Sicklinger v Queensland Railways
[1994] QLC 52
•29 August 1994
|
BRISBANE
29 AUGUST 1994
Re: Resumption of Land and Easement by Queensland Railways
under the provisions of the Acquisition of Land Act 1967
and the Railways Act 1914.
Determination of Compensation - A93-78
George and Katharina Sicklinger
v.
Queensland Railways
(Hearing at Emerald)
J U D G M E N T
Mr G and Mrs K Sicklinger are the registered proprietors of the grazing and farming property known as "Yan Yan" which is situated about 58 kilometres north-east of Emerald. The "Yan Yan" aggregation includes land described as Lot 4 on Plan
TT377 being Grazing Homestead Freeholding Lease 37/3560, Parish of Cuddesden. At some time in the past Lot 4 had been severed by the Gregory Branch Railway. In 1991 the subject resumptions were effected in connection with a railway spur line which has been constructed off the Gregory Branch Railway to Gordonstone Colliery. The spur line intersects the northern part of the south-western severance of "Yan Yan", diagonally traversing a relatively narrow paddock to Fairhills Road, continuing in a generally westerly direction to the western boundary.
The land required to accommodate the railway was taken by proclamation, as from 30th March, 1991, and comprised a total area of 9.82 hectares, being an area of 4.46 hectares to the east of Fairhills Road and 5.36 hectares to the west. The whole of the resumed land, being mainly undulating open black soil downs, had been cultivated and protected by contour banks.
In addition to the resumption for the spur line, a small rectangular shaped parcel containing an area of 1,230 sq. metres on the western boundary of the Gregory Railway reserve, adjacent to the junction of the Gordonstone spur line, was taken by proclamation as from 18th May, 1991, for a "Track Coupler Unit Site".
For the purpose of providing road access to the Track Coupler Unit Site, an easement was taken over a strip of land from the eastern boundary of Fairhills Road to the railway reserve. The easement encumbers an area of 2,430 sq. metres and was also taken by proclamation as from 18th May, 1991.
The railway reserve extremity of the easement, immediately adjacent to the junction of the railway lines, coincides with an existing occupation crossing, providing a secondary access between the "Yan Yan" severances. The formed Mt Stuart Road is the primary access over the Gregory Railway. It connects with Fairhills Road to the north of the resumed land.
A claim for compensation dated 1st October, 1991, was made on behalf of the registered proprietors, in the amount of $235,350 together with legal and valuation fees. When the matter came on for hearing, leave was sought and granted for the claim to be amended in terms of a valuation report prepared by Mr A.G. Todd, registered valuer. Amounts under certain headings of claim had been agreed prior to the commencement of the hearing and the eventual claim as amended became as follows:Land $4,473
Severance and Injurious Affection
(a) Two New Water Facilities $37,685.34
(b) 4 Bough Shade Shelters $2,000.00
(c) Diminution in Value of Former
Cultivation Land $39,525.00
(d) Additional Property Operating
Costs $52,100.00
(e) New fencing $7,150.00
(f) Contour banks and Erosion Control $3,420.00
(g) Firebreaks $7,800.00
(h) Diminution in Value of land
now required for firebreaks $573.00 $150,253.34
Disturbance
(i) Loss of Stock $3,500.00
(ii) Owners loss of time and expenses
travelling to advisers $1,000.00(iii) Disturbance to Stock $720.00 $5,220.00
Additional Items
Legal Fees $1,425.00
Valuation Fees $7,107.00
Easement
Road access to Coupler Unit $109.00
Injurious affection $500.00 Say $600.00
$169,078.34
Mr Sicklinger gave evidence relative to the effects of the resumption and construction of the railway. He complained that although he was aware of the proclamation of the resumptions he had been given no notice prior to entry for construction. Fencing, which it seems was not on the Fairhills Road boundaries, but within the road reserve, was opened and, according to Mr Sicklinger, not reinstated to its previous stock-proof condition. This he said resulted in stock straying onto the road. Mr Sicklinger said that one steer had been killed and six cows with calves which were reported by a neighbour to have been on the road, went missing. In his opinion the steer and cows were worth at the time $500 per head. Although the property was in drought at the time, he found it necessary to remove cattle from the paddocks affected by the resumption until construction had been completed. Even then promises to properly reinstate fencing were not honoured and he found it necessary to have a length of about 600 metres of fencing replaced.
Mr Sicklinger also complained of excessive clearing having been carried out at the time of construction and produced photographs showing disturbance to surface areas and spoil placed external to the resumed land. He said that use of the original occupation crossing of the Gregory Railway had been denied until a ditch between the existing line and the new spur line was filled and adjacent gravel stockpiles removed. This still had not been completed as at the date of the hearing.
Mr Sicklinger said that the resumed land on either side of Fairhills Road comprised contoured arable land. The paddock between Fairhills Road and the Gregory Railway southerly of Mt Stuart Road was long and narrow and of irregular shape, but the location of the contour banks in that section had allowed effective use of broad-acre agricultural machinery. The resumption severed that paddock into two areas impractical for agricultural use. For grazing use, the southern severance had required the provision of a stock-watering point. The cultivation paddock westerly of Fairhills Road was severed by the resumption and in Mr Sicklinger's opinion, agricultural use of the northern severance was severely limited due to the shape and severance of the existing contour banks. Drainage difficulties were created and the resumption severed the northern area from stock water, necessitating the provision of a further facility.
Mr Sicklinger spoke of the interference to previous management practices caused by the resumption and railway construction. Stock management involved the mustering of the three main paddocks westerly of Fairhills Road on the average four times each year, the cattle being walked in mobs of up to 200 head northerly along a central fence line, then crossing Fairhills Road into Mt Stuart Road which overpassed the Gregory Railway allowing access to a dip and yard facility in the original homestead severance. To continue that practice it was now necessary to move cattle across the occupation crossing provided in the new spur line. Mr Sicklinger felt that it was necessary to construct holding paddocks and laneway fencing to effectively control the movement of cattle, particularly should train movements coincide with droving activities. Mr Sicklinger believed that for each stock movement over the new crossing, an additional flank stockman was required, primarily to ensure that stock did not escape into the railway reserve through the narrow unfenced section within the crossing through which the actual railway passed. He said that it was not practical to alter the droving movements to allow use of the newly constructed overpass in Fairhills Road. Mr Sicklinger's experience suggested to him that cattle would baulk at the change of colour from the gravel surface to the bituminised surface on the new overpass construction. He estimated that the all-up costs of employing an extra casual stockman would be $200 to $220 per day. The additional casual stockman could not be employed other than on a daily basis and provided no benefit to the overall droving operation other than for the assistance in negotiating the crossing.
