Stanfield v The Brisbane City Council
[1989] QLC 7
•26 July 1989
|
BRISBANE.
Re: Acquisition of Land Act 1967 - 1977
Claims for Compensation for
(a) discontinuation of resumption for Bus Depot purposes;
(A88-22) and
(b) resumption for Motor Omnibus purposes
(A88-84)
Colin F. Stanfield
- v -
The Brisbane City Council
J U D G M E N T
On 18th April, 1986 the Brisbane City Council (hereafter called the respondent) issued on Mr. Stanfield (hereafter called the claimant) a Notice of Intention to Resume for Bus Depot purposes an area of land totalling approximately 45,350 m2 being Lot 1 on RP 168843 and Lot 19 on RP 111384, Parish of Yeerongpilly, County of Stanley, City of Brisbane.
On 18th March, 1987 the respondent issued a Notice of Discontinuance of Resumption.
On 8th April, 1987 the respondent gave Notice of Intention to Resume the aforesaid Lots 1 and 19 for Motor Omnibus purposes and on 23rd March, 1988 duly issued a Notification of Resumption taking the land.
In consequence I have before me two (2) claims for determination namely a claim for compensation pursuant to Section 16 (1) of the Acquisition of Land Act for costs and expenses incurred by the claimant in respect of the discontinuance and also a claim for compensation for the resumption of his land.
In respect of the firstmentioned matter the claimant seeks an amount of $7,785 made up as follows:-
. Valuation Fees .................... $7,260
. Town Planner's Fees ............... $ 75
. Solicitor's Fees ................. $ 225
. Counsel's Fees .................... $ 225
In respect of the resumption, a claim for compensation was filed in the Registry on 30th November, 1988 in the total sum of $8,177,165.00.
At the commencement of the hearing the claimant sought and was granted, without objection, leave to increase the value of the item "Land" from $8,154,000.00 to $10M. In the result the amount to which evidence was lead totals $10,023,165.00 made up as follows:-
. Land ...................................... $10,000,000
. Disturbance
. Costs of preparation of Claim
Town Planner's fees ..........$ 5,332
Traffic Engineer's fees.......$ 280
Valuation fees ...............$16,053
Legal fees ...................$ 1,500 $ 23,165
Total $10,023,165
In reply the respondent lead evidence to a land value of $1M.
No advance against compensation has been paid although it is alleged on behalf of the claimant that since November 1988 repeated applications have been made for such an advance.
Because of the somewhat complex nature of the resumption claim, I propose to reverse the chronological order and deal first with that claim.
On the afternoon of Friday 2nd June last at the request of both parties I viewed the subject land, Dendle's parcel and the Village Roadshow parcel from vantage points on Logan Road and on the common boundary with the Garden City Drive-in Shopping Centre. I also viewed the subject land as drove down the South-East Freeway. These views has been of assistance in consideration of the evidence.
Each party called several witnesses. The valuation for the claimant was written by Michael Joseph Slater a registered valuer in private practice. Because of the complexity of the exercise, as he saw it, he consulted with experts of various disciplines, namely Jeffrey Ross Humphreys a Town Planning Consultant as to the most appropriate zoning for the resumed land on the assumption that it had not been required for motor omnibus purposes; Jon Mark Norling, Queensland Manager of Plant Location International, Market Economic and Finance Consultants as to projected rates for office accommodation development in the Upper Mt. Gravatt locality. Philip Graham Breene, Consulting Engineer and Planner as to the drainage and flooding propensity of the resumed land; and Neil Desmond Viney a Master of Engineering Science specialising in Traffic Engineering as to access to the resumed land and in particular the design of a new four-way Newnham Road/Logan Road intersection.
The respondent adduced valuation evidence through Philip Noel Rowland a registered valuer in its employ. The evidence of the claimant's experts was disputed, modified and/or extended by the following experts called by the respondent:-
.Ray Littlejohn, an Urban and Regional Planner employed by the respondent as Principal Town Planner (Strategic);
.Jurgen Alois Hanisch, a Town Planner employed by the respondent as Senior Town Planner; and
.Thomas John Johnston an Engineer employed by the respondent as Assistant Traffic Engineer (Development).
The resumed land is located at 2265 - 2277 Logan Road, Upper Mt. Gravatt. It comprises the southern end of a triangular shaped island of land, bounded by Logan Road, Kessels Road and the South-East Freeway containing a number of large land holdings, all of which other than the subject land and a parcel formerly owned by Dendle, but more recently purchased by the respondent for motor omnibus purposes, form the designated Upper Mt. Gravatt Regional Business Centre. This Centre contains the Garden City Drive-in Shopping Centre, a number of Office Buildings a service station and a Bus Interchange. The Centre is situated approximately 15 kms by road south east of the Brisbane GPO. I shall refer hereafter in this judgment to this island of land as the "island block".
The resumed parcel has a frontage of about 160 metres to Logan Road, a designated arterial road under the control of the Main Roads Department and the parcel's south-west boundary of approximately 722 metres abuts the South-East Freeway to and from which, of course, there is no access. The short eastern boundary of the resumed parcel abuts the South-East Freeway's Logan Road off ramp. The northern boundary is stepped and runs about 285 metres in a westerly direction, then about 130 metres in a north westerly direction and then about 215 metres in a westerly direction to the South-East Freeway alignment.
The resumed land is of an irregular shape which is best described as two joined triangles with the larger (southern triangle) having the frontage to Logan Road while the northern triangle abuts the southern boundary of the fairly recent extension of the Garden City Drive-in Shopping Centre. The base of both triangles is formed by the South-East Freeway.
At the north western apex, the resumed land is well elevated to a maximum elevation of approximately 49m AHD. At the south eastern end, the land falls to a minimum elevation of approximately 27m AHD. The land straddles a south facing ridge and is cut by a gully which effects both triangles. Bulimba Creek severs Lot 1 and affects the south-eastern corner of Lot 19. Lot 1 comprises mostly low-lying creek flats and has a dense cover of swamp grasses, trees and shrubs. The southern portion of Lot 19 is undulating to the Freeway Reserve and is severed by a broad shallow gully. The northern section of Lot 19 is also severed by the head of the same gully which is steeper in this section. The northern section has a regular contour grade back to the north western apex of the parcel. Lot 19 is also tree covered.
A "hollow" effect has been given the subject land by the creation of 4-6m high earth bank along the northern boundary - the apparent pushed residue of fill used in the Stage II development of the Garden City Drive-in Shopping Centre - by the earth embankments for the South-East Freeway and the Logan Road/Bulimba Creek crossing. The land also in other places falls naturally from the Freeway and the old Logan Road alignment.
The subject land is subject to periodic flooding from Bulimba Creek, the 1974 Australia Day floods affecting approximately 28% of its area. Mr. Hanisch's research of flood maps indicated that most of the Logan Road frontage flooded during the '74 flood - only the northernmost part was flood free. An area of about 2885 m2 in the south-eastern corner of Lot 1 is in the flood plain of Bulimba Creek and below the regulation line. If any commercial development of the resumed land proceeded this area could only be used for parking. In addition an area of about 2310 m2 is affected by the northern channel of the creek. It is claimed by Mr. Rowland that it would take $420,000 to pipe the northern channel and place some fill on it.
