Townsville City Council v Department of Main Roads
[2003] QLC 68
•10 October 2003
LAND COURT OF QUEENSLAND
CITATION: Townsville City Council & Anor v Department of Main Roads [2003] QLC 0068 PARTIES: Townsville City Council and Delfin Limited
(claimants)v. Chief Executive, Department of Main Roads
(respondent)FILE NO: A2002/0013 DIVISION: Land Court of Queensland PROCEEDING: Claim for compensation for resumption of land DELIVERED ON: 10 October 2003 DELIVERED AT: Brisbane HEARD AT: Townsville MEMBER Mr RP Scott ORDERS: 1. I ORDER that the respondent pay to the claimant or, at the election of the respondent, in accordance with any direction of the claimant, compensation in the amount of Five Million Three Hundred and Eighty-four Thousand and Thirty Dollars and Fifty-three Cents ($5,384,030.53).
2. In the exercise of the discretion granted under s.28 Acquisition of Land Act 1967 I ORDER that interest be paid by the respondent to the claimant or, at the election of the respondent, in accordance with any direction of the claimant, such interest to be calculated by reference to the table which appears in para [836] on each of the amounts appearing in the "Amount" column at the rate of interest per annum appearing in the "Interest Rate" column next to the relevant amount, with such interest being calculated with respect to each amount from the date appearing in the "Date of Commencement" column referable to the relevant amount up to and including the day immediately preceding the date of payment.
3. I ORDER that the respondent pay to the claimant interest at the rate of 6.75 per centum per annum calculated, with respect to Parcel A on the amount of $478,880 and, with respect to Parcel B on the amount of $4,672,700.85 both from 13 May 1994 to 9 June 1995; then, with respect to Parcel A on the amount of $464,380 and, with respect to Parcel B on the amount of $4,365,700.85 both at a rate of 6.5 per centum per annum from 10 June 1995 up to and including the day immediately preceding the date of payment.
CATCHWORDS: Resumption - Jurisdiction of Land Court - No power to decide dispute as to title - but can decide if particular claim within jurisdiction - Doubt on right of developer not being registered owner to claim - Merely held development agreement with owner.
Resumption - Determination of compensation - Enhancement - Applicable principles - Onus of proof on constructing authority - Admissibility of facts and circumstances after resumption up to date of hearing - Exception to normal rule on admission of later evidence - Permissible to confirm a foresight, not prove a hindsight.
Valuation - Particular factors in valuation - Transport Infrastructure Act (s.40) - Adverse impact on State-controlled road - Circumstances governing contribution - Policy of DMR at resumption date - Hypothetical prudent purchaser to assess risk of contribution - Look to marketplace evidence - 20% of construction cost of proposed facility allowed as risk factor.
Evidence - Admissibility - Internal departmental report - Constructing authority to show how hypothetical prudent purchaser could access such for inquiries - Not shown - Document not admissible.
Valuation - Determination of compensation - enhancement - Application of Pointe Gourde principle - Need to ignore existence of resumption scheme - but can consider the need which proposed scheme is designed to address (future river crossing) - DR Murphy and Cove House Australia Pty Ltd v. The Crown (1990) 13 QLCR 90 applied.
Valuation - Method of valuation - Use of discounted cash flow (DCF) - Problems with use but not wholly objectional - Compared to hypothetical subdivision - Nature of Internal Rate of Return (IRR) considered - Small variation in components (some opinion based) can lead to large difference in valuation - Infrequently used by financial institutions - Suitable if no sales evidence - Not used by Court in instant case.
Valuation - Sales - Use of after date sales - General requirement for sale to be proximate to date of valuation - Different consideration if later sales to show level of diminution in value for particular cause (noise).
Resumption - Determination of compensation - Injurious affection - disturbance - Noise - what constitutes noise-affected land - what planning horizons taken into account - assessment of effects of noise on in globo value from sales evidence.
Resumption - General principles - Need for resumee to later deal with constructing authority in regard to developing retained land - Unfavourable impact on retained land - Consideration in valuation of retained land.
Resumption - Jurisdiction of Court - Claim for disturbance - Additional external water costs - Cost not a "before and after" cost differential - Not a claim arising out of resumption - Increased cost due to conduct of respondent - No jurisdiction.
Resumption - Determination of compensation - Disturbance - Professional fees in claim preparation - Applicable tests - Work done by claimant's employees - allowable if sufficiently precise in matter and amount - Such claim disallowed here - Other items reduced for over-preparation.
Valuation - Particular factors in valuation - Taxation - GST on disturbance items (professional fees) - Doubt as to whether GST payable - Constructing authority agrees to pay if ATO invoice for such to claimant - Solution endorsed by Court.
Resumption - Interest on award - Not granted if claimant dilatory in making claim - Lengthy delay justified in current case - Interest allowed.
APPEARANCES: Mr PJ Lyons QC with him Mr RM Needham for the claimants
Mr MD Hinson SC with him Mr RS Jones for the respondentSOLICITORS: Wilson Ryan & Grose for the claimants
Crown Solicitor, Crown Law for the respondent
This matter arises out of a combined application for compensation made by the claimants against the respondent with respect to a resumption of land for the purpose of a major road which I will call the Douglas Arterial - one of various names given to the intended project. The project is under the control of the Department of Main Roads (DMR). In the chameleon-like transformations that new governments tend to impose, the functions of DMR have sometimes been part of a wider Department of Transport (DOT). I will therefore need to refer to DOT where the context requires, however will attempt to refer mainly to DMR for the sake of consistency. The resumption took place on 13 May 1994 under the provisions of the Acquisition of Land Act 1967 and it is compensation as at that date that falls for determination. Accordingly, I will generally refer to the attributes of the resumed land and the parent parcel from which it was taken as this land existed at that date, which I will usually refer to as the relevant date. I will employ the term "subject land" to refer to the parent parcel or its parts.