It had been management practice prior to the construction of the railway to gain vehicular and farm machinery access to the western section of "Yan Yan" along the existing track from opposite Mt Stuart Road. Mr Sicklinger described the loss of time involved in stopping to open and close the two additional gates, and the occasional long delays when the new occupation crossing was blocked by coal trains accessing the Gregory Railway. He also gave evidence as to the time required to protect the rail lines when it was necessary for track machinery to access a railway crossing.
Claimants' Valuation
Valuation advice had been obtained from Mr Todd who then submitted the original claim. His assessment of loss associated with severance and injurious affection was conducted after consultation with Mr Sicklinger. Fifteen matters were identified in Mr Todd's report under the heading "Effects of the Resumption" as follows:
Land:
Resumed - 9.94 hectares @ $450 per hectare $4,473
Mr Todd assessed the total area of resumed land as being contoured agricultural land. He referred to the sale of "Werrina Downs" which he said analysed to show values of $450 per hectare for dry arable land and $200 per hectare for grazing land, as at 12th July, 1991. He also referred to the sale of "Weimby Downs" and "Retro" as at June 1991 showing $400 per hectare for dry arable and $197 per hectare for grazing land.
Severance and Injurious Affection:
(a) Two New Water Facilities $37,685.34
After discussions with representatives of the constructing authority, Mr Sicklinger had proceeded to have two bores (in the severance westerly of Fairhills Road and the southern severance area easterly of Fairhills Road) drilled, tested and equipped with, in one case, an electric pump and tank and in the other a windmill, tank and troughing. Mr Todd assessed the total cost including the present value of an electricity guarantee and non-refundable deposit in the amount of $42,835, but agreement had been reached between the parties prior to commencement of the hearing in the amount now claimed.
(b) Four Bough Shade Shelters at Water Facilities $2,000
It was Mr Todd's contention that, in the absence of natural shade, it was reasonable and in keeping with the claimants' management strategy of retaining natural shade at all stock watering points, for artificial shelters to be provided at the new facilities. Mr Todd envisaged two small structures each of about 50 sq. metres at each facility and felt his estimate of $500 for each of the structures to be representative "of a reasonable contribution" towards the cost which might be expected.
(c) Diminution in Value of former cultivation land $39,525
Mr Todd had estimated the balance area of the cultivation land easterly of Fairhills Road to be 75 hectares, but accepted that the area could be 86 hectares. He also accepted that $200 per hectare was a reasonable valuation of grazing land of this nature had it not been for any injurious affection caused by the intrusion of the railway, or any resultant degradation of pasture through dust or disturbance to stock by movement of rail traffic. In his opinion the deleterious effect on the two severance areas on the eastern side resulted in the value of the 86 hectares reducing from $450 per hectare as dry arable land before the resumption to $150 per hectare as less than optimum quality grazing land after the resumption. He did not see the small watered paddocks as having any particular benefit to the management of the property. His calculation of loss on the amended area easterly of Fairhills Road was 86 hectares at $300 ($450-$150) per hectare being $25,800.
Mr Todd estimated the area of the northern severance westerly of Fairhills Road as being 64 hectares, but accepted it could be 61 hectares. He agreed with Mr Sicklinger's contention that the difficulties associated with shape and the design of the existing older style narrow based contour banks precluded this severance area from having continued highest and best use for grain cropping. At best, Mr Todd saw this land as being suited for cultivation for fodder crops but more likely to be sown to improved pasture. In his opinion, after the resumption its value had halved from $450 per hectare to $225 per hectare. This loss in value was calculated as amounting to 61 hectares at $225 per hectare or $13,725.
The total loss in value of the severance areas then became $39,525.
(d) Additional Property Operating Costs $52,100
Mr Todd accepted that no alternative existed other than to walk the cattle over the new occupation crossing. As I understood his evidence, Mr Todd also allowed for the mustering of the southern severance easterly of Fairhills Road (involving four days per annum) to now access the homestead yards via the existing Gregory Railway crossing. Mr Todd agreed with Mr Sicklinger that crossings of the railway necessitated an additional stockman to control the flanks of the herd.
Mr Todd did not disagree when it was put to him, that the award wage for stockmen was less than $10 per hour, but said that there was little available labour in the district due to the work-force required at the various mines and felt that Mr Sicklinger's stated experience of having to pay $150 per day plus various allowances was what might be expected to obtain an efficient stockman. He had adopted a rate of $25 per hour or $200 for an eight hour day as being a reasonable base for his calculations. He allowed an annual additional mustering cost of 16 days at $200 per day or $3,200 per annum. This sum in perpetuity at 10 per cent interest amounted to $32,000.
Again, after consultation with Mr Sicklinger, Mr Todd calculated that the new occupation crossing would be accessed, on the average, at least three return times a week associated with normal and necessary management of the large western section of "Yan Yan". With consideration to the experience Mr Sicklinger already had with delays from stationary trains, Mr Todd allowed lost time of six minutes for each crossing, involving opening and closing of gates and any waiting time involved. Three return trips per week would involve 312 crossings or a rounded 30 hours per annum. Mr Todd allowed $35 per hour or $1,050 per annum for Mr Sicklinger's lost management time. This perceived loss, in perpetuity at 10 per cent interest, amounted to $10,500. Mr Todd did not see it as practical for access to be gained off Fairhills Road southerly of the new overpass, avoiding the new occupation crossing.
Finally there was the time involved in gaining access over the spur line for track gear machinery (dozers). This required the laying of rubber tyres over the actual railway lines to prevent damage and the cleaning of the lines after access had been gained. Although Mr Sicklinger estimated the unfuelled hire out rate for the station dozer to be $135 per hour and suggested that the rail crossing operation sometimes involved two men, one being the machine operator, Mr Todd decided to allow $50 per hour for the dozer and $30 per hour for labour. Based on loss of time of half an hour for one estimated crossing, on the average, per month, 12 return crossings per annum amounted to 12 hours lost at $80 per hour or $960 per annum. This loss, in perpetuity, at 10 per cent became $9,600.
The total estimated additional property operating costs, in perpetuity, became $52,100 made up of the mustering $32,000, management $10,500 and track machinery access $9,600.
(e) New Fencing $7,150
Mr Todd agreed that holding paddocks were now required at the new and the existing rail crossing, together with one laneway to Fairhills Road from the spur line. Utilising existing fence lines, he allowed for 1,200 metres of new fencing at $3,500 per kilometre, and four new gates at $200 each. This total was shown as $5,050 (should be $5,000).