In its present undeveloped state the subject land receives storm water discharge from most of the Garden City Drive-in Shopping Centre and from the South-East Freeway. The controlled disposal of this water through the subject land would involve a scheme costing, according to Mr. Breene, about $300,000 of which the owner of the subject land on a proportion of flow basis could, in his opinion, after negotiation with other owners expect to contribute about $41,000. Mr. Breene also thought that about $150,000 of earth works would provide a reasonably level site on both triangles. As compared with this figure it was put to Mr. Breene that the respondent will spend between $4.6M and $5.5M on cut, fill, drainage, retaining walls, hard surfaces, and bitumen. The two developments envisaged are not comparatively compatible and the respective expenditures probably indicate only parameters of cost.
At date of resumption the only legal access available to the resumed parcel was to Logan Road - a six lane highway with a central median strip. The Main Roads Department had indicated its opposition to the availability of access to Logan Road for any significant development. The only access that would have been allowed to Logan Road was for single residential use. In point of fact the only access point to Logan Road existing at date of resumption was by way of a sealed earth ramp which turned down and into the subject property at the top north eastern corner of lot 19. A large portion of this ramp has been constructed on the old Logan Road reserve created on the 6 lane realigning of Logan Road. Access to the rest of the resumed land's frontage was restricted by guard railings and topographical conditions.
I think it is fair comment to say that as at date of resumption the subject parcel as to its topographical features and access was generally not attractive. This is not to say that its physical constraints (apart from the land below the regulation line) rendered it unsuitable for commercial development. Mr. Breene said that he believed that the contours would not be detrimental or present significant difficulties in commercially developing the land. The catchment generally up in the Garden City area probably, he thought, had similar characteristics. It has been filled, levelled and brought to a shape that suits the developers. The extent of Mr. Breene's research as to the contours of Garden City in its undeveloped state was neither expounded nor explored. It is, of course, very much a matter of comparative development costs and no real evidence has been lead in this regard.
The respondent's resumption of and proposals for the subject land support its adaptability for commercial use. The design plans for the bus depot (vide Exhibit 46) include what appears to be total development of the land excluding lot 1. The proposed administration building is planned to be built on the site of the gully presently running through the northern triangle and the proposed garage/workshops are located in the eastern (lower) part of the southern triangle. The subject parcel's principal virtue lies in its close proximity to the designated Upper Mt. Gravatt Regional Business Centre or to adopt Mr. Slater's euphuistic terms - "it is strategically placed ... in an area that is the commercial focal point of the southern side of Brisbane and the adjoining Local Authorities. The land has unequalled exposure to the South-East Freeway".
Pursuant to the 1987 Town Plan, the plan in effect at date of resumption, Lot 19 is zoned "Special Uses (utility installation)" and Lot 1 is zoned "Open Space". Zoning, or more precisely the manner in which the respondent would have dealt with the subject land in the 1987 Plan if there had been no resumption, is a factor of major relevance in this case. I therefore set out a brief history of the zoning attaching to the subject land at various periods.
Lots 19 (area 3.855 hectares) and 1 (area 0.6748 hectares) were balance areas arising from the severing of the claimant's original large holding by the resumption of lands for the South-East Freeway (The Commissioner of Main Roads -v- C. Stanwell - Land Appeal Court (1969) 36 C.L.L.R. 76). Under the Town Plan of 1965 - Brisbane's first Town Plan - the lots were zoned "Non Urban" in common with surrounding land including the site of the Garden City Drive-in Shopping Centre. In 1967 the respondent announced a proposal to establish a park and recreation network along Bulimba Creek. The lots were rezoned to "Open Space" in the 1969 review and no objection was lodged. The view has been expressed that this zoning change was made to allow the subject lands to remain as a natural habitat and recreation area as part of the Bulimba Creek Scheme. No other parcels in the "island block" were placed in the Open Space zone. The Open Space zoning for the resumed parcel was confirmed in the 1971 Town Plan and remained until the 1986 Draft Town Plan. In the interim some other lands in the locality which had been included in the Open Space zone went to higher zones. In 1973 the claimant made application to rezone the subject land from the "Open Space" zone to the "Future Urban" zone with an offer to give the respondent four (4) acres of land in the south-eastern corner. The application was refused. In October 1977 application was made for consideration in principle for rezoning of the lots to a zone which would allow their use for a sporting complex. On this occasion the claimant was told that a formal application would be required and the availability of access to the land should be discussed with the Main Roads Department.
In the 1986 Draft Plan Lot 19, patently in anticipation of resumption, was proposed to be included in the "Special Uses (Utility Installation)" zone and Lot 1 was proposed to remain "Open Space". These proposed zonings were confirmed in the 1987 Town Plan.
The 1978 Town Plan introduced formally the concept of a Regional Business Centre and identified one such centre as being promoted in the locality of Upper Mt. Gravatt. Specific boundaries of the centres were not designated. By the date of this Plan all suitable residential land in the general locality had been appropriately zoned. Land within the "island block" despite its Future Urban zoning had not been developed for residential purposes but for commercial use with a significant area at the northern end (the site of the present Mt. Gravatt Gardens Square Office Complex) being included in the Local Business and Commercial zones.
The 1987 Town Plan formalised the concept of Regional Business Centres and specifically designated the centre at Upper Mt. Gravatt as including all land within the "island block" except the subject and Dendle's, which after issue of a Notice of Intention to resume was purchased on 6th June, 1986 by the respondent. This parcel is to be used in conjunction with the subject land and was similarly zoned "Special Uses". Its former zoning had been "Future Urban".
Adjoining Dendle's parcel on the north is the Village Roadshow parcel of 2.44 hectares. Its zoning in the 1978 Plan was changed from "Non Urban" to "Future Urban" and this zoning was retained in the 1987 plan but more importantly the parcel was included in the designated area of the Upper Mt. Gravatt Business Centre. In June 1988 no objection was raised by the respondent's Planning Policy Advisory Committee to a formal application for its rezoning to "Business". The application under consideration involved 13,890 m2 of hotel accommodation including residential and other associated uses, 22,500 m2 of office space, and 7,305 m2 of cinema/restaurant complex (total floor area 43,695 m2 in 2 x 10 storey buildings).
The northern boundary of the Village Roadshow parcel is adjacent to the Garden City Drive-in Shopping Centre and its eastern boundary abuts Logan Road. Access from Logan Road direct to the site has been negotiated (in principle, if not in final detail) by means of an extension of the Newnham Road/Logan Road junction to a four way intersection and access to the north linking the Village Roadshow parcel with the Garden City perimeter road has also been negotiated. The respondent ensured through conditions attached to the rezoning approval that access from Logan Road through the proposed four way intersection be shared as a joint access with Dendle's parcel, each parcel contributing to the internal access road area.
