) provided that disturbance of adjacent fish habitat areas by associated drainage works is minimised. "
It is necessary that the 1974 report be considered in some detail. Part I comprises the summary, findings and recommendations of the Committee. Part II - the introduction - has been dealt with. Part III deals with land alienated in the region - therein the existence of freehold tenures on parts of Woogoompah and Coomera Islands is recognised. So also is the existence of Crown land thereon. The recommendation reads as follows:
"The Committee considers that as many islands as possible be retained in their natural state with as little development as possible.
All existing Vacant Crown Land areas of islands should be retained as 'Public Open Space' or zonings consistent therewith, and no further development leases approved.
Development on South Stradbroke Island should be restricted to the present town, freehold and leasehold areas, with the balance held as either Public Open Space, Recreation Reserve (along western waterfront), National Park or Environmental Park (see Part XVIII- National Parks). "
Under the sub-heading of "Special Leases" it is said of the lease of Portion, 91, Coomera (the Crown land section of Coomera Island) - "Coomera Island lease, issued on a short term basis for feasibility study, has expired. Application for a Special Lease for development of the area has been refused." This area fell within the general recommendation dealing with Special Leases. The recommendation reads as follows:
"The Committee recommends that all Special Leases for which the term has expired be not renewed, and the areas incorporated as vacant Crown Land and zoned as Public Open Space. "
Mineral Leases over the Spit at Southport are then dealt with and it was recommended that after the leases expire the area should revert to vacant Crown land. The Committee recommended that quarrying licences for foundry sand on South Stradbroke Island be not renewed on expiry. The existence of some 11 sand and gravel permits of which a number were in the Coomera River (Hope Island) and Saltwater Creek and the Pimpama River were then considered. The recommendation in this respect reads:
"The Committee has no objection to sand and gravel permits being issued under controlled conditions. New applications of a major nature should be accompanied by an Environmental Impact Statement.
From a fisheries point of view, dredging for sand and gravel should be restricted to recently deposited unstable and/or unvegetated areas. "
Part IV of the report deals with the question of future real estate development. This part of the report is quoted in full:
"MAINLAND
There are very few areas in the region under review which Government Authorities, landowners, developers and their civil engineers will acknowledge as being unsuitable for subdivision and for the building of residential and/or tourist facilities.
Roads and services will naturally fan out from the existing urban strip and no place on the entire coastal plain can be regarded as being protected from this intrusion.
Population expansion figures confirm that the beaches and the Broadwater are continuing to influence strongly the distribution of the region's population.
Most people want to live by the water.
The Committee is firmly of the opinion that as far as possible, no further real estate development should be approved with water-frontage. This object may be achieved through Town Planning of freehold land, but it may result in very costly charges for severance.
In the case of Crown land, there would be no problem, since suitable recreation and esplanade reserves are provided for on all Crown land estates sold for real estate development.
Crown land areas on the mainland considered to be suitable for real estate development in the Gold Coast City Council area are -
(1)Northern end of Paradise Point; i.e. portions 110 and 143, parish of Barrow.
(2)Canal development in portion 60, parish of Barrow, west of the Paradise Point Boat Harbour.
(3)Canal development at Runaway Bay between Anglers Paradise and Hollywell; i.e. portions 101 and 139, parish of Barrow.
The Albert Shire Council has proposed that three areas be zoned as 'villages' in their proposed Town Plan, viz;-
(1)Cabbage Tree Point to Steiglitz.
(2)Jacobs Well, and
(3)Hope Island.
These areas are marked on Plans A and B.
In a 'Village' zone, no development would be permitted without the consent of the Council, and thus real estate subdivision can be strictly controlled.
The Committee proposes to the Albert Shire Council that all remaining mainland areas in the Albert Shire portion of the region under review are to be zoned 'rural' in the new Town Plan , i.e. they have a 10 acre minimum subdivision requirement.
WATERFRONT ZONE OF RESTRICTED DEVELOPMENT
The Committee considers it desirable that as much land as possible be reserved along the waterfront to enable the greatest possible public enjoyment of the waterfront land as well as to ensure public access to the waters of Moreton Bay and adjacent rivers and creeks at all points in the region.
The Department of Primary Industries also considers that it is desirable to control waterfront land for pollution abatement purposes.
