Smith & Anor v Toowoomba Regional Council - [2010] QLC 140

LAND COURT OF QUEENSLAND

CITATION: Smith & Anor v Toowoomba Regional Council [2010] QLC 0140

PARTIES:Alexander Campbell Smith and Helen Marie Smith
(Applicants)

v.

Toowoomba Regional Council

(Respondent)

FILE NO:AQL247-09
DIVISION:General Division
PROCEEDING:  Application for compensation for resumption of land under the Acquisition of Land Act 1967
DELIVERED ON:                  18 November 2010
DELIVERED AT:                   Brisbane
HEARD AT:Toowoomba on 26 and 27 October 2010
MEMBER:Mr WA Isdale

ORDERS:1.    Compensation is payable by the respondent to the applicants in the amount of Seven Hundred and Eighty Thousand Eight Hundred and Twenty-five Dollars ($780,825) being Six Hundred Thousand Dollars ($600,000) for the land resumed plus One Hundred and Fifty-Seven Thousand Eight Hundred and Twenty-Five Dollars ($157,825) for injurious affection and Twenty-Three Thousand Dollars ($23,000) for disturbance. The Two Hundred and Fifty Thousand Dollars ($250,000) advance paid against compensation must be deducted, leaving the balance of Five Hundred and Thirty Thousand Eight Hundred and Twenty-five Dollars ($530,825) remaining payable.
2.    Interest is payable by the respondent to the applicants on the sum of Seven Hundred and Eighty Thousand Eight Hundred and Twenty-five Dollars ($780,825) on and from 9 May 2003 to and including 2 June 2004 at the rate of 5.50% per annum.
3.    Interest is payable by the respondent to the applicants on the sum of Five Hundred and Thirty Thousand Eight Hundred and Twenty-five Dollars ($530,825) on and from 3 June 2004 to and including the day immediately preceding the date on which payment is made at the rate of 5.50% per annum.
4.    The parties may make submissions as to costs of and incidental to the hearing within 28 days of the giving of this decision.

CATCHWORDS: Acquisition of Land Act 1967, ss 5, 20, 27, 28
Disturbance – Injurious Affection – Interest

APPEARANCES: Mr MA Williamson of counsel, instructed by Connor O’Meara, solicitors for the applicants
Mr A McLean Williams of counsel, instructed by Clewett Lawyers for the respondent

Background

Some 130km west of Brisbane and at an altitude of 700 m above sea level, Toowoomba is built on the edge of the escarpment of the Great Dividing Range. Australia’s largest inland regional city, Toowoomba’s population is growing towards 100,000. Some 12 km north from Toowoomba on the New England Highway lies the village of Highfields. At the end of last century it was quietly picturesque, with some cafes, nurseries and a well known grower of flowers which, when dried and arranged, captured much of the tourist traffic on the highway to Crows Nest and beyond.
With the coming of the new century this began to change. The Crows Nest Shire Council, now replaced by the Toowoomba Regional Council (the Council), responding to the need for people to have somewhere to live, commenced to upgrade the local infrastructure. The sewerage system is being extended with plant capable of supporting a population of 25,000 in the next 20 years. New schools, shopping centres and fire and ambulance stations are appearing, some still surrounded by paddocks. Land is being subdivided and residential blocks being sold to the steady stream of people who are buying the land and having new homes built. The volume of traffic is increasing and roadworks are going on. The applicants are living in the middle of this. Mr Smith, now aged 73 and his wife of 46 years bought the property called “Kilalah” in 2000. It was a little over 32 ha and was purchased from a doctor and his wife. It has a substantial 6 bedroom home set well back from the road behind mature Norfolk and Hoop pines and other trees, some of which provide shade for a small number of cattle in good condition.
Mr Smith, now retired, was a rural valuer, with much experience in central and western Queensland. Prior to purchasing this land, he saw its development potential for residential lots of at least 1000 m². The land has gentle slopes and has views to the Bunya Mountains.
Between entering into the contract to purchase the land and settlement, representatives of the Crows Nest Shire Council approached Mr and Mrs Smith to discuss plans for a regional sports complex covering part of “Kilalah” and neighbouring properties. Negotiations for the purchase of the part of “Kilalah” that the Council wished to acquire were not successful but did result in the area sought being limited to 4 ha for which the Council offered $250,000. The offer was declined.

