The Trustees of the Lang Park Trust v Brisbane City Council
[1990] QLC 32
•12 November 1990
|
BRISBANE.
12th November, 1990.
Re: Claim for Compensation
Land taken for Road Purposes.
A90-12.
The Trustees of The Lang Park Trust
v.
Brisbane City Council
J U D G M E N T
By Notification of Resumption pursuant to the provisions of the Acquisition of Land Act 1967 - 1988 and published in the Government Gazette dated 28th October, 1989, land described as Lot 2 on Plan No.227068 County of Stanley, Parish of North Brisbane, City of Brisbane, containing an area of 2934 square metres, and being part of the land contained in Certificate of Title, Volume 6660, Folio 152, was taken by the Brisbane City Council, for road purposes.
The property from which the land was taken is the Lang Park Rugby League Football Ground. Lang Park was designed specifically for rugby league football matches and is recognised as the premier venue for that sport in Queensland. It is located in Milton, an inner-suburban area about 2km south westerly of the Brisbane G.P.O., bounded by Hale Street to the east, Chippendall Street to the south, Castlemaine Street to the west and Caxton Street to the north.
By deed of grant, issued under the Land Act and in pursuance of "The Lang Park Trust Act of 1962", the original parcel of land, being Portion 353, was granted to The Trustees of The Lang Park Trust for Recreation and Sporting purposes and for no other purposes whatsoever. The original parcel was subsequently subdivided into Lots 353 and 570 on Registered Plan 192572, then Lot 570 transferred to the Crown. The balance area retained by the Trustees, Lot 353 contained an area of 6.4892 hectares, reduced by this resumption to 6.1958 hectares.
The resumed land comprises a strip along the Hale Street frontage, varying in width from 20.8 metres on the southern boundary to 16.33 metres on the northern boundary. Improvements on the area taken consisted of a security masonry block fence, a structure containing fourteen turnstiles, with ancillary booths, being the main entrance to the Hale Street grandstand together with entrances to the northern and southern "outers", adjacent paved area recessed off the footpath, access paths, and a carparking area.
The land was resumed in connection with a proposal for road improvements involving the widening of Hale Street to six lanes in the vicinity of Lang Park. Three lanes will flow in each direction and will be separated by a concrete median barrier in which street lighting will be located. Hale Street will pass under Milton Road and the railway to join Boomerang Street and Coronation Drive. A left turn slip lane will provide access from Milton Road from the west to Hale Street to the north and a ramp two lanes in width will permit right and left hand turns for southbound traffic from Hale Street to Milton Road. Traffic signals will be provided at this location to control both vehicular and pedestrian traffic. Hale Street will pass under Caxton Street and ramps will permit right and left turns from Caxton Street to Hale Street for north bound traffic, and right and left turns for southbound traffic in Hale Street to Caxton Street. A service road will be constructed on the eastern side of Hale Street and closure of Chippendall Street will be effected with a cul-de-sac formed at its eastern end.
A Claim for Compensation was served on the respondent in the sum of $2,709,580 made up as follows:
$
Land 770,000
Improvements and Severance 1,641,000
Staged construction and compression costs 82,050
Injurious affection 204,000
Engineer's fees 5,000
Legal fees 4,530
Valuation fees 3,000
Total $2,709,580
The matter has come before the Land Court for determination of compensation payable. Leave was not sought to amend the claim although during the course of the hearing various amendments were, in effect, made.
The claimants final assessment of land value is $310,720.
The final amount for professional fees associated with assessment and compilation of the claim is $12,835.45 made up as engineer's fees $6,244, valuer's fees $3,000 and legal fees $3,591.45. The respondent accepts as reasonable the valuation and legal fees but required proof of the original claim of $5,000 for engineer's fees. Consequently a memorandum of fees was tendered in the amended sum of $6,244, and subjected to examination. This item is considered proved.
The balance of the claim altered as the hearing proceeded with some components amended on the basis of actual costs, or advanced estimates and then the deletion of other components.
Seven witnesses were called by the claimant -Mr B.J. Mahony, an Engineer; Mr R.A. Livermore, Managing Director of the Queensland Rugby Football League Limited and a Trustee of the Lang Park Trust; Mr G. Hay, Secretary of The Lang Park Trust; Mr S.M. Rainer, a Quantity Surveyor; Mr B.A. Hall, Valuer; Police Inspector N.E. Sprenger, Officer-in-Charge of the Operational Planning Unit; and Mr C.L. Beard, Traffic Engineer.
The respondent called three witnesses, all employed by Brisbane City Council -Mr B.C. Davis, Traffic Design Engineer; Mr J.G. Schick, Senior Supervising Officer Building Construction Section; and Mr M.L.R. Elliott, Valuer.
Mr Mahony, as the Project Engineer engaged by the Trust in the design and supervision of works resulting from or associated with the Hale Street road widening advised that initial planning and estimation of costs of the project commenced in 1988. The first stage of alterations commenced in early 1990 to make way for initial Council works. The extent of planned remedial works connected with the project is as follows:
Stage 1 works -Demolition of existing Hale Street screen wall.
Reconstruction of southern section of screen wall on new alignment.
Demolition of Hale Street southern outer turnstile structure.
Construction of new southern outer turnstile structure - Chippendall Street.
Construction of Chippendall Street screen and retaining walls, access stairs and pathways.
Plumbing, drainage, water service and electrical installations.
This work was completed in 1990 prior to commencement of the football season at a contract price of $261,566.
Stage 2 works -Demolition and reconstruction of balance Hale Street turnstile structure for grandstand and northern outer.
Demolition, reconstruction (and addition) - existing toilets in northern outer.
Associated plumbing, drainage, electrical works, landscaping.
