Taber v Chief Executive, Primary Industries Corporation
[1995] QLC 31
•19 May 1995
LAND COURT BRISBANE 19 May 1995
[1995] QLC 31
Re: Claim for Compensation -
Resumption of easements for a purpose of the Water Act 1922
(A94-60).
Leslie NA Taber and Valmai E Taber v.
Chief Executive, Primary Industries Corporation
J U D G M E N T
This is a claim for compensation following the taking on 14 November 1987, under the Acquisition of Land Act 1967 of easements (Easements A B C and E) for a purpose of the Water Act 1922; namely, the Lake Dyer Project, over land in the fee simple ownership of the claimants (Leslie NA Taber and Valmai E Taber), described as Portions 34A, 33 and Lot 1 on RP 133880, parish of Laidley. Plan 213823 (Annexure
A) displays the location of the easements over the claimants' land. The easements contain an underground pipeline running north from Laidley Creek in R.376. The
Proclamation described the rights and obligations taken under the easement as follows: " IN pursuance of the powers and authorities in me vested under the provisions of the Acquisition of Land Act 1967-1986, I, Sir Dormer George Andrews, the Administrator of the Government aforesaid, acting by and with the advice of the Executive Council, do, by this my Proclamation, notify and declare that the Easements over the land described in the Schedule hereto are taken
by and shall vest in The Commissioner of Water Resources on and from the fourteenth day of November, 1987, for a purpose of the Water Act 1922-1987, viz: Lake Dyer Project and that the rights and obligations conferred and imposed by each said Easement shall include the full and free right and liberty for The Commissioner of Water Resources, its authorised officers servants and agents to use the said land for the construction and maintenance thereon of a pipeline the barrel of which shall be at a depth of not less than 0.75 metre from the surface of the land such pipeline to be for the conveyance of water by The Commissioner of Water Resources for the benefit of the said land or any adjoining or neighbouring property or properties or otherwise in exercise of the powers in that behalf or any of them of The Commissioner of Water Resources under and pursuant to the provisions of the Water Act 1922-1987, or any Act or Acts amending or in substitution therefor and any Order By-law or Regulation for the time being in force thereunder respectively and for the purposes aforesaid or any of them and for the purpose of constructing inspecting cleansing amending replacing and repairing all such works as aforesaid and for the purpose of obtaining free and unrestricted access to any other land appurtenant to such works as aforesaid full right and liberty at all times and from time to time to enter upon and go pass and repass over long upon and under the said land or any part thereof with or without engineers surveyors workmen and other persons and with or without horses bullocks carts drays motor cars lorries trucks wagons trollies and other vehicles and things laden or unladen and to open and break up the soil of the said land or any part thereof as well the sub-surface as the surface thereof and to bring
and place in and upon the said land the materials machinery tools and other articles required for the purposes aforesaid and to do such other things upon or under the surface of the said land as The Commissioner of Water Resources shall in its discretion think fit. "
The areas of the Easements are as follows: Easement A - 0.1715ha
Easement B - 0.0115ha
Easement C - 0.2480ha
EasementE - 0.0863ha Total 0.5173ha
The claimants' land is used for dairy farming. The property is situated about 4 kms south of Laidley with access by Mulgowrie Road, which is a bitumen sealed road with earth table drains. The home, dairy and outbuildings are situated on Lot 1 which may be described as gently undulating ridge country. Portions 34A and 33 (the eastern paddock) contain some alluvial creek-front land which is used for cultivation providing hay for sale and supplementary feed during the winter months of the year. Milking cows graze the eastern paddock during the day on a rotational basis using electric fences. The underground pipeline (comprising a pipe 1500mm in diameter) and set about 3 metres or so below the surface, generally runs parallel and adjoining the boundary except where the easement passes through Portion 33. Cattle are taken across Mulgowrie Road to the eastern paddock at a point near the northern boundary of Portion 33 and at a crossing about midway along the western boundary of that portion. The smaller triangular part of Portion 34A is used for fodder cropping. At the time the pipeline was laid the claimants were milking about 50 cows. The quota applying to the property effective from 1 October 1986, comprised a quota entitlement of 151.12 litres per day plus a policy requirement to provide 25 percent above quota or a total of 188.9 litres per day. The construction activity comprised the dropping of boundary fences, the storing of pipes and bedding sand, digging the trench, placement of pipes, backfilling, cleaning up the surface and removing or dispensing with excess overburden. It is the case for the claimants that the activity prevented them from grazing the eastern paddock over the period of construction which resulted in a fall in milk supply, a loss of income and so forth. The easement was taken in 1987 following construction under an agreement executed between the parties on 18 February 1987. The parties had carried out negotiations over the period between the resumption; the serving of a claim on the respondent by letter dated 7 November 1991 and the reference of the matter to the Court by the Crown Solicitor acting for the respondent on 23 August 1994. The claim which was put before the Court at the hearing (with leave) is as follows:
(a) Reduction in milk supply $ 4,913.08 (b) Loss of production of triangular piece of land 250.00 (c) Loss of production in the paddock where the trench was constructed a nominal amount of 500.00 (d) Purchase of extra grain, loss of value of hay used for cattle feed 7,000.00 (e) My labour costs with respect to connecting and reconnecting the water each and every day a global amount is involved. (f) Easement compensation as per the valuation of my valuer
Mr Robert McNabb 1,500.00 (g) General inconvenience including the cost in meeting engineers, site construction personnel, negotiating with Moggill Constructions including a global component for labour costs in connecting the water say 1,800.00 (h) Fence work in removing the fence 420.00 (i) Spraying property for noxious weeds brought about by the introduction of noxious weeds in the soil in the area of the easement estimated at 500.00 (j) Valuer's fees 700.00 (k) Legal fees associated with my claim and in negotiating with the Water Resources Commission 1,500.00 (l) Loss of Growth Quota as an asset on sale estimated (included in (a)) (m) Loss of income attributable to loss of growth quota of 5 litres for the period 1987 to 2002 7,800.00
TOTAL $26,883.08
Under the terms of the easement, the respondent possessed the rights to enter upon land appurtenant to such works. This in fact occurred with the respondent storing pipes and sand in advance of the excavation works and between the easement and Mulgowrie Road. The evidence of the claimants is that the works (including the storing of materials) prevented them from utilising the eastern paddocks resulting in hay normally sold being fed to cattle over a period of about 2 months and a fall off in milk supply as a consequence.
Evidence in support of the claims for disturbance was given by Mr Taber whilst valuation evidence was given on the claimants' behalf by Mr R McNabb, registered valuer. The respondent called Mr B Haks, registered valuer, Mr RJ Walker, Senior Property Officer, Water Resources Division of the Department of Primary Industries, and Mr TE Lawrence who is a Technical Officer in the Water Resources Division of the same Department. Mr Lawrence described his association with the construction of the works as a "works supervisor". The works were constructed under contract by Moggill Constructions. Representatives of that firm as well as Mr Lawrence and other representatives of the Department liaised with the claimants during construction. Having seen photographs of materials stored and the works in progress and having heard the witnesses, I have come to the conclusion that the action of the claimants in abandoning the daily grazing of the eastern paddock was reasonable in the circumstances. However, before dealing with the specific items of claim, I may dispense with the valuation evidence.
The principles which apply when easements are resumed are found in Joyce v. The Northern Electric Authority of Queensland (1974) 1 QLCR 171. The relevant principles may be found on pp.177/8 as follows:
"The principles to be applied in the compulsory taking of an easement are no different from those
applying when the full fee-simple is taken. This Court must restore, as best it may, the claimant in money form, to the position which he enjoyed prior to the taking of the easement. For practical purposes it becomes a matter of assessing the extent to which he has been disadvantaged as the natural and reasonable consequence of the taking of the easement.
The test is the attitude of the hypothetical prudent purchaser and the extent to which in the
opinion of such a person the claimant has suffered diminution in the value of his property resulting from the erection of the transmission line over his land and the creation of the easement including where appropriate severance and injurious affection damage.
The approach adopted by the Court below is one often followed in these cases namely to allow full fee-simple value for land occupied by the base of the pylons or in tracks made by the Constructing Authority and to assess the diminution in value of the land otherwise subject to the easement by adopting a percentage which it is considered fair and reasonable having regard to the terms of the easement by which the claimant's proprietary rights to such easement land have been diminished. We see no reason to depart from this approach.
Each case must be considered according to the terms and conditions of the easement created and the frequency and magnitude of the disturbance likely to result in consequence to the claimant's proprietary rights. No fixed or constant percentage figure may be laid down. Obviously if grazing land only is affected by the easement the amount of disturbance would be less than in the case of arable land. A figure of 10% has been applied in some decided cases involving grazing land and as high as 50% in cases involving arable land.
It should be stressed that negligent or other tortious acts done by the employees or agents of the Constructing Authority are not compensable before us, nor is the probability of such acts occurring. Lawful use only and its consequential effects, if any, call for our assessment.