The resumption

The land was formally taken by the Council for recreation grounds purposes by a notice published in the Government Gazette on 9 May 2003. Having lost the fee simple of the land, the former owners acquired the right to compensation.

Consequences of the resumption

Construction of the sports ovals began in August 2003 and, to the accompaniment of much dust, it being a drought, continued until about mid-2005 although some works have been undertaken subsequently and right up to the present.
The two ovals, now in regular use, bring with them noise associated with training under lights on week nights and games on the weekends. One oval is lit using eight 25m high poles which support lights of sufficient intensity as to make the field suitable for night football games. Rubbish left behind by people attending the fields finds its way to the Smith’s property, propelled slightly downhill by wind and water.
Vehicles used by people attending the sports fields park along Kratzke Road, on which the Smith’s house is located and sometimes double park, park across driveways and on their land.
Illumination from the light towers is significant at the Smiths’ home. The nearest pole is about 100m distant but facing away from the house. Much of the unwanted illumination comes from the lights on the opposite side of the oval which, although further away, are facing the house.

The applicants’ activities

From late in 2002, Mr Smith began to approach the owners of land which adjoin “Kilalah” to the east with a view to acquiring land for residential development. The Smiths bought Lot 8 on Highfields Road from Mr Ollie Smyth. It was purchased from Mr Smythe, aged 84, without being exposed to the market and was acquired for $400,000 which Mr Smith describes in his statement, Exhibit 10, as “a considerable under value”.
The Smiths entered into a joint venture agreement with the owners of adjoining lands on 11 May 2004. This allowed for the efficient development of the land, including Lot 8 which they had acquired from Mr Smythe.
The sale, on 12 April 2003, was of 3.989 ha and, if a reliable indicator of value, shows $100,000/ha whereas the Smiths claim that the land resumed from their adjoining property was, on 9 May 2003, worth $150,000/ha.
Mr Smith’s statement, Exhibit 10, was dated 25 October 2010, the day before the hearing commenced and was initially objected to by the respondent. The learned President of this Court ordered on 8 July 2010 that statements of lay witnesses, and Mr Smith was presented as such, were to be delivered to the Court and served on the other party by 6 September 2010. After consideration overnight, the respondent’s objection was withdrawn.

The issues

The dispute between the parties reached this Court with the filing on 2 July 2009 of the Smiths’ originating application. The Council paid $250,000 to the Smiths as an advance on 3 June 2004 and the matters remaining in dispute are the rate per hectare attributable to the resumed land and the allowance to be made for the injurious affection due to light, noise and rubbish.

