Stiller v Brisbane City Council
[2011] QLC 40
•6 July 2011
LAND COURT OF QUEENSLAND
CITATION: Stiller v Brisbane City Council [2011] QLC 40
PARTIES:Alan Stiller
(Applicant)
v.
Brisbane City Council
(Respondent)
FILE NO:AQL095-10
DIVISION:General Division
PROCEEDING: Application to determine compensation under the Acquisition of Land Act 1967
DELIVERED ON: 6 July 2011
DELIVERED AT: Brisbane
HEARD ON: 23 and 24 May 2011
HEARD AT:Brisbane
MEMBER:His Honour WA Isdale
ORDER/S:1. Compensation is payable by the respondent to the applicant for the taking on 21 August 2009 of land described as Lot 2 on SP222156, area 431 m², part of Title Reference 12297166, Parish of Yeerongpilly. That compensation is assessed at $46,200, of which $43,500 was paid on 18 March 2010.
2.Interest is payable by the respondent to the applicant on $46,200 from 21 August 2009 until 18 March 2010 and thereafter on the reduced balance of $2,700 until and including the day immediately preceding the date on which payment of the remaining balance is paid.
3.Interest is payable at the rate adopted for the relevant year in the table of interest rates published by the Land Court.
4.No order as to costs.
CATCHWORDS: Acquisition of Land Act 1967, ss 20, 27, 28
Land Court Act 2000, s.34
Australian Provincial Assurance Association Ltd v Commissioner for Land Tax [1942] ALR 156
J.T. & L.J. Barns v Director-General, Department of Transport (1997) 18 QLCR 133
Boland v Yates Property Corporation Pty Limited [1999] HCA 64; 74 ALJR 209; 167 ALR 575
Calcifer Industrial Minerals Pty Ltd v Daraleigh Pty Ltd as Trustee for the D.C. & M.L. Dillon Trust [2010] QLC 0095
Cattanach v Water Conservation and Irrigation Commission (1962) 9 LGRA 352Chief Executive, Department of Natural Resources and Mines v Kent Street Pty Ltd [2009] QCA 399
Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors [2010] QLC 0122
Co-ordinated Resources Pty Ltd v Valuer-General (1983) 27 the Valuer 779 at 780Crompton v Commissioner of Highways (1973) 32 LGRA 8
Dymock’s Book Arcade v Federal Commissioner of Taxation of the Commonwealth of Australia (1937) 4 The Valuer 403 at 406.Hayes v Chief Commissioner of State Revenue (unreported) NSW LEC 28 November 2000.
Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409
Mio Art Pty Ltd v Brisbane City Council; Greener Investments Pty Ltd (In Liquidation) v Brisbane City Council [2010] QLAC 0007Pamalco Pty Ltd v Minister (1991) 71 LGRA 441
Planning Commission v Arcus Shopfitters Pty Ltd [2003] WASCA 295
Spencer v The Commonwealth (1907) 5 CLR 418
N.R. & P.G. Tow v Valuer-General (1978) 5 QLCR 378Turner v Minister of Public Instruction [1956] HCA 7; [1956] 95 CLR 245
Wilson & Anor v Ipswich City Council (No 2) [2011] QLC 0037
Yalgan Investments Pty Ltd v Council of the Shire of Albert (1997) 17 QLCR 401
APPEARANCES: Mr A West instructed by Forgione Lawyers for the applicant
Mr DA Quayle, instructed by the Brisbane City Legal Practice, for the respondent
The background
Mr Alan Stiller is the owner of land at 21 Watson Drive, Kuraby. It was formerly known as 1575 Beenleigh Road, Kuraby. The property has been important in the life of his family and his grandparents owned it before him. His grandfather planted many of the trees on the land, including a Norfolk Island Pine (Araucaria heterophylla) which his grandfather planted in about 1946 and which was the source of cuttings used as Christmas trees for Mr Stiller’s immediate family.
From a young age, Mr Stiller has helped with the maintenance of the lawns and trees on the property and has worked as a farmer except for when he served the country with the Australian Army.
Mr Stiller became the owner of what had been his grandparents’ property in 1978 and has lived there since, himself planting trees and maintaining those planted by his grandfather. They provided aesthetic benefits, shade and privacy and had great sentimental value to him.
Around 2002, the Brisbane City Council placed a Vegetation Protection Order over the property to protect the significant landscape trees on it. Mr Stiller was informed that there was a penalty of up to $15,000 per tree that could be imposed if any were removed without the Council’s consent.
The resumption of land
The Council resumed part of the property for road purposes. By Taking of Land Notice (no. 28) 2009 the Council took a portion fronting Beenleigh Road on and from 21 August 2009. The land taken is described as Lot 2 on SP222156 with an area of 431 m², being part of Title Reference 12297166, Parish of Yeerongpilly.
In January 2010 the Council removed the trees on the resumed land and has erected a large noise barrier fence along the boundary of Mr Stiller’s remaining land where it is closest to Beenleigh Road.
In accordance with the Acquisition of Land Act 1967, Mr Stiller now has a right to compensation in respect of the loss suffered and he has brought that matter to this Court.
Compensation claimed
Mr Stiller is seeking $140,000 compensation for the value of the land taken. He has also claimed $60,000 being the special value of four old-growth trees at $15,000 per tree.
In addition, he claimed valuation, legal and town planning fees which total $24,571.95. The Council has already paid these and has also paid an advance against compensation of $43,500.
What remains in dispute is the claim for $140,000 for the land and $60,000 for the trees.
The assessment of compensation is to be conducted in accordance with the Acquisition of Land Act 1967. Section 20 of which is in the following terms:
20 Assessment of compensation
(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—
(a) to the damage, if any, caused by any of the following—
(i)the severing of the land taken from other land of the claimant;
(ii)the exercise of any statutory powers by the constructing authority otherwise injuriously affecting the claimant’s other land mentioned in subparagraph (i); and
(b) to the claimant’s costs attributable to disturbance.
(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.
(2A)However, in assessing the compensation, a contract, licence, agreement or other arrangement (a relevant instrument) entered into in relation to the land after the notice of intention to resume was served on the claimant must not be taken into consideration if the relevant instrument was entered into for the sole or dominant purpose of enabling the claimant or another person to obtain compensation for an interest in the land created under the instrument.
(3)In assessing the compensation to be paid, there shall be taken into consideration, by way of set-off or abatement, any enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom by the carrying out of the works or purpose for which the land is taken.