Mr Sicklinger had replaced 600 metres of Fairhills Road fencing as a result of construction damage. At $3,500 per kilometre this calculated to be a cost of $2,100. The total allowance for new fencing then became $7,150 for the holding paddocks and laneways and the replacement of Fairhills Road fencing.
(f) Contour Banks and Erosion Control $3,420
Mr Todd had originally allowed an amount of $8,875 under this heading to redesign and reconstruct contour banks. The figure was amended based on the agreement which had been reached between the parties prior to the hearing.
(f) Firebreaks $7,800
Mr Todd allowed for the provision and annual maintenance of firebreaks to protect the two small paddocks easterly of Fairhills Road, over a distance on either side of the line of 2.6 kilometres. He allowed for a firebreak 6 metres in width (two grader blade passes) at $300 per kilometre or $780 per annum. No allowance was made for construction and maintenance of breaks westerly of Fairhills Road on the basis that headlands to the cultivation paddocks could be utilised.
The annual allowance of $780 was calculated in perpetuity at 10 per cent to become $7,800.
(h) Depreciation in Value of Land required for Firebreaks $573
The land involved in providing the firebreaks easterly of Fairhills Road was considered to be further depreciated in value from $150 per hectare to $50 per hectare. It seems that in some way to allow also for the width of "over-clearing" the depreciation in value was extended to an area of 2.6 hectares. This area depreciated by $100 per hectare resulted in an allowance of $260 for the eastern severance.
While no firebreak construction was allowed along the railway westerly of Fairhills Road, it was suggested by Mr Todd that a strip 10 metres wide would be cultivated but not planted. This involved an area on the northern side of the line of 2.5 hectares which he reduced in value from $225 per hectare to $100 per hectare, amounting to a loss of $250.
The total loss on either side of Fairhills Road then became $573.
Disturbance:
Mr Todd agreed with Mr Sicklinger's assessment of the value of stock lost due to the ineffective fencing during construction. The steer said to have been killed on the road and the missing six cows with their calves were valued at $500 per head totalling $3,500.
Mr Todd's experience with stock losses during railway construction suggested to him that it was not good enough for the constructing authority to pass responsibility for any compensation payment on to the contractor. He felt that the owner was placed in a "no-win" situation if there was need to deal directly with the contractor particularly if a dispute needed to be litigated. It was Mr Todd's opinion that any loss during construction should be dealt with directly by the constructing authority or alternatively fall within the jurisdiction of the Land Court.
Owners' loss of time and expenses travelling to advisers.
While no records had been kept as to the owners' time actually involved in attending to matters directly resulting from the resumption, Mr Todd suggested the amount of $1,000 as claimed was a nominal sum in recognition of the loss of time and travelling expenses which inevitably occurred. He referred to the many hours Mr Sicklinger had spent with him both on inspections and in consultations regarding the matter of compensation, together with initial on-site discussions with representatives of the constructing authority relative to matters such as the need for watering points.
Disturbance to Stock.
Due to the need to avoid further stock losses, cattle had been moved from the resumption area, during the construction period. Mr Todd allowed for the loss on the basis of the area between Fairhills Road and the Gregory Railway as providing the equivalent agistment for 15 head for the 16 weeks construction period at $3 per head per week. This amounted to $720.
Easement:
Mr Todd saw the area of the easement being effectively destroyed in value and with that section of previous cultivation being valued at $450 per hectare, the loss in land value attributed to the 0.243 hectare encumbrance was $109.
Mr Todd held the opinion that, in addition to the loss of land, the potential disturbance to the paddock external to the track, by the occasional use for access caused a further loss in value. He allowed a "nominal" $500 for the effect on land external to the easement.
A rounded loss of $600 resulted.
Valuation for the Constructing Authority:
Mr M. McDougall, a registered valuer employed by the Department of Lands had prepared a valuation for the purpose of assessment of compensation for the various resumptions. His assessment had been in the amount of $74,300, exclusive of legal and valuation fees. Agreement between the parties on some of the headings of compensation had the effect of increasing the valuation finally placed before the Court, exclusive of fees, to the amount of $85,339.34.
Mr McDougall recognised that apart from the loss of land, the resumption caused loss through the effects of severance, injurious affection and disturbance.
Mr Sicklinger's evidence was that he had not been able to recall having discussed effects of the resumption with Mr McDougall. Mr McDougall produced notes of an interview which he said took place on 10th December, 1991. I have no doubt that Mr McDougall properly sought and considered Mr Sicklinger's opinions prior to completing his initial assessment.
In his valuation of the land, Mr McDougall had regard to four sales being "Langton Downs" as at August 1990, "Werrina Downs" (one of Mr Todd's sales) as at July, 1991, "Mt Feez" as at May 1990 and "Westlake" as at February 1991. Detailed analyses of the sales were provided with his report.
As did Mr Todd, Mr McDougall valued the arable land required for the spur railway resumption (9.82 hectares) at $450 per hectare.
He also held the opinion that the severance of the land easterly of Fairhills Road had the effect of reducing the best use of that land to grazing. The "Mt Feez" and "Westlake" sales showed grazing values of $180 per hectare and $208 per hectare respectively. "Mt Feez" comprised an area of 3,560 hectares of which 2,000 hectares was moderately undulating mountain coolibah, bloodwood and open forest downs, 760 hectares of narrow-leaf ironbark and wattle forest and 800 hectares of unavailable ranges. "Westlake" contained 6,590 hectares of gently undulating mixed scrub, forest and downs. Mr McDougall adopted a grazing value, by direct comparison, of $200 per hectare for the small balance severance areas of the subject land. He made a relatively minor adjustment to $195 per hectare overall to allow for the need to provide firebreaks.
Mr McDougall was of the opinion that the arable land westerly of Fairhills Road retained that potential but recognised that increased working costs would result from shorter runs, the irregular shape of the northern severance area and the lost time in moving machinery across the new railway. He valued the northern severance at $450 per hectare before the resumption, the same as did Mr Todd, but at $300 per hectare after the resumption as opposed to Mr Todd's assessment of $225 per hectare.
Mr McDougall had obtained advice from the Department of Primary Industries relative to the drainage and contour protection necessitated by the resumption. This involved the construction of about 2 kilometres of low earth banks and the levelling of sections of the existing contour banks. An area of about 2 hectares of land would be lost to cultivation as a consequence.
Mr McDougall accepted that the lack of stock-proof fencing during construction would reasonably have necessitated the removal of stock from the paddocks easterly of Fairhills Road. He estimated the carrying capacity of that section to be 18 head of cattle.