The Land and its Environs
Townsville City Council (TCC) is the registered proprietor of the parent parcel which comprises an overall aggregation of nine titles covering a total area of about 284.61 ha, according to the original survey plans, such approximation arising because of an ambulatory boundary to the north of some of the lots. I have, for reasons that I provide below, adopted the areas provided by the claimants. The land description of the parent parcel is:
LotPlan Area
3RP 722962 45.99 ha
3RP 731591 29.59 ha
106EP1218 29.03 ha
148EP1220 90.98 ha
197EP1220 89.02 ha
Much of the parent parcel is cut through its centre by the existing Angus Smith Drive corridor. That road has the effect of physically cutting the parent parcel into two. That to the north was referred to as Parcel B in evidence, whilst that to the south was identified as Parcel A. Lots 106, 148 and 197 straddle Angus Smith Drive, whilst the other two lots lie on its northern side.
The parent parcel lies to the west of the existing residential subdivision of Douglas in the City of Townsville and enjoys a frontage of about 4.7 km to the Ross River to its north. That river frontage is enhanced by Black Weir and Gleesons Weir, both of which ensure that there is an attractive body of water retained throughout normal years. Part of the water retained by the upstream Black Weir extends into the Parcel B land in the form of a lagoon, which would provide a pleasing environment for residential lots which view it. Parcel B has been selectively cleared in the past and at the relevant date comprised coastal forest ridges intersected by eroded gullies, together with open sand/gravel scrapes and thick forest areas to the river frontage.
Parcel A enjoys no water frontage, but rises from gently undulating forest areas to broken and moderately steep mountainous areas which afford a good outlook over Parcel B and the river towards the coast in the distance.
Angus Smith Drive is the main access road to the existing Douglas residential subdivision, to the James Cook University, which lies to the south-east of the parent parcel and to a sand and gravel facility, a water purification plant and a small weapons firing range to the south-west where the road terminates. Since the relevant date the Townsville General Hospital has been developed to the east of the university site. As I have no evidence that the relocation of the hospital to that site was intended at the relevant date, I exclude the hospital from further consideration. Where the road passes through the parent parcel Angus Smith Drive is a sealed two-lane road for part of its length, then a gravel road as it tracks to the west.
At its eastern end Angus Smith Drive swings towards the north until it joins with University Road, which comes from the east and which also swings to the north before it is joined by Angus Smith Drive. University Road tracks to the north then crosses the Ross River over the Charles N Barton Bridge. University Road is a continuation of the Bruce Highway which comes from the south-east and is a "State-controlled road" under the provisions of the Transport Infrastructure Act 1994. After crossing the river, University Road becomes Nathan Street which continues northerly to an intersection with Ross River Road where Stockland Plaza is to be found - a major shopping centre in Townsville. If one travels to the east along Ross River Road one eventually comes to the Townsville Central Business District. To the west this road, which is also a State-controlled road, runs roughly parallel to the Ross River until it intersects with Thuringowa Drive heading north and Upper Ross River Road heading south and parallel to the river which swings to the south. To the north-west of that intersection is the Willows Shopping Centre, then Willows Gardens and Greenwood subdivisions which arise for discussion later in these reasons.
Returning now to the east of the parent parcel: towards the north of University Road and fronting the Ross River lies the Annandale subdivision recognised by expert witnesses who were called as being a development superior to the average estate in Townsville. To the east of Annandale is the Murray Sports Complex and to the south-west of that is a development called Annandale Gardens, a subdivision of consistently small lots. Lavarack Army Barracks lies to the south of University Road. This is a substantial facility and is a major employer in Townsville. A small CSIRO research facility is located nearby. There are also some minor residential subdivisions to the south of University Road. To the north of the parent parcel and across the Ross River lies the suburb of Cranbrook and the Weir School, whilst to the west the suburbs of Kirwan and Condon are to be found.
The Resumed Land
The proposed Douglas Arterial, in the context of the parent parcel, is to be found largely on the northern side of the alignment of Angus Smith Drive. Consistent with that, the resumed land, taken as a whole, is an elongated area of land lying adjacent to the retained lands.
The resumption corridor turns away from Angus Smith Drive towards the west and swings towards the Ross River where a bridge is proposed. That bridge will allow a connection with Upper Ross River Road. This change in direction creates a severance area of about 11 ha in the retained Parcel B. This "south-west severance" is bound by the Douglas Arterial corridor to the north, the Ross River to the west, the water purification plant to the south and Angus Smith Drive to which it retains access, to the east. Access from the south-west severance to the main body of the retained Parcel B is also available by way of an under bridge road connection yet to be constructed.
Towards the centre of the parent parcel the resumption corridor parts with Angus Smith Drive, creating a further severance of about 3.148 ha in the retained Parcel B. That severance lies between Angus Smith Drive and the resumed corridor and was appropriately called the "island severance" by the parties. To the east of the island severance the resumption corridor is widened to provide a "midpoint access" so called as it will allow the construction of access between Angus Smith Drive and Parcel B.
The resumption took 16.062 ha from Parcel B and 0.6564 ha from Parcel A. Compensation has been claimed for the loss of that land, together with injurious affection and severance, as well as disturbance, all of which is provided for in s.20, Acquisition of Land Act and cases applying that provision.
I will detail the claim below, however will mention now that the respondent's case is that no compensation is payable because the value of the retained lands after resumption are said to not be less than the value of the parent parcel.
Planning/History
At the relevant date Parcel A was zoned variously as Residential A, Non Urban and Special Purposes under the prevailing TCC planning scheme. A new Town Plan came into place on 16 September 1994 and this included all of Parcel A in the Residential 1 zone. The zoning of this parcel is not an issue between the parties, who both saw it as having potential for residential subdivision - though each initially viewed that potential somewhat differently.