At the time of hearing tenders had been called and received for this stage and ranged between $329,000 and $462,000. Mr Mahony was of the opinion that a realistic cost was $400,000 and advised that of this work an amount of $50,000 should be deducted from the compensation claim as it represented toilet facilities in excess of those to be demolished.
Stage 3 works -Demolition and reconstruction of two existing toilet blocks in southern outer.
Construction of new road from Chippendall Street entry to Hale Street grandstand.
Alterations to liquor booth (including equipment).
Construction of new Chippendall Street carpark.
Construction of pedestrian tunnel under Hale Street.
The cost of the Stage 3 work had been variously estimated, in conjunction with a revision by the quantity surveyor, at $747,600. From this amount should be deducted $47,000 for the capital cost of equipment in the liquor booth, which will be the responsibility of the catering contractor.
To the total cost of Stages 1, 2 and 3 should then be added engineering and architect's fees. The claimant's quantity surveyor allowed 12½%.
My own dissection of the evidence as to the claimant's final estimate of cost is as follows:-Stage 1 actual contract $261,566
Stage 2 based on 1990 tenders $400,000
Stage 3 based on 1990 estimates $747,600
$1,409,166
Less
Additional Toilets 50,000
Caterer's Equipment 47,000 97,000
$1,312,166
Add Professional fees 12½% 164,020
$1,476,186
There is another aspect of the claim - the loss of carparking in the south-eastern corner of Lang Park, which will be dealt with later.
With regard to the primary works items there is general agreement between the claimant's quantity surveyor and the respondent's estimator, as to the components of individual building cost. In the final analysis the differences are in the allowance for builder's margin and professional fees. Mr Schick was also of the opinion that the 1990 costs for the actual contract (Stage 1) and the later estimates should be reduced by 10% to equate October 1989 costs even though he did not dispute that Stage 1 tenders had been called in November 1989 immediately after the Notice of Resumption.
Mr Mahony was questioned as to his concept of works necessitated by the resumption. It emerged that part of the respondent's case was that some of the works designed and consequent costs for those works, while possibly reasonable for the efficient management of Lang Park, were not made necessary by the resumption. Particular reference was made to the following:-(a)the need for the southern outer turnstiles to be relocated away from Hale Street to Chippendall Street, and the advantages of the relocation.
Mr Mahony had investigated Hale Street options, but was of the firm opinion that the optional areas as suggested by the respondent would have interfered with the design of the necessary access road from Chippendall Street to the Hale Street grandstand. He also saw the Chippendall Street entrance/exit as assisting in relieving to some extent the expected pedestrian congestion he believed would result from the resumption in Hale Street. He agreed that Chippendall Street was closer to some parts of the southern outer, but then it was further from the more popular sideline area of the outer. Overall he saw some advantages and some disadvantages but he did not see how the Chippendall Street facility would operate any more efficiently than before.
(b)the need for two toilet blocks in the south-east outer to be demolished.
Mr Mahony held the opinion that even redesign of the road from Chippendall Street to the Hale Street grandstand would not solve the problem of these toilets causing access difficulty for heavy vehicles and semi-trailers. It was his understanding that even though the need for semi-trailer access was very intermittent, previous access was gained from Hale Street.
(c)the need for relocation of the carpark.
Mr Mahony agreed that reduced carparking was still available along the realigned Hale Street boundary in the south-eastern corner. This carparking facility was provided for media representatives and private box patrons. Before the resumption direct ingress and egress was available at Hale Street while after the resumption it was available only at Chippendall Street. He had recommended to the Trust that access of vehicles to this south-eastern corner be restricted during the period when patrons are at the grounds, because of the potential danger of pedestrian injury. If the reduced carparking facility was to remain in that area, concrete work needed to be provided together with a boom gate control.
(d) the need for alteration to the liquor booth area.
Mr Mahony saw this proposed work as necessary and directly associated with the reconstruction of the toilets in the northern outer, caused by the need for relocation of the Hale Street turnstiles (northern outer and grandstand). In his opinion, insufficient practical space remained, if efficient crowd control was to be maintained, for parking of three of the four mobile catering vans previously sited in this locality. It was put to him that this was caused in part by the extra space required for the planned increased toilet capacity, and that the western existing toilet to be extended could have been demolished to make way for the vans had increased toilet capacity not been required. He did not agree that the site of the western toilet was suitable or practical for the positioning of the mobile vans and saw a direct loss of between $50,000 and $60,000 in demolishing and then reconstructing the western toilet. He agreed that the proposed permanent catering facility would be more efficient but that it would need to be, because it was also more restricted in bench serving space compared to that provided with the mobile vans.
(e)the need for a pedestrian tunnel under Hale Street.
Mr Mahony was of the opinion that for large and maximum Lang Park capacity crowds, there was need to in some way replace the previous practice of crowds exiting across Hale Street which had been permitted by temporary closure of the road to vehicular traffic at the finish of games. His understanding was that the new Hale Street footpath would be fenced off and egress to pedestrians exiting to the east would be via narrow pedestrian ways at the Caxton Street and Milton Road intersections. In his opinion if a tunnel was not provided there would be a serious effect on the amenity of exit facilities for Lang Park. He agreed that the maximum crowd situation did not occur more than six times a year, but saw the problem extending somewhat to include large crowds. He agreed that a feasible solution to the perceived problem would be the provision of removable barriers in the roadwork construction and continued temporary closure of Hale Street to vehicular traffic.