I accept on the totality of the evidence before me that neither Dendle's nor the Village Roadshow parcels have the topographical constraints of the subject parcel and overall are superior to the subject land.
It should also be mentioned that as early as the 1965 Town Plan "Local Business" zoning was granted to strip development on both sides of Logan Road to the north of Kessels Road. This zoning has been progressively extended south along the eastern side of Logan Road opposite Garden City as well as into Mt. Gravatt/Capalaba Road. Commercial and business uses are thus not confined to the designated area of the Upper Mt. Gravatt Business Centre.
No use was being made of the resumed land at the date of resumption nor had it apparently been used for many years. I understand the claimant is a man of advanced age. Mr. Slater mentioned the names of some persons who he had been informed had approached the claimant but in the absence of more detailed and direct information as to the nature of these approaches the claimant's case is not advanced.
Certain principles relating to the assessment of compensation for compulsory acquisition are so well established they need no explanation in depth. The object is to place the claimant, as far as money may, in the position he enjoyed immediately before resumption. It is the value to the claimant and not to the resuming authority that has to be assessed. The measure generally applied in the assessment of value is the price which a willing but not over anxious vendor/purchaser would negotiate on the open market as for the highest and best use to which the land may be lawfully put. All matters or circumstances which such parties would take into consideration are thus brought into focus including the zoning at date of resumption and the prospects of that zoning being advantageously or disadvantageously altered. The zoning placed on the resumed land in anticipation of the scheme of resumption - such as the Special Use zoning in the subject case - is discarded in favour of a zoning or the town planning provisions that would have applied or may be assumed to have applied, if the resumption had not occurred.
A further important principle is that known as the Pointe Gourde rule and its reverse, namely that the scheme of resumption must neither appreciate nor depreciate the amount of compensation payable.
Generally speaking the task of enumerating principles is relatively simple. The more difficult matter is deciding which principles are relevant to the facts of a particular resumption.
The extraordinary large difference between the estimates of compensation in this case arises from the different views taken by the valuers as to the town planning provisions that would have attached to the subject land if the resumption had not occurred. When I say respective valuers, I do not imply that they have reached their respective decisions without first seeking professional advice. On the contrary the valuers consulted experts as detailed earlier in this judgment and having done so based their valuation approaches on fundamentally opposing basis.
The claimant's valuer, Mr. Slater, considered that the restrictive conditions of the "Open Space" zone - the zone prior to the current "Special Uses" zone - were clearly inappropriate in 1988 especially as the Bulimba Creek Scheme pursuant to which the zoning was imposed, had been abandoned or stopped. The advice he received was to the effect that if correct Town Planning principles had been applied to the subject land it would have been included, in the designated Upper Mt. Gravatt Regional Business Centre and zoned "Future Urban". He, therefore, valued the land for its highest and best use as a development site for commercial uses. He contended that this potential would have been immediately realised at resumption date had it not been for the resumption process and had the Council acted reasonably and in good faith. He assumed that, if not for the scheme of resumption adequate access would have been available to the land. He therefore saw no reason to discount the land's resumption date value for any factor associated with the zoning and assessed its value at $225/m2 rounded off at $10M.
In some sections of his valuation report Mr. Slater refers to a mega site by which term he means the subject parcel, Dendle's parcel and the Village Roadshow parcel. He creates this mega site on the hypothesis that owners would group together for their own commercial gain. In some ways this mega site makes access, at least to the subject parcel, somewhat easier to achieve. In that he envisages the lands in the mega site to be valued at the same unit value as the land in the resumed parcel, I do not think that the mega site concept is really of any particular importance or relevance in the subject exercise. Senior counsel for the claimant in his final submission did not press the concept and submitted the subject land should "stand on its own feet".
Mr. Rowland, on the other hand, whilst he disregarded the "Special Uses" zoning as a step in the resumption process, considered the subject land as being appropriately zoned "Open Space" with a portion thereof (1 hectare) in two parts in the northern triangle as having limited commercial potential. He viewed this potential in the light of its physical and commercial isolation from the existing Upper Mt. Gravatt Regional Business Centre development and the older established suburban Shopping Centre and associated commercial development in the locality outside the Regional Business Centre. He also had regard to difficulties in establishing reasonable vehicle access to the site, the physical constraints of the site's contours and shape and the risk and time needed to obtain rezoning and development approval for any commercial use of the relevant part of the subject land. He valued the hectare at $1M but discounted its value for risk, etc. by 30%. The balance of the land he viewed as a holding proposition and placed a value of $300,000 on it. In the result his overall value of the resumed land as a parcel amounted to $1M.
The question that must first be decided is which of the assumptions basic to the respective valuations is the one which should be adopted for the purposes of the judgment.
Concept 2 of the Structure Plan of the 1978 Town Plan referred to the concentration of commercial development elsewhere than in the Central Business District. Broadly, but not exclusively, it was to be within 5 major Regional Business Centres at suburban locations, "in the vicinity of" Chermside, Indooroopilly, Upper Mt. Gravatt and two smaller ones to be decided later to the east and south of the City. The centres were intended among other matters, to relieve the increasingly long journeys to and from work by ever growing numbers of suburban residents, to reduce peak hour traffic congestion and to provide a better balance of employment and business opportunities throughout the total city area. The intended characteristics of the three (3) larger business centres include:-
.intended to serve catchments of some 150,000 to 200,000 people each;
.intended to provide employment for 10,000 to 20,000 people, primarily in offices and associated activity;
.the proportion of employment provided by each component was expected to be in the order of -
. 55% of offices
. 15% in retailing
. 15% in service industries
.remaining 20% distributed throughout transport and communication services, recreation, community facilities, etc.;
.retailing space was estimated at 50,000 m2;
.zoning to be Suburban Commercial.
The precise location of each centre was not specified nor was any boundary designated.
The Regional Business Centre concept was retained and refined in the 1987 Town Plan with four such centres initially proposed, based on existing shopping facilities at Indooroopilly, Chermside, Upper Mt. Gravatt and Carindale. The boundaries of the proposed centres were defined.
Attractive development standards were specified. Those for the Upper Mt. Gravatt Centre being buildings not more than 10 storeys above ground level, maximum podium height 15 metres and plot ratio 2.5 to 1.
The details of intended characteristics as specified in the 1978 Town Plan were not incorporated in the 1987 plan. Reference to service industries was deleted. The plan, however, did provide for expansion of existing facilities and it was specified that the formation of a Regional Business Centre should not:-
(a)include land separated from existing facilities by arterial or sub arterial roads. The boundaries of the centres recognise the need for a consolidated development which does not contribute to traffic planning problems in the vicinity of the centre;
(b)result in isolated residential development, or the isolation of parcels of land; or
(c)encourage additional traffic to use adjacent residential streets.