Parcel B was excluded from the TCC Town Plan at the commencement on 26 March 1993 of the Townsville City Council (Douglas Land Development) Act 1993. The Statute was applicable to a "site" which is best described as including Parcel B and Angus Smith Drive. The Douglas Land Act provided in Part 2 for the development of the site in accordance with a Concept Plan which was approved by the Governor-in-Council on 6 August 1993. Part 3 of the Act required TCC to invite expressions of interest in the development and subdivision of, effectively, Parcel B "generally in accordance with the Concept Plan" (s.17(1)). The Council must consider the expressions of interest (s.18) and then prepare a Master Plan (s.22) which when approved by the Governor-in-Council (s.23) replaces the Concept Plan, the TCC planning scheme and bylaws dealing with group title development (s.24).
Section 19 authorises TCC to enter into an agreement with one or more of those who lodged expressions of interest providing for development of the site in accordance with the Master Plan when approved by the Governor-in-Council. That Master Plan was actually approved on 10 June 1994 and, consistent with the Concept Plan, provided for residential development of Parcel B including some residential multi-unit and commercial development. The parties valued parcel B on that basis and each provided proposed subdivision layouts.
Delfin Limited took part in the expression of interest process along with a number of other developers, however TCC selected Reana Developments (Townsville) Pty Ltd as the sole developer. An agreement between TCC and Reana was entered into on 23 March 1994 and this provided, amongst other things, that Parcel A would not be developed for a period of six years from the date of that agreement, without Reana's consent. It also made provision for the respective positions of the two parties in the event of a resumption of any part of the development site. I return to that aspect below.
Prior to the TCC/Reana Development agreement, that is on 2 February 1994, TCC had signed agreements in which it offered no objection to the respondent taking land from the various titles in the parent parcel for the purpose of the Douglas Arterial. These agreements are authorised by s.15 of the Acquisition of Land Act, which relevantly provides:
"15.(1) Where a constructing authority has lawfully agreed in writing to take as prescribed by this Act any land for a purpose for which it may take the same the constructing authority may take the land under and in accordance with this section.
(1C) An agreement which purports or is properly to be construed to pass any interest in land to a constructing authority or to prejudice the right of any person to use, enjoy or dispose of the person’s land shall not be an agreement within the purview of subsection (1)."
It follows that the existence of these acquisition agreements did not create a legal hindrance to TCC proceeding to call expressions of interest, nor to its entering into an agreement with a selected developer. It is also the case that those interested in the development of the Parcel B site would have been aware of the real prospect for resumptions of the type that in due course took place. Certainly Reana was aware of this as Clause 12.7 of the TCC/Reana Development Agreement provides:
"12.7 National Highway
(a)The Council anticipates that the Department of Transport shall construct, or procure the construction of the National Highway in the location identified on the National highway Plan but gives no warranty as to the timing or the location.
(b)The cost of construction of the National Highway shall be at the cost of the Council or the Department of Transport (or both) and the Developer shall not be required to contribute to the costs.
(c)The Council shall use its best endeavours to ensure that access to the National Highway will be at the points indicated on the National Highway Plan."
The definition of National Highway supplied in the agreement refers to the Douglas Arterial.
In due course Reana commenced development towards the eastern end of Parcel B and near existing development, its first lots being released in 1995. Reana named this subdivision River Grove. Then on 12 December 1995 Reana assigned its development rights of the balance of Parcel B to the Defence Housing Authority (DHA). On 7 July 1997 DHA assigned its development rights to Delfin (Townsville) Pty Ltd and on the same day TCC and Delfin entered into a development agreement pertaining to the balance of Parcel B. Delfin renamed the project Riverside Gardens. I will use "Delfin" to refer to Delfin Limited and to Delfin Lend Lease Limited which the former became as a result of its takeover by Lend Lease in late 2001. I will also use it to refer to Delfin (Townsville) Pty Ltd which is a wholly owned subsidiary of Delfin Lend Lease Limited.
Progress of the subdivision at the time of hearing in late 2002 included the Reana development to the east at the present entrance to the estate and the Delfin development to the east of Gleesons Weir and to the west of the mid-point access with some scattered groups of parcels also being developed.
Each of the agreements referred to in [20] above is similar in that each provides that the developer will physically develop the land and subdivide it, market the produced lots and submit each contract of sale to TCC who is required to execute such contracts. The title to any lot sold is then conveyed from TCC to the purchaser, with the developer at no stage becoming the registered proprietor of any of the land as part of this process. TCC is to be paid an amount based on a formula fixed in the agreement, whilst the developer takes any balance.
Claim for Compensation
A Claim for Compensation was received in the Court Registry on 21 December 2001. That claim had earlier been served on the respondent. An Originating Application in support of the claim was lodged on 9 January 2002. The Claim for Compensation was made in the names of TCC and Delfin with TCC being the sole claimant with respect to land taken from Parcel A. Compensation with respect to land taken from Parcel B was claimed by TCC and by Delfin Limited "as assignee". The amounts claimed were:
Parcel A
Land$1,540,000.00
Disturbance:
· Preparation of claim $8,060.00
Parcel B
Land)
Injurious Affection including severance ) $3,660,000.00
Disturbance:
· Noise amelioration costs $1,499,899.00
· Temporary Roadworks $164,399.00
· External Water $37,863.00
· Preparation of claim $332,913.91
$7,243,134.91
Adjustments were made to these figures at various stages during the hearing and the claim was amended with leave of the Court to the following:
Parcel A
Land$445,000.00
Disturbance:
· Noise Amelioration Barriers $178,500.00
· Preparation of Claim $7,240.00
Parcel B
Land & Injurious Affection including severance $5,000,000.00
Disturbance:
· Noise amelioration Barriers $921,700.85
· External Water Main $34,128.00
· Preparation of Claim $281,587.43
$6,868,156.28
No question as to the right to claim compensation arises with respect to TCC, who was the registered proprietor of the parent parcel at the relevant date. It is also the case that Delfin has no interest, contractual or otherwise, in Parcel A, therefore any right to compensation with respect to that land is confined to TCC. A question did arise during the hearing as to the existence of any right in Delfin to claim compensation with respect to Parcel B, the respondent adopting the position that it would not formally concede that Delfin, in whatever of its three forms, has a right to claim compensation. The respondent did, however, acknowledge, for the purpose of these proceedings, that the quantum of TCC's compensation will not be affected if Delfin was not a claimant. The respondent further said that it would be "prepared to make payment, if requested, to whichever Delfin entity TCC directs as long as the respondent is indemnified in these proceedings by each of TCC, Delfin Ltd and the payee 'Delfin' company if that is not Delfin Ltd".