He dealt with the slightly later in time "Track Coupler Unit Site" as being loss of land which had already been reduced to grazing value by the earlier railway resumption. While this gave a technically correct slightly lower total loss of land value, than that assessed by Mr Todd, he then fairly allowed a nominal amount of $100. A similar approach was taken with the easement.
In his approach to the additional stock management costs, Mr McDougall, apparently based on his earlier discussions with Mr Sicklinger, decided that there would be 12 return stock crossings of the new railway each year or 24 crossings in
total. As I understood his methodology, he accepted that four stockmen would be required - one more than normal - but assumed that the additional person would be gainfully employed while in attendance at the property. He considered that each crossing would result in each of the four men taking half an hour longer in the trip to and from the yards. Using the State Award casual station-hand rate of pay (as at 21 March 1992) of $9.08 per hour as a base, he adopted $10 an hour for the exercise and calculated that for each crossing the total time lost by the four men would amount to two hours at an all-up cost of $20. The 24 annual crossings would, on his calculations, result in lost time worth $480. Apart from establishing the Award rate of pay, he had satisfied himself by enquiry of an acquaintance who had some experience in the hiring of casual station hands, that $10 per hour was an adequate allowance.
When considering the need for firebreaks, Mr McDougall had discussed the costing with the foreman of the Peak Downs Shire Council. He was informed that grading of firebreaks could be carried out at 8 kilometres an hour at a cost of $105 per hour. Although firebreaks needed to be 6 metres in width, he had been advised that three passes could be necessary. He had therefore allowed the three passes, over a length of 6 kilometres per annum, based on the use of a grader travelling at 8 kilometres an hour and at a cost of $105 an hour. He saw it as relevant when considering the time that would be involved that the land was cleared land which had been used in the past for cultivation.
Mr McDougall's detailed calculations of the assessment of compensation were as follows (amended where agreement had been reached):Part A (Railway Line)
(a)9.82 hectares arable downs
(treated fenced and watered)
@ $450 per hectare $4,419.00
(b) Severance
1. Cost of provision of water
facilities - agreed between
parties $37,685.34
2. Loss in value to retention
areas adjoining eastern
severance
Before 86ha @ $450/ha
arable $38,700.00
After 86ha @ $195/ha
grazing $16,770.00
Loss in value $21,930.00
3. Extra Management Costs - Stock
24 crossings taking ½ hour
each for 4 men @ $10 per
hour in perpetuity at 9.25%100
24 x 0.5 x 4 x $10 x 9.25 $5,189.00
4. Loss in value to the retention
areas adjoining the western
severance
Before 61ha @ $450/ha $27,450
After 61ha @ $300/ha $18,300
Loss in value $9,150.00
Total Severance $73,954.34
(c) Injurious Affection
Construction of 2km of
earthbanks for drain
2km @ $1,500/km $3,000
Allow 4 hours for a D6 to
level existing banks @ $105/hr $420
Agreed between parties $3,420.00
Firebreaks
6km x 3 passes = 18km per annum
2.25 hours (grader at 8km/hr)
@ $105/hr in perpetuity at 9.25%100
2.25 x 105 x 9.25 2,554.00
Total Injurious Affection $5,974.00
(d) Disturbance
Loss of use of paddock for grazing
18 head @ $2 per head per week for 22 weeks $792.00
Total Railway Resumption $85,139.34
Part B (Easement)
0.243ha grazing land (treated, fenced
and watered) - after railway resumption
@ $200/ha = $48.60
Adopt $100.00
Part C (Track Coupler Unit Site)
0.123ha grazing land (treated, fenced
and watered) - after railway resumption
Fairhills Road $200/ha = $24.60
Adopt $100.00
Total Compensation $85,339.34
Other Evidence
In connection with the highest and best use of the northern severance, westerly of Fairhills Road, the respondent constructing authority also called evidence through Mr J.R. Agnew, an extension agronomist employed by the Department of Primary Industries and stationed in Emerald. In his opinion, while the costs of production of grain crops on the severance area would be greater as a result of the railway, the viability of its use for cultivation had not been jeopardised. He agreed that the height of the existing narrow based contour banks was already too low. He said that upgrading and maintenance of the banks would be necessary and then more frequently required particularly if the land was to be cultivated other than parallel to the banks. However he said modern soil conservation practices allowed alternatives to cultivation, such as the retention of stubble and use of herbicides.
Determination of Compensation
In determining compensation I will deal with the various individual headings of claim and give my reasons accordingly.
1. Loss of Land
(a)Railway Corridor
Both valuers assessed the value of the land taken for the railway corridor as being arable land at $450 per hectare, Mr McDougall being specific in assessing that value as "treated, fenced and watered". There is no dispute that the eastern paddock, prior to the resumption, was enclosed with stock-proof fencing, was mainly cleared for cultivation, had a stock-water facility and was capable of use for cropping and subsequent stubble grazing.
The land required for the rail corridor is 9.82 hectares and the award under this heading is $4,419
(b) Track Coupler Unit Site
The resumption of this small area of land occurred subsequent to that for the rail corridor and it is technically correct to consider this land already injuriously affected by the previous resumption. The claimants have not been disadvantaged by Mr McDougall's approach in adopting a nominal value of $100 and his assessment will be awarded accordingly.
(c)Easement
Again, both valuers accept that the gravelling of the road access easement denies alternative usage on that encumbered area. Mr Todd assessed the effect on arable use ($109) and Mr McDougall on the severed grazing use but adopting a nominal value of $100. Mr Todd allowed a further "nominal" $500 for injurious affection to the future grazing use of the severance area due to the perceived disturbance to stock caused by vehicular access. Mr McDougall recognised that at least an all-weather track was available for the owners' use in gaining machinery access from Fairhills Road to the original and extended occupation crossing.
I am not persuaded that the effect of the easement through its potential use, is greater than that assessed by Mr McDougall and I will award his assessment of $100.
Severance and Injurious Affection
(a)Water Facilities
The parties have agreed in the amount of $37,685.34. Compensation in that amount is awarded accordingly.
(b) Provision of Shade
The submission for the claimants is that all permanent water points on "Yan Yan" had natural shade for cattle, that provision of shade near water points was a specific management strategy intended to relieve heat stress and it was reasonable for the claimants to expect that provision of water facilities to dry paddocks with no natural shade should include some artificial shade.