Town Planning Consultant, Mr. Humphreys, is the expert upon whose advice Mr. Slater based the assumption implicit in his valuation that but for the resumption the subject land would be within the designated Regional Business Centre. Mr. Humphreys contends that it would appear that the defined boundaries of the Upper Mt. Gravatt Business Centre were somewhat arbitrary being based, not on specific empirical investigation, but rather on delineating the existing Regional Shopping Centre together with adjacent land, which may be suitable for expansion of existing facilities in accordance with the intent of the plan, to promote and consolidate the Centres.
Mr. Humphreys viewed the "Open Space" zoning of the resumed land having regard to all relevant town planning considerations as being entirely inappropriate and not now needed. He felt that it could be no longer justified as being associated with the Bulimba Creek Scheme which he said appeared to be confined to land right beside the creek and was effectively dead in the subject locality. No open space development had occurred on the western side of the creek in the subject area and land originally proposed had been allocated for residential purposes. In the event, in the subject locality the creek had disappeared under the Freeway.
Mr. Humphreys gained comfort for these views from noting that in the 1978 Plan the subject site was the only remaining area west of Bulimba Creek still included in the Open Space zone and that its acquisition by the respondent for omnibus purposes - a piece of bad planning in his opinion - indicated the respondent's acknowledgement of the suitability of the site for purposes other than Open Space.
It is common ground that the Regional Business Centres are all significantly under developed. In relation to the characteristics of the 1978 Plan (which to me seem to be expectations or guidelines rather than regulatory characteristics), the Upper Mt. Gravatt Centre appears to be the most developed and successful of the Regional Business Centres. As at 1989 the centre comprised an area of 29.3569 ha under four (4) ownerships. The largest single owner was the AMP with 84% (Garden City Drive-in Shopping Centre) followed by the Village Roadshow 8.3% (vacant), Pidgeon & Sons Pty. Ltd. 5.7% (commercial offices) and Shell Co. of Aust. 1.1% (service station). The Centre had the greatest amount (13,379 m2) of constructed office space within its designated area and it had the lowest vacancy rate. It had, however, only obtained 10% of the 1978 Plan's characteristics. The retail development currently approximates 65,000 m2 representing a plot ratio of only 0.32 which Mr. Humphreys says is typical of drive-in shopping complexes. In comparison the office accommodation at the northern end of the centre represents a plot ratio of 0.76 which is far short of the permissable maximum of 2.5. No office buildings comprise 10 storeys.
Mr. Humphreys adopted the statistics of the intended characteristics of a Regional Business Centre specified in the 1978 plan and applying Mr. Norling's forecasts as to future demand for office space in the Upper Mt. Gravatt locality, he concluded that some 9.3 hectares of extra land would be required to meet the projected demand. The most logical way of meeting this demand in accordance with the guide lines for expansion of existing facilities as set out in the Town Plan and mentioned earlier in this judgment was, in his opinion, to extend the boundary of the Upper Mt. Gravatt Business Centre southward to absorb the remainder of the land contained within the "island block". Mr. Humphreys acknowledged the access difficulties attaching to the subject land and that currently it had no road access. He thought these would be overcome on the rezoning of the Village Roadshow parcel from Future Urban by the respondent providing for a condition that satisfactory access should be provided to the subject site.
The conclusion finally reached by Mr. Humphreys was that the subject site having regard to all relevant Town Planning considerations should be included in the Upper Mt. Gravatt Regional Business Centre and afforded an appropriate zoning such as the "Future Urban" zone. Its uses should comprise uses consistent with a Regional Business Centre, in particular intensive office development together with associated uses and facilities, including, perhaps a hotel with associated accommodation.
It is apparently in the nature of things for experts of all disciplines to disagree to varying degrees in their opinions, projections, and conclusions. In the subject case, however, although opinions and projections vary there is at least some agreement at the end of the day.
The respondent was criticised for relying on its employees and not tendering evidence through private consultants. Professional witnesses whether in the private or public sector, are expected to give fair and honest evidence based on their professional expertise, knowledge and experience. In that the respondent's professional employees have been closely associated with the development and formulation of various Town Plans, it may be that they are open to subconsciously becoming subservient to the scheme the Plan seeks to portray. Their knowledge of and acquaintance with the background of a Plan can be useful and their professionalism should be such that they should not be overpowered by the Scheme. If this is not so their disinclination to look objectively at or beyond the Scheme should be apparent in their testimony. In the subject case I do not think this aspect over duly intruded.
Mr. Littlejohn, the expert upon whom Mr. Rowland chiefly relied, is a planner of considerable experience. He thought that the subject site was an "abominable" place for a bus depot from a Town Planning viewpoint. Aesthetically and from the view of sound town planning he thought that the correct use of the resumed land was as a part of an open space system linking the entire Bulimba Creek system. He confirmed that the Bulimba Creek Scheme was not dead. It is constantly being modified and four (4) separate studies involving it are presently being undertaken. Considerable sections of the creek have been culverted and he would not agree that development in the subject locality had made the subject land unattractive as Open Space intending that it would serve as a visual buffer. The possibility existed of establishing a bike/walkway linkage along Bulimba Creek via the large culverts under Logan Road and the Freeway. Landscaping of the site would soften the approach to Garden City.
Mr. Littlejohn's projection of office demand in the Upper Mt. Gravatt area approximates that of Mr. Norling, within reasonable bounds of difference, up to the year 2000 after which Mr. Norling, basing his projections on Sydney statistics for Paramatta, North Sydney, Chatswood etc sees skyrocketing increases compared to the more moderate increases projected by Mr. Littlejohn. The latter thinks that Brisbane, not being the size of Sydney and still having an expanding Central Business District will not see Regional Business Centres becoming mini cities in their own right as has occurred in Sydney. It also goes without saying that the longer the projection the less reliable the accuracy of the projection.
The present office space, according to Mr. Littlejohn, in the Upper Mt. Gravatt locality (inside and in the vicinity of the Regional Business Centre) amounts to 32,000 m2 which is fully occupied. Some 64,900 m2 has been approved in various projects either within the "island block" or in close proximity thereto. Some 22,500 m2 of this approved accommodation covers the office component of the Village Roadshow parcel. According to Mr. Littlejohn's projections of office demand, this extra space should be adequate to cater for demand until the year 2000. If Mr. Littlejohn is required to allow for "lumpy" demand - unexpected major tenants - he envisages three such "surprise" tenants in various years with supply being sufficient to cater until the year 1997.
He points out that additionally there are 4.5 hectares of land held by the AMP in the south east corner of the Garden City Drive-in Shopping Centre as illustrated in Exhibit 36, which are vacant in that they are not occupied by buildings or incorporated in the Centre's car parks. This land could be used as of right to construct office accommodation in buildings up to 10 stories high with a plot ratio 2.5 to 1 providing accommodation space of the total order of 113,000 m2.
