Skrobar v Chief Executive, Department of Transport
[1995] QLC 94
•1 September 1995
LAND COURT BRISBANE
[1995] QLC 94
1 SEPTEMBER 1995
Re: Claim for Compensation - Acquisition of Land Act 1967 A94-67
Maria Skrobar and the estate of Stefan Skrobar (deceased) and Antun Frlan and Anna Frlan
v
Chief Executive, Department of Transport JUDGMENT
Introduction
The claimants owned land next to the south-western alignment of the Pacific Highway (the "subject land"). In December 1993 the Department of Transport resumed three parcels from that land. The resumed land was needed for road works. The remaining land is in two parcels, separated from each other by the largest parcel of resumed land.
At the start of the hearing, the claimants amended the claim for compensation dated 23 August 1994. They seek the sum of $285,000 in compensation as a consequence of the resumption of the resumed land, together with a sum for disturbance and interest. The respondent says that either $34,000, together with a sum for disturbance and interest, is an appropriate amount of compensation or that compensation ought to be assessed at nil.
The parties agreed that, if an amount of compensation is to be awarded, the award should include the sum of $7,035 for disturbance items, being legal and valuation fees (see Exhibit 25).
The description of the parties has changed a little since the proceedings were initiated by the lodgment in the Land Court Registry of the claim for compensation dated 23 August 1994. The original applicants were Stefan and Maria Skrobar and Antun and Anna Frlan. A copy of the certificate of title of the subject land (Exhibit 13) shows that the Skrobars were joint tenants inter se, the Frlans were joint tenants inter se, and the Skrobars together were tenants in common in equal shares with the Frlans. Mr Skrobar died on 28 August 1994. Mrs Skrobar, as the surviving joint tenant, became the full owner of the Skrobars' half share of the subject land. Mrs Skrobar was also the sole beneficiary and executor of Mr Skrobar's estate (see also Exhibit 5). Consequently, the late Mr Skrobar is not listed as an applicant in these proceedings. By consent, and for an abundance of caution, the estate of Mr Skrobar is retained as a claimant in these
proceedings. At the date of lodgment the respondent was the Director-General of the Department of Transport. The holder of that office is now titled Chief Executive. Accordingly it is appropriate to substitute the title of Chief Executive for the title of the respondent in these proceedings.
At the hearing before the Land Court, the claimants were represented by Mr J Rolls of counsel. Oral evidence was given on their behalf by Mr ND Grummitt (a town planner of Weathered Howe Pty Ltd) and Mr L Hamilton (a valuer of Taylor Byrne). The respondent was represented by Mr R Jones of counsel. Oral evidence was given on the respondent's behalf by Mr M Slater (a valuer), Mr JR Humphreys (a town planner of Brannock Humphreys) and Mr VK Dippelsmann (principal engineer (transport planning) with Queensland Transport, that is, the Department of Transport). On the first day of the hearing, the representatives of the parties and the Land Court inspected the subject land and various other blocks of land. Each party relied on sales evidence about some of those other blocks to support certain valuations of the subject land as at the date of resumption and the remaining land after that date.
The resumption
In a notice dated 14 September 1993 (Exhibit 1), Mr and Mrs Skrobar were advised of the respondent Director-General's intention to resume from the subject land about 1.625 hectares "for a road to be subject to limitation of access". The notice was given under the Acquisition of Land Act 1967 and the Transport Infrastructure (Roads) Act 1991. A letter, also dated 14 September 1993, advised Mr and Mrs Skrobar that the land to be acquired had been identified as "necessary to allow the proposed construction of a road between the northern end of the existing Rifle Range Road and Hotham Creek Road to proceed" (Exhibit 6). Information was given about the scheme of road works.
The Government Gazette dated 17 December 1993 contained a proclamation that the land was taken "for road purposes as from 17 December 1993 and is vested in the Crown" (Exhibit 2). The case proceeded on the basis that 17 December 1993 is the relevant date for determining compensation.
The Government Gazette dated 22 April 1994 contained a proclamation amending the description of the land taken by the respondent to describe three separate parcels having areas of 1.374 hectares, 690 m² and 1913 m² (Exhibit 4). Those parcels have since been used respectively for the Yawalpah Road Interchange and for the realignment of Rifle Range Road, a service road which runs approximately parallel to the Pacific Highway (the "highway"). A single exit lane off the northbound thoroughfare of the highway has been constructed over part of the resumed land, along the frontage of the subject land and the highway. The exit lane connects with a roundabout on the resumed land. The roundabout is fed from Rifle Range Road and
the bridge over the highway. The roundabout and its connecting roads have been constructed in a deep cutting. The surfaces of the unused central part of the resumed land and the adjacent parts of the remaining land are some 4 to 6 metres above the carriageway. Approximately 30,000 - 35,000 cubic metres of fill were removed from the resumed land. The cost of the interchange was in the order of $3 million and the cost of upgrading and resealing Rifle Range Road was in the order of $510,000.
Assessing the amount of compensation payable - the statutory criteria
The Acquisition of Land Act 1967 provides: "Assessment of compensation
20(1) In assessing the compensation to be paid, regard shall in every case be had not only to the value of land taken but also to the damage (if any) caused by either or both of the following, namely -
(a)the severing of the land taken from other land of the claimant;
(b)the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other land.
(2) Compensation shall be assessed according to the value of the estate or interest of the claimant in the land taken on the date when it was taken.
(3) In assessing the compensation to be paid, there shall be taken into consideration, by way of set-off or abatement, any enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom by the carrying out of the works or purpose for which the land is taken.
(4) But in no case shall subsection (3) operate so as to require any payment to be made by the claimant in consideration of such enhancement of value."
To decide what amount of compensation is payable, it is necessary to compare the features of the subject land at the date of resumption and the features of the remaining land, and the potential use of the subject land at the date of resumption and the remaining land after resumption.
The subject land, the resumed land and the remaining land
Subject land: The subject land was Lot 3 on RP 158550 in the County of Ward, Parish of Pimpama. It is located about 50 kilometres south-east of the Brisbane CBD and 13 kilometres south-east from Beenleigh. It is in the Pimpama area where much of the land is bushland, cleared paddocks or vacant land (see Exhibit 11 Figure 3) and the
main development is for acreage rural homesites. Some blocks in the area with exposure to the highway are devoted to commercial uses. Pimpama hamlet or village (which comprises urban residential development, a general store and produce store) is on the opposite side of the highway. A Rifle Range is situated to the south-west of the subject land, across Rifle Range Road.
Electricity and telephone services were the only services available to the subject land at the relevant date. A State primary school is located approximately one kilometre north of the land at Hotham Creek Road (although, before the upgrading of Rifle Range Road, it was necessary to go onto the highway to reach the school and to cross the highway twice when returning from the school). Shopping and business centres are located at Southport to the south and Brisbane to the north.
Immediately before parts of it were resumed, the subject land comprised an irregularly shaped strip of land bordered on its northern side by a road reserve, on its north-eastern side by the highway and on its south-western side by Rifle Range Road (which generally followed the contours of the subject land and ran to the highway). It was, in effect, an island block with the following dimensions:
Area: 11.860 hectares
Pacific Highway frontage: 1,528 metres
Rifle Range Road frontage: 1,570 metresMaximum width at main node: 160 metres Minimum width: 25-30 metres
The subject land varied in width. It broadened from an apex in the southern tip to be approximately 160 metres wide some 480 metres further north. It narrowed again before widening to approximately 90 metres at the place where the bulk of the resumed land was taken. It then narrowed to a truncation off the northern tip.
Plans of the subject land are annexed to the report of each valuer who gave evidence in these proceedings (Exhibit 9 Annexures 4, 5, 7; Exhibit 12 Annexures B-G, I, J). The following location plan showing the subject land is copied from Exhibit 12 Annexure B.
The subject land is undulating, coastal forest ridge with elevated knolls close to the broadest points. At its highest point, south of the resumed land, the land had a height of about 40 metres AHD. That area slopes towards the highway corridor and so is well exposed. Before construction of the roundabout, the elevated resumed land sloped away from the highway, giving it limited exposure to the highway. The surface of the subject land varies from approximately 13 metres above to seven metres below the highway pavement (Exhibit 12 page 6). The land is severed by a number of small gullies. The lowest gully is about 13 metres AHD and is located near the narrowest part of the land. The land is not affected by flooding. Most of the vegetation on the land is regrowth comprising fairly densely clustered slender trunked trees.
The highway is relatively level at the subject land's frontage. It carries four lanes of traffic past the subject land.
The highway has Limited Access status. That status was first conferred in 1965. At the date of resumption, there was no constructed access directly from the subject land to the highway and no such access was permitted because of the highway's status. Highway traffic obtained access to the land by way of Rifle Range Road which had three at grade intersections with the highway at places near the subject land, namely:
.at a place some 1,100 metres south of the subject, opposite the intersection with
the Old Pacific Highway and the Le Mans mini race track;
.at Waverley Drive about 500 metres north of the subject land, opposite the Strawberry Farm; and
.at Hotham Creek Road further north of the Strawberry Farm intersection (see Exhibit 10 Figure 1).
Breaks in the medians at these points allowed access to and from the subject land for southbound and northbound traffic. Given the volume of highway traffic (50,000-55,000 vehicles per day) access to and from the land could be hazardous and subject to delays. The highway now has an unbroken median strip.
The only restriction on access to the subject land from Rifle Range Road was physical and there were options for the location of access points in a number of places along this frontage. At the date of resumption, Rifle Range Road was bitumen sealed to dual width with gravelled shoulders from the Strawberry Farm intersection south to Nambucca Crescent. From Nambucca Crescent south to the Le Mans intersection, Rifle Range Road was gravel surfaced and of basic formation.
At the date of resumption, the subject land was included in the Rural B zone under the Albert Shire Town Planning Scheme of 1988. Apart from land zoned for Special Purposes (Rifle Range, Albert Shire Council), the neighbouring land on both sides of the highway was zoned Rural B (see Exhibit 11 Figure 2, Exhibit 12 Annexure E).
Resumed land: The resumed land comprises three parcels with the following features:
Lot 4 on RP 866579
Area: 1.374 hectares
Shape:Irregular block some 90 metres wide (from Pacific Highway to Rifle Range Road) with curved lines fanning from central portion to frontages to the highway and Rifle Range Road.
Physical features: It includes the second highest knoll on the subject
land (about 34 metres AHD) with some aspect exposure to traffic on both northbound and southbound lanes of the highway. Because the land slopes away from the highway, the extent of exposure is limited.
Lot 5 on RP 866579
Area: 690 m²
Shape: Narrow irregular quadrilateral strip.
Physical features: Average quality land for that district, fronting Rifle
Range Road.
Lot 6 on RP 866579
Area: 1,913 m²
Shape: Narrow triangle
Physical features: Average quality land for that district, fronting Rifle
Range Road.
This triangular portion was at or near to the widest part of the subject land. Removal of the parcel reduced the width of the remaining land from about 160 metres to 150 metres.
Remaining land: The remaining land, Lot 3 on RP 866579, is in two parcels with a total area, by survey, of 10.2229 hectares (Exhibit 9). Those parcels have the following features:
South-eastern severance
Area: 9.521 hectares
Shape:Narrow irregular shape from south to narrow, rounded strip at northern part adjacent to the largest parcel of resumed land, with a frontage of approximately 1,100 metres to the highway.
Physical features: Undulating land in the south rises (with slopes of 15-
25%) to high point at boundary with resumed land.
North-western severance
Area: 7,013 m²
Shape:Irregular oval-like shape, with a frontage of approximately 26 metres to the highway.