(4)But in no case shall subsection (3) operate so as to require any payment to be made by the claimant in consideration of such enhancement of value.
(5)In this section—
costs attributable to disturbance, in relation to the taking of land, means all or any of the following—
(a) legal costs and valuation or other professional fees reasonably incurred by the claimant in relation to the preparation and filing of the claimant’s claim for compensation;
(b) the following costs relating to the purchase of land by a claimant to replace the land taken—
(i)stamp duty reasonably incurred or that might reasonably be incurred by the claimant, but not more than the amount of stamp duty that would be incurred for the purchase of land of equivalent value to the land taken;
(ii)financial costs reasonably incurred or that might reasonably be incurred by the claimant in relation to the discharge of a mortgage and the execution of a new mortgage, but not more than the amount that would be incurred if the new mortgage secured the repayment of the balance owing in relation to the discharged mortgage;
(iii)legal costs reasonably incurred by the claimant;
(iv)other financial costs, other than any taxation liability, reasonably incurred by the claimant;
(c) removal and storage costs reasonably incurred by the claimant in relocating from the land taken;
(d) costs reasonably incurred by the claimant to connect to any services or utilities on relocating from the land taken;
(e) other financial costs that are reasonably incurred or that might reasonably be incurred by the claimant, relating to the use of the land taken, as a direct and natural consequence of the taking of the land;
(f) an amount reasonably attributed to the loss of profits resulting from interruption to the claimant’s business that is a direct and natural consequence of the taking of the land;
(g) other economic losses and costs reasonably incurred by the claimant that are a direct and natural consequence of the taking of the land.
Example of costs for paragraph (g)—
cost of school uniforms for children enrolled in a new school because of relocation from the land taken
The evidence of Mr Stiller
Mr Stiller gave evidence and explained that he had considered some subdivision of his land as part of his estate planning but otherwise had not intended to develop it. He explained that he had formed the view that each of the four significant trees on the resumed land had a value of $15,000 because that was the figure the Council used as a potential penalty for illegally removing each tree.
Mr Stiller was thorough in his evidence and his emotional attachment to the trees was evident.
The town planning evidence
Mr Stiller engaged Wolter Consulting Group to provide a town planning report and Ms N Rayment, town planner, gave evidence.
Ms Rayment considered that a suitable hypothetical development of the whole of the land, before the resumption would have been able to yield subdivision into six standard size, rectangular allotments whereas after the resumption it would only have been able to yield five. This is of assistance in calculating the reduced value of the balance of the land after the resumption; an indicator of the damage caused by severing the land from Mr Stiller’s remaining land. Standard size allotments, for present purposes, are considered to have, among their attributes, an area of 450m² or more.
Another planning possibility was considered by Ms Rayment where seven lots of standard size would have been possible before the resumption but easements over two allotments would have been required in order to access a third one.
Ms Rayment was of the view that a proposal for more smaller allotments was more likely to bring objections and that standard lot sizes were more suitable and marketable in this area as opposed to small lots below 450 m².
Due to the zoning, all of those possibilities would be impact assessable so signs would have to be put up on the land describing a proposal and people would have the right to object to it.
The Council also engaged a town planner, Mr Greg Ovenden of Craven Ovenden Town Planning, and Ms Rayment commented on his proposals. The position taken by Ms Rayment was that after the resumption, the development drawn in Plan C1492 Plan 2 would have been achievable, yielding five lots. One lot of 906 m², three of 450 m² and one of 600 m².
Ms Rayment considered the competing plan proposed by Mr Ovenden for after the resumption, Plan 001095.01A. It has six lots; three of 450 m², one of 603 m², one of 492 m² and one of just under 450 m² as it has a small triangle excised from it to allow for improved access to the adjoining 492 m² block, which is enlarged slightly by that. She pointed out that the lot which fell below 450 m² was therefore a small lot.
I observe that this plan allows a 3.5 m wide access to the 492 m² lot and the small triangle proposed to be taken from the adjoining lot would be necessary to reduce the difficulty of access to the 492 m² lot caused by the acute angle of its boundary at the point of access. Were it not for that small extra area, it would seem that access would be quite restricted. Gaining access from the proposed street would necessitate approaching a 3.5 m wide access with the boundary on the left diverging to the right at an acute angle in front of an approaching vehicle. A challenging right-hand turn would have to be made to follow the boundary line. Exiting the land without turning a vehicle around in order to do so would be more than ordinarily difficult.
In order to implement this scheme, the adjoining allotment must be reduced in size to a small allotment, which may be more likely to attract objections because of that categorisation.
Ms Rayment’s proposed subdivision plan in the after-acquisition case presents no access difficulties and only five lots, one of them somewhat large at 906 m². In this context it is useful to consider that these possible development scenarios are being considered in Watson Place, a cul-de-sac, and involve an extension of the roadway by what amounts to ending it in a “T” shape, with access to the proposed allotments from that. Access will be a matter of concern in any event and it will be a case of whether a particular proposal puts more or less strain on access rather than one which does and one which does not. I do observe that Mr Ovenden’s plan for six allotments will bring with it one which is below 450 m² and, even with the adjustment to improve access, still offers unattractive access to the 492 m² allotment.
Mr Ovenden was called on behalf of the Council. He was of the view that since any subdivision would have required the dedication of part of the resumed land as footpath the site would have yielded six lots both before and after subdivision.
Mr Ovenden opined that a potential seven allotment pre-resumption subdivision considered by Ms Rayment carried with it a significant risk that the Council would not support it due to liveability aspects, on-street parking requirements of .5 car spaces per lot and access difficulty. I note that this plan requires easements over two allotments in order to obtain access to a third.
In her evidence, Ms Rayment had explained that she had contemplated this smaller lot possibility after considering Mr Ovenden’s six lot after resumption plan dated 28 October 2010. Her seven lot plan dated 2 November 2010 can be seen somewhat as a response, perhaps to show that there was still one lot less able to be developed after the resumption.
Conclusion on the town planning evidence
Ms Rayment’s evidence was to the effect that the real difference between the planners was the difference between her plan C1492 Plan 2, for five lots, and Mr Ovenden’s Plan 001095.01A for six lots.