Given the amount of undeveloped and underdeveloped land within the present defined Upper Mt. Gravatt Regional Business Centre and in the locality outside the "island block", Mr. Littlejohn concluded that there was adequate land committed to satisfy the likely demand for office floor space for many years and probably into the early years of the 21st century. He stressed the difficult and relatively unattractive nature of the subject site for development and considered that this would have made it an improbable site to be included in the Regional Business Centre under any circumstances especially as preservation of its Open Space zoning contiguous to a Regional Business Centre would have ensured a use which would have enhanced the Centre by providing, an additional dimension to the amenity of the Centre. Whilst admitting that the subject land conformed to the characteristics for inclusion in a Regional Business Centre, Mr. Littlejohn said he could not justify its inclusion in the Upper Mt. Gravatt Regional Business Centre as designated in the 1987 Plan because there was adequate area within the Centre and the strategy was to continue to reflect the "Open Space" zoning that had been in place since 1971.
I note that Mr. Humphreys admitted that it was good planning to have an open landscaped area to give visual relief to the southern entry of the Regional Business Centre but he considered that a landscaped entry could be obtained more satisfactorily if the land was developed in conjunction with some productive use thereof.
Jurgen Hanisch, the respondent's Senior Town Planner gave a factual description of the resumed land particularly the area in the northern triangle. He considered those parts (about 1 hectare) of the land with the least constraints topographically within that triangle had the best prospects of development in the shorter term for uses complementary to those in the Regional Business Centre. The balance land had greater constraints and it was further distant from commercial development. He considered it less suitable for rezoning for commercial purposes and if demand required its rezoning it would be in the longer term. He was uncertain as to the time frame of the "short term" but was certain that the "long term" would be in excess of 20 years. He was not aware that there was a shortage of commercial land in the locality within a meaningful time horizon for planning purposes. He had no evidence that the Upper Mt. Gravatt Regional Business Centre was of insufficient size and admitted that whilst the Council would prefer to see commercial projects concentrated within the "island block" it was not an unusual phenomenon to see them develop outside the Regional Business Centre.
I heard from Mr. Hanisch also that the Bulimba Creek Scheme is still "alive and well". The 1978 Plan contains express reference to the Scheme and it is contained in the 1987 Plan as Planning Policy No. 11.01 Bulimba Creek Open Space Corridor. Mr. Hanisch gave particulars to some of the studies that had been conducted involving plans for the subject land (ranging in date from 1971 to 1989). The subject land is clearly earmarked as a specific parcel of land which is part of the Bulimba Creek Scheme. In a 1985 study the land was mapped as Forest and Woodland and reservoir catchment. The land was included in a 1989 study called "The Future of Brisbane's Bushland" which has not as yet been adopted by the Council. It is used in the nature of a planning tool. He tendered a plan (Exhibit 45) showing the bounds of the Bulimba Creek Scheme in the general locality of Mt. Gravatt. The "Open Space" zoning in the main follows the course of the creek and on both sides thereof. There is, however, little evidence in the record of works, if any, in the locality carried out by the respondent pursuant to the Scheme.
Mr. Hanisch denied that it was bad planning to have zoned all of the resumed land "Open Space". In his opinion it is in accord with the objectives of the Plan to have Open Space land on the periphery especially adjacent to major roads. Lot 1 is, in particular, low lying with a creek passing through it. It forms a desirable passive recreation area and movement corridor whilst the balance of the land (Lot 19) apart from the 1 hectare previously mentioned as suitable for commercial development is, in his opinion, innately suited for Open Space use such as a park for surrounding Residential A land or a park serving the office accommodation and retail shopping areas.
One point on which all three (3) town planners agreed is that full development of the integrated Regional Business Centre was well into the future. Mr. Humphreys who appeared to be looking to what the ultimate zoning of the land might be, referred to full development on one occasion as being over the next 20 to 30 years and to another occasion he referred to a period of 10 to 20 years. The respondent's planners seemed to be envisaging a minimal period of the same order and to agree that the subject land could be rezoned for commercial development in the long term if it was required.
Mr. Humphreys based his calculations on the specifics of the 1978 plan which were not carried over into the current Town Plan. These specifics in the phraseology of the statement of intent, appear to me to be expectations or guidelines rather than regulatory characteristics. He tended to adopt the maximum figures of those specifics. He relies heavily on the proximity of the resumed land to the defined boundaries of the Regional Business Centre and the logic of the Business Centre compactly covering the full extent of the "island block" by incorporating the southern section. Mr. Humphreys makes no reference in his report to the natural characteristics of the resumed land which I am satisfied have been a contributing factor to the land being included in (and being retained for such a long period in) the Open Space zone. I cannot agree with Mr. Humphreys that the Bulimba Creek Scheme is effectively dead nor that having regard to the natural characteristics of the resumed land it was necessarily bad planning to have zoned it "Open Space".
In my view the claimants have not proved a pressing demand for office accommodation as at date of resumption. The take-up rate for the years 1983/87 when a number of major space users took up occupation, was of the order of 5,000 m2 per annum but the take up rate for the period 1987/9 has been of the order of 900 m2. Various references were made during the hearing to Government Departments, etc. seeking office accommodation on the South side. It is, I suppose, a matter of supply and demand, but if the demand was so great the question arises why construction is not presently under way in the Mt. Gravatt locality or why the AMP have not entered the field of office accommodation.
In my view it is too simplistic merely to somewhat passively assume that "as of right" access will be provided to the subject land by imposition of appropriate conditions in the course of zoning approvals relating to adjoining land. The respondent seems to have been concerned to ensure that provision was made for the subject land to obtain access through land to the north - vide the AMP Rezoning Deed Exhibit 18 and the respondent's Planning Policy Advisory Committee Assessment dated 27th November, 1986 set out in Mr. Rowland's Valuation Report (Exhibit 28). I think also that it is reasonable to assume that access would have been achieved by a connection with the joint access road through the Village Roadshow Site if resumption had not occurred.
Mr. Slater's "as of right" approach to access disregards the necessity for negotiations and bargaining that would be involved between the owner of the resumed land and his neighbours in obtaining the access. Whilst the owner of the subject land may have some bargaining power as regard to stormwater disposal and in having the favourable auspices of the respondent in securing an orderly, efficient and compact road network in the locality I think the adjoining owner would be looking for some financial contribution and even, if necessary, to the strengthening or widening existing construction. The necessity for such negotiations were conceded by Senior Counsel for the claimant in his final submissions.
It seems to me also that the evidence of the respondent's witness Thomas Johnston, Assistant Traffic Engineer (Development) cast doubt on the efficiency of the designed Newnham Road/Logan Road intersection tendered by the claimant's Mr. Viney and also whether the intersection would fit within the road confines without resumption of land. Further consultation will be necessary with the Main Roads Department in regard thereto. I am inclined to the view that financial contribution would also be required from the owner of the resumed land in regard to this construction assuming it is feasible.
The effect of all this is that a purchaser would pay less for the resumed land in its present state as regards access than he would if access were in place. In short it is a matter of making some appropriate allowance in the comparative process.
The claimant urges that the totality of his planning evidence calls into operation the reverse of the Pointe Gourde rule and leads conclusively to the view that based on demand in the locality and the growth in the Regional Business Centre, the 1987 Town Plan had there been no resumption should have included the subject land as being within the designated boundary of the Upper Mt. Gravatt Regional Business Centre and placed it within the "Future Urban" zone. Alternatively it should be found that it would be so included by the next Town Plan.