Physical features: Highest at its southern end adjacent to the largest
parcel of resumed land, falling away to the north.
A new title has not been issued for the smaller, severed parcel created by the resumption. A vinculum ties it to the other, larger parcel.
Maps showing the areas of resumed land are annexed to the report of each valuer (Exhibit 9 Annexure 7; Exhibit 12 Annexures B, C, D, E). The following plan, showing the resumed land and the remaining land, is copied from Exhibit 12 Annexure
D. The resumed blocks are numbered 4, 5 and 6 on that plan.
At present the remaining land is vacant except for two roadside advertising hoardings erected to face the highway, visible to persons travelling along the northbound traffic lanes (see Exhibit 13). No reliance was placed on the use of advertising signs in determining the highest and best use, or the value, of the land in these proceedings.
Bases of valuation
Each party provided a valuation of the subject land at the date of resumption and a valuation of the remaining land after the resumption.
The claimants submitted that at the date of resumption and upon satisfactory rezoning (most notably "Special Business") the subject land had the potential to have been put to various uses (such as cluster housing, or mixed usage with service station, or tourist related purposes) and that its value was $1,185,000 calculated as follows:
Developable land 7 ha @ $125,000 per hectare = $875,000 Balance land 4.86 ha @ $65,000 per hectare say
$310,000
Total 11.86 ha
$1,185,000
(See Exhibit 9 page 11)
The claimants contended that the remaining land could be used for the same purposes as those for which the subject land had potential before the resumption. As a result of the resumption, however, the scale of the potential use of the land would necessarily be reduced. The highest and best part of the subject land has been effectively removed, and the severance effected by the resumption has meant that the remaining "island" has very little utility and that the utility of the northern end of the larger block of remaining land has been greatly reduced.
In the claimants' submission, the value of the larger parcel of remaining land was reduced by about 10% on a per hectare basis, and was $860,000 calculated as follows:
Developable land 6.02 ha @ $110,000 per hectare say $660,000 Balance land 3.48 ha @ $60,000 per hectare say $200,000
Total 9.50 ha $860,000
(See Exhibit 9 page 12)
The smaller parcel of approximately 7,000 square metres was valued as a rural homesite. Given the need to apply for a new title, the proximity of the parcel to the highway and a major intersection, the lack of services to the parcel and its size and shape, the claimants submitted that the parcel had a value of $50,000 (Exhibit 9 page 12).
Consequently, the total value of the remaining land was said to be $900,000
(although, on their figures, it should be $910,000).
In the claimants' submission, the before and after method of assessing the amount of compensation payable is most appropriate in this case. By that method,
$285,000 ($1,185,000 less $900,000) is payable, plus $7,035 for legal and valuation fees, together with an appropriate sum for interest.
The respondent submitted that, before resumption, the highest and best use of the subject land was for subdivision into three homesite lots (each of approximately 4 hectares) and that the land had a value of $202,000 calculated as follows:
Gross realisation $290,000 Less selling costs $9,950 Net realisation $280,050 Less profit and risk 25% $56,010 $224,040 Less costs $22,074 Total $201,967 Adopt
$202,000
The respondent submitted that, after resumption, the remaining land was suitable for subdivision to three homesite lots (two blocks larger than 4 hectares and one about 7,000m²) and was worth $168,000 calculated as follows:
Gross realisation $242,500
| Less selling costs | $8,763 |
| Net realisation | $233,738 |
| Less profit and risk 25% | $46,748 |
| $186,990 | |
| Less costs | $19,064 |
| Total | $167,926 |
Adopt $168,000
The respondent's valuer, Mr Slater, assessed the value of the two larger blocks at
$95,000 each. He also assessed the smallest block at $52,500, an amount comparable to that nominated by the claimants' valuer, Mr Hamilton.
Consequently, the compensation payable was said to be $34,000, plus $7,035 for legal and valuation fees (Exhibit 12).
In the alternative, the respondent submitted that, if this Court were to accept the claimants' characterisation of the highest and best use of the subject land at the date of resumption, the value of the remaining land has been enhanced by the resumption and works on the resumed land. Consequently, no compensation would be payable by the respondent to the claimants.
It was clear from the outset of the hearing that the decision in this case would be influenced in large part by town planning considerations. Indeed, the valuers expressly relied on reports of town planners in making calculations about the probable value of the subject land at the date of resumption and the remaining land after that date.
The issue of what amount of compensation (if any) is payable can be resolved by answering the following questions:
.What was the highest and best use of the subject land at the date of resumption?
.Was the highest and best use due to the carrying out of the scheme of road works (which included the construction of the interchange on the resumed land) for which the resumed land was compulsorily acquired?
.If the answer to (b) is no, what was the value of the subject land at the date of resumption?
.If the answer to (b) is yes, what was the highest and best use of the subject land at the date of resumption if the scheme of road works is disregarded?
.What was the value of the subject land at the date of resumption, disregarding the influence of the scheme?
. What was the highest and best use of the remaining land after the resumption?
. What was the value of the remaining land after resumption?
. What compensation (if any) is payable by the respondent to the claimants?
Two town planning instruments are relevant to these proceedings. The first is the Albert Shire Town Planning Scheme, published in the Queensland Government Gazette on 19 March 1988 (the "1988 Town Planning Scheme"). It comprised the provisions in the Schedule to the Order in Council, Scheme maps, the Albert Shire Strategic Plan, a Development Control Plan and by-laws made by the Local Authority.
The second instrument is the Albert Shire Draft Town Planning Scheme, dated 29 November 1993 and (in an amended form) gazetted on 24 February 1995 (the "1993 Draft Town Planning Scheme"). It included a Strategic Plan and a Development Control Plan for the Albert Corridor.
The 1993 Draft Town Planning Scheme was on display before the date of resumption. The parties agreed that it would have influenced a prospective purchaser of the subject land at the date of resumption. Although the final form of that document could have been (and was) different from the draft, the issue is what could have been done on the subject land at the relevant date consistently with the town planning instruments, including the 1993 Draft Town Planning Scheme.
1988 Town Planning Scheme
A useful starting point in determining the highest and best use of the subject land at the date of resumption is the zoning of the land at that date and the range of permitted and prohibited uses of land so zoned.
The 1988 Town Planning Scheme provided for 21 zones and "a mechanism for guiding and controlling the distribution, mixing and segregation of the various land
uses." Section 9 provided that each zone was used to "segregate incompatible land uses and to accommodate compatible land uses for identified areas in the town planning scheme area. Uses that may or may not be compatible with the intended predominant land use of the zone depending on the particular circumstances, or which may require restrictions or conditions to ensure compatibility, require the consent of the Council".
The intent of the Rural B zone was:
"to implement the objectives of the Rural areas on the Strategic Plan, and to provide areas wherein dwelling-houses can be erected on small rural allotments for the purpose of rural pursuits, rural living without all normal urban facilities, or rural industries."
The Strategic Plan was expressed to deal "with broad patterns of land use, taking into account the way they relate to the Shire's economy, its transport system, its services, infrastructure, and its physical and social environment". It was intended to perform several functions including:
"(1)Assisting the Council in its consideration of land development
applications;
(2)Indicating to land-owners, developers and other interested parties the objectives of the Council in dealing with land development proposals;
(3)Providing a framework for the co-ordination of the activities of public and private development agencies, in order to promote the achievement of certain desirable community objectives."
The goals of the Strategic Plan were as follows:
"Goal 1 - To promote desirable development in the Shire;
Goal2 - To protect and promote the economic well-being of the Shire;
Goal3 - To promote a pleasant and healthy environment for residents of, and visitors to, the Shire; and in particular, to conserve and enhance positive elements of the Shire's aesthetic character;
Goal4 - To promote quality, convenience and variety in the lifestyle opportunities available to the population;
Goal5 - To promote the efficient provision of services to the population;
Goal6 - To maximise flexibility for land use decision-making in the future, when circumstances and community objectives may have changed."
Together, these goals were "designed to achieve a balance between meeting a
variety of development needs that arise from the high expected growth and conserving the attractive qualities of the Shire which makes it a pleasant place for living and for recreation."
The Strategic Plan identified preferred future dominant land uses within the Shire and set out the intent of each future dominant land use designation. The Strategic Plan map (see Exhibit 29 and Exhibit 11 Figure 4) shows the preferred future dominant land use of the subject land and land to the west as Rural and land to the north-east, on the other side of the highway, as Urban Residential. The intent of each of those land uses was described as follows:
"RURAL. Rural areas are primarily intended for accommodation of
people wishing to live away from urban settlements, on larger parcels of land. These areas are predominantly for hobby farming and rural pursuits; they also include country which is physically difficult to develop, and/or which is relatively remote from urban services, and which therefore is not well suited to higher density residential development. These areas are administered through the provisions of the Rural B zone which provides for an average minimum density of one allotment per four hectares."
"URBAN RESIDENTIAL. Urban Residential areas include existing and future areas of urban housing. It is intended that this housing will be mainly detached on 600-1 000 m² lots, but with limited areas of higher density. The overall urban residential density is intended to be within the range of 20-30 persons per hectare. While residential land use dominates, Urban Residential areas also include non-residential land uses which serve or complement housing areas; these include local and district level shopping centres, educational facilities, parks and open space, kindergartens, and churches. In some cases small commercial and service industry areas, and other minor non-residential development may be included. Tourist development may also be permitted in suitable locations."
Although part of the area designated as Urban Residential was opposite part of the subject land, the highway at the date of resumption provided a significant barrier to traffic crossing from the other area to the area of the subject land. The structure of the highway and the volume of traffic meant that the three at grade intersections were increasingly unsatisfactory as a means of access from side to side. Accordingly, the apparent proximity of the subject land to land designated as having Urban Residential preferred future dominant land use was of less practical significance than might otherwise have been the case.
The Strategic Plan set out in some detail the objectives and criteria for implementation to apply to development in the preferred dominant land use areas. Those objectives and criteria were to be used by the Council as a guide in dealing with applications for rezoning and other town planning matters.
The three objectives for land zoned Rural were:
4(a)to provide opportunities for people wishing to live away from urban centres, and who want to be able to conduct small-scale rural style
activities;
4(b)to provide opportunities for people wishing to live away from urban centres, in a more spacious environment than available in Urban Residential and Rural Residential areas;
4(c)to ensure that the development of Rural areas is consistent with maintaining the desired visual amenity in the Shire.
Objectives 4(b) and 4(c) were to be implemented through or consistently with Objectives 13(b), 13(c) and 13(g), referred to later in these reasons for decision.
Under the "Rural B" zone at the date of resumption the potential uses of the subject land "as of right" were limited to:
Agriculture
Animal husbandry Display homes Domestic animals Dwelling houses Parks Private recreation Stables
Thetypes of permitted development subject to conditions were: Bulk garden supplies
Caretaker's residences
Estate sales offices Family accommodation Public utilities Rural industries Stalls
"By consent" the following uses were permitted:
Catteries Child Care Centres
Fuel depots (in conjunction with rural pursuits) General stores Home occupations Kennels
Lot feeding Milk depots
Piggeries
Places of worship Public recreation Service stations Surgeries Temporary quarries Tourist facilities Veterinary hospitals Veterinary clinics
The following were prohibited development on land zoned Rural B:
Accommodation units Car parks
Car repair stations Caravan parks Catering businesses Cemeteries Commercial premises Duplex dwellings Educational establishments Extractive industries Factory units
Fuel depots (other than in conjunction with rural pursuits)
Funeral parlours Heavy industries Hospitals Hotels
Institutions Junk Yards Light industries Medical centres
Medium industries Motels
Offices
Passenger terminals Professional offices Relocatable home parks Retirement communities Service industries Shops
Showrooms Transport terminals Warehouses Waterfront industries
The general provision of the 1988 Town Planning Scheme concerning amenity stated that "no development shall be undertaken which, in the opinion of the Council would ... by its design, orientation or construction materials, have or be likely to have a detrimental effect on the amenity of the area or adjoining development" (section 26). There were specific restrictions on the site coverage and use of Rural zoned land, including a prohibition on the construction of buildings (other than dwelling houses) more than two storeys or 7.5 metres in height (see sections 56-63).