A waterfront zone would also be of immense value as a buffer area against wet land destruction. Canal development, even in fringing mangrove areas, could cause serious lowering of biological productivity by removing sources of leaf detritus and by opening up deep channels in which no marine grasses can grow. The cutting down of natural vegetation will possibly increase siltation until a replacement ground cover of the reclaimed area is created.
In the Gold Coast City Council area, where development adjacent to the waterfront is more advanced than in the Albert Shire, land left for public access along the waterfront is very minimal, and this is causing some concern. Resumption costs would be very high in this area.
The Committee therefore considers that in the Albert Shire between the Logan and Coomera Rivers a belt of land approximately twenty chains back from the mainland coastline should be retained for waterfront access purposes, and that the belt should extend along each back for some limited distance up the main river systems.
This twenty chain belt is delineated on the Key Plan, and in more detail, on Plans A, B and C.
Some of this belt contains village and waterfront industry areas. The Albert Shire Council proposes to retain the balance of the area as rural zoning with a minimum subdivided lot of 40 acres with restricted additions to the present village zones.
Canal development in this belt should be restricted to the areas essential for proper urban development, and be completely compatible with all the principles set down in the report.
The cost of acquiring this belt of land is considerable. It is possible that the Albert Shire could acquire some of the area by negotiation if ever development occurred, but as services are unavailable, and Council policy is for limited development, this is unlikely.
The land can be held in its present state by rural zoning. The Albert Shire Council will prepare a case for State or Commonwealth assistance to purchase part or whole of the land as the demand requires such action.
Large mangrove areas in the belt not at present alienated should become Crown Reserves. Other things being equal, as long as these areas and the major marine grass banks are left in a reasonably undisturbed state, there should be little effect on the basic fish resources of the region. This opinion has been more fully discussed in Part II - 'Planning Control'.
ISLANDS
Existing real estate subdivision proposals on the islands in the region are as follows -
Gold Coast City Council
Portion 121, parish of Barrow (S.L. 32810) on Griffin and Andy's Islands and portion 112, parish of Barrow (S.L. 36932) on Ephraim Island.
Albert Shire
Portions 1 and 2 (Freehold) and Vacant Crown Land; parish of Boonnahbah on Kangaroo Island.
Portions 105, 106 and 109 (S.L. 32896); portion 107 (Vacant Crown Land) and portions 40A and 43A, (Freehold); parish of Pimpama on Woogoompah Island.
Portions 84, 85 and 86 (Freehold); parish of Coomera on Coomera Island.
Portion 7 (S.L. 18922), portion 43 (S.L. 31273), portion 16 (A.F. 9542) and portions 1, 12, 13 and 15 (Freehold); parish of Currigee on South Stradbroke Island.
Of these proposals, development on Ephraim Island is committed as the developer has already reclaimed most of the leased area. Development is incomplete and a New Special Lease has been granted having a term of five years from January 1, 1972.
Work on Griffin and Andy's Islands has commenced. An inspection was made and indicated that reclamation was proceeding satisfactory.
On South Stradbroke Island, development of sub. 2, portion 1 and of portions 43, 7 and part of R. 640 from portion 7 South to portion 43, parish of Currigee, has been approved by the Albert Shire Council, and is committed.
No approval has yet been given by the Council for the remaining proposals for South Stradbroke Island nor for Kangaroo Island, or Woogoompah Island.
The Committee is of the opinion, that because of the unstable nature of the sand dunes to the east, it is considered that there should be no further close subdivision on the western side of South Stradbroke Island including the Town of Currigee, and also that no close residential subdivisions be approved for any other island with the exception of those already committed. In cases where land has been freeholded a rural zoning having a ten acre minimum subdivision requirement should be applied.
The Committee also considers that any development of the Crown Land portions of the islands in the region under review not already leased and approved by the Local Authority should be restricted to conform to the purposes of 'Public Open Space'. "
In Part VI under the heading "Fisheries Habitat Reserve", I find this paragraph.