The reason why the designation must await the next Town Plan as an alternative is because as Senior Counsel for the respondent strenuously stressed, it is not open for a member of the public to apply to have land included in the Regional Business Centre. The designation is not a zone and the decision as to the boundaries of a Regional Business Centre is solely for the respondent. It is not subject to appeal.
However, I have been informed that Town Planning is now an "ongoing" matter. Pursuant to Section 6 of The City of Brisbane Town Planning Act 1964-86, the respondent may from time to time make application to the Minister for amendment of the existing plan. I see no reason why a person in the situation of the claimant, could not make representation to the respondent for the extension of a Regional Business Centre's designated boundary and subject to the merits of his case and if necessary negotiations successfully pursuade the respondent to include the claimant's land within the designated boundary on the occasion of the next review of the Town Plan.
Senior Counsel for the respondent submits that the Pointe Gourde rule has not been driven as far as the claimant seeks in the present case. He maintains it has been applied in cases involving rezonings on the basis of a standard of proof of reasonable probabilities and contends that it has not been sought to be applied to cases involving decisions of the respondent not subject to appeal. If it may be so applied he submits that the standard of proof should be cogent and conclusive.
I am not aware of any authority of the point Senior Counsel makes. As a matter of principle I am of the opinion that the Pointe Gourde rule and its reverse is of universal application and is not limited to zoning or Town Planning matters. It may be driven wherever the facts support it. Their Lordships in the Judicial Committee's speech in Melwood Units Pty. Limited -v- The Commissioner of Main Roads (1978) 5 Q.L.C.R. 145 at pp. 151/153, which was a case dealing with zoning, asserted that the rule was part of the common law deriving as a matter of principle from the nature of compensation for resumption or compulsory acquisition. They did not signify any restrictions on its applications.
Fundamentally I think it may be assumed that the respondent must act reasonably and logically in all its decisions including Town Planning matters. Proof that it has not so acted must necessarily be clear and convincing. The Judicial Committee in the Melwood case (supra) spoke of the facts "manifestly" indicating the operation of the rule. Perhaps the lowest standard of proof that would be acceptable is one of reasonable certainty which owing to the hypothetical nature of these cases must in the end be dependent on a very strong degree of reasonable probability.
I have set out, in probably more detail than necessary, the respective views of the experts as to how the resumed land should have been dealt with in the 1987 Town Plan assuming there had been no resumption. On the grounds of demand and growth in the Centre I cannot agree that a case has been made out with reasonable certainty that the Council would have included the whole of the land within the Upper Mt. Gravatt Regional Business Centre had there been no resumption. I have given the question much consideration and weighed carefully the respective views. On the evidence of Messrs Littlejohn and Hanisch given that there had been no resumption there appears reasons supporting the respondents preferred planning option of retaining most of the resumed land in the "Open Space" zone.
The implication of the evidence is that the boundaries of the Upper Mt. Gravatt Regional Business Centre were designated without inspection of the northern triangle. If the evidence as to the suitability of part of this area for retail or business uses had been known, I think on the basis of compactness, logic and reason including the regularising of the southern boundary of the centre that the triangle would have, with a reasonable degree of certainty, been included in the designated area of the Regional Business Centre and zoned "Future Urban". The balance of the resumed land would have been zoned "Open Space" and pending the development of demand and the requirements of the Bulimba Creek Scheme the highest ultimate expectation would seem to be along the lines of Mr. Humphreys' concept - landscaping with some commercial use.
During the hearing it was claimed that the act of resumption signified the respondent's admission that Open Space was not the appropriate zoning of the subject land. It emerged that the respondent's Town Planning Department did not agree with the planning concept that the resumed land be used for a motor omnibus depot but had lost to the Transport Department on the grounds of transport economics. The preferred Town Planning option has certainly been replaced by the practical requirement of a handily situated transport depot, at least as far as the land in lot 19 is concerned. Be that as it may the implication is also open that the acquiring of the land for motor omnibus purposes signifies that it was the respondent's opinion that the land was not required for incorporation in the Upper Mt. Gravatt Regional Business Centre. Perhaps this implication to the extent that it is relevant, should be modified by the exclusion of the northern triangle and Dendle's parcel both of which in February 1989 were the subject of an unsuccessful invitation by the respondent for expressions of interest to develop the air space above them for commercial purposes.
As far as the claimant's case is concerned the most positive evidence in his favour as to the land use that might be permitted in the shorter term comes from the assessment of the subject land's development potential which was sought from the respondent's Planning Policy Advisory Committee. In its decision under date 27th November, 1986 (fully set out in Mr. Rowland's valuation (Exhibit 28)), the Committee formed the opinion that any approval granted for the purpose of retail or business uses on the site would "be limited to an area roughly triangular in shape, in the north-west corner, having an area of about 1 hectare."
Mr. Rowland said in evidence that this area was first identified by the planners following an inspection before he wrote his report. He more specifically defined the area as comprising two (2) parcels each of about .6 hectares and separated by a gully. This part of the subject land is nearest to the Garden City Retail Shopping Drive-in Centre and has some exposure to the Freeway.
I turn now to the respective valuations. Mr Slater furnished a well presented, detailed and carefully considered valuation report. I have already mentioned that his approach was that if it had not been for the scheme of resumption and had the respondent acted reasonably and in good faith, the subject land at date of resumption would have been within the designated boundaries of the Upper Mt. Gravatt Regional Business Centre, zoned Future Urban, and have had adequate access available to it.
The sale of land within the Upper Mt. Gravatt Regional Business Centre on which Mr Slater principally relied, was that of the Village Roadshow parcel (zoned "Future Urban"), area 24,450 m2 sold on 1st July, 1988 and reflecting $182/m2. Mr. Slater considered this sale price in relation to prices reflected by two (2) other sales namely:-
(a)a parcel of 18,060 m2 in the Carindale Regional Business Centre sold on 28th June, 1988 for $138/m2. This is to be the site of the first commercial office development in Carindale - a centre with a lesser plot ratio and maximum building height and which Mr Slater says that the market regards less favourably than Mt. Gravatt; and
(b)the Sunnybank Hotel site containing an area of 27,556 m2 sold June 1987 with a plot ratio of 1 to 1 and reflecting $254/m2 overall ($237/m2 ex licence). This contract was not completed because of the respondent's refusal of the rezoning application.
Having regard to the level of these two (2) sales Mr. Slater on the basis of his professional expertise as a valuer, regarded the sale of the Village Roadshow with an as of right plot ratio of 2.5 to 1 and a maximum building height of 10 storeys to reflect an unreasonably low level. In his opinion it should have obtained a value of $225/m2 and he concluded that the proposed bus depot of the adjoining resumed land must have had a depreciating effect.
Again in deference to the reverse of the Pointe Gourde rule he decided to apply $225/m2 as the value of the subject land which he regarded as being, on balance, similar overall to the Village Roadshow parcel.