The intention of payment of compensation is to place the owners in no worse a position in monetary terms than existed before the resumption. It seems to me that the cost of provision of water to the two severed areas involved has extended the management options for the use of those areas as part of the total property. While there was a suggestion by counsel for the claimants that the respondent constructing authority had been inclined to take a niggardly approach to the assessment of compensation, it is observed that had this been the case, the respondent might well have given closer attention to the market value of the land affected. A niggardly approach may have been to refuse the provision of water facilities to the severed areas and assess compensation on the relevant loss in land value to those "dry" severance areas, and particularly the southern severance easterly of Fairhills Road.
I do not see the lack of shade in the immediate future as further affecting the market value of the severance areas after the resumption.
No award is made under this heading.
(c) Diminution in Value of "Former" Cultivation Land
(i)East of Fairhills Road.
Although no doubt a matter which was raised when the original severance was caused by the Gregory Railway, both valuers agree that this land, being an elongated "island" paddock of about 90 hectares because of its previous cultivation use, and soil quality, was worth $450 per hectare prior to the present resumption.
Mr Todd valued the severance areas at $150 per hectare as grazing land, injuriously affected by the presence of both the Gregory and the Gordonstone Railways, the rail traffic thereon, then the road traffic, the coal and road dust and general interference to grazing use. His assessment was intended to reflect a value reduced from an unaffected grazing value of $200 per hectare based on the sales evidence he used. Mr McDougall, by direct comparison with his "grazing" sales, assessed the ex-cultivation grazing value at $200 per hectare, adjacent to the railways and road. One of his sales had paddocks adjacent to a railway and a busy road. In his opinion the quality of the land for grazing use would have, on the sales evidence, warranted a higher valuation had it not been for any effects of the railways and road. Mr McDougall's enquiries indicated that the Gordonstone Railway would carry, on the average, three coal trains each week, although initially another three trains were using the loop-line facility until a similar facility was provided at Ensham. Mr McDougall reduced his assessment of $200 per hectare to $195 per hectare to recognise that firebreaks might be considered necessary.
One of the matters which needs to be considered, in my opinion, is the fact that the eastern boundary of Fairhills Road reserve was not fenced on line. It appears that the road carriageway had been protected by stock-proof fencing within the reserve. There was evidence as to the existence of a road licence allowing use of part of the road reserve. It seems to me that Mr McDougall's approach in both the before and after resumption situation was that the land easterly of Fairhills Road was valued as being treated, fenced and watered. Indeed, on a plan provided with Mr McDougall's report, it seems that the actual road carriageways of both Fairhills Road and Mt Stuart Road were not constructed fully within the surveyed reserves but in places encroached onto "Yan Yan" property. The fencing appeared to accommodate the road carriageways rather than the reserve. It seems to me that, prior to the subject resumption, a prudent potential purchaser of "Yan Yan" aware that part of the road reserve was fenced in with "Yan Yan" paddocks and that the actual road carriageway encroached onto parts of "Yan Yan" would have, for all practical purposes, accepted on the basis of reciprocity, that the "Yan Yan" paddocks were indeed fenced although that technically was not the position. After the resumption, the evidence indicates that the eastern paddocks, at least, were not fenced in a stock-proof condition. The evidence is that about 600 metres of fencing was replaced, at the claimants' cost. It is, in any event, the submission of the constructing authority, that because the damaged fencing was entirely within the reserve, it was not the property of the claimants. That argument does not, in my opinion, address the practicality of the situation. An amount of $2,100, on Mr Todd's assessment, was outlaid to reinstate at least these paddocks to a stock-proof condition.
I found Mr McDougall's application of his detailed and specific sales evidence to provide an acceptable assessment of the potential use of the eastern severances on a "treated, fenced and watered basis". However, after the resumption the severances were at least, only partly fenced. I will adopt a valuation of $170 per hectare for these lands after the resumption. This will have no practical effect on the assessment of compensation for the Track Coupler Unit Site, or easement.
The award under this heading will become - 86 hectares @ ($450 - $170) per hectare = $24,080.
(ii) West of Fairhills Road
Both valuers concentrated on the effect of the resumption on the northern severance and again both valued this land, before resumption, at $450 per hectare.
Mr Todd was firm in his opinion that the area, shape and the severance of the contours, precluded economic use of this balance area for grain cropping. At best he saw the land as being capable of cultivation for fodder crops. He reasoned that the land then had a value marginally higher than as pure grazing but its potential for cultivation was so affected as to be worth only 50 per cent of its value prior to the resumption when broad-acre machinery could be used to its best advantage. He suggested that the viability of dry land grain cropping throughout the district had become marginal and depended on the costs of production. Mr Sicklinger was adamant that cultivation of the land for grain cropping was no longer viable.
Both Mr McDougall and Mr Agnew saw it as not uncommon for district farming properties to have some cultivation areas smaller than the subject severance for various reasons, but still effectively worked as cultivation land. Mr McDougall believed that the land was capable of use as before but some of the balance area was lost due to shape, the need for a new drainage design and the provision of firebreaks (on either side of the railway). Mr McDougall valued the severance area of 61 hectares after the resumption at $300 per hectare. While it did not form part of his reported valuation exercise, his evidence was that, before adopting his "after resumption" valuation of $300 per hectare he had given consideration to the various factors which he saw as diminishing the value of the cultivation land. His calculations were tendered. He saw the loss of time in moving farm machinery across the railway between the two severed areas as a matter to be addressed. On the maximum cropping potential he saw the possibility of up to 40 crossings of the line annually for various working operations. He allowed 10 minutes for each crossing at a charge-out rate of $70 per hour, being a cost of about $466 per annum. This annual cost in perpetuity at 9.25 per cent, which he understood was the long-term investment rate at the date of resumption, resulted in a loss of $5,045. He calculated that 3.4 hectares of cultivation was lost due to shape, reducing from $450 per hectare to a nominal balance area value of $100 per hectare. He calculated that about 2 hectares of land was required for drainage works and about 1.5 hectares for firebreaks, this land also reducing in value in his opinion from $450 to $100 per hectare. The total area lost to cultivation was 6.9 hectares resulting in a further loss in value to the severance area of $2,415, totalling $7,460 and equating about $123 per hectare, leaving a residual value of $327 per hectare. While he was criticised for not specifically allowing for the additional working costs and losses in profits through matters such as unavoidable double planting, Mr McDougall felt that by rounding his residual value to $300, any contingent losses would be covered. While he agreed that additional working costs would reduce the viability of cultivating the severance area, he saw his task as endeavouring to assess the practical effect the severance would have on the value of the land in the marketplace. He did not accept that the land would be seen from that point of view as other than cultivation land, albeit of lesser value than before.
The submission for the claimants was that Mr Sicklinger's opinion as to the viability of the land was the only acceptable evidence before the Court.
