Soden v The Commissioner of Main Roads

[1990] QLC 6

[1990] QLC 6

 

  LAND COURT,

BRISBANE.

28th February, 1990.

Re:  Claim for Compensation  (A88-88)

Phillip Clifford Soden and Marlene Edeline Soden
  - v -
  The Commissioner of Main Roads

-  JUDGMENT  -

(Hearing at Bowen)

At the date of resumption Mr. and Mrs. Soden were the owners of an aggregation known as Longford Creek which included Portion 2, Parish of Ben Lomond containing about 38 hectares and Portion 400, Parish of Ben Lomond containing an area of about 24 hectares.  In the overall aggregation some 60 hectares had been used for cultivation.  On Portions 2 and 400 about 20 hectares had been developed to cultivation all of which had been irrigated at various times and the balance land had been used for grazing.  The land is situated about 27 kms south-east of Bowen.  It is severed by the Bruce Highway  which resulted in a small triangular parcel of land in the south-western area being severed from the major parcel.
              On 28th April, 1984 the Commissioner of Main Roads took for road purposes an area of about 1,472 sq. metres being part of Portion 400, Parish of Ben Lomond contained in Certificate of Title Volume N912, Folio 5 and an area of about 3,634 sq. metres being part of Portion 2, Parish of Ben Lomond, contained in Certificate of Title, Volume N1182, Folio 187.  This is the date at which compensation is to be determined.
              A claim for compensation has been lodged in the Land Court and the amount finally contended for is the sum of $83,700 made up as follows:-

.                   Value of Land  $ 1,300.00
               .    Injurious Affection  $76,600.00

.    Disturbance:

Legal Fees  $  800.00
  Valuation Fees  $1,000.00
  Parking of Road Camp
  about 1 ha, noise, dust,
  use of the land, 40 wks
  at $100 per week  $4,000.00        $ 5,800.00