An affidavit sworn by Brian Stephen Guthrie, Chief Executive Officer of TCC, became an exhibit. That affidavit said that:
"All compensation, interest and costs awarded in respect to the Part B Claim is to be paid to Delfin Lendlease Limited whose receipt therefore shall be sufficient discharge of obligation towards the Council."
Part B is a reference to Parcel B. The affidavit also said:
"Council has made arrangements with Delfin Limited as to the apportionment of any compensation found to be payable in respect to the Part B Claim and does not require the decision of the Court to apportion compensation for Part B as between Council and Delfin Limited."
The claim for compensation lodged with the Court asserts that Delfin Limited is a claimant as assignee "under the Douglas Land Agreement". No attempt was made to demonstrate before me that Delfin has a right to claim compensation under the Acquisition of Land Act either by virtue of such a right arising by force of the Act, or by way of an assignment of the right to claim. Neither is such a right apparent to me on the face of the documents tendered.
The jurisdiction in this matter is sourced from s.26 of the Acquisition of Land Act which provides that, "The Land Court shall have jurisdiction to hear and determine all matters relating to compensation under this Act".
Compensation is described in s.20, which I will not set out in detail, but will simply say that this section provides for the determination of a sum of money. The jurisdiction of the Court extends to awarding interest on compensation (s.28) and costs (s.27). It does not extend, however, to the determination of an issue "where the title by reason whereof compensation is claimed" under the Act comes into question. That is a matter for the Supreme Court (s.29).
Nevertheless, I am of the view that the Land Court may determine whether it has jurisdiction in a matter, even though such a determination can involve a question as to whether there is a sufficient "estate of interest ... to the whole or any part of the land" (s.12(5)) to support a claim for compensation. That is, a Member of this Court may determine whether a particular claim for compensation amounts to being the subject matter of the Court's jurisdiction. Such a determination is not a determination of title.
Accordingly, I hold that this Court has jurisdiction to entertain the claim for compensation made by TCC and that it has not been demonstrated that it has jurisdiction to determine any compensation in the name of Delfin in any of its three forms. That conclusion will, however, have no effect on the quantum of compensation, given the position adopted by the respondent to which I refer above. Any expenditure by Delfin which would warrant being described as disturbance, for example, will be treated either as being incurred on behalf of TCC or to have increased the worth of the Parcel B land to TCC.
I will, from this point in these reasons, refer to a single claimant only, that being TCC, though I will need also to make reference to Delfin in its capacity as the developer of Parcel B from 7 July 1997.
An advance in the amount of $321,500 was paid to TCC on 9 June 1995.
Witnesses
The claim for compensation for the loss of land, severance and injurious affection was based on a valuation provided by Geoffrey William Eales, a registered valuer. Valuation evidence from the respondent was provided by Chris Caleo, also a registered valuer. Both valuers approached their task by placing a value on the parent parcel before resumption and estimating an after-resumption value, having regard to the impact of the resumption. This is usually referred to as the before and after method of assessing compensation. As is usually the case, disturbance compensation was addressed separately. Each valuer relied on other experts for certain aspects of their valuations. In that respect the following witnesses were called by the claimant:
Michael Chapman, Delfin Group Manager, Urban Design and Landscaping, Bachelor of Applied Science (Built Environment) and Post Graduate Diploma in Landscape Architecture gave evidence with respect to the subdivision design on Parcel B and associated matters. Mr Chapman has worked first as a consultant, then as an employee of Delfin for 11 years and has been directly involved in the subdivision project on Parcel B since Delfin became the developer. He was part of the Delfin team which developed the Delfin tender to become the preferred developer in 1993.
Victor Anthony Eppell, a consultant traffic engineer, provided his opinion on road design issues associated with subdivision plans for Parcel B and expected traffic volumes entering and leaving that parcel when it is fully developed.
Brent David Hailey, is a civil engineer employed by the BMD group which specialises in residential property development as a civil engineering contractor and a consultant civil engineering firm under the name Development Consulting Pty Ltd. His evidence was concerned with the costs of development of the Parcel B land before and after resumption based on the claimant's layout plans.
Gary Waldenar Jensen, a civil engineer, provided evidence concerning the development potential of Parcel A.
Christopher Gerard Buckley, a consultant town planner, provided planning evidence including a report in response to planning evidence provided by Mr Dance, mentioned below.
Robert Neunhoffer, is the technical services engineer with Citi Works, a business unit of TCC. He is a civil engineer and gave evidence of an historical nature concerning the parent parcel, the Parcel B development and other relevant developments. He also gave evidence concerning subdivision conditions that he considered TCC would impose on the basis that Parcel B was being subdivided as if the Douglas Arterial project did not exist.
Paul Duncan O'Brien was employed by Delfin as the project planner for the Parcel B development and another called Willows Gardens from 1997 to 1999, when he became project manager of the Parcel B development. He remained in that position until 2001. He was the coordinator of the claim for compensation from Delfin's perspective and also provided evidence concerning the Parcel B development.
Ronald Henry Rumble, a consultant engineer specialising in acoustics and vibration, gave evidence on the expected impact of noise from Angus Smith Drive before and the Douglas Arterial after resumption on adjoining residential land in Parcels A and B.