Other provisions of the Strategic Plan which are relevant to this case include those relating to transport and the Shire Image.
The implementation of the objective to provide an efficient road network within the Shire included upgrading of the highway and its linkages to other roads. "Access will be controlled at properly planned interchanges and ribbon development with direct access will not be permitted. Council will continue to liaise with the Main Roads Department to ensure that the arterial road needs of the Shire are met" (Objective 12 (a)(ii)).
The part of the Strategic Plan dealing with Shire Image commenced with the following statement:
"The Shire is characterized by a range of urban and rural lifestyles, the
retention of large areas of open space and natural vegetation, and conservation of the rural hinterland and the Broadwater Islands.
Urban and rural development has been designated in selected areas so as to maintain a balance between urban and non-urban/open space land uses." (section 13)
Objective 13(a) was to identify the more important parts of the Shire which make up the
Shire Image. It expressly referred to "elements of more significance" than the built environment, including "landscaping and development setbacks along the Pacific Highway". As noted earlier in these reasons, the implementation of Rural Objectives 4(b) and 4(c) was expressed to be consistent with Objectives 13(b), 13(c) and 13(g). Objective 13(b) was to "conserve some Open Space or landscaped character along the Pacific Highway between Beenleigh and Nerang". That objective was to be implemented by reference to the following paragraphs:
" (i) Where development is proposed adjacent to the highway, the
design shall include some Open Space, recreation areas or landscaped buffers adjacent to the highway. The extent and width of such areas shall be determined by Council, taking into consideration the area of the land, its aspect to the highway, and the provision of buffers within the highway reservation.
It is intended that some treed areas be retained or established along the highway to enhance the image of development visible from the highway. Also, setting development back will lessen the effect of highway noise, and improve amenity.
The provision of Open Space or buffer areas shall be determined prior to or at the rezoning stage.
To assist in dealing with development applications the Council may prepare a Development Control Plan for Highway Development, such plan would fix the location and extent of Open Space and buffers to the highway;
(ii)In some locations along the highway, highway-orientated development including tourist facilities, service stations and take- away food outlets may be desirable. The extent of the uses will be limited to minimise ribbon commercial or ribbon industrial development along the highway and should be located in nodes adjacent to the main highway interchanges;
(iii)Development shall be setback from the highway and landscaped buffer areas shall be provided so that in the opinion of Council the development is not detrimental to the amenity of the area. The Council shall determine the extent and width of buffer areas, taking into consideration the area of the land, its aspect to the highway and the provision of buffers within the highway reservation. Council will also consider the Main Roads Department requirements in conjunction with development proposals. Where direct highway access is approved this should preferably be on the basis that in the long-term there shall be no direct highway access, and all access is from service roads."
Objective 13(g) was to "conserve and enhance the Shire Image". It was to be implemented by evaluating development proposals in areas identified as having "high visual quality, recreational value or conservation value" in terms of two criteria. The first criterion was whether the proposed development would detract from the desirable
image of the Shire, particularly as conveyed by the primary development theme for the Shire and the slogan "Green behind the Gold". The second was whether the proposed development would enhance the image of the Shire by improvement of the appearance of "built" areas of the Shire, by conservation of "green areas" and by maintaining a balance between the two general types of character of the Shire.
Objective 13(c), which is not directly relevant to the subject land, was to retain the skyline and upper slopes of the foothills and the hinterland ranges predominantly in their natural states.
1993 Draft Town Planning Scheme
The 1993 Draft Town Planning Scheme proposed that rural A, B and C zones be replaced by a common Rural Zone, and it nominated various types of permitted and prohibited development for land in the Rural zone.
The intent of the Rural Zone was stated in the following terms:
"6.1.1.1 The Rural Zone includes land for which the planning intent covers a wide range of strategies, which have in common that they intend that the land remain in a rural, natural and/or low density form of development. Among other things, the intent of this zone is to implement the objectives relating to the Rural Agriculture and Rural/Conservation areas on Map 5 of the Strategic Plan, and also certain Shire Image objectives; to provide for conservation of the cane areas of the Shire, the rural hinterland, the coastal flood land and other areas of agricultural or open space significance; to provide for a buffer zone between conflicting land uses; to restrict the amount of non-rural activities that may be conducted in rural areas, in conjunction with Section 16, to moderate the subdivision of rural land, in some cases so as to conserve future planning options; and to provide areas wherein dwelling-houses can be erected on small rural allotments for the purpose of rural pursuits, rural living without all normal urban facilities, or rural industries ...".
The types of development on the subject land which would not require the consent of the Council were:
Agriculture
Animal husbandry Domestic animals Dwelling houses Parks
The types of development on the subject land which would not require the consent of the Council but which would be subject to conditions were:
Caretaker's residences
Display homes Estate sales offices Family accommodation Private recreation Public Utility
Stables (for up to five horses)
The types of development on the subject land which could be undertaken only with the consent of the Council were:
Aquaculture Bed & breakfasts Bulk garden supplies Catteries
Fuel depots (in conjunction with rural pursuits) General stores Home occupations Kennels
Minor tourist facilities Public recreation Retail Nursery
Rural industries Special uses
Stables (for more than five Stalls Surgeries
Temporary quarries
The forms of development which were prohibited were:
Car parks Car repairs stations Caravan parks Catering businesses Cemeteries Child care centres
Commercial premises Duplex dwellings Educational establishments Extractive industries Factory units
Fuel depots (other than in conjunction with rural pursuits)
Funeral parlours Heavy industries Hospitals Institutions Light industries Lot feeding
...
Medical centres Medium industries Milk depot
Offices
Passenger terminals Piggeries
Places of worship Professional offices Relocatable home parks Retirement communities Salvage yards
Service stations Shops Showrooms
Transport terminals Veterinary clinics Veterinary hospitals Warehouses Waterfront industries
Development for any other purposes.
A comparison of the various permitted uses under the 1988 Town Planning Scheme and the 1993 Draft Town Planning Scheme shows that the lists of "as of right" uses and permitted uses were similar in each document, although the later document made more uses subject to conditions or consent. The later document also had a more extensive list of prohibited uses, some of which had previously been permitted with consent (child care centres, lot feeding, milk depots, piggeries, places of worship, service stations, veterinary clinics and veterinary hospitals). Indeed, the impression created by each of the categories of uses listed in the later document is that, under the new town planning scheme, there would be more restrictions on the range of possible developments on the subject land than previously.
Two particular differences merit comment in this case, given the possible uses of the subject land suggested by the claimants. First, "service stations", which were a permitted use by consent in the 1988 Town Planning Scheme, were listed as prohibited development in the 1993 Draft Town Planning Scheme. Second, although "tourist facilities" were listed as a consent use in the 1988 Town Planning Scheme, only "minor tourist facilities" were a consent use in the 1993 Draft Town Planning Scheme. By inference, other tourist facilities came within the "Development for any other purposes" description in the list of prohibited developments. "Tourist facilities" were defined in the former document as any premises used or intended for use primarily for the purpose of providing recreation, entertainment or attractions for the general touring public and included accommodation or eating facilities for tourists as an ancillary use. The term
"minor tourist facilities" was given a more limited definition and expressly excluded a shop, catering business, public recreation, accommodation units, hotel or motel.
The draft Strategic Plan, referred to in the statement of intent of the Rural zone, aimed to:
"achieve a balance between meeting a variety of community and
development needs that arise from high expected growth, and conserving the environmental values and qualities of the Shire which make it a pleasant place for living and which are also important for ecological, recreational and economic reasons." (Section 1.2)
The Shire Image objectives in the draft Strategic Plan were substantially the same as in the 1988 Town Planning Scheme. Shire Image Objective 1 was to "identify, maintain and enhance elements which constitute and contribute to Shire Image". Among the implementation criteria was an intention that "conditions of development will ensure retention and enhancement of elements contributing to Shire Image and local character, including development density, landscaping and provisions of open space areas". Among the "important image elements" were those related to the non-urban environment and open space areas, including "landscaping and development setbacks along the Pacific Highway". Development applications would be evaluated "in terms of landscape character and its significance and local contribution to Shire Image, and likely impacts on or enhancement of Shire Image", and development would take into account "the natural features of the land such that it is consistent with landform, vegetation and landscape character".
Shire Image Objective 2 was to "conserve significant Open Space or landscape character in appropriate areas" along the highway (including the area in which the subject land is located) "to protect the visual qualities of the driving experience and to act as a buffer". Development adjacent to the highway was to be designed to include setbacks, some Open Space, recreation areas or landscaped buffers adjacent to the reservations. Setbacks and landscaped buffer areas were to be provided so that "in the opinion of Council the development is not detrimental to the amenity of the area". The extent and width of buffer areas would be determined by reference to various specified matters.
Other implementation criteria were in almost identical terms to those criteria, quoted earlier in these reasons, for implementing Shire Objective 13(b) of the 1988 Strategic Plan. In addition it was stated that the "Albert Corridor Development Control Plan will assist Council in dealing with development applications fronting" the highway, and that "it is intended to retain, and over time enhance, riverine strips and natural corridors of trees, especially at points of highway and major road crossings".
The draft Strategic Plan placed the subject land in the centre of a district where the preferred dominant land use is designated to be Urban Residential (see Exhibit 11 Figure 4). The intent of that designation was stated in the following terms:
"Urban Residential areas include existing and future areas of urban
housing. It is intended that this housing will be mainly detached, but with
limited areas of other higher density housing. The overall urban residential density is intended to be within the range of 10-15 dwellings per hectare. While residential land use dominates, Urban Residential areas also include non-residential land uses which serve or complement housing areas; these include local and district level shopping centres, educational facilities, parks and open space, kindergartens, and churches. In some cases small commercial and service industry areas, and other minor non-residential development may be included. Tourist development may also be permitted in suitable locations." (section 1.4.4.1.)
Urban Residential Objective 1 and its criteria for implementation are relevant to the subject land. The objective is:
"To promote a high standard of amenity in residential areas; in particular,
to promote the qualities of quiet, safety, visual attractiveness, privacy, and clean air."
Among the criteria for implementation is the following paragraph:
"viiSome land included in Urban Residential areas on the Map is not well suited to residential use, and has a high value for open space. These lands include, ... remnant bushland ... . Areas acquired primarily as visual open space may also form the basis of functional recreational corridors. These corridors may serve a variety of purposes, including horse-riding, bushwalking, cycleways, and as the basis for a connected urban park system. Corridors can also provide a habitat link for indigenous flora and fauna species through natural and rehabilitated bushland. Council may not always seek to acquire such land in public ownership, provided that there is some alternative means of protecting the conservation values of the area, for example through appropriate design or development conditions on a consent permit including landscape and or conservation easements, or through inclusion in the Public or Private Open Space zones. In such situations, however, public access way through the land may be sought as a condition of development, in order to maintain the continuity or opportunity for continuity of a recreational corridor...".