Mr R.A. Livermore has had a close involvement with Lang Park since 1981. He advised that the ground now has a crowd capacity of 32,000. He had no accurate details as to the distribution of pedestrians leaving the ground but in his opinion the majority move across Hale Street then predominantly towards Milton Road. After consultation with Mr Beard the consultant traffic engineer, he was concerned that maximum capacity crowds could experience an unpleasant shuffling and confined experience on the Hale Street footpath, if the Hale Street carriageway was not able to be accessed by pedestrians after a match. He saw the loss of the previously existing meeting area external to the Hale Street turnstiles as a real disability for patrons, particularly for night matches. He said that it is well established that crowd comfort is a major influence on match attendances and ingress and egress both to the ground and its facilities is an important component of crowd comfort. He has been advised of reduced crowd attendance at major southern sporting venues in Australia as a direct effect of changed parking and access arrangements. Mr Livermore said that in the 1990 season Lang Park was the venue for 19 Brisbane Winfield Cup matches including the final series, 6 Winfield State League matches, 12 Brisbane Broncos home matches including 1 trial, 1 State of Origin match, 2 Woolies series Brisbane Division matches and 1 East Coast League match. State of Origin matches generally alternate between one and two each year. He does not expect attendance at major matches, such as State of Origin and the more popular Broncos matches to be affected by the predicted Hale Street inconveniences. However, in his opinion, these inconveniences could cause a fall of up to 20% in some of the more family orientated Sunday afternoon Broncos matches. Mr Livermore advised that the Hale Street turnstiles were not opened for entry or exit for other than the Broncos matches, the State of Origin matches and the Brisbane Grand Final, due to the small crowd attendances at the other matches. He agreed that the proposed increased toilet facilities would be a direct benefit to Lang Park, but did not see any real benefit in older but adequate toilet facilities being replaced by new structures. He saw the proposed liquor booth conversion for catering use as providing a more attractive facility than the vans, but believed the work was necessitated by loss of space for the vans.
Mr G. Hay gave evidence as to the caterer's need for the use of the liquor booth area. The caterer had viewed the plan for proposed alterations to the grounds and complained that the available mobile van sites would be reduced from four to one. It had become obvious that the reduced catering outlet would be insufficient to meet the level of service required. While the Trustees were hopeful that the proposed permanent facility would provide a better service to patrons, any direct benefit to the Trust would not become a reality unless the licence fee arrangement with the caterer increased through increased profitability. Mr Hay was concerned about increased operational costs of the turnstiles, but it was revealed that these costs were eventually passed on to the hirers of the ground. He was also concerned as to the loss of carparking facilities in the south-eastern corner of the grounds. He said where previously 50 vehicles were parked, now only 25 spaces remained. Car-parking requirements were at a premium even for smaller crowd matches.
The evidence of Mr S.M. Rainer, the Quantity Surveyor, was that original estimates of costs of the designed project were prepared in 1988. An analysis of the actual cost of the first stage work, consideration of the tenders for the second stage and revision of the third stage costs had then been carried out in September, 1990. The liquor booth alterations had not been included in the earlier estimate. Mr Rainer allowed 12½% for the builder's margin and was firm that such a margin would be reflected in realistic tenders for work of the nature involved. The respondent's estimate included 8% for the builder's margin. Mr Rainer allowed 12½% for engineering and architect's fees where Mr Schick believed that 7% was sufficient for this project. Mr Mahony had confirmed that, while 12½% was a reasonable allowance for estimation purposes the actual costs for design and supervision of the project would in fact be in the order of 7%.
Inspector N.E. Sprenger advised that a committee, including representatives of the Police and Council met annually to review the plan of traffic control which had been developed over a number of years, for State of Origin matches. His Operational Planning Unit did not become involved in other than State of Origin and some Test matches. While there was traffic congestion after some Broncos matches, he felt that these crowds were generally better behaved, with a higher family content, and better tolerance of delay. It had been found necessary to close off Hale Street to vehicular traffic for about 35 minutes at the finish of State of Origin matches to allow the crowd "to take over and spill right out of Lang Park". He estimated that with a maximum crowd of 32,000 spectators, more than half would leave via Hale Street (and now the Hale and Chippendall Street exits) with approximately 25% coming down Roma Street to the City. He was aware broadly of the roadwork plans in Hale Street. If Hale was unable to be closed to traffic in the future, he saw lengthier crowd dispersal delays resulting unless a "reasonably" wide pedestrian exit was provided.
Mr C.E. Beard, the Traffic Engineer for the claimant had only recently been instructed to consider the question of crowd dispersal. He believed that insufficient study had been carried out by the Council to establish actual dispersal patterns for effective design. It was essential, in his opinion, for the system to allow the occasional closure of Hale Street and provision of crowd access through the median barrier. Otherwise he saw the Milton Road footway design as potentially grossly inadequate and the need for the Hale Street tunnel as had been proposed by the claimant. This tunnel would alleviate but not solve the envisaged crowd control problem. He said there was real potential for the confined Hale Street footpath, as proposed to be fenced off from the road carriageway, to result in very considerable congestion between Milton Road and Caxton Street. He was concerned about the crowds in the range of 20,000 to 30,000 as might be expected for the more popular Broncos matches, when it was unacceptable from a planning viewpoint, to frequently close to traffic a major carriageway such as Hale Street would become. Under cross-examination Mr Beard agreed that a 2.7 metre wide footway could accommodate a crowd of 4,100 pedestrians in a twenty minute period, provided it was level with no obstructions or interruption to flow. He also agreed that in estimating demand capacity in Milton Road it would be a useful guide, up to a point, to work back from observations of crowd capacity on the Petrie Terrace Bridge to Roma Street on the occasion of a State of Origin match.