Although both plans would be impact assessable and therefore open to objections, I accept that Ms Rayment’s plan for five allotments is less likely to be objected to and less likely to be successfully objected to as none are below 450 m² and none have particular access difficulties. I am satisfied that Mr Ovenden’s plan is less likely to be approved and more likely to attract objection due to the presence of a lot slightly below the 450 m² standard lot size and therefore described as a small lot. In addition, the access, even adjusted at the cost of creating a small lot, will be difficult in the case of the 492 m² lot and these aspects would influence the decisions of developers and purchasers. Visitor parking space would present greater difficulty in the case of Mr Ovenden’s proposal and I accept Ms Rayment’s evidence, which was not contradicted, that the location and distance from the CBD indicated that a standard lot might be the most marketable.
My conclusion is that the Court should accept the Wolter Consulting Group Plan C1492 Plan 2 and not the Craven Ovenden Plan 001095.01A as the most likely post-resumption hypothetical development scenario. The balance of the land will be able to yield five allotments, not six. Both planners in effect agreed that the before resumption land would have realistically yielded six lots.
The valuation evidence
The appellant called Mr Bradley Hooper, a Registered Valuer. Mr Hooper has approached the valuation on the basis of considering the development potential of the property before and after the acquisition in order to find the net loss in value due to the resumption.
Proceeding on the basis that six lots were achievable in a hypothetical subdivision before the resumption and five lots would be achievable after it, a proposition which I have accepted, he has considered the hypothetical sale prices of the allotments proposed by the Wolter Consulting Group and allowed for all of the costs associated with the development. His calculation is that the loss to Mr Stiller, and therefore the compensation due to him would be $140,000.
Mr Hooper provides the reasons for adopting this method at page 11 of his report, which became exhibit 7. He saw the land as suitable for immediate subdivision and “in-fill” development with comparable lots to those around it. Access could readily be provided from an existing cul-de-sac and there was a market for lots of the proposed size in the area.
He chose not to employ the method of using sales evidence as he formed the view that there was limited sales evidence in the area. In addition, he considered that method less accurate as it does not in his view quantify the net difference in the “before” and “after” value of the property.
In determining the hypothetical sale prices of the developed lots, Mr Hooper has relied on sales in the area and his report sets out 11 sales of comparable vacant allotments.
Mr Hooper has used his chosen method of valuation and has not utilised any check method. He has however referred to six sales and compared them to the subject land. He understood them to be the sales upon which the Council’s valuation expert would rely. In the event, only two of them were used by Mr John Purcell, registered valuer of Asia Pacific Valuations Pty Ltd, who provided evidence for the Council.
The two sales commented upon by Mr Hooper were as follows:
· 400 Mt Petrie Road, Mackenzie. Sold on 23 July 2008 for $1,100,000 it had an area of 1.04 ha and an older style lowset timber dwelling. Subdivision into 12 lots was approved in July 2010. Mr Hooper saw it as in an inferior location and of a larger size which would reflect a lower per m² rate ($100). He saw it as inferior on a rate per m² basis.
· 198 Learoyd Road, Acacia Ridge (Willawong). Sold on 15 December 2008 for $725,000 it had an area 1.01 ha and a basic lowset timber dwelling. It was zoned for very low density residential development. Mr Hooper saw it as far inferior in location and position, larger in size and inferior on a rate per m² basis ($70).
As Mr Hooper did not use these sales himself either to arrive at or check his valuation, I am able to derive only limited assistance from his appreciation of these two sales and none from the other four upon which he likewise commented as, apparently contrary to expectation, Mr Purcell did not make use of them.
When cross-examined, Mr Hooper acknowledged that of 431 m² resumed, about 168 m² would have to be dedicated for a footpath in the event of a development being approved, leaving around 263 m² remaining. The parent parcel had an area of 4,047 m² prior to the resumption.
Copies of pages 188 to 209 of the text “The Law Affecting Valuation of Land in Australia” Fourth Edition, by Alan A Hyam OAM[1] were put before Mr Hooper in support of the proposition that his valuation method was not appropriate unless there were no comparable sales.
[1] The Federation Press 2009.
Mr Hooper was of the view that there were no directly comparable sales in Kuraby. In regard to that he was taken to part of a passage at p.197 of the text that a valuer should look at “sales of land over a wide geographical and temporal range”.[2]
[2] Crompton v Commissioner of Highways (1973) 32 LGRA 8 at 23-24.
Mr Hooper was of the opinion that the best method in this case was the one that he adopted.
When re-examined, Mr Hooper was taken to the sales used by Mr Purcell and commented on the sales which he had not referred to in his report.
It is worth referring to each as it assists in considering Mr Hooper’s view that his method was appropriate in view of, among other considerations, a lack of suitable sales evidence.
Sale 2 - 133 Persse Road, Runcorn sold on 14 July 2008 for $3,380,000. It was a cleared 1.93 ha site sold without development approval. Approval was given in 2010 for redevelopment into 59 townhouses. It is level with good access and Mr Purcell analysed the sale to show a land rate of $175/m². It is much larger than the subject. Mr Hooper saw it as a fairly similar location to the subject.
Sale 3 - 2550 Beaudesert Road, Calamvale sold on 23 November 2009 for $3,400,000. It was a cleared 1.77 ha site sold without approval. Approval was subsequently given for 24 townhouses. Mr Purcell states in his report that it has excellent services and access and adjoins estates with modern dwellings. He analysed the land rate to around $192/m². Mr Hooper pointed out that it backs onto noisy Beaudesert Road and at $192/m² that indicated that the subject should be higher. I note that he is, seemingly without difficulty, extracting valuation information from this sale and applying it to the subject land.
Sale 4 - 350 Benhiam Street, Calamvale sold on 31 July 2009 for $1,600,000. It was a cleared 1.02 ha residential site which sold without subdivision approval. Approval was obtained in 2010 for 59 townhouses. An analysed rate for the land was $157/m². Mr Hooper saw this as a similar, comparable location and a larger site, inferior to the subject property.
Sales 5 and 6 - 390 and 402 Benhiam Street, Calamvale sold on 6 July 2009 and 26 May 2010 respectively. They are adjoining residential redevelopment sites each of 1.02 ha. They sold with redevelopment approval for eight allotments and 20 townhouses. Analysis yielded an aggregate purchase price of $148/m². Mr Hooper saw this as a similar location to the subject land and sales of larger allotments.