The claimants pointed to other Urban Residential objectives including "To establish distinct urban communities so as to promote residential choice and identity" (Objective 6), with the Pimpama/Ormeau area being designated as an urban community with a mix of housing types and densities and a rural setting, and "To provide for the commercial needs for the Shire not catered for in shopping and business centres" (Objective 13). Considered in the context of the 1993 Draft Town Planning Scheme alone, those and various other objectives or components of their implementation appear to have had potential application to the subject land. For example, provision was made for small-scale service industry and commercial areas or tourist facilities to be allowed in some situations and subject to certain criteria (1.4.4.2
(ii) and (iii), 1.4.4.11, 1.4.4.14). New residential development would not be permitted, however, without reticulated water supply and sewerage. The market would determine
whether particular new urban development proposals are economically viable and it would be a condition of rezoning that services be provided by the developer (1.4.4.3 (i), see also 1.4.4.15). It was also recognised that some land was not well suited to residential use but had high value for open space (1.4.4.2 (viii) and 1.4.4.3 (i)), and that development of Urban Residential areas must take place consistently with appropriate environmental management goals (1.4.4.15).
The designation of the area around and including the subject land as Urban Residential cannot be read in the context only of the 1993 Draft Town Planning Scheme. It must be considered also in light of the draft Development Control Plan for the Albert Corridor (the "Draft Albert Corridor DCP").
The Draft Albert Corridor DCP described itself as forming part of the 1993 Draft Town Planning Scheme, which was said to be "the principal forward planning instrument for the Shire" dealing with "broad patterns of land use". The Draft Albert Corridor DCP "builds on" criteria in the draft Strategic Plan by "providing the fundamental principles and guidelines for area-specific urban development within the framework established by the Strategic Plan". It was to provide a "basis for Council's ongoing assessment and determination of development applications, for land within the DCP area" (section 1.5.4).
Many of the objectives listed in section 2.2 referred to the provision of an adequate transport network and to development at or around public transport, in particular the bus and rail network. One of the Shire Image objectives was to "conserve significant open space or landscape character in appropriate areas along the Pacific Highway" (section 2.2.8). Various environmental objectives and open space and landscape objectives were also set out (section 2.2.9 and 2.2.10).
For the purposes of the Draft Albert Corridor DCP, the Corridor was divided into seven sectors, including Coomera and Pacific Highway Corridor. Each sector had specific objectives and development guidelines. Those provisions were to apply in addition to Predominant Land Use provisions (Section Four) and the Planning and Design Guidelines (Section Five). Sectoral controls within the main population sectors were aimed primarily at promoting community self-sufficiency (in terms of retail, commercial, community entertainment and employment facilities and services) and public transport viability. The Pacific Highway alignment and immediately adjoining areas were treated as planning sectors in which "the creation of suitable visual, land use and environmental control is important" (section 3.1).
The subject land is situated in the Coomera Sector of the area covered by the Draft Albert Corridor DCP. The intent of this sector is that "it will have the largest population of the communities within the DCP area, providing regional-level (ie DCP area-wide) commercial, retail and community uses in addition to meeting the needs of local residents" (section 3.2.1).
The Draft Albert Corridor DCP provides for the Coomera Sector that the proposed Town Centre will accommodate most of the retail floor area required in the
sector with the balance areas distributed in the proposed neighbourhood centres. The Town Centre will also be the location of the regional facilities, a district hospital and district health care facilities, schools and a range of other community facilities (such as community centre, neighbourhood centre, youth centre, cultural facilities, library, child care, senior citizens club, meeting hall, cinemas/entertainment, emergency accommodation and emergency services). Neighbourhood centres will also include neighbourhood health centres. Open space (for playing fields, parks, and ancillary and demand spaces) will be required in the sector. In considering any application for development or rezoning, Council shall take into account whether the proposal contributes in a "logical and rational manner" to the ultimate provision of services and uses outlined in the relevant part of the Draft Albert Shire DCP. Council "will in general favour development applications which comply with the planning and urban design criteria contained in Sections Four and Five" of the Draft Albert Corridor DCP in their architectural and landscape designs (section 3.2.2).
Because of its frontage to the highway, however, the subject land is also within the Pacific Highway Corridor Sector. For the purposes of the Draft Albert Corridor DCP, the Pacific Highway is identified as a "visual entity" which extends for 100 metres either side of the highway reservation. That entity would include most if not all of the subject land. It is intended to protect the highway sector as a visual unit, and "ensure clear functional and visual linkages with adjacent key areas" such as Town Centres and major open space/environmental areas. "The exclusion of inappropriate or incompatible uses is important to achieve this intent." (section 3.6.1)
Development within the visual corridor "must comply with the following sectoral objectives":
"1.to ensure that roadside development does not detract from the
sequence of experience and views along the Pacific Highway and Eastern Corridor and that the impression of orderly, attractive nodes of development is conveyed;
2.to preserve and protect the rural and natural amenity of the sectors and to control the location of and reduce the proliferation of signs within the sectors generally;
3.to ensure, as far as possible, that development is in character with the existing and likely future amenity of the locality;
4.to minimise the individual and cumulative adverse visual impacts of signs." (section 3.6.1)
The provisions governing development setbacks provide that, within 100 metres of a property frontage to the Pacific Highway or a service road, development will only be approved where adequate visual and acoustic buffering is provided, visual amenity is preserved or enhanced and adequate open space is provided. To this end, Council may permit a setback of no less than 30 metres where effective planting, earth mounding and screened acoustic fencing is utilised. Council may dispense with the
setback requirement, however, where this would unduly affect the use of a site by virtue of its size and dimension (on the date at which this Development Control Plan came into force), current and valid approvals, access constraint or site topography (section 3.6.2).
The area covered by the Draft Albert Corridor DCP was divided into a series of preferred dominant land uses. The subject land (and the adjacent Albert Shire Council land and Rifle Range) were designated as Open Space/Buffer. That designation "both acknowledges the existing network of open space within the DCP area and sets the framework for the progressive achievement of an expanded system." Conservation of the area's "key environmental assets" is a "central tenet", and it is intended that buffers be created between new developments and for the highway corridor (section 4.10.1).
Implementation of the goals for open space and buffer areas was set out in the following terms:
"1.Open space and buffer areas shall be obtained wherever possible
through the development/rezoning process as conditions of approval and, where necessary, through Council acquisition.
2.In any application concerning land abutting ... the Pacific Highway,
... Council shall consider whether or not buffer areas should be required for visual, environmental or flood protection and if so, the appropriate width and form of such buffers. Matters to be taken into account shall include visual amenity, habitat protection, flooding, development impact and landscape significance.
3.Council may, in its assessment of applications for development and/or rezoning of land which contains an area designated as preferred Open Space and Buffer Areas, permit the inclusion of the area of such land in the development site for site calculation purposes where such land is dedicated for Open Space and Buffer Areas in accordance with DCP Map 2.
4.Council may favourably consider proposals for uses only where they do not undermine the intent, value and visual impact of Open Space and Buffer areas by virtue of their low-key and generally non-built nature. Potential uses will be considered on their merits and may include the following or other similar uses where appropriate:
-playing fields
-community meeting halls
-information centre/environmental display
-ablution facilities
-parks (as defined in the Town Plan)
-equestrian centre or horse racing
-golf course
-showground
-rural uses." (Section 4.10.2)
Mr Grummitt observed that specific provisions in the draft document indicating the issues to be considered in the development of areas such as the subject land (visual
amenity, habitat protection, flooding, development impact and landscape significance) were later deleted (Exhibit 7). That deletion does not influence the resolution of the issues in this case.
The requirements relating to vegetation and highway frontage landscaping for the Pacific Highway Corridor stated that within designated Rural and Open Space and Buffer area precincts and setback areas as required by the Draft Albert Corridor DCP, the Council "encourages mass tree planting and other landscape treatments" and tree preservation is stressed (with possible other vegetation protection measures) (section 3.6.3).
Highest and best use of subject land at the date of resumption
Little use has been made of the subject land. Some horses and cattle grazed on it in the past. There was no firm suggestion that it has potential for "agriculture". Indeed it was said that the land has no potential for growing crops or improved pastures suitable for grazing and the land is not suitable for any agricultural or pastoral pursuit (see, for example, Exhibit 7). Although rural uses such as animal husbandry or raising stock would accord with the zoning of the land under both the 1988 Town Planning Scheme and the 1993 Draft Town Planing Scheme, some would involve land clearing which would diminish or remove the existing vegetative buffering.
If agriculture and pastoral uses were not appropriate, what was the highest and best use at the date of resumption?
Highest and best use - The claimants' case
The claimants submit that the highest and best use of the land, both before and after resumption, was for purposes other than those for which the land was (and is) zoned. In particular the claimants submitted that, in light of discussions with the Town Planning officers of the Albert Shire Council, a review of the Strategic Plan and inspection of the adjoining properties, the property had the following potential uses:
. cluster housing based on a density of 16 units per hectare (gross area);
.mixed usage with retail/service station to road frontage with industrial special business to rear; and
. tourist related services integrated with residential accommodation. All these potential uses would require a rezoning (see Exhibit 9 page 8).
The claimants' case is made difficult by a number of factors, namely, the zoning of the subject land at the date of resumption (with the consequent restrictions on the uses to which the land could be put), the failure of a previous application to have the
subject land rezoned, the history of other rezoning applications in the district of the subject land, and the relevant provisions of the 1993 Draft Town Planning Scheme including the Draft Albert Corridor DCP.
Zoning: The zoning and other relevant provisions of the 1988 Town Planning Scheme and the 1993 Draft Town Planning Scheme have been quoted or summarised in the preceding part of these reasons for decision. They need not be repeated. For immediate purposes I merely note that:
.most of the uses of the subject land to which the claimants referred were
prohibited uses under the Rural B zoning and have remained so under the 1993 Draft Town Planning Scheme;
.to the extent that the 1993 Draft Town Planning Scheme would have influenced the Council's decision at the date of resumption, it suggested even more restrictive uses (or conditions on use) of the subject land with its Rural zoning; and
.the provisions of the Draft Albert Corridor DCP, in particular, indicated that it would be difficult (if not impossible) to obtain the rezoning of the subject land necessary to allow developments suggested by the claimants.
Previous rezoning application: In support of their submission, the claimants referred to an application to rezone the land to "Special Business", which was lodged in October 1990 and was considered by the Council in January 1991. Mr Grummitt gave evidence that the rezoning application was made having regard to the 1988 Town Planning Scheme. It is appropriate to consider the application first in light of that document, without reference to the 1993 Draft Town Planning Scheme. The intent of the Special Business zone was:
"to provide for special types of commercial enterprise other than the local
shopping needs of residential areas and communities, and to provide for the commercial needs of tourists and travellers on highways and arterial roads, and for specific business uses." (section 9(10))
Permitted developments in the Special Business zone included catering businesses (such as fast food outlets), commercial premises, medical centres, offices, professional offices, service industries, and showrooms, all of which were prohibited development in the Rural B zone. Consent developments included some that were also consent developments on Rural B land (such as general stores, public recreations, service stations and tourist facilities) and some which were prohibited on Rural B land (such as accommodation units, car repair stations, shops and warehouses). Among the prohibited developments were a number of "as of right" uses on Rural B land, including agriculture, animal husbandry, dwelling houses and stables. A comparison of the intent of Rural B and Special Business zones, and of the permitted and prohibited uses of land in those zones, shows that the change of zoning sought in the application would have permitted land uses significantly different from those permitted on Rural B land. Indeed, in many respects, it could be seen (in terms of section 9 of the 1988 Town
Planning Scheme) to be introducing to the area land uses that were considered "incompatible" with Rural B or Rural Residential land.