The evidence

Mr Smith gave evidence of his involvement with the subject land and each party called the valuer they had engaged to provide a report.
The joint report of the engineers advising the parties resulted in agreement that there was no benefit to the Smith’s remaining land consequent upon drainage works on the resumed land so there was no enhancement in the value of the remaining land after the resumption.
Resolution of this aspect resulted in the position of the parties at the hearing being in disagreement in relation to the value of the land, $480,000 as opposed to $600,000 and the injurious affection contended for as $125,000 as compared to $165,000. The lower figures being those provided on behalf of the Council.
Valuation reports were produced and the valuers prepared a joint report. Both Mr Volp, for the Smiths, and Mr Liley, for the Council, gave evidence.
The Court, valuers and counsel participated in an inspection of the relevant lands on the afternoon of the first day of hearing.
The valuers agreed that the resumed land, Lot 12 on Survey Plan 155366, with an area of 4 ha and zoned Rural A at the date of resumption had potential for Residential A zoning. It was agreed that its highest and best use is for residential allotments of about 1000 m² each as shown in the hypothetical subdivision plan prepared by a surveyor. There was also agreement that values were increasing strongly for several years from late 2002. The disagreement between the valuers was in regard to interpreting the sale evidence.
Mr Volp considered 9 sales of englobo land in order to arrive at a value for the resumed land. I will examine them seriatim.
Sale 1 at 160 Kearney Street, Kearney’s Spring of 2.1 ha on 16 January 2004 for $500,000 shows a price per hectare of $238,000. This is on the southern edge of Toowoomba. Mr Volp saw it as superior to the subject and Mr Liley was of the view that the Toowoomba market could not be readily compared to that in Highfields at the time of the resumption. The rate per hectare shown by this sale is substantially above that applied to the resumed land by Mr Volp and I accept Mr Liley’s opinion that this sale is in a different market. I do not find it to be of assistance.
Sale 2 at 82 Handley Street, Darling Heights, of 4.047 ha on 5 September 2003 for $1,000,000 shows a price per hectare of $247,000. This is across the street from the rear of the University of Southern Queensland. Also on the edge of Toowoomba, it is unhelpful for the same reasons as Sale 1 is unhelpful.
Sale 3 at Highfields Road, Highfields of 10.39 ha on 21 November 2003 for $3,500,000 shows a price per hectare of $337,000. This land, some two and a half times larger than the subject is close to Highfields Village Shopping Centre, Highfields Indoor Sports Centre, Highfields Cultural Centre and the community centre which are all across O’Brien Road from it. It has potential for a strip of commercial development along O’Brien Road to which it has a substantial frontage. There is a stock feed mill, dwelling and outbuildings on the land. Mr Liley was of the view that the commercial element renders this sale not directly comparable and I accept his opinion.
Sale 4 at Clarke and O’Brien Roads, Highfields of 9.729 ha on 29 November 2002 for $970,000 show $99,700/ha. Adjoining Sale 3, it has potential for low density residential development. The sale is tainted by the vendor being under pressure to raise funds quickly. Mr Volp considers it to have sold well below market value.
Such an element of compulsion renders the sale an unreliable test of value as it does not accord with the High Court’s test of market value in Spencer v The Commonwealth.[1]
[1] (1907) 5 CLR 418 per Griffiths CJ at 432 and Isaacs J at 441.
Sale 5 at Highfields and Polzin Roads, Highfields of 14.953 ha on 12 March 2002 for $1,100,000 shows $73,563/ha. This sloping, undulating block tends towards a triangular shape and required an additional cost to the developer of about $30,000/ha in order to deal with a water supply pipeline. It is inferior to the resumed land. It is possible to consider this sale as representing a per hectare rate for a block nearly four times the size of the resumed land, of inferior contour and shape and requiring development to work around the water main easement if the additional cost of development is added to the purchase price. This requires an assumption that the additional costs actually incurred are the same as the additional increment the land would have realized absent the pipeline. In the event that the assumption is made the land is significantly different in size and contour and inferior overall to the resumed land. If the adjustment for the additional costs incurred in order to deal with the pipeline is made then this sale could be said to support a rate of $103,563/ha for land inferior to that resumed. I find this of little assistance in resolving the question between the parties concerning whether the resumed land was worth, at the date of resumption, $120,000 or $150,000/ha. Its usefulness will be limited to suggesting that the lower limit would be in excess of $104,000/ha.
Sale 6 at Highfields Road, Highfields of 2.02 ha on 5 November 2001 for $149,000 shows $73,762/ha. Sold 18 months before the resumption date it was zoned Rural Residential B with potential for lots of about 3,000 m². In view of the rising market up to and beyond the resumption date, this early sale is generally inferior to the resumed land and of little if any assistance in valuing it.
Sale 7 at Highfields Road, Highfields of 3.989 ha on 12 April 2003 for $400,000 shows $100,000/ha. I note that Mr Volp’s schedule of sales shows the area as 3.999 ha whereas the contract shows the area as 3.989 ha. I have relied on the contract. The purchasers are the current applicants, the Smiths’ and Mr Smith’s evidence in regard to this sale has been referred to at [10] to [12] above. Mr Volp refers to Sale 4 where the vendor was under pressure and where the rate per hectare was nearly identical. Mr Smith’s evidence was that he and his wife bought this land at “a considerable under value”. Mr Volp considered the sale to be well below market value. The sale is only useful, in my view, as an indicator that $100,000/ha is too low a value for the resumed land. The sale is, according to one of the purchasers, not at the market price, which would have been higher.
Sale 8 at 672 Greenwattle Street, Harristown of 23.015 ha on 7 October 2003 for $2,100,000 shows $91,200/ha. On the fringes of Toowoomba, the land sold privately to Ron Cullen Homes. It is zoned as approximately 10.525 ha mixed housing, 7.8 ha industry and 4.69 ha open space. It included a 1950s highset dwelling and basic outbuildings in fair to poor condition. The open space is for drainage and overland flows could be expected whenever there is much rain.
Like Sales 1 and 2, it is on the fringe of Toowoomba and I again accept Mr Liley’s opinion that it is in a different market to the resumed land. Its mixed zoning increases the difficulty in comparing it to the resumed land, as does the open space component. I am unable to derive any assistance from it.
Sale 9 at the corner of Meringandan and Klienton Roads, Highfields of 57.08 ha on 10 August 2005 for $18,000,000 shows $315,347/ha. Purchased by a company associated with an experienced developer it was improved with a 1930s weatherboard dwelling, single garage, old dairy and barn and a set of timber cattle yards. Zoned Rural and designated Residential A under the Development Control Plan, it is suitable for subdivision into 1,000 m² lots. Located in the immediate locality, Mr Volp saw it as demonstrating the price being paid for a larger parcel of englobo land at the time.
Mr Volp pointed out that the market was rising in the period between when the resumed land was taken and the date of this sale. It was common ground between the valuers that the market was rising. In the joint report of the valuers Mr Liley states that this sale is of interest but notes that it is well past the date of valuation.