Sale 8 - 70 Freeman Road, Durack sold on 13 June 2009 for $710,000. It is a mostly cleared 4,042 m² residential site sold with approval for development into five allotments retaining the dwelling. It analysed to around $175/m² land value. Mr Purcell points out that this land sold on 17 November 2007 for $800,000, prior to the development approval on 29 December 2008. This is an 11.25% reduction and in his opinion demonstrates the adverse impact of the Global Financial Crisis on land values for redevelopment sites. He also notes that in his opinion this sale is an excellent guide as it is a similar size with similar development potential and that its disadvantage in location is offset by the higher zoning and development approval in place at the time of sale. He states that “on a direct comparison basis it would be difficult to see a "before" value that was substantially higher than this sale price”. Mr Hooper noted that it was sold with a development approval, was of comparable size and in a far inferior location.
Sale 9 - 47 Corella Place, Runcorn took place on 12 September 2009. It is a low lying block of 2,918 m² improved with a lowset concrete block walled tiled roof house built on a slab. It has high tension powerlines and a rail corridor at the rear and Mr Purcell describes it as inferior in all respects. It sold with approval for a low density residential subdivision. The sale price was $631,000. Mr Purcell has not attempted to extract a per m² rate for the land but sees it as demonstrating the minimum level of value that could be adopted.
Mr Hooper described Corella Place as the least desirable street in Runcorn.
Sale 10 - 53 Corella Place is a low lying 2,736 m² block that sold for $660,000 on 17 November 2008. It has a single level brick house on a slab and has a tiled roof. It sold with approval for redevelopment with a community centre. Also affected by the rail corridor and powerlines it is said by Mr Purcell to also indicate the minimum value that could be adopted.
Mr Hooper did not disagree with Mr Purcell in relation to sales 9 and 10.
Registered Valuer Mr John Purcell was called on behalf of the Council. He confirmed that from the original area of 4,047 m², 431 m² was resumed.
Mr Purcell’s valuation methodology differed from that applied by Mr Hooper. Mr Purcell considered that a pro-rata loss approach was the most appropriate method of assessing the market value of the land that was resumed. He examined sales of residential properties “in the region”, as his report puts it, and found that there was, in his opinion, sufficient market evidence to find the value of englobo land by direct comparison with the subject land.
Mr Purcell’s sale 1, referred to in [36], was assessed as having excellent potential for subdivision. With a colonial style house on it that could be incorporated into a redevelopment, it is an elevated site with good road access suitable for a subdivision. It was sold without development approval on 23 July 2008; approval being granted in 2010. The sale was analysed as indicating a land value of $100/m². It is a partly cleared 1.04 ha site, significantly larger than the land being considered.
Sale 7, also considered by Mr Hooper and to which reference has been made in [36], is located at Acacia Ridge and sold for $725,000 on 15 December 2008. An elevated site with an old dwelling and shed both unlikely to be retained in a development, it has an area of 1.01 ha. It is located on a busy four lane road and is bisected by an easement for electricity transmission. It analysed to show a land value of $70/m² reflecting the presence of the electricity transmission line easement.
Mr Purcell considered that the highest and best use of the applicant’s original 4,047 m² parcel would have been for low density residential development and noted that the resumption had occurred deep within the Global Financial Crisis when the availability of finance was limited and both developers and purchasers were affected by this. The only active sector of the market at the time was the first home buyer and he observed that incentives offered to them, such as stamp duty concessions, fell away as prices increased. Adjoining development was not consistent with townhouse development and such a proposal would therefore have brought with it increased risk.
On the basis that the existing dwelling was not retained, and in view of the Craven Ovenden town planning work, Mr Purcell considered a hypothetical development into six lots. Proceeding that way, he noted, would have required that 167.06 m² of the land that was resumed be dedicated for use as a footpath. On the basis of this, the compensation for resumption of the 431 m² of land would need to be reduced to reflect this loss of land area inherent in the highest and best use before resumption development scenario for the land parcel.
The reduction is found by the calculation:
167 x 100 = 38.75%
431 1
Mr Purcell proceeded on the basis that direct comparison with sales was the optimum way to value the land and that a hypothetical subdivision exercise could be undertaken as a check method of valuation. He was influenced in his decision by the ability to compare like with like as opposed to the necessity to allow for factors which could have a significant impact on the conclusions reached, such as number of allotments achievable, profit and risk factor and selling period. The pro-rata approach also obviates the necessity to choose whether to retain or demolish the existing dwelling on the land, a mixed two storey and ground level brick house on a slab with a timber floor on the upper level and a gross floor area of about 308 m². It has an in-ground reinforced concrete swimming pool and there is extensive landscaping and a reinforced concrete driveway.
Mr Purcell considered that the 10 sales provided a sound basis for establishing the appropriate rate for englobo land suitable for subdivision. The sales are all in Brisbane’s outer southern and south-western region and he found them to be directly comparable.
Considering the sales, which have been referred to at [44] to [51] and [55] and [56], Mr Purcell has assessed the value of the land resumed at $150/m². Allowing for the loss of land necessary for a footpath referred to at [58] he calculates compensation as 431 m² x $150 = $64,650 less 38.75% for the footpath area required to be given up in a development, yielding a rounded up figure of $40,000.
Mr Purcell has proceeded to apply a hypothetical subdivision as a check method of valuation. On instructions, he has accepted development costs used by Mr Hooper. Most of Mr Hooper’s projected sales prices have been adopted, except for the largest lot in the before development case, the price of which has been seen as needing to be reduced to reflect the market for residential allotments which do not attract a pro-rata increase with size.
On the basis that six lots would have been achievable both before and after resumption, Mr Purcell calculates a reduction of assessed englobo value of $64,650 after resumption; reduces it by 39% to account for the loss of footpath area in development and adopts a figure of $40,000. He notes that the 20% profit and risk factor is based on historical evidence because the Global Financial Crisis meant that there were no comparable developments which could be analysed to yield an up-to-date percentage.
In cross-examination, Mr Purcell said that his sale 8 was not affected by the Willawong waste dump. His view, referred to in [48], was that it was “an excellent guide”. It will be recalled that the date of resumption was 21 August 2009 and that sale 8 occurred on 13 June 2009. The area of the land from which the 431 m² was resumed was 4,047 m² and the area of this sale was 4,042 m². As Mr Purcell noted, it has quite similar development potential to the subject land and its inferior location was offset by the “higher zoning and development approval in place at the time of sale”. Sale 8 was zoned Low Density Residential and the subject is Emerging Community area whilst the surrounding area is predominantly designated and developed for Low Density Residential use.