Angelo Licciadello is presently employed as the Delfin Lend Lease project manager in Townsville. He was previously an employee of TCC. He gave evidence concerning particular aspects of the Parcel B development.
Shaun Ross Matthews is the major projects coordinator for Maroochy Shire Council, however had worked from 1990 to 1995 with TCC as a senior town planner and in the areas of strategic planning and special projects. His evidence was concerned with the inclusion of DMR future roads in the TCC Strategic Plan.
Paul Allan Petersen, the North Queensland Manager of Development Consulting Pty Ltd, gave evidence in support of the claims for disturbance with respect to Parcel B.
Peter Uttaman Gopal is a town planner and holds the position of Manager, Development Advice and Compliance in Planning and Development Services, TCC. He provided evidence relevant to his expertise.
Colin Oliver Harkness, a solicitor and senior partner of the firm Wilson, Ryan & Grose, gave evidence with respect to the disturbance claim.
The respondent called the following witnesses in addition to Mr Caleo:
Gordon Mark Woodman, an engineer in the employ of Maunsell Australia Pty Ltd, gave evidence concerning the costs of development of subdivision works which would be required with respect to subdivision layout plans before and after resumption provided by the respondent.
Phillip Alexander George Dance, a town planner, provided evidence on town planning issues concerning the subject lands.
Peter Richard James, a development consultant and licensed surveyor, provided evidence concerning subdivision layout options for Parcel B.
Colin Bruce Horman, a civil engineer and qualified town planner, was employed as an in-house consultant with the respondent from 1992 to 2002 and has primary responsibility for the Douglas Arterial project. He provided evidence concerning the purpose of the Douglas Arterial project, relevant transport planning in Townsville and in Thuringowa Shire and departmental policies.
Roger Humphrey Brameld, an engineer specialising in traffic engineering, provided evidence concerning his specialisation in relation to the subject land, the Douglas Arterial and associated roads.
Frederik Hendrik Kamst, an acoustics engineer, provided evidence on the same topic addressed by Mr Rumble.
Inspection
Together with counsel, I inspected the subject land and its surrounds and was taken to various features referred to in evidence. The inspection party also visited the sales properties referred to by the valuers who were called. With the agreement of counsel, I also revisited all of these properties independently. These various inspections assisted me in my appreciation of the evidence.
Areas
Whilst the original survey plans for the titles within the parent parcel show the total area to be 284.61 ha, approximately the total area has been shown by more recent survey work to be greater. That survey work by Brazier Motti in 1998 for the claimant was relied on by Mr Eales who included a total of 299.8257 ha in his valuation reports. Mr Caleo included a total of 307.24 ha in his report.
The respondent takes no issue with respect to the accuracy of the Brazier Motti survey.
In his expert report Mr Jensen said that he would advise a prospective purchaser to require of the vendor more reliable survey information than the original survey plans. He formed that view on the basis that the original survey plans are very old; that the Black and Gleeson Weirs have since been constructed; that water levels would therefore have risen leading to a strong inference that land area would be lost to inundation.
Whilst the recent survey work shows not a reduction but an increase in area, it nevertheless bears out the advisedness of the approach suggested by Mr Jensen. It is an approach that I think would be adopted by a hypothetical prudent purchaser of the type envisaged in Spencer v. The Commonwealth (1907) 5 CLR 418, 441 (Spencer) and would not be resisted by a prudent vendor. Mr James said that the area adopted by the respondent was arrived at by digitising the boundaries from the available cadastral plans. He acknowledged that an additional survey would resolve the discrepancy.
Accordingly, I will adopt the Brazier Motti survey which is the source of the various areas included in Mr Eales' valuations.
Douglas Arterial
Mr Horman said that since 1992-1993 the respondent has forecast the need to construct Stage 1 of the Douglas Arterial in about 2002. Not unexpectedly, that time target has slipped somewhat, such that the road will in its first stage provide a link between University Road to the west across the Ross River in about 2004, then north to the Bruce Highway at Deeragun by, it is hoped, 2025. At that time the whole of the undertaking might properly be called a bypass, hence my decision to adopt the term Douglas Arterial as applying to the project which terminates at the west of the Ross River. At that location traffic will flow into and from Ross River Road. A short length of connecting road will be constructed across from University Road as part of the bypass project, rather than having the Bruce Highway, which the Douglas Arterial will become part of, following a dogleg route to the north via University Road then to the south again. Construction of the project had not commenced by September 2002.
The Douglas Arterial will eventually become a four-lane high-speed facility with speeds of 80 to 100 km per hour being anticipated, though it will initially be a two-lane construction. Exit access ramps would have an indicative speed of 40 to 60 kilometres per hour. The route will have street lighting. The respondent predicts a volume of 15,500 vehicles per day (VPD) by 2011, then 40,000 VPD by 2025 when the route to Deeragun is completed. Given the nature of the proposed facility, it would be expected to carry a volume of heavy vehicles.
Mr Eales said that the proposed work would be elevated to 0.917 metres to 3.447 metres above ground level, leading up to the proposed bridge, and 0.6 to 1 metre above ground level elsewhere.
Direct access into Parcel B to and from the Douglas Arterial via ramps will not be provided by the respondent, though sufficient land has been acquired to allow west-facing ramps to be constructed near the mid-point. At that point, access is to be via a grade separated overpass providing access over the bypass from Parcel B to Angus Smith Drive. On-off ramps will be provided to the north of the University. Access onto Angus Smith Drive from Parcel B in the east will be allowed via a signalised intersection, where an internal road known as Riverside Boulevarde now meets that road.
Angus Smith Drive would have posted speeds of 60 to 70 km per hour. Whilst a before-resumption development on Parcel B could have utilised Angus Smith Drive for access into the parcel at a number of points, such access is confined to three points in the after, two of which are mentioned above. The third is the access onto Angus Smith Drive from the south-west severance.