.     Total  $83,700.00

The parties have agreed on the sum of $1,300 for loss of land and the sum of $800 for legal fees and $1,000 for valuation fees incurred up to the date of lodgment of the claim in the Court.  The only matters in dispute are the claims for injurious affection and the disturbance item for parking of the road camp.
              Proceeding northerly on the Bruce Highway from Proserpine to Bowen one enters the subject land by a bridge over Eden Lassie Creek.  On the northern side of the highway and near the creek there is the claimants' residence and in close proximity a large shed to store equipment and for use as a packing shed for farm produce.  Adjoining this shed was a roadside stall.  The resumption has taken a thin strip of land along the opposite side of the road.  This varies in width up to 15 metres by 400 metres in length in the first area resumed and 105 metres in length in the second parcel resumed.
              Evidence was given by the claimant Mr. Phillip C. Soden of being advised by the respondent late in 1983 that it was intended to resume these lands and to construct a high level bridge over Eden Lassie Creek to replace a low level bridge.  He says that there had been farming on this land for some thirty (30) years and the practice was to send first quality produce away to market.  Some years ago a roadside stall was set up to retail the produce classified as "seconds".  The stall was located fronting the highway approximately 30 metres off the highway.  Located closer to the highway and adjacent to the roadside stall was the dwelling.  The roadside stall had been constructed as an adjunct to the packing and machinery shed and access to the stall by the claimants for produce was gained through this shed.  Customers could be served by a person working in the shed or alternatively by Mrs. Soden coming from the house.  The main attraction of this stall was its location fronting the highway with access very easily gained for vehicles travelling either north or south.  Almost all vehicles slowed down when crossing the narrow low level bridge on Eden Lassie Creek.  He was advised after the resumption that it would not be possible to provide access from where it had originally existed because of the nature of the roadworks to be undertaken.  The access would be provided about 150 metres to 200 metres northerly of the road stall.  In the result he formed the conclusion that it would be impracticable to continue to conduct the road stall in its present location and that it would be uneconomic to relocate elsewhere on the property. He closed the business on the 1st October, 1984.
              In April 1983 the claimants and their Daughter Vicki Ann Wilkins acquired another stall called the "Homestead Stall" on the outskirts of Bowen.  From the income tax return it would appear that the "Homestead Stall" was purchased in April 1983 for the sum of $4,000.  Mr. Soden in cross-examination says that this stall was sold in February 1984 for $20,750.  In March 1984 they acquired a fruit shop in Airlie Beach for $15,625.  He agrees that in 1984 the underground water supply became severely impaired and restricted farming activity.  He says he was short of water for irrigation for a few years.
              The claim for injurious affection is based on the premise that, as a result of the resumption, the fruit stall business of the claimants at Langford Creek was destroyed.
              While the claim for the loss of the business is challenged on other grounds, it is appropriate for me to consider the first challenge made on behalf of the respondent.  It is the case for the respondent that no part of the new road built to replace the old road has occurred upon the resumed land and accordingly such a claim cannot be sustained.
              Evidence was given by Mr. Peter W. Atkinson, a Civil Engineer in the employ of the respondent who has made some investigations recently to enable him to give evidence before the Court.  He has considered a plan No. R9-187LA which shows the area resumed in the subject case.  He has examined the position of the carriageway in relation to the area resumed and has reached the conclusion that no part of the pavement and shoulders making up the carriageway intrude upon the resumed land.  He says that the pavement is made up of two (2) sections.  There is the carriageway which is the section between the centre line of the road for a distance of 3.5 metres to the edge marking which is delineated by a solid line.  Outside the outer solid line there is a 1.5 metre sealed shoulder so that the traffic lane and the shoulder go together to make up the pavement.  These works have been constructed on an embankment in this particular area.  Mr. Atkinson has made a calculation that the closest point where the western edge of the carriageway approaches the resumed land is to be found at chainage 34950, close to the corner of the property near Eden Lassie Creek.  He estimates that the pavement edge is 1.46 metres inside the original road reserve and from that point travelling northerly the new pavement edge deviates further away from the original property boundary.  Mr. Atkinson says that in this area the pavement has been constructed on an embankment which is a method of controlling the vertical alignment of a road and is used to raise the alignment.  He says that the tail of this embankment does intrude onto the resumed land at approximately the last 50 metres before chainage 34950.  He says that if traffic travelling on this road went off the shoulder it would be onto an area which is not trafficable because of the slope of the embankment.  He has not measured the width of the embankment from the vertical line through the edge of the bitumen on the western side to the toe of the embankment.
              I pause to state that this matter came on for hearing before me at Bowen on 22nd June, 1989.  At the completion of the evidence for the respondent, counsel for the claimants made application for an adjournment to enable the claimants to carry out investigations to check the calculations made by Mr. Atkinson concerning the location of the carriageway.  Counsel for the respondent opposed the application for an adjournment on the grounds that the Solicitor for the claimants was aware that this issue would be raised.  In the event of an adjournment being granted he asked for costs thrown away by reason of the adjournment.  I granted the application for adjournment and reserved the question of costs.  It was agreed by the parties that the hearing and addresses would be in Brisbane.  The matter came on again on 30th January, 1990.  Counsel for the claimants tendered by consent a plan of a cross-section of the Bruce Highway at 34.95 kms prepared by Whitsunday Surveys Pty. Ltd.  This plan of survey shows that the whole of the bitumen surface to the external white line on the roadway, a 1.3 m bitumen edge and an area of 0.54 metres of earth foundation is all within the original road reservation.  There is then an embankment of 4.23 metres from the top of the bank to the bottom.  This embankment encroaches into the resumed area at the bottom area for a distance of 2.45 metres.  It confirms the evidence given by Mr. Atkinson that the carriageway is within the original road reservation.
              It is the case for the claimants that, prior to the resumption, easy access from the Bruce Highway was available for vehicles travelling both north and south.  There was an additional advantage in that the vehicles crossing the narrow low level bridge on Eden Lassie Creek would slow down and the fruit stall was highly visible.  From the relocated highway people in vehicles travelling northerly would not see the stall until they were actually passing it.  They would then have to travel about 150 metres, and turn off the main road onto the access road now provided and travel down that road to the stall and then return to the highway by the same route.  For people travelling in a southerly direction the access point is located about 150 metres prior to the position where the store is visible.  In the result Mr. Soden says the claimants decided to close down the roadside stall permanently.  In summary the claim for injurious affection really is based on the premise that the activities of the constructing authority on the land taken are such as to cause the injurious affection claimed.
              In his submissions on this point counsel for the respondent refers to numerous authorities and makes a general submission that the claim cannot be sustained because it offends the principle in Edwards -v- The Minister of Transport 1964 2 Q.B. 134 (C.A.) which establishes that a claim for injurious affection is limited to damage arising from the activities of the constructing authority on what was formerly the claimants' land.
              He also directs my attention to a judgment of the then learned President of this Court, Mr. W.F.G. Smith, handed down on 16th September, 1988 in Determination of compensation A88-21 M.A. and D.P. Symes -v- The Commissioner for Railways to be reported in Volume 12 of Queensland Land Court Reports where a review was made of various decisions dealing with claims for injurious affection.  I can do no better than to set forth hereunder extracts from that judgment in which the authorities are so ably reviewed:

"As a matter of law the Commissioner contends that no damage is claimable because none of the injurious affection that arises emanates from activities carried out on land resumed from the claimants but is confined to activities on the Railway Reserve..........