Choosing the valuation method
Each party relied, in support of the method of valuation adopted by the valuer whose approach they preferred, on a well established textbook. The applicant cited Rost and Collins[3] and the respondent Council relied on Hyam.[4] The submission made for the applicant was to the effect that the hypothetical development method of valuation is a method of valuing land suitable for subdivision and that it stands equally with the direct comparison with sales. Mr Hooper chose it for the reasons which he gave and to which reference has already been made at [32] and [33] as the appropriate method in this case. In Rost and Collins, at page 154, reference is made to this method and considerations of allowance for interest on capital costs:
“The hypothetical development approach to the valuation of land ready for subdivision has been used and accepted for many years. As shown, it relies upon the developer to substantially finance the acquisition and subdivision of the land from his own resources.
During periods when loan funds are readily available for land development the experienced developer’s activities may be enhanced by relating them to equity investment arrangements. In such circumstances the only capital needed from his own resources would be in the form of cash for his equity and provision for the payment of interest on loan funds. Profits from this type of investment are not really comparable to old-accepted concepts relating to profit and risk.
When circumstances favour the use of loan funds for development at highly geared ratios of loan funds to cash equity, an estimate of in globo value based on the hypothetical subdivision of a subject area may be unreliable.”Mr Hooper allowed interest at 8% per annum calculated on half of the costs for a period of 14 months in one calculation and arrived at a conclusion that with a five lot after resumption case and six lots as the before resumption case the loss of value caused by the resumption was $130,000, ie $302/m² of the 431 m² resumed. Making the calculation without this allowance for interest yielded the result that the loss was $140,000, ie $325/m² of the land resumed. Selecting one scenario or the other requires a decision on whether at the relevant time a hypothetical purchaser for development would finance the development from the developer’s own resources or from borrowed funds. This is indicative of the extent to which assumptions need to be made in order to apply this method. The Court would need to be satisfied that the purchaser would self-fund the proposed development in order to accept the $140,000 figure. The evidence indicated that at the relevant time, in the depths of the Global Financial Crisis, funding would have been a difficulty but did not show for instance the preponderance of developer practice in this respect for this sort of development at the time. Given the crisis then dampening development, this is not surprising.
[3] Land Valuation and Compensation in Australia by R.O. Post and H.G. Collins, 1989 3rd end, reprint. Australian Institute of Valuers and Land Administrators (Incorporated). Copies of pages 64 and 65 and of Chapter 7 were provided.
[4] The Law Affecting Valuation of Land in Australia, 4th edn, Alan A. Hyam. The Federation Press 2009. Copies of pages 188 to 209 were supplied.
In his check method, Mr Purcell has allowed 8% development interest and pointed out that Mr Hooper has not allowed for the need to make a deduction for the 167.06 m² which would be lost to both the before and after resumption scenarios by the need to dedicate it for use as a footpath. Proceeding to make this allowance, Mr Purcell calculates a figure of $39,500 and adopts $40,000, confirmation of his sales-derived valuation.
Applying Mr Hooper’s $302/m² value of the resumed land to the area adjusted to allow for the footpath yields $302 x 264 m² = $79,728; adopt $80,000. On the basis of no development interest the calculation is $325 x 264 m² = $85,800; adopt $86,000.
Mr Purcell has adjusted his estimate of the potential sale price of the largest allotment downwards which has accordingly reduced the amount of his outcome estimate and not made his calculation on the basis that there would be no development interest, which would increase the calculated loss. His calculations may be revised in order to remove the 8% reduction for development interest as follows:-
With Development Interest Without Development Interest
(÷ by 92 x 100)
Assessed englobo value “before” resumption $693,465 $753,766 Assessed englobo value “after” resumption $628,710 $683,380
Assessed loss in value with no development interest:
$753,766
-683,380
$ 70,386
Reduced by 39% (Mr Purcell’s reduction for loss of the footpath area) = $42,935. Adopt $43,000.
Putting those figures side by side for comparison:
Hypothesised Development
Loss with development interest included
Loss without development interest included
6 lots before resumption, 5 after $80,000
$86,000
6 lots before resumption, 6 after $40,000
$43,000
Incremental quantum for loss of one lot of hypothesised development $40,000
$43,000
The compensation due for loss of one allotment, considered on this basis, is in the range of $40,000 to $43,000.
Both valuers have used a profit and risk allowance of 20% and Mr Purcell has pointed out that it “is based on historical evidence and is rather arbitrary as the scarcity of residential subdivisions carried out during the GFC meant there were no comparable developments available for analysis”. This highlights the difficulties in using this method as the outcome is very heavily influenced by the selection of the data which is used for the calculation.
In Hyam, the choice of valuation method is suggested by the author’s words:[5]
[5] At p.188.
“The hypothetical development method of valuation is one method of determining the value of a site where there is an absence of comparable sales evidence and the site is vacant or not developed to its highest and best use.”
The learned author refers to the judgment of Callinan J in Boland v Yates Property Corporation Pty Limited[6] where His Honour said:[7]
“This Court itself has in any event clearly accepted what has been described as the hypothetical development method of valuation.”
His Honour cited Australian Provincial Assurance Association Ltd v Commissioner for Land Tax[8] and Dymock’s Book Arcade v Federal Commissioner of Taxation of the Commonwealth of Australia[9] in support of that. His Honour went on to say[10] that:
“The method is neither novel nor especially difficult, and, as with all methods requires the making of value judgments.”
He pointed out[11] that in Turner v Minister of Public Instruction:[12]
“all the members of the Court (Dixon CJ, Williams, Fullagar, Kitto and Taylor JJ) accepted the appropriateness of a like method in the case of resumed subdivisible, but as yet unsubdivided land.”
[6][1999] HCA 64; 74 ALJR 209; 167 ALR 575.
[7][1999] HCA 64 at 286.
[8][1942] ALR 156.
[9](1937) 4 The Valuer 403 at 406 per McTiernan J.
[10][1999] HCA 64 at 287.
[11]Ibid at 288.
[12][1956] HCA 7; [1956] 95 CLR 245.
Callinan J saw this as one among a number of principles “Engrafted upon the propositions in Spencer’s case”[13] which were frequently applied and which he took to be sound in law.
[13][1999] HCA 64 at 270.
It is worth examining the rootstock below the graft to search for the true growth and this His Honour did. Returning to the fundamentals in Spencer v The Commonwealth,[14] His Honour said:
[14][1907] 5 CLR 418.
“266. In Australia it has long been accepted that the various statements made by Justices of this Court in Spencer’s case[262] correctly formulated the principles to be applied in compensation courts. The most frequently quoted statement is that of Griffith CJ[263].