In some ways the foregoing approach is contrastable to a valuation Mr Slater wrote in November 1988 when he was, not in possession of the information which lead him to believe that access was available "as of right". In this earlier valuation Mr. Slater on the basis of his sales information valued the subject land at $190/m2 but discounted to $180/m2 because of the need, as he then perceived, to negotiate access. He admitted that if such negotiation was in fact relevant at resumption date, his current valuation should be discounted by the order $10/m2.
Mr. Rowland's valuation report was also well presented. He considered that the appropriate zoning upon which to base his valuation was the preresumption scheme zoning of the subject land (Open Space) with portion (1 hectare) having commercial development potential.
He had regard to the subject land's situation, size, shape, topography, commercial development potential (which he viewed in the light of its commercial isolation from existing development in and near to the Regional Business Centre), the difficulties of establishing reasonable vehicular access, and the need to obtain rezoning and development approval.
Mr. Rowland did not assume that access could not be obtained. He visualised it as coming off the perimeter road around Garden City Drive-in Shopping Centre but he took the resumption date uncertainty attaching to the access into account when arriving at the rate per m2 which he adopted.
When valuing the 1 hectare of the subject land with development potential, Mr. Rowland said he had regard to two (2) of the sales applied by Mr. Slater namely the Village Roadshow parcel ($182/m2) and the proposed commercial office site at Carindale ($132/m2). He also said that he had applied the sale of a parcel at Chermside reflecting $128/m2. He was not aware of the sale at the Sunnybank Hotel site.
Mr. Rowland during his investigations ascertained that the vendors of the Village Roadshow parcel had expended about $500,000 on consultancy fees in the seven (7) years during which they had argued "every turn of the way" to get the development approval they sought. There is no break-up of these fees but they were paid for traffic engineering studies, soil surveys, town planning investigations, etc. At date of sale a rezoning application had been approved in principle for cinema/restaurant, office block and hotel block. The Newnham Road/Logan Road intersection had been approved at least in principle and the "joint access" road proposal to be shared by the Village Roadshow parcel and Dendle's parcel had been put in place. In short all that was necessary for the purchaser to undertake was the fine tuning of the details. The development is proposed to be staged over a period. As Mr. Rowland saw the sale the amount of preliminary work which the vendors had undertaken to put the package together represented a premium to the purchaser and he endeavoured to quantify the value of this premium.
It emerged that it was for purposes of ascertaining the premium that he relied on the Carindale and Chermside sales rather than directly comparing them with the resumed land or more particularly the 1 hectare thereof with commercial potential.
On the evidence available to him Mr Rowland concluded that the Village Roadshow sale, excluding the premium, should be viewed as reflecting $150/m2. He admitted that he had found difficulty in comparing parcels in one Regional Business Centre with another, and endeavouring to rank the centres. He conceded that in his opinion Mt. Gravatt was a superior centre to Carindale, but he maintained that he could get no sales evidence to support his belief particularly as he was unable to obtain particulars of shop rentals and gross turnovers.
It is Mr. Rowland's contention, and his evidence appears cogent, that the resumed land is inferior to the Village Roadshow parcel. The record here becomes a little unclear as it is not certain on some occasions whether the comparison is being made between the Village Roadshow parcel and the 1 hectare of the resumed land with commercial potential or with the whole of the resumed land. Be that as it may, Mr. Rowland's evidence, which the contour map supports, is that the Village Roadshow enjoys an accessible Logan Road frontage and is superior topographically to the resumed land as an entity having a better shape, a larger portion (at least 50%) of more elevated land in the north-east corner and a larger area of relative grade. The Village Roadshow parcel is considered to be more easy to develop in that fill could be pushed down to the gully (part of a water course) which is located towards the rear of the land.
Weighing the various factors previously enumerated as attaching to the subject land, Mr. Rowland came to conclusion that the 1 hectare of potential commercial development at $100/m2 was in correct relativity to the Village Roadshow parcel at $150/m2 ex the premium at $100/m2. As he saw it the rate of $150/m2 to $100/m2 takes into account the good exposure enjoyed by the Village Roadshow to Logan Road against the comparative lack of exposure attaching to the aforesaid 1 hectare which is not well exposed to the South-East Freeway because of trees planted as a buffer along the Freeway's verge.
The application of $100/m2 to the area of 1 hectare gives a total value of $1M. From this Mr. Rowland deducts a 30% risk factor to cover the risk of obtaining a rezoning and development approval including, of course, the time involved in obtaining such approval.
He then turns his attention to the balance land which at the best he sees as being land with long term development prospects. To obtain comparative evidence of valuation for this type of land he turned to the sales of three (3) parcels zoned variously "future urban", "non urban" and "sport and recreation", two (2) of which adjoin existing Shopping Centres at Underwood and Cannon Hill. These sales reflect $4/m2, $6/m2 and $14/m2 respectively. Their common feature is that they have all been purchased as long term holding propositions. In comparison he adopts a rate of $10/m2 for some 30,000 m2 remaining in the subject parcel exclusive of Lot 1. This (not by coincidence) approximates $300,000 which was the total of the risk allowance made in connection with the valuation of the 1 hectare with development potential. In the result he arrived at an amount of $1M as his valuation for compensation purposes.
Each valuer as his principal basis for potential commercial land used three (3) sales, two (2) of which were common viz. Village Roadshow and the Carindale parcels. Mr. Slater also used the Sunnybank Hotel site and Mr. Rowland the Chermside parcel. Other sales much further distant were mentioned but differentiating factors minimizes their value as basic material. The applied sales material is, in my opinion, far from being ideally comparable and its application is more indirect than direct involving allowances for factors and interpretations differently conceived by each valuer. The nature of this basic material adds to the complexities of arriving at a valuation of the subject land.
There is no really convincing evidence substantiating Mr. Slater's assumed price of $225/m2 for the Village Roadshow parcel. On the contrary I tend to agree with Mr. Rowland that the sale price achieved reflects a premium paid by the purchasers pursuant to a conditional contract for a development package with negotiations for access in place. A fine tuning only of the package was required to suit the purchaser's pecular needs. Mr. Rowland's application of the sale ran into difficulties when he theorised as to the extent of the premium paid.
Both valuers sought to prove their respective depressed price/ premium theories by reference to relativity between the prices paid for parcels in other Regional Business Centres and Upper Mt. Gravatt. In the absence of a knowledge of all relevant factors including rents and gross turnovers plus the availability of more sales I do not think that it is possible by this means to establish cogently and satisfactorily any such relativity or ranking among the various Centres.
The Sunnybank Hotel sale is complicated by the inclusion of the Hotel licence. It is flat land which impliedly had no development constraints and its locality at the junction of 2 six lane arterial roads offers more exposure than the subject. Further it is not located in a designated Regional Shopping Centre.