The first matter for decision is the point of law as to whether in  the circumstances of this case injurious affection to the claimants' retained land is compensable.  The injurious affection which it is claimed reduces the value of the retained land is the noise associated with electric trains travelling along the rails laid in the railway reserve and the loss of privacy caused by exposure of the claimants' land and house to passengers in those trains.  The extent of the latter factor is disputed because of the depth of the cutting and the presence of trees and other obstructions.  It is common ground that no injurious affection emanates from the drain constructed on the top of the embankment or from the battered slopes of the embankment itself.      

The Commissioner's submission is based on the terminology of Section 20 (1) (b) of the Acquisition of Land Act and a line of authorities which, it is submitted, confine the right to claim compensation to damage resulting from what was done or expected to be done on the land actually taken from a claimant.

The claimants' case is that the embankment is being used as part of the operation of the railway line.  It is being used as an integral and inseparable part of a single use to which the land taken and other land is being put and the claimants are entitled to recover the full damage to their remaining property due to the scheme.  (my underlining)

The point is one of a somewhat nice distinction.  I do not propose to review the various authorities in great depth because that has already been done in the judgments to which I shall be referring.

The Land Appeal Court in the Crown -v- Corbould (1986 - 1987) 11 Q.L.C.R. 50 at p.56 said that ".... the right to compensation is defined by the statute which authorises the taking of the land".  This is, no doubt, a trite statement of law but none the less an appropriate commencing point for my considerations.

Section 20 of the Acquisition of Land Act 1967 - 1986 requires the Court -

"(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.

But in no case shall this subsection operate so as to require any payment to be made by the claimant in consideration of such enhancement of value."

The provisions of Section 20 (1) (b) above which specifically deal with injurious affection are very similar to Section 63 of the Land Clauses Consolidation Act 1845 (U.K.) which provided that when awarding compensation for acquired land regard shall be had - ".... to the damage, if any, to be sustained by the owner of the lands by reason of the severing of the lands taken from the other lands of such owner, or otherwise injuriously affecting such other lands by the exercise of the powers of this or the special Act, or any Act incorporated therewith."

Edwards -v- the Minister for Transport - Court of Appeal - (1964)2 Q.B. 134 confirmed a line of English authorities that where damage arises partly on the claimant's resumed land and partly off it, he cannot claim injurious affection for the whole damage but only for that which he can attribute to activities on the land which was formerly his own land.

A line of Australian authorities to the same effect was reviewed by this Court in Westaway -v- The Council of the Shire of Landsborough (1954) 31 C.L.L.R. 1 at p. 15.  Edwards case has long been recognised as an authority in this jurisdiction vide for example Bank of N.S.W. -v- The Council of the Shire of Kingaroy (1972) 39 C.L.L.R. 1 at p. 8. 

In the appeal and cross-appeal Gold Coast City Council -v- Suntown Pty. Ltd. (1979) 6 Q.L.C.R. 196 - a case involving the use of the resumed land as a rubbish tip - the Land Appeal Court at p. 207 said:-

"Injurious affection, in the terminology of the Act, is the type of damage to the retained land which flows from the exercise of any statutory powers by the constructing authority otherwise (i.e. than by severance) injuriously affecting the retained land.  This type of damage is related to uses of, or activities on, the resumed land by the constructing authority as a result of the resumption and the consequent depreciation in the value of the retained land."

The restriction on injurious affection damage as recognised by Edwards case was revoked by statute in England by S.44 of the Land Compensation Act 1973.  Since that date, compensation for injurious affection in England is assessed by reference to the effect of the whole of the works of the acquiring authority and not only the part of the work situated in the land acquired from the claimant.  The Legislature of this State has not moved to alter the statutory provisions relative to injurious affection and the line of authority which Edwards case exemplifies is still good law in this State.

I cannot hold that the High Court in Morison -v- The Commonwealth of Australia (1971 - 1972) 127 C.L.R. 32 over-ruled Edwards case.  Morison's case involved the resumption of part of a sheep station for the purpose of extending an adjoining air field to make it suitable for use by jet aircraft.  The Commonwealth contended that injurious affection should be limited to an allowance for the depreciating effects exclusively traceable to the construction and use of works on the land acquired from the claimant.  The Court was unanimous in rejecting the submission but the four judgments handed down contained two streams of reasoning.