‘In my judgment the test of value of land is to be determined, not by inquiring what price a man desiring to sell could actually have obtained for it on a given day, ie, whether there was in fact on that day a willing buyer, but by inquiring ‘What would a man desiring to buy the land have had to pay for it on that day to a vendor willing to sell it for a fair price but not desirous to sell?’ … The necessary mental process is to put yourself as far as possible in the position of persons conversant with the subject at the relevant time, and from that point of view to ascertain what, according to the then current opinion of land values, a purchaser would have had to offer for the land to induce such a willing vendor to sell it, or, in other words, to inquire at what point a desirous purchaser and a not unwilling vendor would come together.’
267. I would emphasise the important phrase in his Honour’s judgment ‘persons conversant with the subject’. The formula suggested by Griffith CJ contemplates a prudent purchaser and one who would make a point of informing himself or herself of all of the relevant attributes and advantages that the property enjoyed so as to make that purchaser ‘conversant’ with the subject, meaning thereby not just the land in its existing state but also any profitable uses to which it might be put.
268. Isaacs J put the matter even more strongly. His Honour said that the hypothetical parties should be regarded as not anxious to trade and as being[264]:
‘perfectly acquainted with the land, and cognizant of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding features, the then present demand for land, and the likelihood, as then appearing to persons best capable of forming an opinion, of a rise or fall for what reason soever in the amount which one would otherwise be willing to fix as the value of the property’.
269. The comprehensive language used by Isaacs J is clearly capable of embracing matters with which perhaps courts of today have become more familiar, such as the value of highly restrictive or very advantageous planning approvals, the changing value of money over time and opportunity cost. …”
[262] Spencer v The Commonwealth (1907) 5 CLR 418.
[263] Spencer v The Commonwealth (1907) 5 CLR 418 at 432.
[264] Spencer v The Commonwealth (1907) 5 CLR 418 at 441.
His Honour, at [267] and [269] recognises in the passages quoted in Spencer the potential in the land as part of its value when he refers to “profitable uses to which it might be put” and planning aspects.
The hypothetical development method was said by McLure J in Western Australian Planning Commission v Arcus Shopfitters Pty Ltd[15] to be:
“a less reliable valuation method because of the number and nature of the assumptions that have to be made.”
[15][2003] WASCA 295 at [65].
Hyam, in support of the use of the comparable sales method of valuation quotes from a decision of the Land Valuation Tribunal of Western Australia[16] which is to the effect that the direct comparison method is applicable where directly comparable sales are available. On the basis that market price is the best indicator of value then acceptable sales evidence provides the most reliable guide to market value.[17]
[16]St Martins’ Centre Pty Ltd v Valuer-General (WA) (2003) 30 SR (WA) 218 at 224.
[17]Reliance was placed on Harris v Minister for Public Works (1912) 12 SR (NSW) 149 at 156; Jowett v Federal Commissioner of Taxation (1926) 38 CLR 325 at 329 and Commonwealth v Arklay (1952) 87 CLR 159 at 170 per Dixon CJ, Williams and Kitto JJ.
The learned author points out that sales of comparable land were preferred to the hypothetical development method in valuing land for the purpose of compensation in Pamalco Pty Ltd v Minister.[18]
[18](1991) 71 LGRA 441 at 447 per Hemmings J.
Whether a sale is sufficiently comparable to be used to determine value will be a question of fact and degree for the valuer[19] and for this Court.[20]
[19]Hyam p.190 See also Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409 at 435 per Hope JA. The passage is extracted by Hyam at p.196.
[20]Chief Executive, Department of Natural Resources and Mines v Kent Street Pty Ltd [2009] QCA 399 at [171] per Justice P Lyons, with whose reasons McMurdo P and Keane JA agreed.
Mr Purcell was of the view that his 10 sales were useful for comparison purposes and Mr Hooper was able to make comparisons between them and the subject land when asked in re-examination to do so.
Mr Hooper was of the view, in cross-examination, that there was no direct comparison sale in Kuraby, stating more strongly what had appeared in his report in the reasons he gave for not adopting the “pro-rata” approach; that there were:
“Limited sales of similar type acreage sites within the Kuraby area to compare directly to the property on a direct rate/sqm approach.”
In fact he did not rely on any sales at all.
In imposing the geographical restriction upon himself, Mr Hooper has unnecessarily limited the information available to him. Location, of which proximity is a part, is a relevant consideration and adjustment may be made to take it into account when making comparisons.
It is commonly the case that comparable sales are at some remove from the subject land and that adjustments are made to factor this aspect into the comparison. It is an aspect of comparison and not a barrier to it that the sale being considered is located a distance from the subject; it may nonetheless be located in a comparable location.[21] The location of a sale whether within or without a particular suburb would not ordinarily be an overwhelming feature sweeping aside all other aspects of comparability.[22]
[21]Hyam p.197 quotes from Crompton v Commissioner of Highways (1973) 32 LGRA 8 at 23-24 where he extracts a passage in which the following appears:
“It seems to me that, ideally, the valuer should, in the first instance, look at the sales of land over a wide geographical and temporal range, and from these select those that appear potentially useful as a basis for comparison.”
[22]Hyam p.199 “Special consideration should not be given to sales within a specified area over and above sales outside of that area, provided that the lands are truly comparable: Cattanach v Water Conservation and Irrigation Commission (1962) 9 LGRA 352 at 361.
It is beyond doubt that the method applied by Mr Hooper is a well recognised method of valuation.[23] It is also beyond doubt that in imposing the strict geographical limit on his consideration of the availability of sales as a reason for not adopting the pro-rata approach Mr Hooper was unnecessarily limiting his consideration. He was in fact able to make comparisons between the subject land and the sales used by Mr Purcell for the purpose of comparison and did so in court.
[23]Hyam p.189 The learned author quotes from Co-ordinated Resources Pty Ltd v Valuer-General (1983) 27 The Valuer 779 per Cripps J at 780 in support of this proposition.
Applying Mr Hooper’s method, with the adjustment that I have found necessary to make to it, does in fact provide an outcome close to that arrived at by Mr Purcell, which indicates its utility as a method of valuation and most certainly it has proven to provide a valuable check to Mr Purcell’s approach. I accept however that it was not correct to adopt, as a reason for rejecting the pro-rata approach, that sales needed to be “within the Kuraby area”, to quote Mr Hooper’s report. Mr Hooper, at page 12 of his report, gave three reasons beyond his first one for not adopting the pro-rata approach. I will consider them seriatim.