The Douglas Arterial will become part of the system of Townsville arterial roads that service the city, as well as comprising part of the route by which north/south freight traffic will bypass the internal Townsville road system. That bypass function will not be effective until the Douglas Arterial is extended to Deeragun, though the design of the road will need to take into account that eventual function. The design of the arterial and the extensions of it to the north and south will be such that it will facilitate short distance traffic to a limited extent only. This will be done by the construction of interchanges with on/off ramps at such intervals along its length that it will allow connection between significant parts of the city it traverses, but not such that local trips within a suburb, for example, would be facilitated. Indeed, in Volume 3 of the Supporting Data to the TCC Strategic Plan and Scheme Provisions, arterial roads are described - 6.5.2(1) as "roads whose main function is to form the principal avenue of communication for traffic movement within the urban area". Mr Horman said that the majority of traffic on the Douglas Arterial would in DMR's estimation be urban Townsville traffic.
Mr Brameld explained that there was evidence and he referred to studies in Brisbane, that only a low proportion of through traffic would totally avoid the city once the bypass was completed. Thus, many travellers would use the various interchanges to access parts of Townsville as a break in their trip.
The Enhancement Issue - Parcel B
Mr Caleo's valuation of Parcel B proceeded on the basis that certain costs associated with the development of that land would be greater in the before-resumption situation than in the after. As a result, he arrived at a before value of $10,440,000 for the parent parcel and an after value of $10,455,000, the effect being that his assessment of compensation was nil. The costs in question in the before valuation totalled $3,399,230.
In his after valuation these costs were reduced to $1,535,950.
The major difference between these before and after costs lies in Mr Caleo having proceeded on the basis that the developer of the Parcel B land would have been required to contribute to the cost of a bridge over the Ross River. I call this the developer bridge.
It was the respondent's case that putting aside the purpose of the resumption, the subdivision of Parcel B would lead to a requirement that the developer contribute one-third of the cost of construction of the developer bridge. This proposal would involve the adjustment of the alignment of Angus Smith Drive by the addition of a road section between the present road and the river.
I extracted the following from Mr Caleo's valuation report:
"I am advised by Phil Dance Planning and Roger Brameld, Traffic Engineer, that a western crossing of Ross River will be required to adequately and properly accommodate traffic flows from within the subject lands as they are progressively developed."
I return to consider the evidence of Mr Dance and Mr Brameld below.
The basis of the respondent's argument with respect to the developer bridge relies centrally on the application of what became s.40 of the Transport Infrastructure Act 1991, legislation which came into effect on 7 March 1994 and which relevantly provided:
"Impact of certain local government decisions on State-controlled roads
40.(1) A local government must obtain the chief executive’s written approval if—(a) it intends to -
(i)approve a subdivision, rezoning or development of land; or
(ii)carry out road works on a local government road or make changes to the management of a local government road; and
(b) the approval, works or changes would—
(i) require the carrying out of road works on a State-controlled road; or
(ii) otherwise have a significant adverse impact on a State-controlled road; or
(iii) have a significant impact on the planning of a State-controlled road or a future State-controlled road.
(2) The chief executive may make guidelines to which local governments must have regard in deciding whether an approval of the chief executive under subsection (1) is required.
(3) An approval by the chief executive under subsection (1) may be subject to conditions, including a condition that consideration, whether monetary or otherwise, be given in compensation for the impact that the subdivision, rezoning, development, road works or changes will have.
(4) Subsection (1) does not apply if the conditions applied and enforced by the local government for the subdivision, rezoning, development, road works or changes comply with permission criteria fixed by the chief executive.
(5) The permission criteria may include conditions, including a condition that consideration, whether monetary or otherwise, be given in compensation for the impact that the subdivision, rezoning, development, road works or changes will have.
(6) A local government must comply with conditions that apply to it under this section."
I have underlined the phrases that fall for consideration in the discussion that follows.
Put briefly, the respondent submitted that the development of Parcel B by way of subdivision would require the approval of TCC and that approval would, when put into effect, "have a significant adverse impact on a State-controlled road" by way of the external traffic generated from the subdivision. In the before-resumption situation all external traffic generated by the development had to use Angus Smith Drive and apart from traffic travelling to the south-west to the water treatment plant sand extraction facility or firing range, or to the university, all of that traffic joined the State-controlled road network at the intersection of Angus Smith Drive and University Road, the latter being a State-controlled road. Much of that traffic would be headed for destinations over the Ross River, therefore would use University Road, the Charles N Barton Bridge and Nathan Street. The respondent's case is that an alternative river crossing via the developer bridge to the west of Parcel B would in such circumstances be constructed by the respondent and, given the significant adverse impact on the State-controlled road by traffic from Parcel B that would have contributed to the need for such a bridge to be constructed, a condition would be imposed on the developer of Parcel B under sub-section (3) requiring a contribution to the cost of that bridge. The case for enhancement is based on the proposition that in the after-resumption scenario no contribution would be called for, thus the claimant's retained land is advantaged by the resumption in such a way that there is enhancement of the type provided for in s.20(3) of the Acquisition of Land Act.
Section 20(3) and (4) provide:
"(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."
It will be convenient if I now set out some principles that are relevant to my consideration of the question of enhancement that arises in this case. I should first make clear that I take the view that the question of value and, therefore, the issue of enhancement, is one that should be approached from the viewpoint of the hypothetical prudent purchaser dealing with a hypothetical vendor as was envisaged by Isaacs J in Spencer at 441. Such parties would not, for example, simply look at the words in s.40 Transport Infrastructure Act and decide whether they apply to certain facts, but would look beyond these words to what has happened in the marketplace and what is likely to happen.