I am not persuaded that Mr Sicklinger's opinion would reflect a prudent vendor's approach to the highest and best use and consequent market value of that land.
It follows that I have not been convinced by the evidence of either Mr Sicklinger or Mr Todd as to the potential and the resultant value of the severance area.
Mr McDougall's methodology in calculation of the diminished value does not specifically address the effect of working difficulties, but I accept his evidence that in the end result his rounded assessment was intended, as best it could, to allow for all contingencies. It may be that he could realistically have allowed more for the working difficulty contingency, just as his allowance for the time lost in crossing the railway with farm machinery may have been seen as a pessimistic interpretation of a marketplace reaction. I prefer to accept that he has given consideration to a realistic depreciation in value to land which might reasonably be regarded as still suitable for cultivation.
I will adopt Mr McDougall's "after resumption" valuation of the northern severance of 61 hectares. This results in a loss in value of $9,150.
(d) Additional Property Operation Costs
(i)Stock Crossings of the New and Existing Railways
Apparently for the reasons given by Mr Sicklinger as to the difficulty which would be experienced in pushing stock over the new bituminised Fairhills Road overpass, that possible alternative was not seen to be a valuation consideration.
It seems that pre-resumption, the mustering was effected by Mr Sicklinger himself, one permanent employee and one casual contract stockman, but regardless of those involved, by three stockmen, one in the lead, one at the flank and one at the tail. The claimants' assessment is based on the need to employ one extra stockman for each mustering day, to ensure an extra flank protection at the time of crossing the new railway. Under another heading, there is seen to be the need to construct a holding yard, southerly of the railway and west of Fairhills Road, then a fence parallel to an existing fence to create a laneway northerly to Fairhills Road. The main purpose of this holding yard and laneway is to provide stock holding protection should the movement of stock over the crossing coincide with the occasional railway traffic.
As I understand the position, the crossing flanks are permanently protected by some fencing arrangement, except at the narrow section accommodating the actual railway lines. There is no evidence before the Court that any alternative flank protection is possible to temporarily close off that narrow opening during the passage of cattle over the crossing.
Again, as I understand the evidence, a second holding yard is seen by the claimants as being necessary for the safe holding of cattle being driven from the southern severance easterly of Fairhills Road, across the existing occupation crossing, should the movement of rail traffic coincide with the crossing of stock near the junction of the Gregory and Gordonstone lines.
Mr Todd took the view that regardless of the time involvement for an extra stockman, it would be impractical to expect that a casual stockman could be obtained for less than an equivalent eight hour day. Regardless of whether that extra man is gainfully employed for the balance of the day, the claim is assessed on the basis that the actual cost of running the property is increased by every day that an extra man is required.
Mr Todd allowed for four musters of each of four paddocks per year involving 16 days. This included the very small southern severance, east of Fairhills Road.
Mr McDougall accepted that four stockmen would be required to drive the cattle over the crossing, based on the initial conversation he had with Mr Sicklinger. He took that no further other than to estimate that due to the railway crossing the four stockmen would take an additional half an hour to negotiate the crossing. He allowed four musters a year for the three paddocks westerly of Fairhills Road involving 12 crossings each way or 24 crossings of the new railway with the loss of 48 stockman hours per annum. He was aware that mustering was normally carried out by three stockmen, but assumed that the extra stockman would be gainfully employed whilst not required for the rail crossing problem. He did not see the need for the extent of holding yards envisaged by Mr Todd although he suggested that a wing fence and the laneway would assist stock movement. Nevertheless he was not convinced of the need for the additional fencing if four stockmen were involved.
During the hearing, it was submitted by counsel for the claimants that Mr Todd's allowance of an hourly rate of $35 for Mr Sicklinger's or an equivalent manager's lost time (under other headings of claim) was so conservative as to be unrealistic.
As Mr Sicklinger's (or an equivalent manager's) time was of greater value than that of a stockman, then it seems that an extra hand for each day made necessary by the resumption could be put to good use, releasing the manager from the mustering task. While the actual annual costs of running the property would be higher, there would also be theoretical cost efficiencies in the use of the more expensive management time.
On the evidence, it is necessary to accept that the railway resumption will require the services of an extra person for the days involved in crossing the new railway. While it could be that what occurs in practice will differ from the theory involved in considering loss, and it is after all, the effect on the value of "Yan Yan" which is to be assessed, no prudent manager would employ a stockman for a day if his services were not fully utilised. I will theorise that three stockmen could carry out the normal mustering process relieving the manager for other duties on those days except for a period necessary to supervise the rail crossings. I will adopt Mr McDougall's approach, except that the time of only three stockmen will be increased by half an hour and the manager's time lost will be allowed as three-quarters of an hour for each crossing including the use of a vehicle. The theoretical cost of each of the 24 crossings would then be 36 stockman hours per annum and 18 management hours. I will increase Mr McDougall's allowance of $10 per hour to $12.50 for the stockmen's time to include the one permanent hand, including the on-costs and incentives. I will accept the management time as being at a cost of $35 per hour.
I do not accept that, even if the now small paddock east of Fairhills Road and south of the Gordonstone Railway was used at times for intensive stock holding, any additional labour would be employed as a result of the railway crossing. It might be then seen as an alternative for the "difficult" Fairhills Road overpass to be used to access Mt. Stuart Road.
On the theoretical basis on which I have found the need to determine this heading of claim, I will not be providing for the cost of the western holding yard and laneway. Under no circumstances would the proposed eastern holding yard be seen as necessary when the size of the paddock and its carrying capacity are considered.
I will determine compensation under this heading as follows:
24 crossings x 3 stockmen x .5 hour x $12.5 = $450 per annum
24 crossings x manager x .75 hour x $35 = $630 per annum
Total cost of loss of time per annum $1,080
Giving the claimants the benefit of doubt I will a
adopt Mr McDougall's allowance of 9.25% per annum
as the long-term investment rate at the relevant
date.
$1,080 per annum in perpetuity at 9.25% becomes $11,675.(ii)Loss of Management Time in gaining access over railway including waiting time.
I do not see why a practical man, such as is Mr Sicklinger, would not bypass the occupation crossing, use the Fairhills Road overpass and access the southern severance west of the road by a new or alternative route. I accept again Mr McDougall's evidence that an access track would be found over an acceptable route by continual use, without the need for specific construction.
I do not see this claim as having any practical basis. If Mr Sicklinger or indeed any other owner of the property chose to continue to lose the time involved in opening the extra gates and being occasionally delayed by railway traffic, then that seems to be a matter of questionable personal choice.