"It is now considered that the Crown Land section of Coomera Island (Portion 91, parish of Coomera) should also be declared a Fish Habitat Reserve as this area is comprised of good mangrove wetlands and should not be reclaimed. "
The following matters are then considered - Part VII - Oystering Areas for Licensing; Part VIII - Anchorages; Part IX - Water Ski Reaches; Part X - Boat Harbour Sites; Part XI - Boat Ramp Sites; Part XII - Reserves for Recreation; Part XIII - Reserves for Picnicking and Camping; Part XIV - Reserves for Landings and Jetties; Part XV -Proposed Channels; and Part XVI - Proposed Bridges. This latter part reads as follows:
"Two bridges to cross Coombabah Creek and to link Hope Island to the Paradise Point/Coombabah area of the mainland are shown on Plan C. These have been taken from the strategic plans of both the Albert Shire Council and Gold Coast City Council.
The upper bridge proposal is to be a Parkway crossing Coombabah Creek at R. 95 just above the Town of Coombabah.
The lower proposal is to be an Arterial Road crossing Coombabah Creek at Portion 60, Town of Paradise Point.
These bridges have been jointly proposed by the two Local Authorities, and are in the very early stages of planning.
The matter could be referred for consideration by the Main Roads Department.
Construction of these bridges would be the responsibility of the Local Authorities. "
Part XVII deals with the question of the protection of fauna within the area under the Fauna Conservation Act and an appropriate means of securing protection. The wetland areas surrounding Woogoompah and Coomera were included within the area sought to be protected. The final part of the report - Part XVIII deals with National Parks and appears to have been confined to South Stradbroke Island. The Report went before Cabinet in October, 1974. Cabinet decided that the Report be adopted as a planning base for the area and that the Report be tabled in Parliament.
The Strategic Plan (1973) in the final part speaks about the preparation of Action Plans. Such plans, it is said, "are a very useful intermediate step between the broad regional scale of the Strategic Plan and the statutory nature and rigidity of the Town Planning Scheme and implementing By Laws". The concept behind the Plan is that it should indicate specifically the areas of land to be used for various purposes, the densities permitted and, more specifically, alignments of arterial roads and collector streets and other services, etc. In July 1975, the Council adopted as a policy the Coomera Action Plan. The Plan did not cover Coomera Island. The Plan is produced as Figure 7 in the report of Mr Humphreys. It appears to have covered the mainland areas south from McCoys Creek to Coombabah Creek and west towards Oxenford. In terms of Hope Island the Plan depicts Residential A land at Boykambil, Santa Barbara and in the area of what is now Sanctuary Cove. Some four areas are identified for "Extractive Materials Sites (subject to detailed investigation)" being to the west of Boykambil and on lands now within the area of Hope Island resort and which are in the location of Monterey Keys. Other areas are depicted as "Private Open Space" and "Residential C". On the north bank of the Coomera River, the Pennant Holdings lands are shown as "Private Open Space". The village of Tooreneedin (on the north bank of the Coomera River opposite Sanctuary Cove) is shown as "Residential A" and there are strips of "Rural B" land with the balance being shown as "Rural C" land. A revised Town Planning Scheme was published in the Government Gazette on 7th February, 1976, the significance of which is that "Tourist Facilities", formerly a prohibited use of "Rural C" land, became a consent use. In November, 1977, new subdivision of land by-laws provided that the minimum area of any proposed lot in any proposed subdivision of "Rural C" land is 20 hectares. A review of the 1973 Strategic Plan and the Town Plan (as revised) began in 1981 but before proceeding with this evidence I should return to the events which were taking place with Coomera on the governmental side.
In the period between the commissioning of the 1974 Report and the approval of the report, the owners of Coomera Island had pressed the Council in terms of the validity or otherwise of the 1968 approval in principle. In 1975, the owners objected to the proposal to rezone the freehold "Rural C" contending that the land should have been included in the "Village" zone. The objection was unsuccessful. Following numerous approaches by the owners to government departments, ministers and the Parliamentary Commissioner claiming that the 1974 Report placed constraints on the development of land owned or leased by the company or its subsidiaries, Cabinet decided that the Committee should be reconvened to consider these objections. A submission was put to the Committee by the owners and a report was subsequently submitted to Cabinet in 1977 by the then Premier. Paragraph 7 of the submission to Cabinet reads as follows:
"7.In summary the reconvened Working Committee considers that:
(a)The report has had no effect on the Company's applications for various approvals to develop;
(b)No amendments to the Report in terms of the Company's request are warranted;
(c)The Company's existing proposals and its modified proposals for high density residential development on about 2000 hectares in the area are inconsistent with Albert Shire Council policies, its Town Plan and with the objective handed to the original Working Committee by Cabinet that the area should be used 'as far as practicable and desirable for recreation and kindred purposes'.