It has been consistently held by this Court and equivalent jurisdictions in Australia that the onus of proving enhancement rests on the constructing authority (see, for example, Zoeller v Brisbane City Council (1973) 40 CLLR 198, 203-204; Niall v Lacepede DC (1987) 66 LGRA 32, 40). That onus is usually discharged by the constructing authority pointing to an increase in value of the land retained by the claimant attributable to the "carrying out of the works or purpose for which the land is taken". Thus in the case of Zoeller, for example, there was valuation evidence which pointed to an increase in value arising out of proximity to the dam - the purpose of the resumption.
In Terlaak & Ors v Commissioner of Main Roads (1981) 8 QLCR 103 the then President considered the question of the evidence that should be taken into account in considering enhancement. After referring to various authorities, he summarised his conclusions at p.112:
"Perhaps the position may best be summed up by saying that the Court should endeavour to place itself in the shoes of the hypothetical prudent parties envisaged by the Spencer case and seek to ascertain a fair market price for the resumed land as at the date of resumption. Further the effects of the resumption on the balance land of the claimant for any factors such as severance, injurious affection and enhancement may be prospectively assessed upon the basis or standard of the market conditions applying at the date of resumption. In so prospectively assessing these factors due regard should be had to all facts and circumstances that are relevant and have occurred or are likely up to the date of hearing."
There are two propositions that I take from this. First, that whilst the value of the retained land is to be assessed as at the date of resumption, it is not to be assessed on the basis that the constructing authority scheme of works has been carried out, if they in fact have not been carried out at the date of hearing. Indeed, the President went on to say (p.113) that there can be circumstances in which "it may be reasonable to discount the effect of enhancement flowing from the resumption even to the extent of obliterating its effects if intervening events justified this conclusion. It is basically a question of how would a prudent purchaser react at date of hearing, given all the facts concerning enhancement then available".
A similar opinion is found in Moyses v Townsville City Council (1979) 6 QLCR 21 at 34 where the Court was critical of a valuation approach which assumed the relevant "works" were in place when, in fact, they were not. The learned Member said "... The proper way to look at the valuation is to ascertain when the proposed works are likely to commence as this is the factor which would influence a prudent purchaser".
The second proposition enunciated in Terlaak is that it is appropriate to take into account evidence as at the date of hearing concerning the question as to whether the works or the prospect of them has enhanced the retained land. That proposition, though expressed quite broadly in Terlaak, was more narrowly framed by the High Court in The Adelaide Fruit and Produce Exchange Co Ltd v Adelaide Corp (1961) 106 CLR 85 at 93:
"What in every case is of decisive importance is whether the prospect of the execution of the works has, as at the date of hearing, increased the value of the land ..."
Consideration of any evidence after the relevant date, which clarifies the nature of the works or the timing of the carrying out of the works or purpose, is admissible in considering the question of enhancement. That, however, is not a general licence, in my view, for the admission of evidence at any time up to the date of hearing, even if such evidence could be employed in providing greater certainty to issues of value as at the relevant date. Two examples may assist my explanation.
Imagine, for example, a claimant whose land was treated so favourably by a change to the town planning scheme some years after the relevant date that its value was greatly enlarged. That evidence does not become admissible simply because evidence concerning the timing of the construction of works was being sought.
Equally, evidence that would reduce the value of the claimant's land, if it had been known at the relevant date, is not admissible if it came into existence well after the relevant date. So, for example, traffic studies that might be argued would have a depressing effect on the value of the land would not be admissible if they were obtained well after the relevant date.
In a range of cases which I have perused and which deal with the topic of enhancement, it is the works themselves that directly provide an advantage to the retained land. A proposed railway line may improve the highest and best use of the land (Crelga Holdings Pty Ltd v Commissioner for Railways (1991) 13 QLCR 311); a proposed school may advantage land ripe for residential subdivision (Minister v Stocks and Parkes Investments Pty Ltd (1973) 129 CLR 385; a car park may enhance the value of business premises (Brell v Penrith City Council (1965) 11 LGRA 156); a street may improve the highest and best use of the retained land (Adelaide Fruit) and a dam may make the land aesthetically more attractive and more valuable (Zoeller).
Thus, it is the position regarding whether, when and in what manner the railway line, school, car park, street and dam, for example, are to be constructed that may be taken into account as at the date of hearing.
This is not to say, however, that certain evidence which came into existence after the date of resumption may not be admitted on general principle. The general principle to which I refer was discussed in Regan v Chief Executive, Department of Main Roads (unreported 3 April 2000 at paras. 101-114), which relied on the reasoning of the majority of the Court of Appeal in CMB No.1 Pty Ltd v Cairns City Council (1999) 1 QdR 1 (CMB). I summarise the principle extracted from these authorities by saying that it does not support general resort to facts ascertainable only subsequent to the relevant date, but indicates that it is appropriate to have regard to such subsequent facts to the extent that they "confirm a foresight rather than prove a hindsight" (see CMB at 21).
Before I descend into the details of the issues in this case, I should mention a submission of the claimant that, if accepted, would obviate the need for further detailed discussion of the enhancement issue. The evidence was that no requirement has been imposed on the developer of Parcel B in the after scenario with respect to the Douglas Arterial. In view of that, the claimant submitted that there was a contradiction inherent in the respondent's case in that the relevant road facilities; namely the developer bridge and the extended Angus Smith Drive in the before and the Douglas Arterial in the after; perform the same function. Thus, if no contribution is called for in the after, none would have been called for in the before. It is the respondent's case, however, that in the after scenario the Douglas Arterial and its associated bridge are assumed to be in place and to increase cross-river capacity to such an extent that it could not be contended that the addition of traffic generated by the Parcel B development had a "significant adverse impact on a State-controlled road". The Charles N Barton Bridge has a theoretical capacity to carry 53,600 VPD. The new Douglas Arterial Bridge adds a cross-river capacity of about 20,000 VPD, bringing the total to 73,600 VPD. The respondent submitted that, on the basis that the Parcel B development would generate cross-river traffic of about 6,500 VPD, it can be demonstrated that that volume of traffic has a significant adverse impact before resumption but that it would be difficult, if not impossible, to say that after resumption.