Section 23 (1) (c) of the Land Acquisition Act 1955 - 1966 (Cth.) requires that in assessing compensation regard shall be had to "the enhancement or the depreciation in value of the interest of the claimant, at date of acquisition, in other land adjoining or severed from the acquired land by reason of the carrying out or the proposal to carry out the public purpose for which the land was required." This is a much wider charge than contained in Section 20 (1) (b) of the Acquisition of Land Act of this State. The Commonwealth Act would seem to embrace the whole scheme or purpose of the resumption which may be carried out or proposed to be carried out upon land resumed from the claimant or other lands as well - a measure available in the legislation of Queensland when enhancement falls for consideration - vide Section 20 (3).

Two Judges (Gibbs J. - as he then was - and Menzies J.) made the difference in terminology between the Commonwealth Act and the English Land Clauses Consolidation Act pursuant to which Edwards case was decided a major cause for distinguishing between  the two cases. 

Barwick C.J. whilst noting the difference in terminology between the relevant section of the Commonwealth Act and the English Act did not make same a reason for distinguishing Edwards case.  At p. 39 he said "In a case in which it is possible to isolate the depreciatory factors to the work done upon or to the use of work done upon the acquired land, it would be proper, in my opinion, to confine the depreciation in value to the effect of those factors."  In that in a real or practical sense he was unable to so isolate the damage in Morison's case to the works constructed on the acquired land, he concluded that the whole depreciation in value due to the use of the extended aerodrome as a jet airport was referable in the circumstances to the works constructed on the acquired land and their use. 

Walsh J. could see no valid reason for not following a trend in American decisions that the land owner is entitled to recover the full amount of the damage caused to his retained land, where it is not possible separately to ascertain the damage caused to the remainder of the claimant's land by the taking and the proposed use of part of it, that use being an inseparable part of a single use to which that land and other adjoining land are put. 

These two streams of reasoning were incorporated by the Land Appeal Court in its judgment handed  down in the  Crown -v- R.H. and J.M. Corbould (1986-7) 11 Q.L.C.R. 50 at p. 57:-

"In considering the matter the following principles should be noted:

(i)It is well settled that the words "the exercise of any statutory powers by the constructing authority" contained in paragraph (b) of subsection 1 of the section restrict damage to that flowing from the activities of the constructing authority on the land taken from the claimant (Edwards case (supra) and see Commonwealth v. Morison (1972) 127 C.L.R. 32 (H.C.) per Gibbs J. at pp. 36/57).

(ii)Injurious affection is a statutory head of claim whereas disturbance is not and has always been regarded as part of the value of the estate or interest of the claimant in the land taken on the date when it was taken:  S.20(2) supra.

(iii)Reference to the resumption's scheme as such is relevant in an exercise dealing with enhancement - the words "the carrying out of the works or purpose for which the land is taken" - having been held to refer to the scheme Zoeller v. Brisbane City Council (1973) 40 C.L.L.R. 25 (L.C.) and 198 (L.A.C.).

(iv)Where the resumption forms an integral and inseparable part of the resumptions necessary for the construction of the road the claimant may obtain compensation for damage suffered by him in respect of his balance land flowing from the use made of the land acquired in conjunction with other land acquired for the same purpose where in a practical sense a separation of damage flowing from the use of the lands taken cannot be made (The South East Queensland Electricity Board v. Beaver Dredging Pty. Ltd. (1984 - 5) 10 Q.L.C.R. 166 (L.A.C.)."

In Corbould's case the activities allegedly injuriously affecting the retained land were found to be not on land resumed and therefore not compensable.

In the Beaver Dredging case (supra) the Land Appeal Court held that, although the power line structures were mainly not on the resumed land, it could not, in a practical sense, having regard to the rights and obligations imposed by the resumed easement, embark upon a separation of damage flowing from the series of resumptions necessary to construct a major powerline so as to isolate the damage resulting to the retained land to activities etc. actually (or capable of being) carried out on the resumed land.