(d)The original Report does establish and reconcile Albert Shire Council's Town Plan and policies (which predated the establishment of the original Committee) with the requirement of Government Departments whose responsibilities embrace the area.
(e)Statutory procedures are already established with respect to the applications for approval to develop. The developer must start by applying to the Local Authority. "
Cabinet decided that no further action was required in regard to matters covered by the submission.
Under amendments made to the Local Government Act in 1980, strategic plans were given the force of law.
The 1982 Strategic Plan was formally incorporated into the Town Planning Scheme which was gazetted in 1982. This plan with amendments including an amendment made in 1986 was in force at the date of resumption. In clause 5.6.2 of his report, Mr Humphreys says:
"Under the Strategic Plan Coomera Island, as indeed are all of the Broadwater islands, is designated entirely as 'Open Space - public, private, conservation, flood land'. There is a clear distinction between the designation of the islands and the adjoining areas of the mainland and Hope Island. While the latter primarily incorporate the Open Space designation along the shoreline, they also comprise extensive adjoining areas designated as Rural C, Rural B and Rural A as well as identifying locations for Villages, Tourist Facilities, a District or Local Commercial Centre and Waterfront Industries. The Plan also shows a developed road network on the mainland areas, including the bridge link between Hope Island and Paradise Point. "
Under the Town Plan gazetted at the same time, the subject land is zoned "Rural C". Mr Humphreys rightly points out in his report that in general terms there is some overlap between "Open Space" and "Rural C" designations in the Strategic Plan. In that part of the Plan reciting rural area objectives, the part dealing with "Rural C" land reads:
"The 'Rural C' area is primarily a conservation area because of topography, future water supply requirements, cane land, floodable land or areas of agricultural or open space significance......."
Under the heading "Open Space Objectives", clause 8(d), reads as follows:
"(i)To the east of the developed corridor the Broadwater and associated islands form a very large open space and public recreation area which is highly attractive to both local people and tourists for all forms of boating activity. The significance of the area is that it is only accessible by boat, and apart from mainland access, is intended to be kept this way.
(ii)The area is mostly in public ownership and has always intended to be conserved for public uses. To serve public needs, limited tourist facilities have been approved but none of the islands are intended to be used for residential or urban type use.
(iii)Because the waterways are fairly well protected from weather and are all close to the mainland it is intended that marina and accommodation facilities be located on the mainland. There is no need to have such facilities on the islands apart from what is already approved at Tipplers Passage and Couran Point. In this way the attractiveness of the area can be maintained for the general public. It is not intended that development occur on other privately owned land in the area.
(iv)Control of the waters and islands is vested in various Government Authorities who have policies consistent with the overall policy of the Council to conserve the area. The Government has looked at the possibility of declaring part of the area a National Park, so that public use can be strictly controlled.
(v)Connected with the Broadwater are the floodplains of the Coomera River, the Albert River, Saltwater Creek and Coombabah Creek. These are proposed to be retained either as open space or Rural C because of the flooding problems. It is not intended that these areas be reclaimed for residential or urban use except where marina facilities are required. These river and flood plain systems provide significant open space breaks in the urban corridor and in some cases interconnect with other open space proposals. "
A comparison between the first and last paragraphs of the clause is relevant and significant.
The 1986 amendment to the Strategic Plan covered the Coomera-Hope Island area. The amendment did not affect the intent of the Strategic Plan for the subject land or the Broadwater Islands but there were significant changes in intent for the Hope Island area. By this time of course Sanctuary Cove had received approval for development in July, 1984, subject to a development agreement regarding provision of services and subsequently covered by the Sanctuary Cove Resort Act of 1985 which was assented to on 18th November, 1985. In discussing this amendment, Mr Humphreys says:
"The supporting information prepared in association with the amendment identified the reasons for the amendment as:
(1)The population growth in the Shire had exceeded the projections of the 1982 Plan.