The purpose of the application for rezoning was to allow "the construction of highway oriented commercial uses including ancillary retail and catering businesses to be established to take advantage of the convenient and prominent highway access" (Exhibit 16). Although detailed land uses had not been determined at the time of the application, indicative plans showed a business park with internal roads, car parks and buildings (Exhibits 16, 19, 20, 30) with various uses which were prohibited under Rural B zoning. Access to the land was to be by way of Rifle Range Road. An overpass and roundabout with road ramp onto the northbound lane of the highway would be constructed on the northern part of the land. Buildings were to have a maximum height of two storeys. The application asserted that the subject land could not be developed satisfactorily as Rural Residential nor any residential use (and cited highway noise as possibly being "incompatible with rural residential occupation of the land"). Accordingly, it was submitted, a "good argument is therefore possible for a rezoning to a use ancillary or complementary to Urban or Rural Residential uses". The proposed development was said to be "generally compatible with the aims, goals and objectives of the strategic plan" having "low site coverage and considerable landscaped areas" which made it "sympathetic to the rural residential areas promoting and preserving a high standard of amenity and convenience".
The preferred future dominant land use of land immediately to the east of the highway was Urban Residential and the preferred future dominant land use of land to the west of the subject land was Rural Residential. According to Mr Grummitt, the applicant for rezoning recognised that the subject land "potentially could provide a development that would service the general area, both surrounding area as well as traffic that would have access to it via the Pacific Highway and sought to prepare something akin to a business park on the property" (transcript 25, 28). Consistently with the application, he argued that the rezoning would have permitted a range of uses which would be ancillary or complementary to the adjoining Urban and Rural Residential uses (see Exhibit 7). The application was prepared recognising constraints on the use of the subject land by the 1988 Town Planning Scheme, including requirements for buffering and open space and visibility from the highway. It was proposed to utilise the high land at the two knolls for the development and retain existing watercourses as public open space. Approximately 20% site coverage was provided, as was a 10 metres deep landscaped buffer to the highway. About half of the subject land would have been open space, some with additional planting to provide an effective screen to the highway so that the development was not a distraction to passing traffic.
Mr Grummitt suggested that if the Council normally required say 10 percent of a site to be made available as public open space and a developer were to provide substantially more land for that purpose, then the Council could approve a higher than
usual density of development on the remaining land. Thus, if approximately half of the subject land were to become public open space, more intensive development could be permitted on the remaining area.
The zoning chosen was "Special Business" because it provided a high degree of flexibility in the sort of uses to which the land could be put. Had the land been rezoned, the Council would have had substantial control over the nature of any development of the site (see Exhibit 16 page 2).
The Special Business zoning was also sought in light of Objective 13(b)(ii) in the Strategic Plan (quoted earlier) which states:
"In some locations along the highway, highway-oriented development
including tourist facilities, service stations and take-away food outlets may be desirable. The extent of the uses will be limited to minimise ribbon commercial or ribbon industrial development along the highway and should be located in nodes adjacent to the main highway interchanges".
According to Mr Grummitt's report, the subject land could have been "satisfactorily developed" in those ways "without impacting on the visual amenity of the Highway (by the adoption of appropriate buffering and landscaping) whilst providing a transition use between the Pacific Highway and Rural Residential areas to the south and west" (Exhibit 7).
It will be apparent from the preceding paragraphs that, although the rezoning application seemed to contemplate highway-oriented development, the evidence before this Court stressed the screening of that or similar development from the highway.
The rezoning application was considered by the Planning and Development Committee of the Council and then by the Council. Minutes of the Committee's meeting dated 24 January 1991 (Exhibit 14 Annexure B) state, among other things, that:
(a)"The surrounding land is zoned Rural B with Rural dwelling being the dominant
land use" and the "Council's Strategic Plan designates the site as Rural".
(b)"Although the long term aim of the Strategic Plan is for an urban corridor along the highway, the proposal is contrary to the existing short term Rural classification".
(c)There was no current relevant Council Policy or Development Control Plan, "however Council should initiate some planning investigations in this area with respect to road network, water supply and sewerage requirements, highway buffers etc."
(d)There was no reticulated water supply to the site but the applicant proposed to extend the mains from Canowindra (at least 1.5 kilometres north of the subject and on the other side of the highway) and proposed to install a package treatment plant to treat the effluent to a potable standard.
(e)All proposed access was to be from Rifle Range Road (which would have to be upgraded if the development were to proceed) and access to the highway would be "via an interchange at the northern end of the site, Department of Transport (Roads) would require land dedicated for road reserve as part of any development approval".
(f)"Council would require a minimum 15 m buffer to the highway".
(g)"Special Business is an adequate use between a residential area and the highway. The area would provide a suitable distance to attenuate noise from the highway."
(h)"The proposal would result in a loss of rural visual amenity by the loss of a densely treed area" and the loss of these trees "would result in a loss of rural amenity with the increase in noise from the highway".
Seventeen objections were received, some of which appear not to have influenced the recommendation of the Committee. Objection was made on the ground that the proposal would have a detrimental effect on the amenity of the area. With respect to an objection that the proposal would contribute to the process of ribbon development along the highway, the Committee noted that Council Strategic Plan "clearly identifies, as part of the long term strategy, an urban corridor parallel to the highway".
The Planning and Development Committee concluded:
"While the proposal is in keeping with the long term aims of the Strategic Plan, the timing is premature as services are not available to the site."
The Committee recommended that the rezoning application not be approved for the following reasons:
"1. The proposal is contrary to the short term objectives of the Strategic Plan.
2.The proposal is premature as services are not presently available and not planned for this area for several years.
3.Objections have been received which are considered valid on the grounds of amenity."
In a letter to Weathered Howe Pty Ltd (who had lodged the rezoning application for Capital and Coastal) dated 1 February 1991, the Shire Clerk advised that, for the three reasons just quoted, the Council had resolved not to approve the application (Exhibit 16).
The claimants submitted that the reasons for not approving the 1990 rezoning application would not have prevented rezoning at the date of resumption in 1993 and that, hence, the highest and best use of the subject land at the date of resumption was not for rural purposes. Each of the grounds of rejection, it was submitted, could be answered favourably to the claimants by reference to the 1988 Town Planning Scheme, the 1993 Draft Town Planning Scheme and certain changes in circumstances.
With respect to reason 1, Mr Grummitt was unable to say how the short term objectives of a strategic plan are determined. He described a strategic plan as something which designates a long term strategy for an area. Short term objectives are usually provided by an instrument such as a development control plan (see Exhibit 7). The claimants, however, stressed that the Planning and Development Committee
stated that the proposal was in keeping with the long-term aims of the Strategic Plan.
Whatever reason 1 meant (and it may have been no more than a recognition of the current zoning provisions), the 1993 Draft Town Planning Scheme and the Draft Albert Corridor DCP (nearly three years after the rezoning application was lodged with the Council) provided for the designation of the subject land (and nearby land on the other side of Rifle Range Road) to change from Rural to Urban Residential. The subject land, however, remained zoned as Rural and was designated by the Draft Albert Corridor DCP as Open Space Buffer. According to Mr Grummitt, the prospect of a rezoning application would have been enhanced had it been lodged with the Council after the 1993 Draft Town Planning Scheme was released because "Special Business" is considered to be a service function of "Urban Residential".
I disagree with Mr Grummitt's conclusion. As noted earlier, the 1993 Draft Town Planning Scheme suggested an even more restrictive use (or conditions on use) of the subject land with its Rural zoning, and the provisions of the Draft Albert Corridor DCP indicated that it would be difficult (if not impossible) to obtain rezoning of the type necessary to allow developments of the type suggested by the claimants.
With respect to reason 2, the circumstances in 1993 were the same as in 1990. Indeed it appears that in 1993 there were no plans for the provision of water and sewerage services to the area. There was evidence, some of it speculative, concerning the future provision of water and sewerage services to the subject land. The Council's strategy of linking the water supply schemes of the southern and northern part of the Shire was adopted in April 1994 and is being implemented with construction of the link between the Ormeau Town development (to the north of the subject land) and Coomera (to the south). Construction is passing beside the highway and, as was clear at the time of the hearing, will pass the subject land. This part of the program was meant to start in the 1993-94 financial year but commenced in 1994-95 (see Exhibit 11 page 6).
The provision of sewerage is not imminent. The nearest sewerage is at Dreamworld, Coomera (at least 3.5 kilometres south of the subject land). Proposed developments on land between the subject and Dreamworld (at Coomera Woods - on the eastern side of the highway about 0.8 kilometres south-east of the subject land and at the Chinese Cultural Centre on the western side of the highway about 1.3 kilometres south of the subject land) have not commenced. If sewerage were to be provided to those developments it would be closer to, but by no means at, the subject land. There is some question whether a new treatment plant will be constructed in the Jacobs Well area to service Coomera. The Council's proposal for the plant has attracted controversy. No date had been fixed for the provision of a treatment plant in the area nor has its location been decided (Exhibit 11 page 7). It may be that the two new developments will be connected to the Coombabah treatment works. As the two developments have a five to eight years development phase, sewerage might not be to within 800 metres of the subject land for some years. If the Coomera Woods development proceeds first, sewerage from there to the subject would have to cross
under or over the highway (see Exhibit 17). According to Mr Grummitt, lengthy sewerage connections are "not wise" and are "not encouraged" but do exist in the Shire (transcript 35).
Mr Grummitt said that, despite the lack of services, land can be rezoned subject to those services being provided (transcript 36). Passages cited earlier from the 1993 Draft Planning Scheme provide limited support for the proposition that it would be a condition of rezoning that water and sewerage services be provided by the developer. In my view, however, the prospect of the provision of services was effectively the same at the date of resumption as in 1990.
With respect to reason 3, Mr Grummitt described amenity as the "ambience" or "feeling" of the area. In this case the Council had attempted to create a rural, treed or green framework for the transportation corridors (the highway, the railway corridor and the Eastern Corridor) and had required significant vegetative buffering of all developments along the highway to break the vista of buildings from the highway (transcript 39-40, 45). Part of the Strategic Plan quoted earlier in these reasons indicated the significance of landscaping and development setbacks along the highway and the factors that would influence such things as the extent and width of buffer areas. A preferred setback of 30 metres was nominated in the Draft Albert Corridor DCP but that could be increased or decreased depending on characteristics of a site such as its topography, geometry and the nature of the proposed development of the remaining land. For example, it may be possible to provide visual screening of development on land well above the pavement level of the highway by using a much narrower buffer zone.
The claimants suggest that the proposed use of the subject land would provide a good transitional use between the highway and Residential land to the west and could be developed in a form that would retain the major existing vegetation areas in the watercourses through the site as well as provide enhanced landscaped buffering to the highway (Exhibits 7, 8). The effect of such bufffering would necessarily limit the highway exposure of development on the land. It would not address the possible concerns of neighbours resident on land opposite the subject land that the amenity of their properties would be detrimentally affected by commercial development on the subject land, between them and the highway.
Despite strong indications to the contrary, it was Mr Grummitt's opinion that the reservations in 1991 to the rezoning application "could now be considered largely removed" and, were the 1988 Town Planning Scheme still operative, approval for a Special Business Zone over the subject land "would be a reasonable expectation" (Exhibit 8).
