Tinplatter Pty Ltd v Chief Executive, Department of Transport and Main Roads
[2010] QLC 131
•10 September 2010
LAND COURT OF QUEENSLAND
CITATION: Tinplatter Pty Ltd v Chief Executive, Department of Transport and Main Roads [2010] QLC 0131
PARTIES:Tinplatter Pty Ltd
[ACN 108 964 487]
(Applicant)v.
Chief Executive, Department of Transport and Main Roads
(Respondent)
FILE NO:AQL542-09
DIVISION:General Division
PROCEEDING: Compensation for acquisition of land
DELIVERED ON: 10 September 2010
DELIVERED AT: Brisbane
MEMBER:Mr WA Isdale
ORDER/S:1. In respect of the acquisition of land described as County of Stanley, Parish of Ipswich, an area of about 10.01 ha being part of Lot 195 on RP868799 contained in Title Reference 50033255 the compensation to be paid by the Respondent to the Applicant is assessed as $NIL.
2. The Applicant pay, on the standard basis, the Respondent’s costs of and incidental to the application, including reserved costs.
CATCHWORDS: Acquisition of Land Act 1967, ss 5, 20(3)
Corporations Act 2001, s.440D
Corporations Act 2001, s.435C(1)(b) and (2)(a)
State of Queensland v Springfield Land Corporation (No. 2) Pty Ltd [2009] QSC 141, referred to
Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565, referred to
Housing Commission of NSW v San Sebastian Pty Ltd & Ors (1978) 140 CLR 196, referred to
Road and Traffic Authority of New South Wales v Perry (2001) 52 NSWLR 222, 235-6, referred to
Mio Art Pty Ltd v Brisbane City Council [2010] QLC 0086, referred to
Wyatt v Albert Shire Council [1987] 1 Qd R 486 at 489, referred to
Barns v Director-General, Department of Transport (1997) 18 QLCR 133 at 135, referred to
APPEARANCES: Mr GJ Gibson QC, Mr D Quayle for the Respondent
No appearance for the Applicant
The acquisition of the land
Queensland Government Gazette No. 69, published on 24 March 2006 contained, at page 1119, Taking of Land Notice (No. 996) 2006.
Paragraph 2 of the Notice is in the following terms:
“The land described in the Schedule is taken for future transport purposes including the facilitation of transport infrastructure (namely road and busway, rail or light rail), as from 24 March, 2006, and vests in the Chief Executive, Department of Main Roads and Department of Transport, as constructing authorities for the State of Queensland, for an estate in fee simple.”
The applicant, as registered proprietor of the land at the time it was compulsorily acquired, having lost the fee simple of the land, gained the right to compensation to be assessed under the Acquisition of Land Act 1967 (the Act).
The first claim for compensation
On 30 July 2007, the applicant (Tinplatter) made a claim for compensation under the Act. It specified that the area of land resumed, 10.01 ha being part of Lot 195 which had comprised an original area of 42.06 ha, had a value of $1,006,000 and that in addition $357,000 was claimed for injurious affection.
On 9 May 2008 by Originating Application, Tinplatter, by its then lawyers, referred its claim to the Court.
The legal background
Tinplatter did not comply with Court directions and a hearing date had to be abandoned. Further directions were made in order to prepare for a new hearing date but again Tinplatter did not comply with the Court’s directions. It then discontinued its proceedings.
On 14 September 2009 the Crown Solicitor filed an Originating Application seeking the determination of the amount of compensation payable to Tinplatter consequent upon the taking of the resumed land.
The current claim for compensation
Tinplatter initially entered this proceeding by filing a compensation claim on 11 November 2009 claiming $3,000,000 as the value of the resumed land and $357,000 for injurious affection. This is the claim now before the Court. Tinplatter failed to comply with the Court’s structured case management, leading to the orders of 16 April 2010 made by the learned President. Order number 2 was made by Her Honour in the following terms:
“2.Other than as may be necessary to seek the leave of the Court referred to below, the applicant be prohibited from further participation in this proceeding without leave of the Court. Any application for leave should be made by the applicant giving five (5) days notice in writing to the respondent and to the Court.”
No such application was ever made and that order has remained in force.