Discerning the rate per hectare

In the joint report of the valuers, Exhibit 7, both agree that the market “had experienced strong upward movement in values during late 2002 which continued for a number of years.”
Sale 5 is persuasive that the absolute lower limit of the value of the resumed land must be in excess of $104,000/ha. The evidence of Sale 9, some 2 years and 3 months after the resumption and in a period of strong upward movement in the market shows that $315,347/ha was paid for that 57.08 ha of lightly improved land. The valuers differ on which sales are the most appropriate indicators of value of the resumed land. Mr Volp points to Sales 1, 2, 3 and 9. Mr Liley favours 4, 5, 6 and 7. As I have had the benefit of inspecting the sales and the subject land, I was able to observe both the land and its environment.
In my view, the most comparable sale is Sale 9 as it represents an untainted sale in good proximity to the resumed land. Its deficiencies are the much larger area and the sale well after the relevant date in the strongly rising market. The per hectare rate is greatly in excess of that contended for by either party in respect of the resumed land and the highest figure contended for is $150,000/ha.
I am satisfied that the value of the resumed land cannot be less than $104,000/ha and note that Sale 5, which suggests that lower limit, occurred on 12 March 2002. With the resumption on 9 May 2003 and Sale 9 on 10 August 2005 showing $315,347/ha, I note that the subject and Sales 5 and 9 are, roughly, equidistant from the “centre of gravity” constituted by the cluster of facilities to which I referred in [24].
From the time of Sale 5, a period of 41 months elapsed until Sale 9 occurred. Applying the figures set out in [37] then on the assumed basis that a smooth linear increase took place between these two data points the monthly increase per hectare for this sort of land was $5,154.80. I recognise that such seeming precision would be impossible to replicate in the world but is used here to maximise the integrity of the calculation. At this rate, by the time at which the acquisition occurred 14 months would have elapsed since Sale 5, indicating an expected increase of the resumed land of $72,167 and taking its expected value per hectare to $176,000.