(iii) Machinery Crossings
The thrust of this heading of claim was directed at the extra time involved in taking track gear (dozers) across the new railway. This involved the lost time in opening and closing gates, laying rubber tyres over the actual railway lines, walking the dozer across, then removing the tyres and cleaning the tracks. The claim is based on 12 crossings per annum, taking the driver half an hour extra per crossing, together with the machine time lost for the same period.
As I understand the evidence, the dozer was previously walked across the existing Gregory Railway occupation crossing when it was required to be used for various clearing and maintenance work westerly of that railway. When the Gordonstone Railway was constructed it became necessary to cross an additional set of lines at the existing crossing. It appears that even this has been denied while a ditch remains between the two sets of lines. Until that crossing is made accessible, and it seems that stockpiled gravel, the siting of which Mr Sicklinger complains of, was intended for this purpose, it has been necessary to access the western section of "Yan Yan" over the new Gordonstone crossing west of Fairhills Road. I assume that the distance is shorter via the original crossing and that route will again be used when the crossing is properly formed.
Mr McDougall allowed nothing under this heading. He felt the claim was too remote. My concern is that the original preferred access already involved a railway crossing, although the alternative Mt Stuart Road overpass but longer route, was available. If the preferred access reverts to the Gregory Railway crossing when it is reinstated to include the Gordonstone Railway, then an extra set of lines would have to be crossed involving some extra time but hardly the half-hour claimed. It is most likely that the access via Mt Stuart Road involves more time, but that is not the basis on which the claim was formulated. There is no evidence before the Court in that regard.
The claim is based on 12 crossings a year. There is evidence that the new crossing was used twice immediately before the hearing but I have formed the opinion that the need for access to the western part of "Yan Yan" with track machinery on the average once a month would be seen in the eyes of those needing to decide the worth of "Yan Yan" as an excessive estimate.
While it is again submitted that Mr Sicklinger was the one witness who was best able to make the estimate of time, the question to be decided is the reduction in value which the market would find.
I do not doubt that inconvenience has been caused by interference to the Gregory occupation crossing and will continue to be caused until that crossing is made effective. When that occurs there will be additional time lost but of a relatively minor nature, in terms of the claim.
I have decided that the short-term and reduced long-term difficulties should be recognised but I am unable to accept that the claim as it is formulated is not excessive. Doing the best I can, I will allow an amount of $1,500 under this heading.
(e) New Fencing
On the basis that I have decided the quantum under item (d)(i) I make no allowance for extra fencing to assist the mustering and protection of stock in the crossing of the railway.
Similarly, as the question of the damage to fencing on Fairhills Road has been considered in item (c)(i) I make no further allowance under this heading.
(f) Contour Banks and Erosion Control
Compensation under this heading of claim has been agreed in the sum of $3,420 and that amount is awarded.
(g) Firebreaks
Mr Todd allowed for the provision and maintenance of firebreaks on the severance areas easterly of Fairhills Road at the rate of $300 per kilometre. He considered that a cultivated headland adjacent to the railway fences on the western side of Fairhills Road would serve as a firebreak if necessary.
Mr McDougall allowed for the provision of firebreaks along the full railway boundaries. Based on the enquiries he had made he allowed for three passes over the 6 kilometres at a cost of $105 an hour for a grader. He was informed that the grader would travel at 8 kilometres an hour and as the land involved was previously cleared and cultivated he accepted that advice as being reasonable.
Mr Sicklinger and Mr Todd believed that such speed was not realistic. Although he was unavailable to give evidence, a letter was obtained during the hearing from a local experienced contractor. He suggested three passes would be impractical as a fourth return journey would be made necessary. His letter contained the advice that "Because of the uncertain nature of the land ie the possible presence of stumps, gullies etc" he would not permit a grader to operate higher than second gear due to the "risk of damage to an expensive machine". He estimated that a "pass of 6 kilometres" being the distance allowed by Mr McDougall would take well in excess of one hour. His advice was that, if a grader was on site at "Yan Yan", he would allow a full 10 hour day to provide firebreaks over a 6 kilometre length. He advised that if a 12 hour shift was required to bring a machine to the site and grade 6 kilometres of firebreaks, with four passes, the job would cost $1,020 at a charge-out rate of $85 per hour. Without the contractor being available to be examined, the only real assistance such tendered evidence has been was to indicate that even under non-cultivation type conditions, Mr Todd's allowance of $300 per kilometre is significantly excessive, even if four passes were necessary and the annual firebreak requirements on "Yan Yan" were limited to the new railway.
I have doubts as to the practicality and the economics of providing firebreaks to the small grazing areas involved easterly of Fairhills Road. It is also questionable whether a grader would be utilised to maintain the firebreaks in the arable land westerly of Fairhills Road.
Whether firebreaks were constructed or not in practice, there is obviously a further risk introduced by the new railway which has the effect of injuriously affecting the balance lands. Mr McDougall's method of calculation of loss has been challenged with good reason although I am not convinced that he has not been generous in the length allowed, the grader cost allowed (based on Shire advice) or the economics of providing firebreaks to the eastern section. While it may not appear so, I am resolving the doubts I have in favour of the claimants and will adopt the amount allowed by Mr McDougall - ie $2,554.
(h) Diminution in Value of Land required for Firebreaks
Allowance was made by Mr McDougall for land required for firebreaks in his assessment of the value of the severance areas ($5 per hectare for the full balance area east of Fairhills Road and $350 per hectare for his calculation of 1.35 hectares required west of the road). I have based my determination under that heading on his valuation of the balance land easterly of the road (before deduction for fencing) and have adopted his valuation for the balance land westerly of the road. No further allowance is seen to be justified.
Disturbance
(i) Loss of Stock During Construction
Section 20 of the Acquisition of Land Act 1967 deals with the assessment of compensation. Subsections (1) and (2) provide as follows:
"(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."
The statutory right to claim compensation was considered by the Land Appeal Court in The Crown v. R.H. & J.M. Corbould (1986-87) 11 Q.L.C.R. 50. While it was found at p.57 that disturbance is not a statutory head of claim, it "has always been regarded as part of the value of the estate or interest of the claimant in the land taken on the date when it was taken: S.20(2) supra". Also at p.57 was the comment, "A justifiable area of compensation does not go wanting for lack of a precise classification and disturbance is often a suitable description." In this matter however it seems that the action complained of did not in the first place take place on the land resumed nor, in the second place could the action of allowing stock to escape on to the road fall within the description of the exercising of a statutory power (s.20(1)(b)).
I agree with the submission of counsel for the respondent that if such loss was occasioned by the actions of the constructing authority and/or the contractor, then that would constitute a tort and the remedy is not within the jurisdiction of this Court.