The terms of the subject easement do not deny the claimant the grazing use of the easement land. There are no structural improvements upon the area. His stock may graze over and across the easement area and drink at the water hole, the subject of the dispute before us, while the water lasts therein. We are not satisfied on the evidence before us that the holding capacity of the water hole has been detrimentally affected to any appreciable extent as a consequence of the creation of the easements. There are certain restrictions as to clearing, stockpiling of soil etc., and the Authority has access rights. We appreciate that these may cause some degree of disturbance to stock and to the management of the property but after the construction of the transmission line such disturbance in normal circumstances should be infrequent and of much lesser magnitude than during the period of construction. "
Mr McNabb valued the respective lots and then applied a diminution factor overall of 7½%, yielding a sum of $1,375. To that he added the value of a waterhole which was destroyed by the work at $300. His valuation fee was $700. He inspected the property for the purposes of making the assessment on 10 March 1995. He freely admitted that he could not speak on the merits of the claims for disturbance and that anything he said about those claims were derived from Mr Taber. His enquiries would show that in 1987 a quota on the open market was worth about $270 per litre as opposed to the sum put in evidence by Mr Taber of $320 per litre.
Mr Haks depreciated land subject to the easement (about 0.5173ha) by 30% from values ranging from $4,500 per hectare to $7,500 per hectare. The exercise yielded a sum of about $991 which he would round off to a sum of $1,000. His approach is consistent with an application of the principles found in Joyce and I will adopt it. I am satisfied after hearing the evidence of both Mr McNabb and Mr Haks that the waterhole had some value and I will adopt the sum claimed for the purpose.
Compensation for land and improvements will therefore be determined in the sum of $1,300.
I may now run through the specific heads of claim.
(a)Reduction in milk supply $4,913.
This claim was amended by adding $550 during the proceedings, being an estimate of the penalty the claimants suffered for failing to supply quota plus a percentage above quota for the months of July to August, in addition to the claim for the months from March to June. The evidence of the claimants which I prefer to that of Mr Lawrence, whose diary notes appeared to me to be deficient in some respects, is that access to the eastern paddocks was denied for a period of about 2 months ending in mid-May. The boundary fence was replaced in mid-July. In the two month period, milking cows were kept on the western block (Lot 1) with supplementary feed. No green feed was available. An annexure to the statement of Mr Taber includes a letter to the respondent dated 27 October 1992 in which an attempt is made to quantify the losses due to the falling off in the production for the months of March, April, May and June. The loss was quantified in the sum of $4,913, based on market milk being worth 42 cents per litre and manufactured milk worth $3.50 per kilogram of butter fat in the ratio of 1kg of butter fat to 25 litres of milk or 14 cents per litre. For the month of March 1986 and 1987, market milk produced is given at 4061 and 4684 litres respectively, whilst manufactured milk is given at 2964 and 996 litres respectively. From these figures, the annexure to the statement calculates a loss of $538.30, whereas in fact the actual loss is the difference between -
market milk -
a gain of 623 litres @ 42 cents = $261.66
and manufactured milk -
a loss of 78.72 kg of butter fat
@ $3.50 per kg = $275.52 Net Loss $ 13.86
The actual losses on the figures presented were calculated by Mr Walker at
$13.86, $118, $524 and $802 per month respectively for a total loss of $1457.86 or
$1458 in whole dollars. To this the claimants have added a sum of $550 which is an estimate of the continuation of such losses for the months of July/August. There are no figures before the Court with respect to these later months to prove that a loss in fact occurred nor is there evidence which explains the fluctuations between market milk and manufactured milk production. In view of the assumption made in the above calculations, that is, that but for the interference caused by the works of construction, income in 1987 would have been equal to that of the previous year, and through lack of proof of any loss for the months of July/August, as a consequence thereof this additional part of the claim will be disallowed and compensation awarded in the sum of
$1,458.
(b)Loss of production of triangular piece of land - $250.
This claim is based on the loss of use of this small parcel for a time as a fodder/hay producing paddock. On receipt of advices as to the commencing date of
construction (earlier than actual), the claimants thought it wise to leave the land fallow. They were also of the opinion that there was no point in sowing a crop when part of the area would be disturbed during construction. In the circumstances it would appear that a justifiable claim in some sum would have eventuated, compensation appears reasonable and will be allowed in the sum claimed at $250.
(c)Loss of production in the paddock where the trench was constructed.
There is no evidence before the Court on which I could find in any reasonable way, as to whether a loss in production in fact occurred as a result of the work being constructed through this paddock. As I will be compensating the claimants for their inability to graze this paddock in another form, this part of the claim is rejected.