Conclusion on the rate per hectare and therefore the value of the land

Neither valuer contends for this figure. It does however indicate that Mr Volp’s figure of $150,000/ha can be seen by this method to be conservative rather than overly optimistic.
Sales 5 and 9 are of larger allotments which may be more attractive to a developer who can capture economies of scale. Additionally, the market rise began late in 2002 whereas Sale 5 was in March of that year. Allowing for these factors, I am of the view that Mr Volp’s figure of $150,000/ha is a realistic assessment of the value of the resumed land at the rate of resumption.
Mr Volp said, in his evidence in chief, that he felt that he did not have enough sales evidence at Highfields to be able to “really nail” this valuation. For that reason he looked to Toowoomba sales, a step which, along with Mr Liley, I believe to be a step too far. The comparisons which I have made are difficult but justified in the challenging circumstances caused by the lack of easily comparable sales. Doing the best I can with the best sales evidence I am firmly satisfied that Mr Volp’s per hectare rate is adequately supported. The value of the land taken is therefore $600,000.

Injurious Affection

The remaining area of contention is injurious affection. Here Mr Volp has assessed the value as $164,725 and adopted $165,000 and Mr Liley places it at $125,000.
This aspect was informed by the report prepared by the engineer Mr Paul King of MWA Environmental. The report became Exhibit 3 and Mr King was not called to give evidence.
The presence of some rubbish associated with the sports complex and its propensity to make its way onto the applicants’ land was not in dispute. The contest between the parties was centred around the allowance appropriate for the light, traffic and surges of humanity associated with the use of the sports fields.
Mr Liley, in his original report dated 19 May 2006 approached the question by examining the effects on valuations of properties elsewhere when exposed to various influences.