Two recent cases in the Land Court should be mentioned namely -

(a) T.M. and J.G. Treston -v- Brisbane City Council (1984 - 1985) 10 Q.L.C.R. 247 - this was a resumption for road purposes of an elongated strip of land being part of a scheme providing for the construction of a connection road. The scheme had the effect of changing the nature of the claimant's retained property from that of an inside residential property in a quiet attractive residential setting to that of a corner position on a busy four lane connection road. The land taken from the claimants was used solely for footpath purposes. The respondent argued that the assessment of damage suffered by the claimants to their retained land should be limited to that which was attributable to the construction placed on or the use of the land taken from them. The Court held that the taking of the land of the claimants formed an integral and inseparable part of the resumptions necessary for the construction of the road and the compensation for injurious affection to the retained land fell to be assessed according to the damage which flowed from the construction of the whole of the new road - in effect paragraph (iv) abovementioned was applied; and

(b)Ernest Glen Baillie -v- The Commissioner for Railways (1986 - 1987) 11 Q.L.C.R. 95 at p. 106. This was a resumption for Railway purposes involving duplication of an existing railway line and construction of an access road beside the railway line. The duplicated line was constructed on the Commissioner's land and the claimants' resumed land was used only for the road. Held: no compensation should be awarded for injurious infection because the activities on the claimant's resumed land were in no way linked with the factor of noise from the trains allegedly causing the nuisance - in effect paragraph (i) above was applied.

Each case must be considered on the basis of its individual facts and circumstances.

The rationale of the approach is, I think, discernable from the abovecited cases.  The principle exemplified by Edwards case still applies and is binding on me. 

The first question that should be asked is what are the activities carried out on the resumed land.  In the subject case it was the construction of an embankment as a result of which the claimant's land suffered no injurious affection.  In the event, therefore the case falls within the ambit of paragraph (i) aforementioned rather than paragraph (iv).

If the resumption is to be regarded as forming an integral and inseparable part of the resumptions necessary for the construction of the railway because the embankment was a prerequisite to the construction and operation of the railway, it could not be said in a practical sense that the separation of damage flowing from the use of the claimants' land for such purpose and the use of other lands for the operation of trains was not possible.  There is in fact a separation of damage - neither party alleges any injurious affection damage arising from activities on the resumed land.  The damage clearly arises as the result of the use of the reserve land.  Therefore, I do not see that the case falls within the ambit of paragraph (iv) above.

I find that the provisions of Section 20 (1) of the Acquisition of Land Act (Qld.) and the dicta exemplified by Edwards case (supra) are binding upon me.  It follows, as a matter of law, that I am unable to make any award in the subject case for injurious affection.

My decision would have been otherwise if one of the rails of the railway line had been built on the resumed land, travelling rolling stock encroached thereon or if the resumed land was intended for future duplication of the railway line.  None of these fall for consideration - the plan part of Exhibit 2 shows the proposed duplication to be west of the present track and in the Railway Reserve.

My decision in regards to injurious affection has of necessity been based on legal interpretation.  If present day community thinking  regards it as too artificially restrictive and as placing the Commissioner in an unduly favourable position, the remedy subject of course to any testing on appeal, lies as in the Edward's case with the Legislature.

It follows that the only compensable item of the claim before me, in my opinion, is for loss of the resumed land."

For the purposes of considering the submissions here on injurious affection I will accept for such purpose that the closure of the roadside stall was caused by the relocation of the Bruce Highway.  I stress that I am not making any such finding on the evidence.  The evidence establishes that the new highway has been constructed on the original road reserve.  It cannot be suggested that the intrusion of a small part of the wing on the embankment on the opposite side of the highway has contributed in any way to the decision reached by the claimants to close the stall.  On the evidence of Mr. Soden the decision resulted because of the relocation of the highway itself.  It would have been taken whether land had been resumed on the western side of the road or not.  Accordingly, the claim is disallowed on the ground that the activities of the respondent which resulted in that decision did not occur on the land taken from the claimants.
            I turn now to the claim for $4,000 as an item of disturbance because of a road camp upon the subject land.  This claim has been advanced by Valuer Mr. Matson on the grounds that the contractor undertaking the roadworks established a road camp upon the land owned by the claimants in a position close to the residence.  This camp was used for some 40 weeks for the marshalling and storing of road plant and for a camp for the employees.  He has assessed his claim at $100 per week as a reasonable sum to apply for the use of the land and the disability because of noise and dust.  He was aware that the contractor sought and was granted permission by Mr. Soden to establish the camp on the land.  In his evidence Mr. Soden speaks of the road camp.  He says that the roadworks commenced in October 1984 with a number of heavy machines working on the road and when they were not working they were parked and maintained on his land.  He says it became obvious, almost immediately the roadworks commenced, that continued operating of the roadside stall was not feasible during construction of the roadworks and this was a factor in closing down the stall.  I find this somewhat difficult to reconcile with the evidence that the roadside stall ceased trading on 1st October, 1984 and that the roadworks commenced on 22nd October, 1984 and were completed by 29th May, 1985.  He acknowledges that he granted permission for the road camp to be established and did not seek any payment for the use of his land by the contractor.
            In matters such as this, claims for disturbance are allowed providing they are not too remote and are the natural and reasonable consequence of the dispossession of the owner.  The authority for this is contained in Harvey -v- Crawley Development Corporation (1957) 1 E.R. 504, where Romer L.J. at Page 507 said:-