(2)The proposed Brisbane-Gold Coast railway had created pressures for development along the corridor, with the provision of a station at Coomera suggesting the need for urban development to make the most efficient use of the rail system.
(3)Council's approval of two major resort schemes on Hope Island, ie. Sanctuary Cove Stages 1 and 2, was to result in water supply and sewerage infrastructure being made available to the area, rendering other land capable of being serviced.
(4)There was continued demand for waterfront living and the area's proximity to the Broadwater, and flood land of no environmental significance which was capable of reclamation, made it suitable for canal or lake development.
(5)The State Government's decision to construct the Hope Island Bridge linking the area directly with Paradise Point and the Gold Coast would make the area much more attractive for urban and tourist development.
(6)Earlier applications for development in the area had been refused mainly because of a lack of services.
(7)In a similar manner to the way the existing extractive uses operated as lakes separate from the waterways, useful extractive industry could occur in the area as a by-product of land reclamation for canal and lake developments.
(8)The only remaining productive rural land uses in the area included two dairy farms on Hope Island and an isolated area of sugar cane near Coomera.
(9)The amendment would remove anomalies between the 1982 Plan designation and the actual land use in the area. For example, a large area near Boykambil was designated as 'Rural C' but subdivided largely as 'Rural A'.
(10)The amendment would enable Council to deal with the large number of residential and resort development proposals before them in a co-ordinated manner. "
Further on he says:
"Despite this change of intent for the mainland and Hope Island areas near Coomera Island, however, statements within the supporting information for the amendment reinforce Council's different attitude toward the Broadwater islands:
'... Sanctuary Cove is considered to be an ideal foreshore use, because it provides both mainland accommodation and recreation at the edge of the major island network.
The Strategic Plan has always proposed that development be retained on the mainland, and the islands stay as open space.
The amendment proposes that other similar resorts could be located along this eastern edge. Some of these areas are flood land, however, these are ideal for recreation uses, with building development being on the high land.
As the building site coverage of these major resorts are only some 30 - 40% they are essentially open space in character. "
A further Strategic Plan was gazetted in March, 1988. This Plan had been on display since April, 1987, subsequent to the issue of the Notices of Intention to Resume the subject land and prior to the resumption of the land. The Plan has no direct relevance other than to show a continuance of the objective to conserve the Broadwater and Islands. This continuance had also remained firm in the eyes of Government. The broad planning base approved by Cabinet in 1970 and supplemented by the 1974 Report had stood firm despite the reconvening of the Committee in 1977. In June 1971, the northern part of the Crown land area of Coomera Island had been included in Fish Habitat Reserve 12. The inclusion was made subject to the expiry of the Special Lease held by the owners of the fee simple. That lease expired on 30th June, 1971. In 1983, reserves which had formerly been gazetted including R12 were replaced and generally expanded to cover the whole of the Broadwater region as defined in the 1974 Report excluding land granted in fee simple and access to those lands - see Appendices A and B. A further reserve covered the bed and banks of Coombabah Creek and Saltwater Creek and another extending into McCoy's Creek and the Pimpama River. These reserves may be declared under s. 51 of the Fisheries Act. Under that section a Wetland Reserve may be revoked by the Governor in Council by Order in Council upon the recommendation of the Minister. A Fish Habitat Reserve shall not be revoked unless notice of the proposal is laid before the Legislative Assembly and approved by resolution on a motion of which not less than 14 days notice has been given. The Act provides that upon revocation the land and waters to which the revocation applies shall become and be a reserve (or part thereof) for departmental purposes and may be dealt with as prescribed by law for the purposes of the proposal. S. 71 of the Act provides for the protection of mangroves and marine plants by forbidding their destruction without a permit issued under the Act. A permit is required regardless of whether the plant is on Crown land or private land. The decision to resume the subject land was made by Cabinet in February, 1987. In the previous year a report entitled "Nature Conservation and Management Planning Strategy Jumpinpin-Broadwater Region" had been prepared by a committee including representatives of the National Parks and Wildlife Service, Department of Primary Industries (Fisheries), the Gold Coast City Council and the Albert Shire Council. The report had been commissioned by the then Minister for Culture, National Parks and Recreation. The report recommended, inter alia,
He acknowledged that Mr Steley had not obtained approval nor complied with any condition required in the 1968 approval in principle. He admitted that prior to purchase no steps or enquiry had been made to the Albert Shire Council in order to obtain the attitude of Council to a development of Coomera and that no enquiries were made to the relevant government departments in order to obtain the attitude of those departments in respect to the wetland and fish habitat reserves and to the possible destruction of mangroves. His opinion regarding the prospects of development of the land at the date of purchase may be taken from this evidence.