On 18 June 2010 orders were made to progress the matter to a hearing set to commence on 1 September 2010. On 1 September 2010 the respondent appeared to seek an adjournment in order to explore the implications of the applicant being under external administration. The matter was adjourned until 3 September 2010.
On 3 September 2010 the Court received an email from Mr Daniel Frisken, Supervisor, of Jirsch Sutherland, Insolvency, Turnaround and Forensic Specialists, Sydney NSW. The email advised that the Deed Administrator of the company was not in a position to consent to the proceedings continuing and requested an adjournment for 30 days in order to take some steps in the matter. There was no appearance for the applicant and no leave was sought under order 2 made on 16 April 2010.
It was submitted by Mr Gibson QC for the respondent that the Deed of Company Arrangement under which Tinplatter is operating does not bind the respondent, who is not a party to it.
The Corporations Act 2001, by s.440D, operates to prohibit the commencement or continuation of proceedings in a court against a company under administration or in relation to any of its property without the consent of the administrator or the leave of the Supreme Court. The provision does not apply to criminal proceedings nor to “a prescribed proceeding”, neither of those categories being presently relevant.
By s.435C(1)(b) and (2)(a) of the Corporations Act 2001, the execution of a deed of company arrangement ends the administration of the company. In view of the existence of the Deed in this case the stay of proceedings provided for in s.440D does not apply in this case at the present time.
I am satisfied that these proceedings can continue and, particularly in view of order 2 made on 16 April 2010 and the absence of any application as provided for in that order did not see fit to allow any further adjournment.
The evidence
The respondent called three witnesses who gave evidence in accordance with their reports which had been filed in the Registry.
Mr David Perkins, Town Planner, produced the report of Humphreys Reynolds Perkins, Planning Consultants, which became exhibit 1. The report shows, in figure 4, that the subject land was in an Urban Development Area in the February 1999 Ipswich Planning Scheme. It has subsequently remained identified for this level of development.
Appendix B of exhibit 1 sets out the history of announcements made by the Queensland Government of intent to progress the scheme of which the resumption of the subject land was to be a part. The announcement by the then Premier and Minister for Trade made on 29 January 2004 became exhibit 2. It refers to a $120 million commitment to the first stage of the Centenary Highway extension linking Springfield to Ripley Valley.
The scheme was further detailed by a media release from the then Minister for Transport and Main Roads on 13 October 2004; a copy of which became exhibit 3. The media release was to the effect that the preferred route for the new Springfield to Ripley transport corridor had been chosen and the public was invited to comment.
Mr Perkins, in his report and in his evidence went on to refer to the press release dated 20 March 2005 by the then Premier and Minister for Trade. It became exhibit 4 and refers to the previous announcement of extending the Centenary Highway by 11 km from Springfield to Ripley. It goes on to say that this road will be extended to the Cunningham Highway at Yamanto.
This material explains the extent of the project and illustrates when it was publicly announced.
At paragraph 144 of exhibit 1, it is stated that:
“The site is located within an area which has been identified at a local and regional level as a significant urban growth corridor for many years.”
At paragraphs 148 of exhibit 1 it is made clear that:
“… the realisation of the site’s urban development potential is intrinsically linked to the concept of the SWTC and the site’s proximity to this critical infrastructure.”
The SWTC is the South West Transport Corridor, which, where it passes through the Applicant’s land, is the area resumed.
Mr Colin Beard, an engineer of Beard Traffic Engineering Pty Ltd gave evidence and produced his report, which became exhibit 5. In Mr Beard’s opinion, the SWTC was of critical importance to the development potential of the subject land. He wrote:
“… in the absence of the SWTC scheme, the subject site was essentially rural land, with possible long term development potential, probably at rural residential densities. With the road scheme (and the related planning scheme changes) it became urban development land with potential in the medium term future.
However, in my opinion, neither the 15 lots per hectare scenario nor the 75 lots per hectare scenario would have been viable without the SWTC scheme.”
He had considered development scenarios at those densities.
The third and last witness called for the respondent was Mr Michael Slater, a property valuer. As was the case with the two proceeding expert witnesses Mr Slater both produced his report, which became exhibit 6, and gave oral evidence. The conclusion to which Mr Slater came was that:
“Compensation due as a consequence of the resumption of the land described above is NIL.”