Mr Grummitt's report (Exhibit 7) concluded that the Special Business zone would have been appropriate for the subject land under the 1988 Town Planning Scheme and that the development indicated on drawings prepared at the time of the rezoning application (Exhibits 16, 19, 20, 30) was possible. He estimated that, given buffering
and other constraints, about 6.8 hectares would be available for the Special Business Zone (Exhibit 8). Conditions of approval of such a development would have included the upgrading of Rifle Range Road (including kerb and channelling and the provision of a parking lane), connection to external services, payment of appropriate headworks and dedication of park land. The estimated cost of those works was $1,720,000. Mr Grummitt also concluded that, under the 1995 Town Planning Scheme, approvals for the highway oriented uses and the proposed residential developments would have been subject to similar conditions, the total cost of which was estimated to be about
$930,000.
That figure included $137,500 for the upgrading of Rifle Range Road, $10,000 for waterworks, and $194,000 for sewerage connection. In cross-examination, however, Mr Grummitt agreed that a figure of $600,000 was a more accurate estimate of the cost of upgrading Rifle Range Road. That figure accorded with the estimate of
$630,000 made by Mr Dippelsmann. Mr Grummitt also conceded that $150,000 and
$250,000 were more accurate estimates for the cost of waterworks and sewerage connection respectively (see transcript 77-8, 92-3). Those revised figures add some
$658,500 to Mr Grummitt's original estimate, raising it to approximately $1,588,500. Other rezoning applications: Between 1989 and 1991, some other rezoning applications were approved with respect to land in the region of the subject land. Three involved golf course and residential development (Gainsborough Green, Pacific Springs and Cypress Point). At least one of those has been delayed in part, and other developments in the area have not gone ahead (in one case because of difficulties in obtaining agreement for the disposal of sewage) (see Grummitt transcript 37, Exhibit 17). There was evidence about some other approvals with respect to land near to the subject land. That evidence is summarised below.
(a)In May 1989, approval in principle was given to the rezoning of Lot 1 on RP
158550 (including allotments on the other side of the highway from the subject land) from Rural B to Special Facilities zone to facilitate the development of a theme park on land with a preferred dominant land use as Urban Residential. The approval in principle required a formal application to detail how the property was to be sewered, Main Roads Department requirements and a landscaped building setback of 50 metres from the highway (see Exhibit 11 page 5).
(b)In 1992, the Council gave approval for the rezoning of some land just north of the Yawalpah Road/Pacific Highway junction, namely, Lots 15 and 17 on RP 221648 from Rural B zone to part Special Residential (19.4 hectares, including
2.2 hectares of park), part Special Business (2 hectares) and part Local Business (1.2 hectares) zones. It is apparent that the proposed Yawalpah Interchange project was a factor in gaining the approval, and approval was conditional upon reticulated water and sewerage services being provided to the land and with the developer being required to provide and pay for sewerage on site. To date, these approvals have not been acted on, probably because the provision of water and sewerage services is not sufficiently cost effective (see Exhibit 11 pages 5-6, Figure 2).
(c)In September 1990, a large land holding fronting the old Pacific Highway and
Yawalpah Road (to the north-west of Lot 1 on RP 158550) was rezoned to accommodate a single development proposal incorporating residential dwellings, a golf course, health and recreational facilities and public and private open space. The rezoning has not been acted on to date, probably for reasons similar to those referred to in (b) (see Exhibit 11 page 6).
In Mr Humphreys' opinion, rezoning approvals current at the date of resumption "suggest that the rural character and amenity of the area to the north of the subject land, on the opposite side of the highway, will undergo a considerable transformation to more urban uses in the future". That change is in accordance with the Urban Residential preferred future dominant land use designation of the northern land on the current Strategic Plan (Exhibit 11 page 5). The approval of those rezoning applications does not lead inevitably to the conclusion that the subject land would have been rezoned as at the date of resumption. By comparison with land on opposite side of the highway, the subject land has peculiar features. Its shape (determined by the proximity of Rifle Range Road), the absence of an interchange in the immediate vicinity, its topography and the fact that it is all marked as Open Space/Buffer on the Draft Albert Corridor DCP (whereas land on the other side of the highway has a narrower strip, if any, for that purpose) suggest that other factors would have influenced a rezoning application for the subject land.
Evidence about other proposed developments in the district gives no more firm support to the claimants' case. Although applications have been made to develop land about 400 metres to the west of the subject land for residential purposes, one was withdrawn and the other had not been considered by the Council at the date of the hearing of this case (Grummitt transcript 38, Exhibit 17).
The Draft Albert Corridor DCP indicates that, in due course, a neighbourhood centre will be located in the area of urban residential land to the west of the subject land (Exhibit 17, transcript 39). Some suggestions were made about potential uses of the land that might emerge as a consequence of the location in the district of a neighbourhood centre of a type contemplated by the town planning instruments.
The planning instruments indicated that the subject land would not be suitable for a neighbourhood centre. Both Mr Grummitt (transcript 91) and Mr Hamilton (transcript 252) agreed that to be the case, particularly as the land is located on the eastern edge of any residential area in which a neighbourhood centre is likely to be located.
Compensation in Australia, 1991, 489-90). He referred to a number of decisions in support of that principle including Nelungaloo Pty Ltd v The Commonwealth (1948) 75 CLR 495, Melwood Units Pty Ltd v Commissioner of Main Roads (1978) 19 ALR 453,
37 LGRA 387, Parramatta City Council v Gestetner Pty Ltd (1978) 37 LGRA 246, Point
Gourde Quarrying and Transport Limited v Sub-Intendent of Crown Lands [1947] AC
565, Wilson v Liverpool City Council [1971] 1 All ER 628 and Boterhoek v Council of the Shire of Redland (unreported decision of Land Court dated 3 March 1995).
The law in this area is well known and it is not necessary to discuss the cases in detail. As Dixon J stated in Nelungaloo Pty Ltd v The Commonwealth:
"the purpose of compensation is ... to place in the hands of the owner
expropriated the full money equivalent of the thing of which he has been deprived. Compensation prima facie means recompense for loss, and when an owner is to receive compensation for being deprived of real or personal property his pecuniary loss must be ascertained by determining the value to him of the property taken from him. As the object is to find the money equivalent for the loss or, in other words, the pecuniary value to the owner contained in the asset, it cannot be less than the money value into which he might have converted his property had the law not deprived him of it. You do not give him any enhanced value that may attach to his property because it has been compulsorily acquired by the governmental authority for its purposes (Vyricherla Narayana Gajapatiraju v Revenue Divisional Officer, Vizagapatam [1939] AC 302 at 318). Equally you exclude any diminution of value arising from the same cause. The hypothesis upon which the inquiry into value must proceed is that the owner had not been deprived by the exercise of compulsory powers of his ownership and of his consequent rights of disposition existing under the general law at the time of acquisition." ((1947-48) 75 CLR at 571-2)
The principles relating to the effect on valuation for compensation purposes of schemes for the development of land including the land resumed by an authority of the Crown were usefully summarised by Rath J in Parramatta City Council v Gestetner Pty Ltd (1978) 37 LGRA 246, a case concerning the amount of compensation payable by a Council for land acquired for road widening purposes. His Honour stated:
"In the Housing Commission of New South Wales v San Sebastian Pty
Ltd (1978) 37 LGRA 214, Jacobs J (with whom the other judges of the High Court agreed) said that s 124 of the Public Works Act states in statutory form a principle which had been developed in the cases independently of express statutory provision, and he referred to Pointe Gourde Quarrying and Transport Ltd v Sub-Intendent of Crown Lands ([1947] AC 565 at 572). The Pointe Gourde principle was discussed in some detail in Rugby Joint Water Board v Shaw-Fox ([1973] AC 202 at 213, 214, 219, 238, 239, 253, 254). These English cases deal with an increase in value arising from the public works, but the principle is equally applicable to a decrease in value from the same cause: see Woollams v The Minister ((1957) 2 LGRA 339 at 345, 346); Nelungaloo Pty Ltd v The
Commonwealth ((1948) 75 CLR 495 at 538, 571).
What is to be excluded is any advantage (or, equally, any disadvantage) due to the carrying out of the "scheme" for which the land was
compulsorily acquired." ((1978) 37 LGRA at 252-3)
As the Land Appeal Court observed in JR Steven v Commissioner of Water Resources (1990) 13 QLCR 75 at 79, the so called Pointe Gourde principle had its origin in Fraser and Ors v City of Fraserville in which Lord Buckmaster said that in substance the principle is this:
"...the value to be ascertained is the value to the seller of the property in
its actual condition at the time of expropriation with all its existing advantages and with all its possibilities, excluding any advantage due to the carrying out of the scheme for which the property is compulsory acquired, the question of what is the scheme being a question of fact for the arbitrator in each case." ([1917] AC 187 at 194)
The Privy Council reached the same conclusion in Melwood Units Pty Ltd v Commissioner of Main Roads, a case involving the Acquisition of Land Act 1967, where their Lordships stated:
"Under the Point Gourde principle the landowner cannot claim compensation to the extent to which the value was enhanced by the very scheme of which the resumption forms an integral part: that principle, in their Lordships' opinion operates also in reverse." ((1978) 19 ALR 453 at 457, 37 LGRA 387 at 392)
It is clear that, in determining the value of the subject land at the date of resumption, the Court must disregard the effect of the scheme of roadworks on the value of the land.
In each case where the principle applies, or may apply, it is critical to determine what is the scheme. The passage in Parramatta City Council v Gestetner Pty Ltd just quoted continues:
"The question of what is the scheme is a question of fact to be decided in each case: Fraser v City of Fraserville ([1917] AC 187 at 194), cited in Rugby Joint Water Board v Shaw-Fox ([1973] AC 202 at 239, 240). In the last mentioned case Lord Simon of Glaisdale said that 'scheme', when used in the authorities in this branch of the law, extends to matters arising before, though connected with, the compulsory purchase. In the Housing Commission of New South Wales v San Sebastian Pty Ltd ((1978) 37 LGRA 214) Jacobs J said:
`Section 124 refers to the establishment of public works. These words are in my opinion wide enough to cover the whole subject matter of the establishment of the particular public work - proposal or requirement by the relevant authority, intention of the planning authority by such a zoning to induce the establishment of the public work, even urging by outside bodies that the public work should be established.'
This view of the meaning `establishment of public work' may in my opinion be properly extended to the scheme underlying an acquisition of land under the Public Roads Act, 1902. On the facts of this case, the proposal in the draft planning scheme for the widening of Barrack Lane is to be ignored to the extent that it has altered the value of the resumed land. It accordingly will follow that the land for the purposes of this case is to be valued in accordance with its zoning ...". ((l978) 37 LGRA at 253)
Evidence was given and submissions were made on behalf of the claimants to the effect that the scheme had been known for a long time before the resumption and that it would be unrealistic and unfair to disregard the scheme and its influence in determining the value of the subject land. That approach, however, flies in the face of the authorities just cited and the decision in Wilson v Liverpool City Council where the Lord Denning MR (with whom Widgery and Magaw LJJ agreed) stated:
"A scheme is a progressive thing. It starts vague and known to few. It
becomes more precise and better known as time goes on. Eventually it becomes precise and definite, and known to all. Correspondingly, its impact has a progressive effect on values. At first it has little effect because it is so vague and uncertain. As it becomes more precise and better known, so its impact increases until it has an important effect. It is this increase, whether big or small, which is to be disregarded as at the time when the value is to be assessed." ([1971] 1 All ER 628 at 634)
The unfairness (if any) to a landowner from the application of the legal principle is a matter which cannot influence the result. In that respect, the recent decision in Boterhoek v Council of the Shire of Redland is a case in point. The President of the Land Court dealt with a claim for compensation for 75 m² of land taken under the Acquisition of Land Act 1967 for road purposes. The works were part of a scheme for upgrading roads in the area including the provision of a roundabout on land adjacent to the claimants' corner block. In the conclusion of his judgment the learned President noted that the claimant's valuer had conceded that the whole scheme had enhanced the area to some degree but had failed to appreciate why the enhancement should be used as a set off against any claim possessed by the claimants when other land owners with no land resumed for the purposes reap the benefit of the scheme at no cost. The President concluded that, although "the argument identifies a degree of inequality in these circumstances, which is not new, the law requires the Court to proceed on the principles stated."
