Sunshine Coast Regional Council v Leacy - [2016] QLAC 2

LAND APPEAL COURT OF QUEENSLAND

CITATION:

Sunshine Coast Regional Council v Leacy [2016] QLAC 2

PARTIES:

SUNSHINE COAST REGIONAL COUNCIL

(appellant)

v
EDNA JOYCE LEACY AS PERSONAL REPRESENTATIVE OF THE ESTATE OF KENNETH GEORGE LEACY AND EDNA JOYCE LEACY

(respondent)

FILE NOS:

LAC No.002-15

Land Court No. AQL033-08

DIVISION:

Land Appeal Court of Queensland

PROCEEDING:

Appeal from the Land Court of Queensland

ORIGINATING COURT:

Land Court at Brisbane

DELIVERED ON:

24 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

18 November 2015

JUDGE:

Peter Lyons J
WL Cochrane (Member)
WA Isdale (Member)

ORDERS:

1. The appeal is allowed.

2. Compensation is determined at Three Million, Four Hundred and Twenty-Eight Thousand, Three Hundred and Twenty-One Dollars ($3,428,321).

CATCHWORDS:

REAL PROPERTY - COMPULSORY ACQUISITION OF LAND - COMPENSATION ASSESSMENT-VALUATION METHODOLOGY - land resumed for recreation, park and flood purposes - development potential contended- application of sale - flood free portion - comparison sale and subject - costs of development - rate per lot or rate per hectare - location – elevation – drainage easement – risk of refusal – planning appeal quantification - differences - judgement reflected influence of factors.

REAL PROPERTY - COMPULSORY ACQUISITION OF LAND - COMPENSATION ASSESSMENT - TOWN PLANNING - differences in zoning – development application – superseded planning scheme - planning approval risk - need – 42 lot - 66 lot development – performance based assessment - likelihood of approval - finding not disturbed.

REAL PROPERTY - COMPULSORY ACQUISITION OF LAND - COMPENSATION ASSESSMENT-VALUATION METHODOLOGY – likely view of hypothetical prudent purchaser – highest and best use - likelihood of approval-Caloundra City Plan 2004 - Emerging Community Precinct - Q100 levels - delay and risk of suitable access.

REAL PROPERTY - COMPULSORY ACQUISITION OF LAND - COMPENSATION ASSESSMENT -VALUATION METHODOLOGY - market movement – date of sale - date of resumption - relevance to valuation error - factors considered-valuers report - industry publication - not demonstrated by totality of evidence.

Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566
Brisbane City Council v Bortoli [2012] QLAC 8
Brisbane City Council v Mareen Development Pty Ltd (1972) 46 ALJR 377
Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33
De Ieso v Commissioner of Highways (1981) 27 SASR 248
General Motors-Holden’s Pty Ltd v Moularas (1964) 11 CLR 234
Intrapac Parkridge Pty Ltd v Logan City Council & Anor [2014] QPEC 48

Acquisition of Land Act 1967
Land Court Act 2000
Local Government Act 1993 (NSW)

COUNSEL:

D.R. Gore QC and M. Gynther for the applicant

G.W. Diehm QC and S.M. Ure for the respondent

SOLICITORS:

Garland Waddington for the applicant

Butler McDermott Lawyers for the respondent

THE COURT:

The respondent’s[1] land was resumed by the appellant Council on 18 February 2005 for “recreation grounds, park, flood prevention and flood mitigation purposes”. Compensation was determined, ultimately in the amount of $4,562,554, including improvements and disturbance[2]. The Council has appealed against the determination of the value of the land, reflected in the Order of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] QLAC 2
Decision Date: 24 June 2016

CaseChat Overview and Summary

The case of Sunshine Coast Regional Council v Leacy involved a dispute regarding the compulsory acquisition of land by the Sunshine Coast Regional Council for recreation, park, flood prevention and flood mitigation purposes. The Council resumed approximately 86.13 hectares of land from Ms Leacy on 18 February 2005, and compensation was determined at $4,562,554, including improvements and disturbance. The Council appealed against the determination of the value of the land, reflected in the Order of the Land Court. Ms Leacy's land was located at Meridian Plains, to the north-west of Caloundra, and was predominantly flood prone, with only an area of 4.082 hectares above the flood line. The land was dissected by a proposed railway corridor and a multi-modal transport corridor, and was surrounded by other developments, including the Kawana Forest Estate and the Pacific Lutheran College.