First, he looked at sales of vacant residential land at Rangeville, Toowoomba. Considering six sales in January and February 2004, he concluded that there was no difference in values of properties overlooking public open space compared to those overlooking other residential properties.
The same exercise conducted in relation to four sales at Middle Ridge, Toowoomba, in the period May 2002 to December 2003 produced the same result.
In my view, these last two exercises are subject to the same criticism made in relation to using sales in Toowoomba in order to value land at Highfields, they are sales in a different market. I do not find them of assistance.
Mr Liley went on to consider eight sales in Rogers Drive and Mathers Street, Highfields between August 2001 and February 2002. These sales are very close to the Highfields “centre of gravity” with all of the development referred to in [24]. Mr Liley concluded that the sales showed a 7% reduction of value for properties within 100 m of the shopping centre. Its roof, service entrance, lights and traffic movements would be visible to the nearby houses, particularly those directly across Rogers Drive from the shopping centre. These sales have the advantage of being in Highfields although they occurred before the increase in values from late 2002.
Mr Liley next considered six sales of vacant residential land at Middle Ridge, Toowoomba, in the period June to August 1997. They range from adjoining to 132 m from the “Valleys” Rugby League Club. He considered the influence marginal, with up to a 5% variance between properties adjoining “Valleys” to those 80 m away.
Lighting at “Valleys” is suitable for training rather than playing. Also, the sales are in the Toowoomba market as it was in 1997, so removed geographically from Highfields that it would be difficult to apply them. The time difference is also substantial.
Mr Liley separately considered six sales of vacant residential land between July 1998 and March 1999. In a depressed market, including a sale by a developer leaving the market, there was seen to be no difference between sales close to “Valleys” and those two streets removed.
These sales are in another time and another place to the market which must be considered for present purposes and I do not believe they can be of assistance.
Finally, Mr Liley looked at twelve sales of vacant residential land around the Middle Ridge State Primary School in 1998. This is in Toowoomba, not far from the “Valleys” football ground. He has found a reduction in value of 14% due to the increased traffic associated with the school, especially at set down and pick up times.
While there is some similarity to traffic movements associated with the sports field at Highfields, this is also another time and another place and I do not accept that conclusions drawn from these sales can be safely applied for present purposes.
Since preparing his original assessment of injurious affection, Mr Liley has had the benefit of Mr King’s report, exhibit 3.
While maintaining that his initial approach was valid, Mr Liley was satisfied that total injurious affection should be increased to $125,000. He has allowed percentages for reductions in value of lots in the agreed hypothetical subdivision. His allowances are 1.5%, 3% or 8% with a 12% reduction in value for the Smiths’ residential allotment. The allowances correlate with the isolux contours in figure 5 of exhibit 3. These were derived from Mr King’s measurements made on the night of 31 August 2010. The allowance for the Smiths’ residence is out of line with the measurements and appears generous. It is perhaps explicable as the patio area of the existing residence directly faces the lit area. Mr Liley’s allowances are expressed to be for the “activities” of the playing fields and he does not distinguish between light and noise elements.
Mr Volp has considered injurious affection by examining sales of vacant residential allotments in close proximity to the actual sports fields. Lot 80 on SP209502 with an area of 1,040 m² sold on 9 January 2008 for $130,000. It is on a corner across the street from the ovals. Lot 72, 971 m², sold on 5 February 2008 for $145,000. It is 200 m uphill from the sports facility and has some benefit of the terrain shielding it. Mr Volp finds this example to represent about 10.4% difference attributable to the relative proximity to the sports fields.
While after the time of resumption, these sales are in the market as influenced by this sports facility, rather than one in another town, or a shopping centre, and I accept the usefulness of these sales.
In another example, Mr Volp has considered a resale of Lot 80, this time on 25 January 2010, for $143,000 and the sale of 3 lots, each of 1,000 m² in December 2009. These three lots are about 350 m away from the sports fields and show a difference of from about 11.3 to 12.1%. I am satisfied that this difference is properly attributable to them being more removed from the influence of the sports fields.
Mr Volp has made a 5% allowance for the Smiths’ residence, which appears to be consistent with the treatment of similarly affected lots. For 12 lots immediately adjoining the sports ovals he has allowed a 10% discount for light and noise affects. These are the 12 lots shown as light affected in the “high” category in figure 6 of exhibit 3.
For another 11 lots, which he describes in exhibit 2 as “generally in the second row back from the ovals” Mr Volp allows 5% for light and noise affects. He lists those under the category of “moderate”. Mr King has 19 lots listed as moderately affected by light.
It is not possible to determine exactly which lots Mr Volp has in the moderate light and noise affected category from the information that has been provided although some guidance can be had from his description quoted in [62].
In the distinct category of light affected only, Mr Volp has seven allotments he describes as moderately light affected and for which he allows a 2.5% reduction. He describes these as “generally in the third row back”. Unfortunately, it is not clear which allotments are being referred to. The same may be said of the ten lots he describes as noticeably light affected and for which he makes no adjustment in value.
Figure 6 of exhibit 3 has three categories for light affected lots. The data gathered by Mr King on the night of Tuesday 31 August 2010, when the floodlights were operating, was grouped into three categories, “high”, “moderate” and “noticeably”. The categories do not match the groupings used by Mr Volp since he has considered light and noise affected lots separately from those which are light affected only.
In a separate category, Mr Volp has two lots which are not significantly affected by light or noise but which would have an outlook to large poly water tanks and portable toilets which are on the corner of the oval. He has allowed 5% for these however it does not appear to be a reasonable expectation at the date of resumption that these particular affects would blight those two lots, which Mr Volp does not specifically identify by number but which may be lots 1 and 2.
I do not accept that an allowance should be made for the affects to those two lots as there was no evidence that those affects could have been reasonably foreseen at the time of the resumption of the land.
It is within Mr Volp’s expertise to group noise and light affects as he has done and at 6.2 of exhibit 2 he states that he has made use of “the zones determined by Mr Paul King”.
I accept Mr Volp’s evidence in relation to the percentage allowances he has applied as it is consistent with the sales examples he has provided.
Mr Liley has been very clear about what allowance he has attributed to each allotment, whereas Mr Volp has not been so specific.
Despite this deficiency in Mr Volp’s evidence, I am persuaded of the correctness of the percentage allowances he has made as they are directly supported by the sales examples he has provided. These sales are, very significantly, of residential allotments affected by the sports facility that will affect the hypothetical development being considered. This is a better basis than a sports field in Toowoomba or a shopping centre in Highfields. I therefore accept, with one reservation, Mr Volp’s evidence relating to injurious affection.