The claimants also relied on the decision of the High Court in Albany v Commonwealth (1976) 12 ALR 201 in arguing against the respondent's approach to the relevance of the roadworks scheme in ascertaining the value of the subject land. Albany involved the acquisition by the Commonwealth of an area of 32 square miles east of Darwin for the planned development and control of the city and its adjacent areas. The Court held that, in determining the true value of the land acquired, a distinction should be drawn between the likelihood of the Commonwealth acquiring the land for the future expansion of Darwin (a factor to be disregarded) and the likelihood of the Commonwealth recognising the need for the future expansion of Darwin and
consequently planning that expansion and thereafter imposing land use controls designed to facilitate rather than to restrict urban expansion. While disregarding the fact that development would be by way of acquisition, it was proper to have regard to the possible or probable place of the land in planned urban expansion (see 209-10, 217).
Mr Rolls submitted that, before any enhancement is disregarded, any enhancement to the value of the subject land must be causally related to the roadworks scheme. In his submission, the subject land was clearly identified in town planning documents as being in the Coomera sector, an area of greatest growth in the urban corridor between Brisbane and the Gold Coast. It was right for development and the provision of services (electricity, water, sewerage, better roads) would be contemplated. A distinction must be drawn between value ascribed to the land due to the planning and provision over time of infrastructure and value ascribed because of the scheme. He further argued that the claimants are entitled to assume that the subject land will be part of the planned expansion and the upgrading of facilities in the Brisbane to Gold Coast urban corridor. The fact that land may be resumed is to be disregarded and the fact that the scheme which causes that is to be disregarded. The fact that the increase in services is available or pending (within 8 years) is a relevant factor which affects the value of the property. That is different from enhancement due to the scheme (ie closing at grade intersections and constructing an interchange). The scheme adds very little value to the remaining land. It decreased the size of the subject land, and took the most readily developable part of the property. The subject land previously had access to and from the highway. Development of the land may not have required a highway oriented use, and the claimants argue that the land could be used to serve the growing areas to the west of the subject land, which would be satisfied by the existence of the service road. Consequently, the provision of the scheme did not necessarily enhance the value of the remaining land when its location and town planning issues are considered.
The submission made in reliance on Albany v Commonwealth must fail. The claimants did not establish that, irrespective of the roadworks scheme, the highest and best use of the subject land was for the range of commercial or related purposes. To the extent that such suggested use or uses would have benefited from or relied on highway traffic and exposure, an interchange on or near the subject land would have been necessary. The scheme provided that interchange. The claimants' evidence showed that the scheme for an interchange was a factor influencing their suggestions for the highest and best use of the land. The scheme should have been disregarded.
Given the imprecision and uncertainty of the potential uses advanced by the claimants, it is not possible to say the extent to which the scheme would have influenced the value of the subject land ascertained by reference to those uses. If the land were to be used exclusively for providing service to people to the west of the land, then that part of the scheme comprising the interchange may confer little, if any, benefit on the remaining land.
Indeed, as Mr Rolls submitted, the question of any enhancement from the development on the resumed land was not an all or nothing matter. It could only be determined by reference to what use is made of the land ultimately. It may benefit some form of highway oriented development where access to and from the highway is essential. But, in the circumstances prevailing at the time of the hearing, that has not been established either.
Highest and best use of the remaining land after resumption
There was some debate about the difference in area of land potentially available for development before and after resumption. The claimants submitted, in reliance on a report prepared by Weathered Howe, that, having regard to flooding constraints and buffering requirements, the area of the subject land available for the Special Business Zone would have been 7.0 hectares (Exhibit 9 page 9). In one report Mr Grummitt said that, given the flooding constraints and buffering requirements to the highway, the area of land available for the Special Business zone would be approximately 6.8 hectares (Exhibit 8 page 1). Estimates varied as to the area of developable land in the larger parcel of the remaining land. Figures put included 6.4 hectares (Exhibit 9 page 9) and
6.02 hectares (Exhibit 9 page 12). The respondent's representatives suggested that there may be 7 hectares of developable land on the remaining land.
Mr Grummitt considered that the remaining land contains two areas which, exclusive of buffering and open space considerations, could be used for possible development. The first area comprises two parcels - about 7,000 square metres on the northern side of the interchange and about 7,000 square metres on the southern side of the interchange between the highway exit ramp and Rifle Range Road. The latter parcel is constrained by the need to provide an open space corridor along the existing adjacent watercourse. The second area is about 3.6 hectares, located approximately 600 metres south of the interchange. That area would enable the preservation of existing vegetation along the creek areas and provide significant highway buffering (Exhibit 7, transcript 49).
Mr Grummitt's evidence was that:
.the northern end of the larger parcel of remaining land at the interchange may be subject to highway oriented development, consistently with the reference in the town planning instruments to highway uses (including tourist facilities, service stations and takeaway food outlets) at nodes or interchanges; and
.the southern end may be used for residential purposes and possibly to provide services (such as service stations, fast food, business oriented show rooms, medical and sporting facilities), in a way appropriate to the zoning and proposed uses of land on the western side of Rifle Range Road (Exhibit 7).
Mr Grummitt suggested that, given the topography of the 3.6 hectares, a
reasonable density of 30 units per hectare would allow significant vegetation to be preserved while providing a medium density development of some 100 units in keeping with the character and topography of the area (Exhibit 7). Any services and facilities provided on the land would be auxiliary to and would complement the neighbourhood centre proposed for the residential area to the west of the land, although proximity to the highway interchanges may allow a wider range of facilities to be provided on the remaining land (transcript 54, Exhibit 8 page 3).
Mr Grummitt recognised the time constraints that would apply to development on the remaining land, assuming such development were to be permitted. In particular, he estimated that:
.given the embryonic stage of residential development in the immediate area, residential development might not take place on the remaining land for five to eight years;
.if the Council approves a rezoning application for an area west of the remaining land and urban residential development on that land begins in two or three years time, and if the elevated southern part of the remaining land were to be developed for residential uses, then that development on the subject land might also commence in two or three years time; and
.highway oriented uses adjacent to the exit ramp could be established immediately, given that the major road infrastructure for the area is in place (Exhibit 8).
In the letter dated 14 September 1993 to the owners of the property (Exhibit 6), the Department of Transport stated that the following benefits would be achieved by the roadworks:
.elimination of median openings and crossovers at Hotham Creek Road,
Pimpama Jacobs Well/Rifle Range Road and Old Pacific Highway/Old Coach Road;
.provision of safe access to the highway and connection between developments on both sides of the highway, and in particular linking residential areas to local schools without mixing with highway traffic;
.accommodation of increasing traffic volumes on the highway and adjacent residential areas with provision for future development;
.closure of the last remaining uncontrolled median opening on the highway between Brisbane and the Gold Coast.
Mr Humphreys suggested that, for the following reasons, the Yawalpah interchange can be viewed as enhancing the remaining land:
.it provides safer and more convenient access onto the highway, thereby allowing
faster access to the centres of Brisbane and the Gold Coast as well as to centres and employment areas emerging in the Albert Corridor;
.it provides for the connection between developments on both sides of the highway via an overpass, thereby allowing safe and convenient access to and from the site between Rifle Range Road and Yawalpah Road;
.it provides convenient access to the remaining land from the southbound lanes of the highway, and from the remaining land to the southbound lanes of the highway;
.it provides access options to various destinations (Willow Vale, Brisbane, the Gold Coast, Rifle Range Road, Yawalpah Road and Pimpama), allowing superior access to and from other districts and facilities located elsewhere along the highway;
.it links residential areas to local schools such as Pimpama State School (to the north of Hotham Creek Road) without mixing highway traffic; and
.it assists in accommodating increased traffic volumes in the locality, both on the highway and in adjacent residential areas where provision has been made for future development.
In summary, the road scheme has allowed safer and more ready access to the land and from the land to northbound and southbound lanes of the highway and to other places in the district. Those benefits would be available to visitors to the district and to residents or users of the remaining land. The extent of those benefits can be ascertained by reference to the less safe, less extensive and less convenient means of access immediately before the roadworks were carried out.
As noted earlier in these reasons, objective 13(b) of the Strategic Plan is to conserve some open space or landscaped character along the highway, particularly between Beenleigh and Nerang. If highway-oriented development (such as tourist facilities, service stations and take-away food outlets) is desirable, such development "should be located in nodes adjacent to the main highway interchanges".
The construction of the interchange and associated roadworks on the resumed land, together with the upgrading of Rifle Range Road in the immediate vicinity of the remaining land, has improved access to and from the remaining land for people in the immediate region of the land, and to people travelling along the highway or across the highway from Pimpama. There was insufficient evidence of firm proposals for development in the neighbouring area to suggest that, at the date of resumption or during the hearing, the remaining land had real potential for the range of uses suggested by the claimants. It may be that in due course the land to the south-west of Rifle Range Road will be developed intensively for residential purposes. It may be that a neighbourhood centre of the type described earlier will be constructed in the residential district. It may be that, separately or in conjunction with such nearby development, sewerage will be available to the remaining land. It may be that, in time, there will be a demand for facilities and services in addition to those available at a neighbourhood centre, and it may be that those other services and facilities for the local community could be provided on parts of the remaining land.
But all of those options are, at present, no more than remote possibilities. The zoning and town planning constraints referred to in detail earlier continue to apply and I am not convinced that after resumption there was an immediate increase in the likelihood of approval being granted for rezoning of the type suggested by the claimants.
Indeed, in letters dated 6 March and 5 April 1995 to Mr Slater (Exhibit 32), an officer of Albert Shire Council noted the current zoning of the remaining land and its designation on the new Strategic Plan and Albert Corridor DCP and concluded that "development of this site for intense use is not appropriate". The letter also stated that, although the area of the smaller parcel of the remaining land is less than the normal area required for rural lots, "Council may consider exercising discretion and approve the relinquishment of that title tie" with the larger parcel of remaining land. That other area "could be subdivided into two (2) Rural lots in accordance with Council's normal procedures".
The ascertainment of the highest and best use of the remaining land is no less problematic than ascertaining the highest and best use of the subject land at the date of resumption. Any potential for commercial development of part of the remaining land would appear to be enhanced by the construction of the road works. As noted earlier, the rezoning application in 1990 expressly contemplated the construction of a roundabout and overpass as part of the proposed development of the land. It is clear from evidence cited earlier that the Department of Transport would have required, as a condition of approval of any such development, that appropriate road works be undertaken. Any developer of the remaining land has been relieved of that obligation.