The legal issues in the case centred around the methodology used to assess the compensation for the land. The key issue was the appropriate valuation method to be used, taking into account factors such as the highest and best use of the land, the likelihood of approval for development, and the risk of refusal of a planning application. The court was required to determine whether the Land Court had applied the correct valuation methodology and whether the compensation determined was appropriate. The court had to consider the impact of factors such as the flood-prone nature of the land, the suitability of access, and the risk of refusal of a planning application on the value of the land.

The court found that the Land Court had not applied the correct valuation methodology, and that the compensation determined was excessive. The court found that the Land Court had not adequately considered the risk of refusal of a planning application, and had not properly taken into account the impact of the flood-prone nature of the land on the value. The court found that the appropriate value of the land was $3.4 million, and that the compensation should be determined at $3,428,321, being $3.4 million for the value of the land, together with $12,250 for the value of improvements, and $16,071 for disturbance. The court allowed the appeal, and set aside the decision of the Land Court.

The court's decision was based on a careful consideration of the evidence and the relevant factors. The court found that the Land Court had not properly taken into account the risk of refusal of a planning application, and had not adequately considered the impact of the flood-prone nature of the land on the value. The court found that the appropriate value of the land was $3.4 million, and that the compensation should be determined at $3,428,321. The court's decision was based on a thorough analysis of the evidence and the relevant factors, and was in accordance with the principles of compensation for compulsory acquisition of land.

Orders

Orders of the court

1. The appeal is allowed.

2. Compensation is determined at Three Million, Four Hundred and Twenty-Eight Thousand, Three Hundred and Twenty-One Dollars ($3,428,321).