Mr B.C. Davis, the Council Traffic Design Engineer gave evidence later, that the Milton Road footway was 2.7 metres in width, although his report and advice given to Mr Beard suggested 2.5 metres. The footway at Caxton Street was 3.8 metres wide and there was general agreement as to its adequacy. Mr Davis advised that even at the time of hearing, final design of the roadworks had not been completed. Although his report indicated that "pedestrian access will not be provided across Hale Street between Milton Road and Caxton Street" his verbal evidence was that consideration was now being given to the median barrier being constructed in such a manner that temporary opening for emergencies would be provided. Such an arrangement could also serve as an access way for pedestrians if the planning committee saw the need for closure of Hale Street to allow dispersal of maximum capacity crowds. He was of the opinion that the full length of Hale Street footpath would be fenced off from the road carriageway, but removable sections could be provided. Mr Davis had no pedestrian counts to assist the design but had estimated pedestrian distribution. Based on enquiry from Police and Council observers at State of Origin matches as to pedestrian flow conditions, then with knowledge of footpath widths and traffic control measures in place at those times, he estimated that under maximum capacity crowd conditions, no more than 5,000 spectators walk to the city. On the basis of a 20 minute peak flow period he calculated that under maximum crowd conditions, a pedestrian flow of 3,595 would be experienced at Hale Street/Milton Road where there was a design capacity of 4,100, and at Hale Street/Caxton Street 2,875 with design capacity of 6,233. If "for some reason" more spectators decided to use the Milton Road end, extension of the rush period to 30 minutes would increase the capacity by 50%. Mr Davis had carried out a similar exercise for Broncos matches when no special traffic arrangements were in force other than Police attending some intersections. Again from observations, footpath capacities and pedestrian flow, he estimated that no more than 800 pedestrians walk to the City from these matches. The 20 minutes flow at the Milton Road footway would be 1,495 pedestrians and at Caxton Street 775 - both well below design capacity. Mr Davis was questioned at length regarding the objectivity of his estimates. He agreed that pedestrian counts would have been of assistance but neither the claimant nor the respondent had carried out this exercise. He had carried out investigations relative to rail, bus and taxi movements, had in-depth knowledge of parking arrangements for Lang Park traffic control and with past experience with events such as the Commonwealth Games and Expo 88 felt confident of his ability to predict the probable mode of crowd departure.
Both Mr Beard and Mr Davis had been asked to consider the design of the new internal road from Chippendall Street to the Hale Street grandstand, relative to two existing toilets in the southern outer. Mr Beard was of the opinion that with the removal of relatively minor obstructions, and when carparking in the Hale Street grounds did not interfere, it was probable that all but the largest semi-trailer could access between the toilet structures. The largest semi-trailer may be able to manoeuvre with difficulty. He did see problems with access for the larger mobile vans if the carpark was in use and potential for inconvenience if both toilets remained. He said that in his opinion it was definitely not necessary for both toilet blocks to be removed for the road. Mr Davis had fitted turning templates to the design layout and had concluded that eight tonne trucks to semi-trailers could safely turn between the toilets but admitted that he had not specifically considered the location of the new carpark. It was his understanding that the larger vehicles usually accessed the area earlier than use of the carpark was required. His diagrams indicated that both an 8 tonne truck and semi-trailer encroached into the carpark area but he believed that if the carpark was to be considered as occupied, trucks up to 11 metres in length could avoid parked vehicles. A semi-trailer could not gain access while the carpark was fully occupied but he felt that under supervised arrangements access for semi-trailers could be obtained by reversing off Hale Street as had been the previous practice.
Valuation evidence for the claimants was given by Mr B.A. Hall. His original assessment dealt with the loss of land aspect and had been amended as the actual extent of land required in the Chippendall Street relocation of the southern outer turnstiles became known. His instructing solicitors had provided him with advice to the effect that the Lang Park Trust Act 1962 - 1986 gave rights to the Trustees to lease Trust lands, for various uses with the approval of the Minister. He saw the actual resumed land as having limited leasing potential as commercial land, because of its narrow width. The Chippendall Street land was however, in his opinion, prime commercial development land. On an assumption that the right to lease the land equated the freehold value, he saw it as clear " that the loss in value to the land component of the overall value of the Lang Park Complex, by the before and after method is the difference in value of " (the Chippendall Street area) "commercial development land that will now only have a sports and recreation land use value, plus the loss of" (the resumed area) "land with sports and recreation value." He established from sales evidence a value of $230 per square metre for the Chippendall Street area of 1200 square metres (which was now utilised by the turnstile facility) as equivalent to "Service Trades" zoning and adopted $20 per square metre for land restricted to equivalent "Sports and Recreation" zoning. The loss in value assessed for the Chippendall Street land was $252,000 and the loss of the resumed land was assessed as $58,720 with the total being $310,720. This formed the basis of the claimant's submission under the land content heading. It should be said here that the respondent advised that it had no quarrel with the area assessed as being utilised in Chippendall Street (1200 square metres) nor the values applied to equivalent "Service Trades" and "Sport and Recreation" zoned land.
Mr Hall had also been asked to consider the following matters:-(a)the loss in value due to the effect of the resumption on the carparking facility located in the south-eastern corner.
He had been under the impression that 25 vehicles parked on a concreted area previously and that all that had occurred was the configuration of parking had altered with accommodation remaining for the same number of vehicles.
Mr Hay's evidence was that 50 vehicles had been accommodated previously and 25 spaces had been lost, and those were replaced in other revenue producing carparks. On Mr Hay's advice both to the number of carparks lost and revenue lost Mr Hall calculated the loss to the Trust as being $3,112.50 per annum with the present value of that amount in perpetuity at 14% interest, being $22,232.
On the basis that the remaining 25 carparks were previously on concrete and are now on grass, he was of the opinion that compensation should be paid for the cost of concreting the altered Hale Street carpark. He was also of the opinion that with access to this carparking area internally through the grounds as opposed to the previous direct access to Hale Street, a boom gate should be installed to control the timing of egress of vehicles and possible danger to pedestrians. Mr Rainer had estimated the cost of concreting together with installation of a boom gate, as up to $35,000, but had agreed with Mr Schick's opinion that the concreting cost might be as low as $16,000 and the boom gate between $5,000 and $10,000.