If as Mr Todd suggests, this particular constructing authority has a history of "wiping its hands" of such claims and instead referring owners to the contractor, then there is cause for complaint and that complaint should be made, if necessary, at the highest level. It is unreasonable that property owners should be required to deal directly with the contractor. It is also unreasonable for an owner suffering loss not to report the circumstances directly to the constructing authority with any available supporting evidence, immediately the loss is known or in this case, suspected.
(ii) Loss of use of paddock during construction period
It is agreed between the parties that the removal of stock from the affected area during the construction period was a prudent management decision and a direct consequence of the constructing authority exercising its statutory powers.
Mr Todd assessed the equivalent agistment at a higher rate, but for a lesser period than did Mr McDougall whose resultant assessment was higher.
Mr McDougall's assessment of $792 is adopted accordingly.
(iii) Owners' loss of time directly resulting from the resumption
I am of the opinion that the owners' time involved in attending to matters associated with resumption procedure is akin to the various administrative requirements attaching to the ownership of property. It is not in my opinion, to be classified in the same category as a direct pecuniary loss.
No award is made under this heading.
Professional Fees Outlaid in Formulation of Claim
(i) Legal Fees
It is observed that the actual claim for compensation was lodged by Mr Todd as agent. The Court was advised that agreement had been reached between the parties as to payment of an amount of $1,425 for legal fees. In the absence of argument as to proof being required, I will award that amount.
(ii) Valuation Fees
It is now well established that a dispossessed owner is entitled to seek professional assistance in the compilation of the claim for compensation and for those fees to be compensable. It is also now well held that fees outlaid subsequent to the lodgment of the claim become costs associated with the Court hearing.
Mr Todd's fees associated with the lodgment of the claim involved an inspection of five hours in March 1991 which had required 644 kilometres of travel by car and 6½ travelling time from his Rockhampton base. The claim for compensation was dated 1st October, 1991.
In March 1994, Mr Todd revisited and reinspected the property, primarily to investigate erosion problems associated with the resumption. This involved a further four hours inspection and travel by car to and from Rockhampton.
The final claim for valuation fees is in the total amount of $7,107 calculated as follows: (Exhibit 13)
Travelling - 1288 kilometres (644 kilometres
each inspection) @ 75 cents per kilometre $966
13 hours travelling time @ $75 an hour $975
$1,941
(Incorrectly shown as) $2,907
Inspections - first - 5 hours
second - 4 hours
Preparation of Valuation
and Report - 12 hours
21 hours @ $200 $4,200
(Should be $6,141) $7,107
Fees are accepted as being based on the scale of fees suggested by the Australian Institute of Valuers and Land Economists. Counsel for the constructing authority does not quibble with the mode or cost of travel or the costs associated with the lodgment of the claim. It is submitted however that the costs involved with the second inspection or preparation for the Land Court hearing are matters which relate to the costs of that hearing.
Counsel for the claimants submitted that the second inspection was necessitated by the uncertainties relative to the erosion problem due to the drought conditions existing at the time of the first inspection. As leave was granted to amend the claim, it was submitted that the second inspection was relevant to the amended claim.
I am unable to agree with the latter submission. A claim was made initially for "erosion control" and the amended claim incorporated matters other than that heading. It is not seen as unrealistic that a second inspection assisted in Mr Todd's preparation for the Land Court hearing and any negotiations which were seen as necessary and relevant to that hearing. The costs involved in that second inspection and preparation for the hearing are clearly separate from the right of the owners to be compensated for professional fees expended in lodgment of the claim.
While it is not clear on the record whether the cost of the report preparation for the hearing is included in the final claim, I will allow the cost of the first inspection, the travelling costs associated with that inspection and the time claimed for the preparation of the valuation and report.
This results in the following award:
Travelling -
644 km @ 75c/km say $485
6½ @ $75/hr say $490 $975
Inspection - 5 hours
Preparation of Valuation and Report 12 hours
17 hours @ $200 per hour $3,400
$4,375
Summary of Compensation Award
Loss of Land - Taken from 30 March 1991 $4,419
Loss of Land - Taken from 18 May 1991 $100
Easement - Taken from 18 May 1991 $100 $4,619.00
Severance and Injurious Affection:
(a) Water Facilities $37,685.34
(b) Provision of Shade Nil
(c) Diminution in Value of Former
Cultivation Land -
- East of Fairhills Road $24,080
- West of Fairhills Road $9,150 $33,230.00
(d) Additional Property Operation Costs
(i) Stock $11,675
(ii) Management other than stock Nil
(iii) Machinery (track) $1,500 $13,175.00
(e) New fencing Nil
(f) Contour banks and erosion control $3,420.00
(g) Firebreaks $2,554.00
(h) Diminution in value of land used for
firebreaks - as separate heading Nil $90,064.34
Disturbance:
(i) Loss of Stock during construction Nil
(ii) Owners' loss of time Nil
(iii) Loss of use of paddock $792.00 $792.00
$95,475.34
Professional Fees:
Legal $1,425.00
Valuation $4,375.00 $5,800.00
$101,275.34
Summary of Final Claim, Constructing Authority's Valuation and Award:
Final Claim - excluding professional fees $160,546.34
- including professional fees $169,078.34
Constructing Authority's Final Valuation
- excluding professional fees $85,339.34
Award - excluding professional fees $95,475.34
- including professional fees $101,275.34
Advances:
The Court was advised that advances were paid as follows:
1. $9,085 - May 1991 (Adopt 31st May)
2. $9,970.82 - May 1992 (Adopt 31st May)
3. $7,589.15 - July 1992 (Adopt 31st July)
Judgment:
Compensation is determined under all headings in the amount of $101,275.34. The Court was advised that legal fees had not been paid to the date of the hearing and no advice was given as to the payment of valuation fees. No interest will be awarded on professional fees.
It is ordered that interest be paid at the rate of 8.75 per cent per annum as follows:
(1)On the amount of $95,275.34 from 30th March, 1991 up to and including 18th May, 1991 which was the date on which the Track Coupler Unit Site and Access Easement were resumed.
(2)On the amount of $95,475.34 from 18th May, 1991 up to and including 31st May 1991.
(3)On the amount of $86,390.34 from 31st May, 1991 up to and including 31st May 1992.
(4)On the amount of $76,419.52 from 31st May, 1992 up to and including 31st July, 1992.
(5)On the amount of $68,830.37 from 31st July 1992 up to and including the date of final payment.
RE WENCK
MEMBER OF THE LAND COURT
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