Q.Perhaps I meant to ask you this earlier: At the time of the purchase had you formed an opinion about the prospects of development?
A.Yes.
Q.What was your opinion?
A.I had no concern that we were not going to find a resolution with council to development of the freehold lands of Coomera.
Yet no application was made to the Council either before or after the purchase. The only proposal put anywhere was that put to the Premier. This covered the Port Coomera concept. Elsewhere in his evidence it is clear that he realised that a line would have to be drawn somewhere between development and conservation and that he hoped the battle of public opinion would be resolved in his favour, such that Coomera would become the northernmost island to which development attached and Woogoompah the southernmost island for conservation.
The subject land was resumed for Environmental Park purposes. The Report of the Jumpinpin-Broadwater Nature Conservation Study Committee (1986) made the recommendation. Freehold land on Woogoompah, Kangaroo and part of Tabby Tabby Island was included within the recommendation. The purpose stated is that the establishment of these parks would complement adjacent fish habitat reserves and provide overall protection to the estuarine system. The 1974 Report has been set out in great length for a number of reasons - to dispel any doubts that the consideration and planning which went into the Report lacked substance; to indicate that recommendations were not loosely made; to demonstrate the extent and fine detail with which the committee addressed the many issues involved in the overall planning and preservation of the area; to demonstrate an awareness that development pressures would come and to demonstrate a clear recognition that preservation of the area was essential in the public interest. The report did not recommend that the relevant freehold lands be resumed. Rather, it recommended that a passive use be retained - one least likely to interfere with preservation of the Broadwater. The recommendation that the northern area of Coomera Island be immediately declared a fish habitat was implemented before the Special Lease of the Crown land over the island held by Mr Steley's companies had expired. The balance of the Crown land on the island was not reserved until 1983, after the matter had been reconsidered in 1977. This whole process including the intentions expressed in the town planning documents since the beginning of planning had become firmly established at the date negotiations were opened for the purchase of the subject land and some years prior to the 1986 report. The environment sought to be protected has, of course, been in existence since time immemorial.
Under the relevant principles - Pointe Gourde Quarrying and Transport Co. Ltd. v. Sub-Intendent of Crown Lands (1947) A.C. 565 P.C. and Melwood Units Pty Limited v. The Commissioner of Main Roads (1978) 5 Q.L.C.R. 145 P.C., the value of the land resumed cannot be appreciated or depreciated by the project of resumption. The land must therefore be viewed at resumption as a piece of Rural C zoned land situated in the environment in which it was situated at that date with urban growth on the mainland to the west of it and the Broadwater on all other boundaries. The attitude which the Court should take in circumstances analogous to those contained in this case is explained by the Land Appeal Court in D.R. Murphy and Cove House Australia Pty Ltd v. The Crown (1986/87) ll Q.L.C.R. 34; The Crown v. Murphy and Another 64 A.L.J.R. 593 H.C. The environment sensitive to this issue has been under public scrutiny since 1970. The relevant authorities since then have sought to preserve it. Their intentions have been well documented. This environment is separated from the mainland by a stretch of water. The only link of any substance between the Broadwater and the mainland was that contained in the 1973 Strategic Plan when the Broadwater and a strip of mainland running up the Coomera flood plain were put beside each other as a green belt. With time, development pressures came and they came where, it would appear to me, the minds who wrote the 1974 Report thought they would come. Why else would the committee make this recommendation which is taken from the summary of the recommendations?
" Water Front Zone of Restricted Development
1.A belt of land twenty (20) chains back from the mainland coastline in Albert Shire should be retained for water front access purposes and the belt should extend along each bank for some limited distance up the main river systems.
2.Some of this area could be developed for 'Villages' and for water front recreation or tourist industry.
3. Canal development in this belt should be restricted to the areas essential for proper urban development and should be completely compatible with all the principles set down in the Report.
4.Land for the Water Front Zone, except as noted above, should be held in its present state by Rural Zoning.