(b)loss to the Trust from extra staffing costs and predicted lower attendances.
The extra staffing aspect was resolved during the hearing and no longer forms part of the claim.
Mr Hall had been provided with the 1990 attendances and related income and expenditures. He examined the potential loss of revenue if attendances at the Broncos matches alone reduced by firstly 5% then 10%. He calculated that reduced attendance of 5% at the Broncos matches would result in an annual loss of $32,550 in Trust income. The present value of this annual figure in perpetuity at an interest rate of 14% was $232,407 and would increase in direct proportion to any increased loss of attendance - e.g. 10% drop in attendance would result in a loss of $464,814.
Quite some debate took place as to whether the calculation under both this heading and (a) should be based on interest rates related to capital investment or capitalisation rates which would apply in assessing the value of the business based on nett income or as claimed, the reduced nett income. More will be said of this later.
(c) value of existing toilets to be demolished.
Mr Hall had inspected most of the toilets involved. Except for one masonry female toilet block about 5/6 years old, the remainder were about 30 years old, of painted brick wall construction and terracotta tiled roof. Fit-out was basic but the toilets were generally well maintained and functional. Mr Hall disagreed with the respondent's approach in depreciating the replacement value of the older style toilets to find an added value. He was of the opinion that, if reasonably maintained, the structures had an unlimited life and new toilets would provide no benefit to the Trust over existing older toilets of similar capacity.
Mr Elliott's approach for the respondent was somewhat different to that of Mr Hall. On the toilet issue, he adopted an approach that a 50 year life would see them out and with the older toilets of 30 years, depreciated their replacement value by 60%. He was of the opinion that the existing older toilets were of very basic fit-out and not generally in keeping with the image of a prestige sporting facility. If full replacement value was paid he saw the Trust as better off than before. The valuation of the reasonably new toilet was not subjected to a depreciation rate.
I agree with Mr Elliott's proposition that the Trust is not entitled to "new" for "old" with regard to fairly common place structures such as toilets. However, provided the location of the toilets involved is integral to the needs of the complex and the structures are in sound well maintained condition, as they were, then an estimated life of 50 years is considered harsh. From an aesthetic external appearance, some patrons may even find older brick and gabled terracotta tile more attractive than unpainted masonry block and flat metal. The need for internal refurbishing from time to time, as the Trust has done with other existing toilet facilities, reflects a natural obsolescence factor which should be taken into account. I agree with Mr Elliott's more liberal approach to the near new female toilet, but find an added value of 80% of replacement cost for the older facilities, as fair compensation for their necessary destruction.
Mr Elliott allows nothing for the loss of land and this approach formed a major part of the respondent's legal argument. Compensation was assessed on the basis of "reinstatement" of improvements lost as a result of the road widening. Mr Elliott does not agree that it was necessary to relocate the southern outer turnstiles to Chippendall Street, although he agrees it could well have been a wise management decision to do so. He says a similar level of service could have been provided as before, from one of the alternative site options on the new Hale Street alignment. Again, part of the respondent's argument is that, apart from Mr Hall's contention that a loss in land value resulted from the Chippendall Street relocation, there were some additional construction costs involved. Mr Elliott did not approach the assessment on the basis that it was unnecessary to replace all turnstiles, as was the respondent's final submission. He did however, give evidence that at a recent match with a 75% crowd capacity, some of the Hale Street turnstiles were not operating, at least at a time approximately 45 minutes before the start of the main game. In his assessment Mr Elliott has isolated from the original break-down and estimate of costs of Mr Rainer, those items which in his opinion should be "reinstated". Then after consultation with Mr Schick, he accepted certain of Mr Rainer's estimates as at 1988, allowed a builder's margin of 8% as opposed to Mr Rainer's 12½%, rising cost of 10% to the date of resumption, then professional fees which appear to equate 6% rather than Mr Rainer's 12½% allowance or Mr Schick's 7%. His assessment includes the estimated valuation and legal fees of the claimant.
His full assessment is set out as follows:
Reinstatement of Improvements
Demolition of Hale Street Screen block wall $11,500
Demolition of one Toilet Block (northern end) $3,760
Sundry site demolitions $6,100
New Hale Street entry, including 14 turnstiles ($500 each),
gates, security walls and associated paving, lighting and
landscaping. $103,600One new Toilet Block northern end, depreciated at 60% for
mens toilets, 40% by $67,369 $26,948
womens toilet at full rate $67,369New road and associated walls for Chippendall Street to
Hale Street entrance including existing walls and lighting. $88,900Amendments to roadworks lighting and landscaping outside
Hale Street grandstand $11,200New security block wall (Hale Street) $83,400
Preliminary costs associated with above $25,000
Contingency $25,000
$452,777
Margin 8% $36,222
Rising Costs to October 1989 (10%) $48,900
$537,899
Professional Fees (engineer and architect) $32,581
Valuers Fees $3,000
Solicitors Fees $1,500 $37,081
$574,980
In connection with the carpark in the south-eastern corner of the grounds, Mr Elliott expressed surprise that the available concreted area in that location had the capacity to accommodate 50 vehicles before the resumption. He was aware that there were at least 25 spaces remaining but not all concreted. Although he had reservations, about the capacity, he fairly conceded that if the carpark was concreted before the resumption the claimant was entitled to receive the cost of concreting the re-arranged carpark. He also conceded that if no compensation was paid for the resumed land then the claimant should be entitled to any equivalent loss in carparking revenue. He did not agree that the calculation should be made using a capital investment rate, but on a realistic capitalisation rate to find the capital market value of the Trust property, based on its sport and recreation use. While he had not given serious consideration to what a reasonable capitalisation rate might be for this large complex, he felt that it would be more likely to fall in the 20% range.