Mr Slater reached his conclusion on the basis of sales evidence. His sale 1 was the sale of Lot 195 on RP868799 from J & R Wallace to the applicant. The contract was dated 13 July 2004 and the land area at the time, before being reduced by the taking of the subject land, was 42.06 ha. The sale price was $2,500,000. Taking into account the put and call option which was in place, Mr Slater valued the land at $2,420,000.
Mr Slater’s sale 2 was the sale of Lot 195 on SP193441 from the Applicant to BCOVE 4 Pty Ltd on 7 July 2007. The land area was now 32.05 ha, after the taking of the subject land, and the price was $8,000,000.
The balance of Lot 195, after the taking of the subject land from it, is shown by the sale to have been worth much more than the whole of the land was worth prior to the taking, as indicated by the first sale.
Mr Slater, in his report, referred to another sale, at 633 Ripley Road, Ripley, to support his conclusion. It is likewise a sale and resale of 21.26 ha which sold on 4 March 2004 for $1,250,000 and resold on 28 June 2007 for $4,200,000.
Mr Slater’s expert opinion was that the enhancement in the value of the retained land after the taking was considerably greater than any loss that would have arisen as a result of the loss of the land taken and injurious affection. Consequently, no compensation was payable.
The law
Section 20 of the Act provides that in assessing the compensation to be paid for the taking of the land regard shall be had to the value of the land taken and to any damage caused by the severing of the land from other land owned by the claimant as well as to any injurious affection of such land caused by the taking.
Significantly, for present purposes, it is also provided that:
“(3) In assessing the compensation to be paid, there shall be taken into consideration, by way of set-off or abatement, any enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom by the carrying out of the works or purpose for which the land is taken.
(4) But in no case shall subsection (3) operate so as to require any payment to be made by the claimant in consideration of such enhancement of value.”
In view of the sales evidence relied on by Mr Slater and in view of sub-section 3 of section 20 of the Act, Mr Slater has assessed the enhancement in value which has occurred to the remaining land as being required to be set off against any compensation. On the facts of the present case as demonstrated by sale 2, the enhancement is so great that compensation will, in his opinion, be nil.
The enhancement contemplated by s.20(3) in the interest of the applicant in land adjoining the land taken must be caused “by the carrying out of the works or purpose for which the land is taken”.
Section 5 of the Act provides that in a case such as the present, the constructing authority may take land for any purpose set out in the Schedule to the Act. Part 1 of the Schedule includes, among other things, railways and related purposes, roads and tramways. The Notice, the relevant part of which is set out at [2] above, specified purposes within the scope of s.5.
The expert evidence made clear that the enhancement in value of the remaining land was due to the construction of the road in the resumed transport corridor. The evidence of Mr Perkins referred to at [23] was that the transport corridor unlocked the urban development potential here and the sales referred to in Mr Slater’s report illustrate the extent of the enhancement.
Mr Perkins, in his report and his evidence dealt with just what were the works or purpose for which the land was taken. It is clear from the history of announcements to which I have referred in [18] to [20] which in turn refer to the chronology in Appendix B of exhibit 1 that the works or purpose for which the land was taken was for the overall transport corridor project rather than for some lesser or different purpose motivating just the taking of the subject land.
As Mr Slater wrote on page 6 of exhibit 6:
“There is no suggestion that anything other than the prospect of an unlocking of the development potential in the Valley was the catalyst for the extraordinary value increases.”
Mr Perkins, at paragraph 148 of exhibit 1, see [23] gave evidence that the transport corridor was what released the development potential here.
In State of Queensland v Springfield Land Corporation (No. 2) Pty Ltd[1] the Supreme Court considered s.20(3). His Honour McMurdo J considered the content of the works or purpose for which the land is taken, drawing assistance from cases applying the Pointe Gourde[2] principle. The essence of the principle is that resumed land should be valued disregarding any change in its value resulting from the carrying out or anticipated carrying out of the purpose for which it was resumed. This refers to the value of the land itself whereas s.20(3) refers to land left behind but the case law developed in this area may assist in considering the application of s.20(3). His Honour McMurdo J discussed this from [14] of his decision.