My next task is to arrive at an amount of compensation based on the reasonings herein before contained. Notionally I must place myself in the position of an hypothetical prudent purchaser of the resumed land at the resumption date. Such a person, in my view, would consider the northern triangle as possessing potential for short term development whilst the balance area he would regard as a long term holding proposition. In effect this approach is similar of that of Mr. Rowland but I think it would be more commercially realistic to regard the commercial potential as applying to the whole of the northern triangle whose area is about 1.4 hectares rather than the 1 hectare part thereof adopted by Mr. Rowland. I note that the area of 1 hectare is referred to in the respondent's Planning Policy Advisory Committee's assessment as at 27th November, 1986 but that Mr. Rowland in evidence alleged that each area with the reasonable contours approximated .6 of a hectare giving a total area of 1.2 hectare. My calculated area of 1.4 hectares (see also p.51 of the transcript) includes an intervening gully which would require filling and on which (apparently after being filled) according to the design plan as tendered, the respondent proposes to build the bus depot's Administration building.
In comparison with the Village Roadshow the northern triangle would appear topographically to be equal if not slightly better. However access is to be negotiated. It is not so exposed to an arterial road, and a development package is not in place. Weighing all the factors which have been discussed I have formed the opinion that land value of $135/m2 would be in reasonable relation thereto. However a purchaser of the subject parcel would know in respect of the northern triangle that he would have to face some delay in obtaining rezoning and development approval. I think that a risk factor allowance is allowable in accordance with accepted valuation principle. A fair risk percentage to apply would, in my view, be 20%.
I feel the development of the balance land must await the build up of demand for Office accommodation before any application or negotiations for rezoning the land would have a reasonable chance of approval. This development is long term rather than short term. For this reason I think the correct valuation principle is to look at the sales lands purchased for long term holding rather than to assume a resumption date potential Office accommodation value and discount back.
Mr. Rowland was, in my opinion, correct in his approach and concept but he failed to give due input for the far superior situation of the subject land in comparison to his basic sale lands. I have formed the view that $20/m2 would be a reasonable rate to apply to the balance of the resumed land. For the purposes of the exercise I have included the resumed land below the regulation line on the basis that it would be available for landscaping and plot ratio purposes.
My calculations area as follows:-
14,000 m2 at $135/m2 $ 1,890,000
Less allowance for risk etc. at 20% 378,000
$ 1,512,000
31,350 m2 at $20/m2 627,000
Total $ 2,139,000
Say: $2,140,000
DISTURBANCE
There remains the various items of disturbance claimed in respect of the preparation of the claim for resumption. The principle pursuant to which disturbance is granted for items of the types claimed are set out in Merivale Motel Investments Pty. Ltd. -v- EXPO - Land Court (1984-1985) 10 Q.L.C.R. 175 at p. 203 et seq. These principles were approved by the Land Appeal Court when the case went on appeal vide 10 Q.L.C.R. 268 at pp. 287/8.
I am satisfied that the various professional fees were necessarily incurred in preparation of the claim prior to lodgment in the Court. The valuation fee of $16,053 represents 75% of the A.A.I.V. Scale based on the amount of $8.154M as claimed plus $100 for attending a conference with the respondent's representatives. There was no suggestion that the valuation was frivolous or lacking in bona fides. I disallow the fee for attending the conference. It was not incurred in preparation of the claim but rather towards its settlement.
There would appear also to be a fee charged in the Town Planner's fee for attending a similar conference and I have therefore decided to deduct an estimated $100 therefrom for such attendance.
Legal fees were agreed at $515.62 which I extend to the nearest dollar namely $516.00. In the result I award the following fees:-
Disturbance
Costs of Preparation of the Claim
. Town Planners Fees .. .. .. .. .. .. .. .. $ 5,232.00
. Traffic Engineer's Fees .. .. .. .. .. .. $ 280.00
. Valuation Fees .. .. .. .. .. .. .. .. .. $15,953.00
. Legal Fees .. .. .. .. .. .. .. .. .. .. $ 516.00
. Total $21,981.00
In the result I determine the compensation payable by the respondent to the claimant in respect of resumption (b) in the total sum of $2,161,981.00.
I order that the respondent pay the claimant interest on the total amount of my award at 12.75% per annum in respect of the period commencing on and including the date on and from which the land was taken and ending on and including the day immediately preceding the date in which payment of the compensation is made.
Re Resumption (a) Claim for Discontinuance of Resumption
This claim is made pursuant to Section 16 (1) of the Acquisition of Land Act. The relevant second paragraph of this subsection reads as follows:-
"Service of the further notice shall discontinue the resumption concerned and no person shall have any claim for compensation or other right or remedy whatsoever against the constructing authority for any loss or damage alleged to have been occasioned (directly or indirectly) by the service of the Notice of Intention to Resume or the discontinuance of the resumption except a claim for compensation for costs and expenses incurred by the person who was served with the notice and any actual damage done to the land concerned by the constructing authority."
No damage was done to the land concerned. The claim is limited to fees paid to various professional people.
I am against the respondent's submission that "costs and expenses" as appearing Section 16 (1) are limited to legal fees. "Costs and Expenses" is not a technical term. The ordinary meaning of the words is much wider than "legal fees". There is no explicit direction in the section that legal fees only are to be recouped. It seems to me that the intention of the legislation is that an owner who has been served a Notice of Discontinuance is entitled in addition to any actual damage done to the land concerned by the constructing authority to receive all out of pocket expenses incurred by him providing they were the natural and reasonable consequences (directly or indirectly) of the service of the Notice of Intention to Resume or of the discontinuance of the resumption.
The only precedent of which I am aware in this Court is my own judgment in Weld -v- The Gold Coast City Council (1979) 6 Q.L.C.R. 8. In that case the legal fees and one lot of valuation fees were not disputed. The argument concerned a second lot of valuation fees. I found the item was sustainable in full as it was based on the scale recommended by the Australian Institute of Valuers (Queensland Division).
A claim under this section it seems to me is wider than a claim under the disturbance rules set by the Merivale case in that the subject instance fees for attending conferences in attempted settlements of claim would be out of pocket expenses and tenable items.
Solicitors and counsel's fees in this case have not been proved by submission of accounts. However, I am leaning in the claimant's favour by accepting as the equivalent of an account, the letter of the claimant's solicitors to the respondents Town Clerk dated 20th July, 1987 and marked Exhibit 3 on A88-22. This letter in effect constitutes the subject claim and quantifies and specifies solicitors and counsel's fees.
The valuation fees in the subject case are based on 70% of the Scale of Fees of the Australian Institute of Valuers (Queensland Division) for a valuation of $3.25M. In addition $260 has been included as fees for attending conferences. I cannot find that this basis is unreasonable.
In respect of this claim I determine the compensation payable by the respondent to the counsel in the sum of $7,785.00 made up as follows:-
. Valuation Fees .. .. .. .. .. .. .. $7,260.00
. Town Planners Fees . .. .. .. .. .. $ 75.00
. Solicitor's Fees. .. .. .. .. .. .. $ 225.00
. Counsel's Fees .. .. .. .. .. .. .. $ 225.00
President of the Land Court
1
0
0