He made no allowance for the proposed tunnel or any potential loss of attendance. His interpretation of the situation was that there should be no loss of attendance at the major matches, even if there was a congestion problem, and on Mr Davis's predictions there should be no pedestrian congestion problem at the smaller attendance matches.
He had made no allowance for the alterations proposed to the liquor booth area. He had been given no information relative to the claim. It was his opinion however that the Trust and the caterer would be significantly better off with a permanent type catering facility rather than with the mobile van situation which previously existed.
Now after consideration of the evidence and the submissions, the matters requiring determination are set out under the following headings, together with my findings:
Claim for Loss of Land:
The claimant seeks compensation in the sum of $310,720, based on Mr Hall's amended valuation. The respondent submits that no compensation is payable under this heading.
Reference to land granted by the Crown upon trust is first found in Section 12(4) of the Acquisition of Land Act of 1967 (as amended) as follows:"Land granted by the Crown upon trust for a public purpose shall upon and by virtue of the taking thereof become Crown land and may, according to the purpose for which it was taken, be granted upon trust to, or set apart and placed under the control of, the constructing authority, including Brisbane City Council, as trustee, or may be dedicated to public use."
Then in the same Act, Section 18(5) provides -
"The claim for compensation of a trustee or trustees of any land in respect of the taking thereof shall be limited to the amount of actual damage caused to the trust by reason of the taking, and no such trustee shall have any other right, remedy, or claim whatsoever in respect of such taking against the Crown or any other person whomsoever ...."
Section 20(1) provides:
"In assessing the compensation to be paid, regard shall in every case be had not only to the value of the land taken but also to the damage, if any, caused by either or both of the following, namely -
(a) the severing of the land taken from other land of the claimant;
(b)the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other land."
The registered proprietors of the resumed land, the Trustees of The Lang Park Trust, were granted the land "upon trust for recreation and sporting purposes and for no other purposes whatsoever." The Deed of Grant was issued under the Land Act of 1962 (as amended) and in pursuance of The Lang Park Trust Act of 1962 (as amended). Part XI of the Land Act deals with Grants, Reserves and Reservation for Public Purposes. Section 334(1) allows the Governor in Council to grant in trust any Crown land which, in the opinion of the Governor in Council, is or may be required for any public purpose.
It is the submission of the claimant that the meaning of the term "public purposes" as interpreted in Section 5 of the Land Act does not include "sporting field"- the closest defined public purpose being "parks, gardens and recreation grounds", which, it is submitted, it clearly is not.
"Public purposes" is defined as "any of the following objects or purposes or any objects or purposes connected therewith or incidental thereto" then names the various purposes. It is correct that "sport" or "sporting field" is not included by definition specifically. However I interpret "recreation and sporting" to fall within the description - "connected with or incidental to" - the defined public purpose "parks, gardens and recreation grounds". From that interpretation, it follows for the purpose of determining this claim, that I will treat the land as having been granted in trust for a public purpose.
Section 342(1) of the Land Act denies the trustees of land granted in trust the power to sell or transfer any land under their control, except, as provided, for surrender and transfer to the Crown.
Section 343(1) provides a right for the trustees to lease the whole or any part of the land with the approval of the Minister. Sub-sections (2) and (3) deal with application for approval then (4) reads:-"The Minister may, in his absolute discretion, refuse to approve the proposal or, if the Minister is satisfied that the proposed lease is -
(a)not detrimental to the public interests;
(b)not inconsistent with the purpose for which the land was granted in trust or reserved and set apart; and
(c)not for an excessive term and complies otherwise with the requirements of Section 344 of this Act,
approve the proposal in whole or in part, and in either case subject to such conditions, reservations and modifications as he deems fit."
Section 343A then provides as follows:
(1)not withstanding any other provision of this Division to the contrary, the Governor in Council, on the recommendation of the Minister, may approve that land granted in trust or reserved may be leased by the trustees of the land so granted or reserved for a purpose other than the public purpose for which the land was so granted or reserved.
(2)the lessee of land referred to in sub-section (1) shall not erect any structural improvements on that land."
It is considered relevant in general considerations of the value of the trustees' interest in land granted in trust, that Section 351 of the Land Act provides the trustees (with the necessary approval), liberty to mortgage the land. However, if the trustees should default, the mortgagee does not have the right to sell the land until payment to the Minister, or arrangements made for payment, of the amount of the unimproved value of the land.
It is also seen as relevant, when dealing with the Trustees' interest in the Chippendall Street land, said by the claimant to have a value higher than for recreation and sporting use, that provision is made in Section 352 of the Land Act for the resumption of surplus land granted in trust. If it is found that land granted in trust exceeds the area reasonably required for the purposes of the trust, the Governor in Council may resume such part "without paying any compensation whatsoever for the land, or for any item or factor associated with such resumption except improvements or developmental works effected by the trustees on such part" (Section 352(2)). The Chippendall Street land is not subject of this resumption, but the value of the Trustees' interest in that land has been brought into question.
I have concluded that under the provisions of the Land Act under which the land was granted in trust, then of Section 18(5) of the Acquisition of Land Act, the Trustees are not entitled to be compensated for the land resumed on an unfettered basis of market value. The Trustees' interest in the land resumed was related to the right to lease the land as provided in the Land Act and compensation payable should be related to the damage caused to the trust by the loss of that right. I find that provided the Trust property is reinstated to such a degree as to provide a similar level of service to its patrons, with no loss of revenue or potential revenue, then the requirements of statutory compensation will be met. If, after reinstatement, Lang Park is able to offer the same level of service as it did before, and produce the same level of income or potential income from the purpose for which the land was granted, then the rental value of the balance area should not reduce and no "damage" be suffered. A higher or lower level of service would reasonably affect that rental value upwards or downwards, resulting in enhancement or damage accordingly.