It may be that, at some future date, the works on the resumed land will provide, in effect, the focus for development of "highway-oriented development including tourist facilities, service stations and take-away food outlets" at a node adjacent to the main highway interchange, as contemplated by the Strategic Plan and the Draft Albert Shire Corridor DCP. If so, it may at some future date be thought in retrospect that the value of the remaining land was enhanced by the works on the resumed land. I am not convinced that, either at the date of resumption nor the date of the hearing, such enhancement was an inevitable consequence of the acquisition and works. The reasons for reaching that conclusion are similar to those supporting the decision about the highest and best use of the subject land at the date of resumption. Apart from the zoning and related issues it is clear that, at the date of resumption and at the date of the hearing, the relevant services were not available to the land. Importantly, there is little if any approved development of neighbouring land which would give rise to a demand for services on the subject land. Furthermore, the benefit which an interchange might otherwise bring to land with exposure to the highway is not as significant here where the planning instruments and the zoning emphasise development which has limited, if any, highway exposure. Conditions involving restrictions on signage, setbacks and vegetative buffers would all deter development of a type which depended on highway
exposure and the attraction of customers from highway. Indeed, as Mr Rolls observed, the emphasis in the claimants' case had shifted from highway oriented proposals to proposals which would have a westward orientation to service the community which may be located in the vicinity of the remaining land. Unless and until such a community exists, or at least consent is given for appropriate development in the area (and, perhaps, the existence of a community/neighbourhood centre is established and the facilities to be provided there are identified), it is difficult to predict with any certainty what practical use can be made of the remaining land other than that which is presently permitted. It must be acknowledged that the potential or actual future uses of the land are not rigidly or definitely determined by the planning instruments. Parts of the instruments are expressed in language which provides guidance but not prescription for those who administer the scheme.
Given the terms of the instruments quoted and cited earlier in these reasons for decision, the resolution of the matter in dispute in this case involves an assessment of the potential use of the subject land and the remaining land in light of all the relevant provisions read together. In other words, the decision is to be made having regard to the impression created by the specific terms of the relevant instruments, the particular features of the land and the evidence given in these proceedings.
Having regard to the evidence and the relevant planning instruments, I find that the highest and best use of the remaining land was for rural residential purposes, that is, for dwelling houses on small rural allotments.
I note that such a conclusion results in a payment of some compensation to the claimants. Had another use been established for the resumed land, it may have been that the land would be so enhanced by the development of the resumed land that no compensation would have been payable.
Value of the subject land at the date of resumption
Given the conclusion about the highest and best use of the subject land at the date of resumption, there is a fairly limited range of evidence relevant to determining the valuation of that land.
First, the claimants placed some reliance on a contract of sale for Lot 3 on RP 158550. The contract was dated May 1990 and was for the purchase of the land by Capital & Coastal Limited from the claimants for $1.6 million. The contract was conditional upon the purchaser obtaining approval from the Albert Shire Council for the land to be rezoned from Rural B to part Light Industry, Special Business within nine months of May 1990 (Exhibit 14). Approval was not forthcoming, there was no sale, and the nominated sale price has no weight in determining the value of either the subject land or the remaining land.
Second, given the conclusion about the highest and best use of the subject land at the date of resumption, it is not necessary to assess in any detail the sales evidence produced by Mr Hamilton and relied on by the claimants. I observe, however, that the evidence was subject to detailed attack, much of which was well aimed. Had it been necessary to determine the value of the land for the purposes suggested by the claimants, the absence of truly comparable sales evidence would have made the task difficult.
The determination of the value of the subject land must be made by reference to evidence called by the respondent. As noted in the discussion of Bases of Valuation earlier in these reasons for decision, the respondent submitted that the highest and best use of the subject land was for subdivision into three homesite lots (each approximately 4 hectares) and that the land had a value of $202,000 calculated as follows:
| Gross realisation | $290,000 |
| Less selling costs | $9,950 |
| Net realisation | $280,050 |
| Less profit and risk 25% | $56,010 |
| $224,040 | |
| Less costs | $22,074 |
| Total | $201,967 |
Adopt $202,000
The three blocks were separately described as having a notional gross realisation of
$110,000, $90,000 and $90,000.
The evidence to support those calculations comprised sales of three comparably sized blocks in the district. Information about the sales was given in Mr Slater's report (Exhibit 12 Annexure M) and plans showing the blocks (Exhibit 33), and was supplemented by the inspection of the properties by the Land Court and the parties' representatives on the first day of the hearing.
The sale sites comprised two blocks at Pimpama and one at Ormeau. The two at Pimpama were sold as vacant Rural B zoned land in March 1992 and February 1993 respectively for $113,000 (3.56 hectares) and $157,000 (3.27 hectares). The 4.918 hectares block in Ormeau sold as vacant Future Urban zoned land in January 1992 for
$90,000. In Mr Slater's opinion, none of the blocks had potential for use other than for residential purposes (at least within the relevant time frame). Although the sale blocks have some features which are different from the subject land, and two of the blocks are in a better residential than rural environment, they provide an adequate if not ideal basis for such calculations. Mr Slater demonstrated his appreciation of the relative differences between the sales properties and between them and the subject land in a notionally subdivided state.
Mr Slater's approach was to hypothetically subdivide the subject land in a way shown diagrammatically in Exhibit 12 Annexure I. He described the features of each
subdivided block including the possible locations of dwelling houses. Mr Slater's calculations were based on the subject land having potential for subdivision. Indeed he stated that if the land lacks that potential it would be worth something less than the total of the three hypothetically subdivided blocks. No challenge was made to the selling costs set out in detail in Annexure K to Mr Slater's report (see transcript page 340). Mr Slater described the 25% profit and risk factor as reasonably reflecting the situation as to the number of lots, relatively low development costs and the less than desirable location and nature of the resulting parcels (Exhibit 12 page 8). He gave oral opinion evidence about that and other matters, explaining that had the land been in a better environment a lower profit and risk rate would have been adopted. He expected, however, that although the subdivision would be straightforward, sale of the blocks could be slow. The highway influence would affect both the sale price and the rate at which sales would be made. No challenge was made to the level of the profit and risk factor. In the circumstances of this case, I accept it as being reasonable.
In the end, I must base my decision on the valuation evidence adduced on behalf of the respondent. That evidence was not seriously challenged nor put in doubt by the claimants' case.
Accordingly, for present purposes, the value of the subject land at the date of resumption is assessed at $202,000.
I note in passing that there was evidence that the unimproved value of the subject land for rating and land tax purposes, effective at 30 June 1993, was assessed at $180,000 (Exhibit 9 page 4). No evidence was given about the basis on which that assessment was made. At best the figure can be seen as a check on the amount reached by another route, where the basis of the calculation was identified. Mr Hamilton suggested that the Valuer-General's valuation was so low because there may have been an inadequate opportunity to fully explore the potential of the site and because the Valuer-General would not have had the benefit of town planning advice. Such speculation is not evidence. As it happens, the evidence in these proceedings leads to an amount much closer to the Valuer-General's figure than the amount for which the claimants contend.
Value of the remaining land
The three possible effects of the resumption were described by Mr Hamilton as being loss of land, severance and disturbance (Exhibit 9 pages 9-10).
The largest parcel of resumed land includes the second highest part of the subject land which enjoyed good exposure to passing highway traffic. Because of its elevation, the resumed parcel was said to be an ideal source of fill for other less elevated portions of the subject land. In the end, no reliance was placed on any separate amount of compensation for loss of fill. There was some dispute about the
economic value of that fill. It is not necessary for me to make any finding about the matter.
The severance has detrimentally affected both parcels of remaining land. Access to the small severed parcel (with an area of about 7,000 m²) is severely limited due to the depth of the cutting along the majority of its boundary. Mr Hamilton stated that the parcel cannot be integrated into any development planned for the large block of remaining land because of the severance, its poor shape, its small area (making it viable for no use other than residential) and access difficulties. The shape of the larger parcel of remaining land has been distorted detrimentally. Near its north-western tip, the land is approximately 50 metres wide (reduced from approximately 90 metres before resumption). The reduction is significant because, in approving development on the land, the Council would require a buffer to the highway of say 20 metres. Such factors may be significant if the land is to be valued for commercial use. Given the conclusion on the highest and best use of the remaining land, those factors have little, if any, significance.
The determination of the value of the remaining land must also be made by reference to evidence called by the respondent. As noted in the discussion of Bases of Valuation earlier in these reasons for decision, the respondent submitted that the highest and best use of the remaining land was for subdivision into three homesite lots (two at approximately 4.5 and 5 hectares and one about 7,000m²) and that the land had a value of $202,000 calculated as follows:
Gross realisation $242,500 Less selling costs $8,763 Net realisation $233,738 Less profit and risk 25% $46,748 $186,990 Less costs $19,064 Total $167,926
Adopt $168,000
The evidence to support those calculations comprised sales of four small residential blocks (for the purpose of calculating the 7,000m² block) and the three larger hectare sites referred to earlier. Information about the sales was given in Mr Slater's report (Exhibit 12 Annexure M) and plans showing the blocks (Exhibit 33), and was supplemented by the inspection of the properties. The four smaller blocks, which ranged in size from 5,244 m² to 8,164m² are located in a housing estate at Pimpama on elevated land separated from the highway by an area of reserve land. They were sold as vacant Rural A zoned land between September 1993 and May 1994 for between
$58,000 (for the largest block) to $95,000 (for one of the smaller blocks). The blocks were selected because they had no higher use than residential and were in close proximity to the highway.
Mr Slater's approach to the after resumption valuation was to hypothetically subdivide the subject land (for diagram see Exhibit 12 Annexure J). He assessed the value of the smallest block of remaining land at $52,000, an amount similar to the
$50,000 value nominated by Mr Hamilton (see transcript 339). He valued each of the notional other, larger subdivided blocks at $95,000. No challenge was made to the selling costs set out in detail in Annexure L to Mr Slater's report (see transcript page 340). Mr Slater's reasons for adopting the 25% profit and risk factor have been discussed and those comments apply equally to this calculation.
Again, there is no reason to reject the valuation evidence adduced on behalf of the respondent. Accordingly, I accept that the value of the resumed land was
$168,000.
Disturbance in terms of legal and valuation fees incurred in formulating the claimants' claim has been quantified by agreement between the parties. No further comment on that item is necessary.
Conclusion and order
The amount of compensation payable is calculated as follows:
| Value of subject land | $202,000 |
| less value of remaining land | $168,000 |
| sub-total | $34,000 |
| plus disturbance items | $7,035 |
| Total | $41,035. |
Compensation payable by the respondent Chief Executive, Department of Transport is determined under all heads of claim in the sum of forty one thousand and thirty five dollars ($41,035). I order the respondent to pay to the claimants interest on the sum of thirty four thousand dollars ($34,000) at the rate of 8.75 % per annum for the period commencing on 17 December 1993 and ending on the date upon which the final payment of compensation is paid.
The claimants' solicitors have advised the Deputy Registrar of the Land Court of the dates when accounts for legal and valuation fees were rendered. In reliance on that advice, I further order the respondent pay to the claimants interest on the items of disturbance calculated as follows:
. legal fees of $1,935 at the rate of 9.5%; and
. valuation fees of $5,100 at the rate of 10%,
commencing on the date such fees were paid by the claimants and ending on the date upon which final payment of compensation is paid.
GJ NEATE
Member of the Land Court
LAND COURT BRISBANE
1 SEPTEMBER 1995
Re: Claim for Compensation - Acquisition of Land Act 1967 A94-67
Maria Skrobar and the estate of Stefan Skrobar (deceased) and Antun Frlan and Anna Frlan
v
Chief Executive, Department of Transport OUTLINE OF DECISION
Page
Introduction 1
The resumption 2
Assessing the amount of compensation payable - the statutory criteria 3
The subject land, the resumed land and the remaining land 4
Bases of valuation 11
1988 Town Planning Scheme 14
1993 Draft Town Planning Scheme 20
Highest and best use of subject land at the date of resumption 29
Highest and best use - the claimants' case 29
Highest and best use - the respondent's case 46
Highest and best use - conclusion 50
Highest and best use and the road works scheme 51
Highest and best use of the remaining land after resumption 61
Value of the subject land at the date of resumption 66
Value of the remaining land 69
Conclusion and order 71
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