Background

Background to the litigation

The respondent’s[1] land was resumed by the appellant Council on 18 February 2005 for “recreation grounds, park, flood prevention and flood mitigation purposes”. Compensation was determined, ultimately in the amount of $4,562,554, including improvements and disturbance[2]. The Council has appealed against the determination of the value of the land, reflected in the Order of the Land Court.[1] It is convenient to refer to Ms Leacy in both the capacities in which she is a party to the appeal as the respondent.[2] See the Order of 24 June 2015, exhibit 2 in these proceedings.Background The resumed land is located at Meridian Plains, to the north-west of Caloundra. It is approximately rectangular in shape. It has an area of 86.13 hectares[3].[3] Reasons for judgment of the Land Court (RJ), [1]. A proposed railway corridor known as “CAMCOS” ran in a north-south direction through the eastern part of the land. The land was also dissected by the then-proposed “multi-modal transport corridor” (MMTC), which has since been constructed and is now known as the Caloundra-Mooloolaba Road. Currimundi Creek flows in the vicinity of the southern boundary of the land, with tributaries of Currimundi Creek passing through the land. Most of the land is flood prone, with only an area of 4.082 hectares in the vicinity of the land’s northern boundary being above the flood line[4].[4] RJ [15]-[16]. Adjoining the land’s western boundary is a road then known as Sunset Drive (now known as Meridian Drive). It was common ground that Sunset Drive did not provide suitable access for development on the resumed land, as it was subject to flooding[5].[5] RJ [15], [20]. Adjoining the northern boundary of the land is an area of land known as Easement A, through which had been constructed a mains water supply pipeline[6]. To the north of Easement A lay the Kawana Forest Estate, which was being developed as a residential estate. On the eastern side of this estate, and north of the resumed land, was the site of the Pacific Lutheran College. The road system being developed within the Kawana Forest Estate included a road which ran north from the eastern end of Easement A, between the Pacific Lutheran College and the Estate and connecting via Woodlands Boulevard with the external road system. It also included a street, approximately parallel to the easement, called Wilkiea Street, at the eastern end of which, running north, was a street which became Rapanea Street[7].[6] RJ [15]. The easement would appear to have burdened part of Lot 705, a balance area of Kawana Forest Estate: see AR 739, 741, 742, 744.[7] For the street layout see Appeal Record (AR) p 4642. At the time of the resumption, development of the land was regulated by the Caloundra City Plan 2004 (CCP). Under that plan, the land was included in the Open Space-Sport and Recreation Precinct of the Caloundra West Planning Area (CWPA). It was common ground that the designation reflects the scheme underlying the resumption and was to be ignored for the purposes of assessing compensation[8]. However, other provisions of the CCP were treated as relevant.[8] RJ [17].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Accordingly it is appropriate to determine the value of the land as $3.4 million; and award compensation accordingly.Conclusion Compensation is assessed at $3,428,321, being $3.4 million for the value of the land, together with $12,250 for the value of improvements, and $16,071 for disturbance.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Sunshine Coast Regional Council v Leacy [2016] QLAC 2
PARTIES:	SUNSHINE COAST REGIONAL COUNCIL (appellant) v EDNA JOYCE LEACY AS PERSONAL REPRESENTATIVE OF THE ESTATE OF KENNETH GEORGE LEACY AND EDNA JOYCE LEACY (respondent)
FILE NOS:	LAC No.002-15 Land Court No. AQL033-08
DIVISION:	Land Appeal Court of Queensland
PROCEEDING:	Appeal from the Land Court of Queensland
ORIGINATING COURT:	Land Court at Brisbane
DELIVERED ON:	24 June 2016
DELIVERED AT:	Brisbane
HEARING DATE:	18 November 2015
JUDGE:	Peter Lyons J WL Cochrane (Member) WA Isdale (Member)
ORDERS:	1. The appeal is allowed. 2. Compensation is determined at Three Million, Four Hundred and Twenty-Eight Thousand, Three Hundred and Twenty-One Dollars ($3,428,321).
CATCHWORDS:	REAL PROPERTY - COMPULSORY ACQUISITION OF LAND - COMPENSATION ASSESSMENT-VALUATION METHODOLOGY - land resumed for recreation, park and flood purposes - development potential contended- application of sale - flood free portion - comparison sale and subject - costs of development - rate per lot or rate per hectare - location – elevation – drainage easement – risk of refusal – planning appeal quantification - differences - judgement reflected influence of factors. REAL PROPERTY - COMPULSORY ACQUISITION OF LAND - COMPENSATION ASSESSMENT - TOWN PLANNING - differences in zoning – development application – superseded planning scheme - planning approval risk - need – 42 lot - 66 lot development – performance based assessment - likelihood of approval - finding not disturbed. REAL PROPERTY - COMPULSORY ACQUISITION OF LAND - COMPENSATION ASSESSMENT-VALUATION METHODOLOGY – likely view of hypothetical prudent purchaser – highest and best use - likelihood of approval-Caloundra City Plan 2004 - Emerging Community Precinct - Q100 levels - delay and risk of suitable access. REAL PROPERTY - COMPULSORY ACQUISITION OF LAND - COMPENSATION ASSESSMENT -VALUATION METHODOLOGY - market movement – date of sale - date of resumption - relevance to valuation error - factors considered-valuers report - industry publication - not demonstrated by totality of evidence. Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566 Brisbane City Council v Bortoli [2012] QLAC 8 Brisbane City Council v Mareen Development Pty Ltd (1972) 46 ALJR 377 Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 De Ieso v Commissioner of Highways (1981) 27 SASR 248 General Motors-Holden’s Pty Ltd v Moularas (1964) 11 CLR 234 Intrapac Parkridge Pty Ltd v Logan City Council & Anor [2014] QPEC 48 Acquisition of Land Act 1967 Land Court Act 2000 Local Government Act 1993 (NSW)
COUNSEL:	D.R. Gore QC and M. Gynther for the applicant G.W. Diehm QC and S.M. Ure for the respondent
SOLICITORS:	Garland Waddington for the applicant Butler McDermott Lawyers for the respondent