The highest and best use of the Chippendall Street land, in the hands of the Trustees, is seen to be for "recreation and sporting" purposes. It is accepted that the land by its location has potential for development for use higher than of a "recreation and sporting" nature, but that potential is seen to have been quite remote at the date of resumption in the hands of the Trustees. There was no evidence before me to suggest that any action had been put in train to establish higher potential than for recreation and sporting use. There was also no evidence to suggest that land value had been a consideration when the selection of Chippendall Street was made as the site for the relocated turnstiles.
Reinstatement Items:
It is submitted by the respondent that extra costs involved in relocation of the four turnstiles to Chippendall Street, rather than to an alternative Hale Street location, goes further than reinstatement of the actual damage caused by the resumption, and provides a more efficient crowd control system than existed previously. The respondent also submits that the onus was on the claimant to show that it was necessary to replace any of these four turnstiles, because at times, (and, as an example, even with 75% capacity crowd) some turnstiles were not operating. The respondent's valuer nevertheless allowed for replacement of all turnstiles, although on the basis of a Hale Street location. Whilst discussing the siting of the relocated Hale Street turnstiles, the respondent engineer's evidence included a comment that "it was a mess already in Hale Street trying to get into the place". He then explained that the comment was made "based on personal observation. It was very uncomfortable. The design of the turnstiles at Hale Street was rather poor in my view, in terms of the provision for pedestrians. People were going in every which way and it was rather confusing and rather nasty." It is realistic that the design of facilities for a sporting complex of this nature must relate to the crowd comfort, as explained by Mr Livermore, an experienced sports administrator, and consideration of crowd comfort needs to contemplate maximum crowd capacity. Even though the maximum capacity of Lang Park is reached infrequently, turnstile capacity realistically relates to maximum crowd conditions and the method of crowd admittance. On the evidence as a whole I accept that it was necessary for the turnstile capacity to remain as fourteen after the resumption as it was before.
With regard to the various optional sites for relocation, as Mr Schick says, Hale Street options are available on the "plan view" with regard to providing a similar capacity admittance area as has been constructed in Chippendall Street. No detailed consideration had been given by Mr Schick to interference with the access road or potential exiting crowd congestion, or the remaining carpark area along Hale Street. Mr Mahony on the other hand, looked at the options and decided on Chippendall Street primarily as that location complemented the new access road (necessitated by the resumption), provided an alternative meeting place for patrons, and importantly should relieve, although not solve, some of the potential congestion problems for pedestrians in the Hale Street area. Some benefits will no doubt accrue from the Chippendall Street relocation but Mr Mahony also sees some disadvantages and sees the selected site as not only desirable but in the overall context, necessitated by the resumption with no definable enhancement flowing to the Trust property.
Stage 1 Works: I find that the whole of these works were necessary to offset the damage caused to the Trust property by the combined effects of the severance of the Hale Street resumed land from the remaining area and the loss of the existing Hale Street southern outer turnstiles.
The actual cost of construction of Stage 1 was $261,566 and this amount is adopted as the best evidence under this heading, excluding professional fees, at the date of resumption.
Stage 2 Works: With the exception of the increased toilet facilities, I find this work as also having been made necessary by the resumption.
I have found it realistic to use a combination of both the claimant's and respondent's approaches in the assessment of cost. I have decided to adopt a builder's margin of 12½% as allowed by Mr Rainer. The estimated cost is calculated as follows:- Demolition of northern toilet blocks $3,760
Sundry site demolitions 6,100
New Hale Street entry including relocation of remaining
(10) turnstiles, gates, security walls and associated
paving, lighting and landscaping 74,100
2 toilet blocks 134,738
Amendment to roadworks lighting and landscaping
outside Hale Street grandstand 11,200
229,898
Preliminaries and contingencies (allow) 30,000
$259,898
Margin 12½% 32,487
$292,385
Rising Cost to October 1989 - 10% 29,238
$321,623
This amount appears to me to be reasonable, excluding professional fees, when consideration is given to the 1990 tenders and general agreement between the experts that the rising cost, including the extra toilets will be in the vicinity of $400,000.
Stage 3 Planned Works:Item 1- Demolition and reconstruction of two existing toilets in the souther outer.
The evidence leads me to conclude that both these toilet blocks could remain if there was no carpark provision in the Hale Street area. Alternatively only the southern toilet block may need to be demolished to provide unrestricted access with the carpark in place.
Regardless of which way the Trustees decide to go, it would appear a more realistic approach to remove, for the purpose of the assessment of the damage, the total carpark and resolve the question of toilets and access arrangements to the carpark at the same time.
No compensation will be awarded under this item.
Item 2- Construction of new road from Chippendall Street entry to Hale Street grandstand.
The parties are in agreement as to the necessity for this construction. Part of the cost has been picked up in the Stage 1 works, and I will adopt Mr Rainer's 1990 estimate under this heading - $68,000 - bearing in mind that with the two toilet blocks remaining some additional minor widening works may be necessary.
Item 3- Alterations to liquor booth.
On the evidence I have concluded that the reinstatement works necessitated by the resumption in the northern outer will cause a loss of available practical space for the parking of mobile catering vans. This has been caused in part by the additional toilet space to be provided by the trustees.
I do not agree that the problem could have been solved by the demolition and reconstruction of the north-western outer toilet block (within the additional space not necessitated by the resumption) as suggested by the respondent. Mr Mahony's evidence was that this exercise would have cost in the order of $50,000 to $60,000, and the space then made available for the vans would not be as suitable as previously existed. While some views were expressed to the contrary, it seems unrealistic to argue that the permanent facility as proposed will not be significantly superior to the existing situation.