· That larger englobo sites tend to reflect a lower rate per m² than smaller ones.
This is very well known to valuers and able to be adjusted for within a range until the difference becomes too great to permit adjustment. The extent of the range is a matter for expert opinion and the existence of the range is not a reason to not attempt comparison.
· Kuraby, although an other suburb, is within Brisbane City “and therefore a superior location” compared to sales apparently anticipated to be in Mr Purcell’s report “which included inferior locations such as Redbank Plains, Carole Park and Acacia Ridge”.
In fact of those only Acacia Ridge appears in Mr Purcell’s report which was used in Court. In 7.2 of his report. Mr Hooper refers to the sales which he had at the time no doubt believed were to be relied on by Mr Purcell although in the event only what became Mr Purcell’s sales 1 and 7 were in his report as presented in court. Before addressing these and another four sales Mr Hooper’s report states “A comparison of each sale to the property is given”. Mr Hooper proceeds to make comparisons, taking the inferior location into account, along with other aspects, as a valuer would routinely do.
· The pro-rata approach is a less accurate measure of the loss caused by the resumption as it does not quantify the net difference in the “before” and “after” value of the property.
This is erroneous as considering the before and after value in view of hypothetical development is simply another means of establishing the value lost. This statement is really saying that the other method is less accurate because it does not use my preferred method, which is not a helpful consideration in deciding which method to adopt.
When nonetheless comparing Mr Purcell’s sale 1, 400 Mt Petrie Road, Mackenzie to the subject Mr Hooper saw it as being inferior in location and larger so that it would yield a lower rate per m². Mr Purcell analysed sale 1 to $100/m² and saw the resumed land as worth $150/m², a result consistent with Mr Hooper’s view.
Mr Purcell’s sale 7 was analysed by him to show $70/m². Mr Hooper saw it as far inferior in location and position, larger in area which would reflect a lower rate per m². Inferior on a rate per m². Again, this is fully consistent with Mr Purcell’s view of this sale.
In the event, both valuers were able to use sales to make comparisons with the subject land and the sales reflect actual market values. In determining the value of the subject land where comparable sales are available, and in this case both valuers were able to use the sales to make comparisons with the resumed land, I accept that the sales will provide the best basis for assessing value.[24]
[24]cf. N.R. & P.G. Tow v Valuer-General (1978) 5 QLCR 378 at 381 (which considered unimproved value for the purposes of the Valuation of Land Act 1944.) In the present context Spencer v The Commonwealth (1907) 5 CLR 418 is the leading authority. The touchstone is a sale and a real one will best validate a hypothetical one.
The competing approach, a valid method, serves well for a check method and I have already referred to its close comparability with the sales comparison method once it has been adjusted as I have found necessary.
Arriving at the valuation
The valuation prepared by Mr Purcell uses 10 sales. It would not be correct in most cases to base a valuation on a single sale[25] however it is common to find that of a range of sales, one is the best, the most comparable to the subject. Of the 10 sales, it appears to me that sale 8 is the best guide to the value of the subject land. Mr Purcell described it as an “excellent guide” as it is a similar sized parcel with “quite similar” development potential. It’s inferior location being offset by the higher zoning and development approval in place at the time of sale. The land value analysed to $175m². Mr Purcell, considering all of the sales, assessed the resumed land at $150/m².
[25]Hyam at p.204 refers to Hayes v Chief Commissioner of State Revenue (unreported, NSWLEC, 28/11/2000) at [28] in this regard.
In view of the excellent comparability of sale 8 with the subject, and still mindful of all of the sales, I must entertain a doubt about the conclusion to be drawn from the sales. I am inclined to the view that sale 8 is so strongly comparable that it ought to be given more weight. It took place on 13 June 2009 and the resumption occurred on 21 August 2009. In my view its indication of an overall land value of $175/m² is directly applicable to the resumed land, so comparable is this sale. Taking into account the realities of the loss of land in any development, applying $175/m² x 264 m² = $46,200. Putting this beside the compensation calculated using the check method which I have found to be in the range of $40,000 to $43,000 provides an acceptably close result.
In the case of compensation to be paid for the loss of land, doubts are required to be resolved in favour of a more liberal estimate.[26]
[26]Mio Art Pty Ltd v Brisbane City Council; Greener Investments Pty Ltd (In Liquidation) v Brisbane City Council [2010] QLAC 0007 at [122] and the cases there cited.
Resolving the doubt in this way I conclude that compensation for the loss of the land should be $46,200.[27]
[27]cf. Commissioner of Highways v Tynan and another (1982) 53 LGRA 1 at 10 per Wells J.
“As in the case of simple market value, so in the case of special value to the claimant, the court, in the final analysis, must, by its own judicial act, founded on all relevant information placed before it, apply the principles enunciated in Spencer’s case, but qualified by the need to render them applicable to questions of special value. In all cases, it is the court which fixes the compensation; it is not relegated to the position where it must choose between the valuations tendered by the parties, and be bound by the one it selects.” See also Chief Executive, Department of Natural Resources and Mines v Kent Street Pty Ltd [2009] QCA 399 at [171] per Justice P Lyons with whose reasons McMurdo P and Keane JA agreed.
The loss of the trees - Special Value
Mr Stiller gave evidence that he believed that the loss of four particular trees, which he valued at $15,000 each, was part of his compensable loss. It emerged that he arrived at the $15,000 figure because he had been informed by the Council that there was a maximum penalty of $15,000 for the destruction of a tree which was legally protected as these were.
I note that this is a penalty and would comprise elements of punishment and deterrence so could not safely be equated with value in the sense of market value. Neither valuer provided any estimate of the value of these trees, which the Council has in fact destroyed.
The trees are said to have a special value to Mr Stiller or that their value should be part of “disturbance”. It is very clear that they were of significant sentimental value to him. However the concept of special value, such that a monetary compensation could be provided to him for their loss, is a different matter.