(d)Loss in value of hay used for feed - $7,000.
The evidence of the claimants in this respect is that in a normal year they have an excess of hay which is sold. They estimated that in 1987 they would have had some 1800 bales for sale which could be expected to fetch $4 per bale in the marketplace. The hay was fed to stock. The claim is resisted on the basis that the claimants, acting reasonably, could have taken cattle to the eastern paddock south along Mulgowrie Road which involved both the crossing of a culvert in the southern area and the inconvenience of droving them along Mulgowrie Road. Whilst the authorities say that a claimant must act reasonably, the question of what is reasonable is one of fact depending upon the circumstances of the case. Mr Taber said that he endeavoured to take stock through the area when stacked with sand and pipes and found that cattle could not handle it. I find that the actions of the claimants were reasonable in the circumstances. The quantum is an estimate which depends wholly on the evidence of Mr Taber without support of sales made in previous or subsequent years. Nevertheless, in resolving doubts in favour of the claimants, the sum claimed of $7,000 will be allowed.
(e)and (g) General inconvenience including costs of meeting engineers, etc.
Claims of this nature have been considered on many occasions and rejected by the court. See the cases cited in Shann v. The Commissioner of Water Resources (1986/87) 11 QLCR 194. I am unable to find any reasons in the evidence of this case for rejecting an application of the authorities. Included within the ambit of this claim is a claim for $640 for time incurred by the claimants in the daily disconnecting and reconnecting the water pipe to the dairy from Lockyer Creek. The claim is equivalent to a labour cost of about $10 per day assuming the work was required over a two month period. The claim assumes that the time expended in doing this work could have been usefully expended elsewhere on the farm, returning the sum claimed. No quantifiable loss has been identified. These claims will accordingly be disallowed.
(h)Work in removing fence.
This claim is based on an estimate of the cost of dismantling a fence on the boundary of the smaller triangular parcel of portion 34A following oral negotiations between the claimants and Moggill Constructions on the understanding (the claimants') that they would be reimbursed by Moggill Constructions. Counsel for the respondent submits that liability in this respect falls on Moggill Constructions and not the respondent. I assume in the circumstances that Moggill Constructions was not authorised to enter into such arrangements as agent of the respondent. The claim is rejected.
Spraying property for noxious weeds.
The evidence of Mr Taber is that noxious weeds came up in the area of the land disturbed by construction. The claim is vague in that details of the costs of weedicide and the quantity used for the purpose are not in evidence nor is there evidence upon which the court could make a finding as to whether the result was caused by negligence on the part of the contractors or a natural and reasonable consequence of works involved. However, I accept that growth of weeds occurred and that spraying did take place. Compensation will be determined in the sum of $200.
(j)Valuer's fees.
These fees were incurred for the purpose of the hearing and accordingly follow the event.
(k)Legal fees.
Legal fees are agreed in the sum of $1,000.
(l)Dealt with in (a).
(m)Loss of income attributable to loss of growth quota of 5 litres for the period 1987- 2002.
This claim is based on the submission that the shortfall in supply during the period of construction had a compounding effect on growth quotas which effect is estimated by Mr Taber at 5 litres per day. He transposes the estimate into a loss of income per annum and extrapolates that to the year 2002 when he expects to retire. The claim is speculative in all respects and assumes, it seems to me, that the property possesses the capacity to sustain growth quotas in perpetuity. I find that the claim is too remote and accordingly is not compensable.
Compensation under all heads is therefore determined in the sum of Eleven thousand, two hundred and eight dollars ($11,208).
Under s.28 of the Act, the Court may order that interest be paid on the amount of compensation determined by it.
The easement was taken and the works completed in 1987. A claim was served on the respondent by letter dated 7 November 1991. The claim was referred to Court by the Crown Solicitor, acting on behalf of the respondent, on 23 August 1994. The Land Appeal Court has held that where a claimant is dilatory in pursuing his statutory rights, the Court, in the exercise of its discretion to award interest, may limit the payment of interest in any manner it thinks fit. See White v. Brisbane City Council (1975) 2 QLCR 359 and Hardy v. Queensland Electricity Commission (1988-89) 12 QLCR 89. In the subject case, I agree with the submission of counsel for the respondent, that the period for which interest is payable should be limited. In the exercise of the discretion, it is ordered that interest on the sum determined be paid at the rate of 9.5 percentum per annum for a period commencing on and including 24 August 1992 (2 years previous to the date of referral of the matter to the Court) and ending on the day preceding the date compensation is paid.
(DM White)
President of the Land Court
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