The evidence relative to loss of space leads me to accept that some damage has been caused to the Trust property. The evidence relative to assessment of the damage is not helpful. The claimant says that the damage equates the cost of refurbishing, to modern food catering standards, the previous liquor booth area, when the Trustees previously provided ground space only. The evidence is that the liquor booth area whilst unused, was under the control of the Queensland Rugby Football League Limited which enjoyed the booth licence and which was prepared to relinquish its right of occupation. I am of the opinionthat the damage to the Trust property should relate to the potential rental income that the liquor booth premises might have returned in their existing state, previously available for other than the proposed catering use. There is no evidence before me on this basis.
I do not accept the basis of the claimant's assessment, but having accepted that some damage has been sustained, I have decided to award an amount of $20,000 as the damage to the Trust property through the consequential loss of practical parking space for income producing mobile catering vans.
Item 4- Construction of the new Chippendall Street carpark.
Having decided that the discontinuance of the Hale Street carpark would in theory, solve the southern outer toilet and access problems, the Trust would be faced with a loss of equivalent rental from, on Mr Hay's evidence, 50 car spaces.
Mr Hall calculates that the loss of 25 carspaces would equate a loss in revenue of $3,112.50 per annum, and the present value of this annual amount in perpetuity at 14% is $22,232. Mr Hall argues that it is necessary to look at the loss to the Trustees as the equivalent lump sum to be set aside and invested at gilt edged type interest rates to replace the lost income. Mr Elliott says the loss to the Trustees would be the difference in capital value of the property caused by the loss in income of the recreation and sporting type business, and a capitalisation rate related to that type of business should be employed in the calculation. In normal circumstances I would agree that the loss of income would be reflected in the loss of capital value of the property, as established by adoption of a yield or capitalisation rate as shown by the market for such type of business. It is however otherwise submitted by the respondent that the Trustees do not enjoy the power of sale, and no market value as such may be so established. On this basis I find Mr Hall's calculation to reflect the damage to the Trust property. A theoretical loss of 50 carparking spaces would on his basis equate $44,500 in rounded figures.
I will award this amount recognising that it may be seen as compensation for the theoretical loss of the Hale Street carpark or alternatively an assessment of damage in partial compensation for:-
(a)the loss of 25 carparks and the need to concrete and install a boom gate for the balance; or
(b)the suggested need for demolition of either one or two of the southern outer toilets; or
(c)the suggested need for the construction of a new Chippendall Street carpark.
Item 5- Construction of a pedestrian tunnel under Hale Street.
Mr Beard sees this as necessary if a median break and temporary closure of Hale Street is not provided for in the designed roadworks, to cater for maximum capacity crowds. He sees problems regardless, with the larger crowds of less than maximum capacity where closure of Hale Street could not reasonably be warranted.
Mr Davis has not had the benefit of actual pedestrian counts but has carried out the only objective exercise before the Court as to the pedestrian flows and densities which might be expected in Hale Street from the various types and capacities of match attendances. Although there is an inference, even in Mr Davis's evidence, that the real position will not be known until the final roadworks are completed, Mr Davis's predictions have to be preferred. It would seem prudent, however, that the final design should, (as Mr Davis now suggests will happen) contain a Hale Street median break with provision for controlled crowd access when necessary. In a relatively uncertain situation some redirection of past crowd flows may be necessary, and as both Mr Beard and Mr Livermore say, change is not accepted readily. I am unable however, to find on the evidence before me, that the tunnel construction will be necessitated by the resumption.
Potential lower crowd attendances
The remaining aspect of the claim as it was finally presented is the question of loss of revenue through predicted lower attendances at some matches. Mr Livermore does not expect attendances at State of Origin or matches attracting capacity attendances to be affected, even if his fears relative to exiting crowd congestion and discomfort are realistic. He sees the flow-on of any discomfort experienced by any patrons to be a factor in lowering attendance at matches attracting family patronage. While it is a matter of conjecture, I must come back to the evidence of Mr Davis whose predictions do not support the view that even maximum capacity crowds will experience real discomfort and certainly not the smaller attendance crowds. The determination of compensation does not allow review if the predictions of Mr Davis particularly with regard to pedestrian densities and flow and provision of the Hale Street median opening, are shown in the future to be incorrect. However the possibility of damage to the Trust property by reason of lower crowd attendances as a result of the resumption is seen as too intangible to warrant an award of compensation. As Mr Davis says, the staged construction of the roadworks will allow regular patrons to become re-educated to the more convenient egress provisions. If the Trustees see real potential for lower attendances it would be prudent for the early education of patrons to induce habit changes in an endeavour to avoid or mitigate potential loss.
Summary:
The cost of works requiring assessment in Stages 1, 2, and 3 of the planned reinstatement project is summarised as follows:-
Stage 1 - $261,566
Stage 2 - $321,623
Stage 3 - Internal road - $68,000$651,189
I have decided to allow, on the evidence before me, professional fees of 7% for design and supervision of these particular works. The damage to the Trust property under the heading of reinstatement work is then determined by deducting the assessed benefit of having the old male toilet block replaced by the new facility of similar size. The following calculation results:-
Construction Cost of Reinstatement $651,189
Add Professional fees 7% 45,583
$696,772
Less added value of new male toilet (20% of $67,369) 13,473Damage $683,299
The determination of total compensation is as follows:-
Loss of land NilLoss of potential higher use of Chippendall Street land Nil
Severance Damage -
Nett Reinstatement $683,299
Hale Street carparking 44,500
Northern outer catering services 20,000 $747,799.00Disturbance 12,835.45
$760,634,45
Compensation for the taking of the land is determined at a rounded $760,635.
An advance against compensation was made in the sum of $594,683 on 12th March, 1990. Interest is ordered to be paid on the sum of $760,635 at the rate of 13% per annum from and including the date of resumption up to and including 12th March, 1990, then on the sum of $165,952 up to and including the day immediately preceding the date final compensation is paid.Member of the Land Court.
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