In Boland v Yates Property Corporation Pty Limited[28] Callinan J said:
“Disturbance and special value to the owner
292. I group these two topics together because although they are separate they are related concepts. The special value of land is its value to the owner over and above its market value. It arises in circumstances in which there is a conjunction of some special factor relating to the land and a capacity on the part of the owner exclusively or perhaps almost exclusively to exploit it. None of the examples given by the Full Federal Court are true examples of special value. There will in practice be few cases in which a property does have a special value for a particular owner. Obviously neither sentiment nor a long attachment to it will suffice. The special quality must be a quality that has an economic significance to the owner. A possible case would be one in which, for example, a blacksmith operates a forge in the vicinity of a racetrack on land zoned for residential purposes as a protected non-conforming use, the right to which might be lost on a transfer of ownership or an interruption of the protected use[283]. Such a property will have a special value for its blacksmith owner, and perhaps another blacksmith who might be able to comply with the relevant requirements to enable him to continue the use but to no one else.
294. … Australian Law Reform Commission report defines, correctly in my opinion, disturbance as “cover[ing] economic losses which result naturally, reasonably and directly from acquisition. It may include such items as removal expenses, costs of necessary replacement of furniture and fittings, legal and other costs of purchasing [an alternative site] and loss of goodwill.”[288] Some of these items may however also fall under the head of valuation previously referred to as reinstatement[289].
295. I would merely add that compensation for disturbance may not be available if the claims for it are too remote[290] as I think the settlement sum may well have been here.
[283] See for example s 79C of the Environmental Planning and Assessment Act 1979 (NSW).
[28][1999] HCA 64 at [292] to [295].
Australian Law Reform Commission, Lands Acquisition and Compensation, Report No 14, (1980), par 241.
See also Horn v Sunderland Corporation[1941] 2 KB 26 and Dell Holdings Ltd v Toronto Area Transit Operating Authority(1995) 22 OR (3d) 733.
See Jacobs, The Law of Resumption and Compensation in Australia (1998) pars 22.7.2 and 22.8.”
Although the categories of special value are never closed the value must be a commercial one[29] and the trees cannot attract a monetary value as either a special value or as part of disturbance on the facts in this case.
[29]Commissioner of Highways v Tynan and another (1982) 53 LGRA 1 at 14 per Well J
“Both on principle and on authority (see Arkaba Holdings Ltd v. Commissioner of Highways [1970] S.A.S.R. 94; 19 L.G.R.A. 398 and the cases there cited by Bray C.J.), it seems to me that the categories of special value, like the categories of negligence, are never closed, and it will be for the court to determine, in all the circumstances of each case, whether the use and occupation of the resumed land together with the actual and potential rights and benefits enjoyed with it and appertaining to it, were such as to give to that land a special commercial value to the owner over and above its bare market value.”
I note that by letter dated 24 November 2010 to the applicant’s solicitors the Council enclosed a cheque for $24,571.95 for the other disturbance items claimed. In addition the Council has by letter dated 18 March 2010 paid $43,500 as an advance against compensation. This will leave $2,700 yet to be paid as compensation for the resumption of the land.
Interest
The applicant has sought interest.[30] The Court may award interest and I find that it is reasonable to do so in order to preserve the value of the compensation. I find that interest should be payable at the rate adopted for the relevant year in the table of interest rates published by the Land Court on its website[31] (the applicable rate).
[30]Acquisition of Land Act 1967, s.28.
[31]>
Interest is payable at the applicable rate on $46,200 from the date of resumption namely 21 August 2009 until the payment of $43,500 on 18 March 2010 and thereafter on the reduced balance of $2,700 until and including the day immediately preceding the date on which payment of the remaining balance is made.
Costs of the hearing
Both parties seek costs of the hearing. The Acquisition of Land Act 1967 relevantly provides as follows:
27 Costs
(1)Subject to this section, the costs of and incidental to the hearing and determination by the Land Court of a claim for compensation under this Act shall be in the discretion of that court.
(2)If the amount of compensation as determined is the amount finally claimed by the claimant in the proceedings or is nearer to that amount than to the amount of the valuation finally put in evidence by the constructing authority, costs (if any) shall be awarded to the claimant, otherwise costs (if any) shall be awarded to the constructing authority.
The structure of this provision indicates that the first question is whether or not costs should be awarded.
The exercise of the discretion in relation to costs was recently considered in Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors.[32] That case examined the power to order costs contained in s.34 of the Land Court Act 2000 and authorities relevant to that provision, which is to the effect that the Land Court “may order costs” for a proceeding “as it considers appropriate”. Consideration of that discretion is likely to be helpful in applying s.27, which also contains, at the outset, a discretion. The general rule is that costs follow the event[33] and this is a factor to take into account but not a preconception.[34] Each case should be governed by its circumstances.[35] The discretion must be exercised judicially, that is for reasons that can be considered or justified.[36]
[32][2010] QLC 0122.
[33]J.T. & L.J. Barns v Director-General, Department of Transport (1997) 18 QLCR 133 at 135.
[34]Calcifer Industrial Minerals Pty Ltd v Daraleigh Pty Ltd as Trustee for the D.C. & M.L. Dillon Trust [2010] QLC 0095 at [8].
[35]Ibid.
[36]Ibid. See also Yalgan Investments Pty Ltd v Council of the Shire of Albert (1997) 17 QLCR 401 at 406-408 where the Land Appeal Court considered the Land Court’s power to award costs in compulsory acquisition cases. One feature noted by the Land Appeal Court to distinguish those cases from a typical civil claim is that it flows from a compulsory acquisition process which necessitates the claim. This case was considered and applied by the learned President in Wilson & Anor v Ipswich City Council (No 2) [2011] QLC 0037 at [12] and following.
In this case the applicant has been successful. While it is true that the sum awarded is only slightly higher than that contended for by the respondent council and that the applicant argued for a significantly higher amount, those matters do not diminish the fact of the applicant’s success as a valid consideration. Weighing against this was the time spent, although not a great deal, in pursuing the claim for special value in the four trees; a claim which had no prospects of success due to the absence of economic value.
Taking these factors into account, I consider that it is appropriate to not make any order as to costs.
Orders
1. Compensation is payable by the respondent to the applicant for the taking on 21 August 2009 of land described as Lot 2 on SP222156, area 431 m², part of Title Reference 12297166, Parish of Yeerongpilly. That compensation is assessed at $46,200, of which $43,500 was paid on 18 March 2010.
2. Interest is payable by the respondent to the applicant on $46,200 from 21 August 2009 until 18 March 2010 and thereafter on the reduced balance of $2,700 until and including the day immediately preceding the date on which payment of the remaining balance is paid.
3. Interest is payable at the rate adopted for the relevant year in the table of interest rates published by the Land Court.
4. No order as to costs.
WA ISDALE
MEMBER OF THE LAND COURT
0
10
0