"The authorities to which our attention was drawn establish that any loss sustained by a dispossessed owner (at all events one who occupies his house) which flows from a compulsory acquisition may properly be regarded as the subject of compensation for disturbance, provided, first, that it is not too remote and, secondly, that it is the natural and reasonable consequence of the disposition of the owner."

I put this test to Mr. Matson to explain how he saw justification for the claim as the reasonable and natural consequence of the resumption.  He says that the road camp was necessary in some location.  It was not practicable to put it on the road.  The contractor had to locate the camp somewhere and that it was a natural thing in the train of events that occurred to put the camp on this land.
            I can find no merit in this claim whatsoever.  The respondent Commissioner had nothing whatever to do with the arrangements reached by the claimants with the contractor.  The Commissioner has not exercised his rights to temporarily occupy and use any land for the purposes of constructing or repairing any works as provided by Section 26 of the Main Roads Act 1920 (as amended).  It was a matter for the claimants to refuse to allow the contractor to use their land if they so desired.  It is certainly not the natural and reasonable consequence of the dispossession of the owner and the claim is disallowed.
            As I have already stated all other items have been agreed upon in the sum of $1,300 for loss of land and $1,800 for legal and valuation fees incurred up to the date of lodgment of the claim in the Court so that the total amount of compensation is the sum of $3,100.
Section 28 of the Acquisition of Land Act provides that the Court may order that interest be paid upon the amount of compensation determined by it in respect of the period or any part of the period commencing on and including the day on and from which any land is taken and ending on and including the day immediately preceding the date on which payment of compensation is made. Counsel for the respondent submits that this is a proper case where the claimants should not be entitled to interest for the period from the date of resumption to the date of payment because of their tardiness in the whole proceedings. The land was resumed on 28th April, 1984 and a claim for compensation was not forthcoming until after the respondent sought and obtained an order from the Court on 19th December, 1988 for the claimants to enter an appearance by filing a Claim for Compensation in accordance with the requirements of Section 19 of the Acquisition of Land Act. He recounts the difficulties experienced by the respondent in endeavouring to obtain material from the claimants to enable him to properly consider the whole matter. My attention is directed to certain decisions of Members of this Court where for one reason or another interest has not been awarded on the total amount of compensation for the whole period involved. In this case it is clear that the claimants have been tardy in pursuing their rights but having heard Mr. Soden in the witness box I am left with the conclusions that he has difficulty in handling business matters of this nature. Counsel for the claimants submits that the respondent has had the use of the compensation money since the date of resumption and in all the circumstances I propose to award interest on the sum of $1,300 for the loss of land from the date of resumption up to the date of payment.
            The question of interest on the award for legal and valuations fees has given me some difficulty.  I have been remiss in not seeking to be advised of the date when payment of these amounts was made.  It would be inappropriate to award interest on those amounts for any period prior to that date.  From the various letters which have been tendered in these proceedings, it would appear that for some considerable time the claimants were acting on their own behalf.  The only evidence I have on the items of disturbance is that Mr. Matson carried out his inspection in June 1987 and some correspondence to suggest that their solicitors entered the matter about that time.  This matter has been delayed for a considerable period and I do not propose to delay it further by seeking further information from the parties.  I will adopt an arbitrary date from 1st June, 1987 as the date from which interest on the items of disturbance will be awarded.  I make the general comment that it will be helpful in future proceedings if this information is made available to the Court at the date of hearing.
            Accordingly, I determine compensation payable by the respondent to the claimants under all heads of claim in the sum of three thousand, one hundred dollars ($3,100).  I order the respondents to pay to the claimants interest on the sum of one thousand, three hundred dollars ($1,300) at the rate of 13.25% per annum commencing on 28th April, 1984 up to 31st May, 1987 and thereafter on the sum of three thousand, one hundred dollars ($3,100) at the rate of 13.25% per annum from the first day of June, 1987 up to and including the day immediately preceding the date on which payment is made.

President of the Land Court.