[1] [2009] QSC 143.
[2] Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565.
Although commonly referred to by the name of the Privy Council decision, the principle, which in any event did not alter the common law position, may now be perhaps more accurately described as the San Sebastian[3] principle as it was in that case where the High Court adopted it into Australian law and because the High Court is, since 1986, the final court of appeal.[4]
[3] Housing Commission of NSW v San Sebastian Pty Ltd & Ors (1978) 140 CLR 196.
[4] Australia Act 1986 (Cth).
At [24] His Honour referred to the decision of the New South Wales Court of Appeal in Road and Traffic Authority of New South Wales v Perry.[5] His Honour emphasised the words of Handley JA, which included the following passage:
“The resumption of land in the middle of a substantial extension to an existing railway or highway will be for the public purpose of that scheme or project as a whole, and not just for whatever part of it is to be constructed on that land.”
[5] (2001) 52 NSWLR 222, 235-6.
At [25] McMurdo J said:
“The construction of such part of a highway which was on an individual resumed parcel of land would not be an end in itself. It would be a means to an end which would be the construction of a useable road.”
In the present case the view I have taken from the evidence discussed at [36] is confirmed when considered in the light of the decision of His Honour McMurdo J.
I am satisfied that Mr Slater has correctly applied s.20(3) of the Act by attributing the enhancement in value of the remainder of Lot 195 to the expressions of intent to carry out and the carrying out of the transport corridor project which was the purpose for which the resumed land was taken.
I accept Mr Slater’s uncontradicted expert evidence and the uncontradicted expert evidence of Mr Perkins and Mr Beard.
Conclusion on compensation
I am therefore firmly satisfied that in respect of the acquisition of land described as County of Stanley, Parish of Ipswich, an area of about 10.01 ha being part of Lot 195 on RP868799 contained in Title Reference 50033255 the compensation to be paid by the respondent to the applicant is $NIL.
Costs
The respondent has asked for an order for costs under s.27 of the Act. The relevant parts of s.27 provide as follows:
“27 Costs
(1)Subject to this section, the costs of and incidental to the hearing and determination by the Land Court of a claim for compensation under this Act shall be in the discretion of that court.
(2)If the amount of compensation as determined is the amount finally claimed by the claimant in the proceedings or is nearer to that amount than to the amount of the valuation finally put in evidence by the constructing authority, costs (if any) shall be awarded to the claimant, otherwise costs (if any) shall be awarded to the constructing authority.”
The learned President has recently considered this provision in Mio Art Pty Ltd v Brisbane City Council.[6] I respectfully agree with and adopt Her Honour’s view, as expressed in [9] of her decision, that the discretion is complete, subject to s.27(2), and it is to be exercised judicially, that is for reasons that can be considered and justified.[7]
[6] [2010] QLC 0086.
[7] Wyatt v Albert Shire Council [1987] 1 Qd R 486 at 489.
In the present case, s.27(2) will operate to only permit an order for costs to be in favour of the respondent if such an order should be made. The applicant is in default of compliance with the court’s directions made to progress this case. This is not a case where an award of compensation would be diluted by an order for costs against the applicant as there can be no compensation payable on the facts of the case. The applicant filed, on 11 November 2009 a compensation claim in order to enter an appearance in the current proceedings. That document sets out a claim for $3,000,000 being the value of the resumed land and an additional $357,000 for injurious affection. The claims are not supported by any evidence and the applicant has not sought leave to further participate in these proceedings since the order made in that regard on 16 April 2010.
The respondent has been fully successful in the proceedings and has incurred the costs of its doing so. Although it is not the case that costs must follow the event in these proceedings the concept of costs following the event is one that is deeply embedded in our law.[8] Considering the factors to which reference has been made, I am of the view that costs ought to be awarded in this case. I order that the applicant pay the respondent’s costs, including reserved costs, of and incidental to the hearing and determination of these proceedings, such costs to be on the standard basis.
[8] Barns v Director-General, Department of Transport (1997) 18 QLCR 133 at 135.
WA ISDALE
MEMBER OF THE LAND COURT
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