Conclusion on injurious affection

For the reasons I have given, I do not accept the proximity allowance referred to in [66] and [67]. Accordingly, Mr Volp’s allowance for injurious affection must be reduced by $6,900 to $157,825. Injurious affection is therefore found to be valued at $157,825.

Costs attributable to disturbance

Section 20(1)(b) of the Acquisition of Land Act 1967 requires that in assessing the compensation to be paid, regard shall also be had to the claimant’s “costs attributable to disturbance”. That expression is defined in s.20(5) of the Act.
The parties have informed the Court at the hearing that they have reached agreement in relation to the compensation payable by the respondent on account of disturbance.
Disturbance items as assessed by the valuers have been agreed at $10,000 and the parties have also agreed that disturbance items in the nature of the legal costs reasonably incurred by the claimants in preparing the claim are $13,000.

Conclusion on disturbance

It is accepted and determined by the Court that the claimants’ costs attributable to disturbance are $23,000.

Interest

In accordance with s.28 of the Act the Court may order the payment of interest upon the amount of compensation determined by it. The applicants have sought interest and no contrary submission was made. In the circumstances, it is suitable to award interest to protect the integrity of the sum awarded until it is paid.
From and including 9 May 2003 being the date the land was taken, and ending on and including the date immediately preceding the date on which payment of compensation is made, interest will be payable by the respondent to the applicants.
Interest, by s.28(1A) of the Act, shall be at such rate as the Court deems reasonable and fixed by the order. The interest rate averages used by the Court are published on its website.[2] These are averages of the long term Government Bond rates, for 10 year bonds, and are calculated to the nearest 0.25%. I find it reasonable to apply this average rate in the present case.
[2] and order on interest
1. Accordingly, interest is payable on $780,825 being the sum of $600,000 for the land, $157,825 for injurious affection and $23,000 for disturbance on and from 9 May 2003 to and including 2 June 2004. The rate will be 5.50% per annum.
2. As an advance of $250,000 was paid to the applicants on 3 June 2004, the sum upon which interest is payable was then reduced to $530,825.
3. On and from 3 June 2004 to and including the day immediately preceding the date on which payment is made, interest is payable on $530,825 at the rate of 5.50% per annum.
The remaining matter of costs
1. Costs of and incidental to the hearing have not yet been the subject of submissions. Section 27 of the Act makes provision for such costs.
2. The parties may make submissions within 28 days of the delivery of this decision should they be unable to reach agreement and require that the matter be resolved by a decision of this Court.
ORDERS
1.Compensation is payable by the respondent to the applicants in the amount of Seven Hundred and Eighty Thousand Eight Hundred and Twenty-five Dollars ($780,825) being Six Hundred Thousand Dollars ($600,000) for the land resumed plus One Hundred and Fifty-Seven Thousand Eight Hundred and Twenty-Five Dollars ($157,825) for injurious affection and Twenty-Three Thousand Dollars ($23,000) for disturbance. The Two Hundred and Fifty Thousand Dollars ($250,000) advance paid against compensation must be deducted, leaving the balance of Five Hundred and Thirty Thousand Eight Hundred and Twenty-five Dollars ($530,825) remaining payable.
2.Interest is payable by the respondent to the applicants on the sum of Seven Hundred and Eighty Thousand Eight Hundred and Twenty-five Dollars ($780,825) on and from 9 May 2003 to and including 2 June 2004 at the rate of 5.50% per annum.
3.Interest is payable by the respondent to the applicants on the sum of Five Hundred and Thirty Thousand Eight Hundred and Twenty-five Dollars ($530,825) on and from 3 June 2004 to and including the day immediately preceding the date on which payment is made at the rate of 5.50% per annum.
4.The parties may make submissions as to costs of and incidental to the hearing within 28 days of the giving of this decision.
WA ISDALE
MEMBER OF THE LAND COURT