5.Albert Shire Council should prepare a case for State or Commonwealth assistance to purchase part or whole of the land as the demand requires such action.
6.Large mangrove areas in the belt not at present alienated should become Crown Reserves. "
The desire to retain an esplanade in public ownership has not been achieved and mangrove losses have occurred with the developments which have been approved on the mainland, notably along the banks of Saltwater Creek. These losses and the change in planning intent in respect of the mainland have been identified as reasons supporting the case for the claimants. They form part of the overall consideration which in the circumstances of the subject case must be considered in the light of the attitude which would be taken by a hypothetical prudent purchaser and, secondly, in terms of the attitude taken by the actual purchaser.
With the exception of personal knowledge of the reconvening of the Committee in 1977 and the reasons therefor, all the papers, reports, documents, etc., which were made available to Mr Ward could be expected to have been made available to any prospective purchaser of the subject land. How the hypothetical prudent purchaser would have appraised them is the critical question. Frankly I am satisfied that Mr Ward had a good knowledge of the sensitivity of the area to development. However, he elected not to make formal enquiry as to the prospects of development prior to purchase. An enquiry through formal lines to the Fisheries Branch of the Department of Primary Industries and to the Local Authority would have revealed opposition to both the Port Coomera and the Harbour Quays concepts. Were he to test the political viewpoint, the logical starting point would have been the local Member of Parliament. This enquiry would also have revealed opposition to the proposals. Rather than take that course it is clearly evident that the strategy involved the acquisition of as much freehold land within the Broadwater as could be acquired (including the subject land) and having done that, to mount a campaign in an endeavour to coerce the Government and, through it, the subordinate authorities into submission. This, in my opinion, is a highly speculative course of action and not the one envisaged in the Spencer test (5 C.L.R. 418). An endeavour to justify the end by making play on the 1968 approval in principle; some slight loss of mangrove within and along the foreshore of mainland areas and to fine technicalities between Strategic Plans and Town Plans in respect of approvals given for development on the mainland tends to border on desperation rather than on merit. The opportunity to formally test the attitude of the Local Authority to a proposal of the kind advanced by the claimants was not taken. Had it been taken, I am of the opinion the weight of the evidence would have ruled against approval of the application. The particular strategy employed by the owners leads me to believe that they were of the same opinion. It appears that the sense which should be made of the subject purchase is the sense given to it by Mr Coonan. No reasonable enquiry was made and had it been made, the evidence strongly points to the conclusion that the hypothetical prudent purchaser would give himself no chance of obtaining an approval for development of the land beyond that which the land possessed under its Rural C zoning. I find therefore that no weight can be given to the purchase price of the subject land and it having no foundation, all monies which followed in the employ of the strategy which I am of the opinion was doomed to failure before it began, go down with it. The valuation written by Sir Frank was written without knowledge of the 1974 Report and, in effect, on the premise that the subject land sat upon Hope Island. Had that been the case, the significance of the preservation of the Broadwater would have carried the significance it possessed in giving the approvals given in respect of land on the mainland and his valuation would have had the necessary degree of relativity. His valuation must also be set aside. The only evidence of value remaining which has a foundation of principle and fact is that of Mr Coonan to which must be added the agreed sum of $13,500 for legal and valuation expenses incurred in the preparation and lodgment of the claims.
Accordingly, compensation for the taking of the subject lands is determined in the sum of One Million, Thirteen Thousand and Five Hundred Dollars ($1,013,500). Interest on this sum is ordered to be paid at the rate of 13 percentum per annum from and including the date of resumption up to and including 5th October, 1990 (when an advance of $572,000 was paid) and then on the sum of $441,500 up to and including 8th January, 1991 (when an advance of $428,000 was made) and thereafter on the sum of $13,500 up to and including the day immediately preceding the date that sum is paid.
Member of the Land Court
It is further ordered in the exercise of the Court's discretionary powers that the Claimants pay the Crown's costs of and incidental to this action. The amount of such costs shall be ascertained and fixed by the costs taxing officer of the Supreme Court at Brisbane according to the scale of costs prescribed by law for the time being in respect of proceedings in the Supreme Court and in accordance with the provisions of Section 41(9) of the Land Act 1962-1990.
Member of the Land Court
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