The respondent's proposition proceeds, correctly I would say, on the footing that in the before scenario it is assumed that there is no Douglas Arterial, nor one in contemplation. That approach is consistent with Pointe Gourde Quarrying and Transport Co Ltd v. Sub-Intendent of Crown Lands (Trinidad) [1947] AC 565 (Pointe Gourde) which I summarise as saying that the value of the resumed land may not, for the purpose of determining compensation, be increased having regard to any appreciation resulting from the scheme of which the resumption is part. It was held in Melwood Units Pty Ltd v The Commissioner of Main Roads (1978) 5 QLCR 145, 153 that the Pointe Gourde principle, as it has become known, also operates "in reverse". That is, it applies to both appreciation and depreciation in value.
For the claimant to succeed in their above submission, it needs to do more than say that the failure of the Chief Executive to apply s.40 Transport Infrastructure Act in the after scenario is evidence that he would not have applied it in the before. There needs to be an argument based on the evidence that the material circumstances would have been seen by a hypothetical prudent purchaser as so similar in each scenario that the Chief Executive would not be expected to require a contribution in the before, given that he had not in the after. The only similarity adverted to by the claimant is that there is a bridge as part of the Douglas Arterial in the after and a suggested developer bridge in the before. I cannot, based on those facts alone, appreciate an argument that confidently suggests the view that a hypothetical prudent purchaser would take.
In the present case, the evidence is predominantly directed towards the before-resumption situation in which it is asserted by the constructing authority that Parcel B carries the burden of having to contribute to the cost of the developer bridge. Little evidence was led as to the after situation in this regard. I know that the Chief Executive has not required a contribution towards the Douglas Arterial from the developer of Parcel B, though I do not know why that is the case.
The claimant cannot, therefore, argue that the decision of the Chief Executive in the after would, if applied consistently, produce the same result in the before. Nor can the claimant show that a prudent purchaser would look to the after-resumption outcome as demonstrating the attitude that the Chief Executive would apply in the before scenario. To do that the claimant would need to show either that there would be no significant adverse impact on a State-controlled road in either the before or after, or if there was such an impact the material facts of the before are so similar to the after that the Chief Executive would exercise his discretion under s.40(3) against the imposition of a condition requiring a monetary contribution. The claimant has conceded that in the before scenario there would be a significant adverse impact on a State-controlled road from external traffic generated by the subdivision of Parcel B. No similar concession, nor evidence and submissions on this issue, were made with respect to the after scenario.
DMR's Enhancement Case
For DMR to succeed in its enhancement argument, it needs to show that:
(i)at the relevant date a hypothetical prudent purchaser and vendor would have recognised that traffic volumes were such that increased cross river capacity would have been required to enable the Parcel B land to be developed;
(ii)the hypothetical parties would have arrived at a price for Parcel B on the basis that DMR would construct the developer bridge;
(iii)that price would take into account an anticipated requirement under s.40 Transport Infrastructure Act for the developer of Parcel B to contribute to the cost of the developer bridge.
Each of the above should be considered on the basis that the Douglas Arterial neither exists nor is in contemplation. In addition to the above matters, the respondent would also need to show that:
(iv)post resumption, no contribution under s. 40 would be required for the Douglas Arterial.
Whilst I have expressed each of these requirements in somewhat absolute terms, I should explain that I have done this in an attempt to address the central issues in the respondent's primary case. I will consider these issues in this order.
Need for Bridge in 1994
First under this heading I will deal with various submissions by the claimant that, by its conduct, the respondent has portrayed that no need existed as at 1994 for the developer bridge.
In 1993 Mr Caleo prepared a valuation report, apparently for the purpose of providing a figure for the payment of an advance against compensation (s.23 Acquisition of Land Act). That valuation makes no mention of a developer bridge, nor does it include any reference to enhancement. These were significant non-inclusions according to in the claimant's submission. The respondent submitted that this report could not be relied upon in any way as indicating that DMR would not have constructed a bridge as the valuation was carried out urgently and without Mr Caleo having had the opportunity of conducting the usual investigations. Mr Caleo's 1993 valuation could probably be best described as indicative only, given its rushed preparation. He received handwritten instructions on 11 June 1993 requesting that a valuation be provided by the 25th of that month. The valuation was not carried out on a before and after basis and said that compensation for injurious affection and severance did not fall for consideration.
The valuation provided, assessed compensation in the amount of $477,030 for an area of 21.7239 ha. This area included land other than that acquired from the parent parcel.
The absence of any mention of the developer bridge in Mr Caleo's earlier valuation is not surprising. First, it is quite clear that Mr Caleo did not carry out the usual investigations prior to producing a valuation which was completed in unusual haste. Second, he would have needed advice from a traffic engineer and probably a lawyer and a town planner, to address the question of the need for the developer bridge. He did not seek such advice and probably could not practically have done so in the time available. Third, the question of the need for the developer bridge would not ordinarily occur to a valuer aware that one of the outcomes of the resumption would be the construction of an actual bridge. I do not think that a valuer asked for an urgent valuation would be expected to explore and consider such a question. It seems that the prospect of the developer bridge proposition is not one that was in the mind of the respondent or at least in the mind of those who instructed Mr Caleo in 1993.
The question of the need for a developer bridge is one which not only borders on the esoteric in the marketplace, but is one that did not occur to the respondent when conducting its case in Parkside Development Pty Ltd v Director-General, Department of Transport - unreported Land Court 2 December 1997 (Parkside No 2). That case was concerned with the resumption of land for that part of the Douglas Arterial which is to be constructed to the west of the Ross River and provides for ramps that will access to and exit from Ross River Road and the Douglas Arterial. I will return to that case in more detail later, however suffice it to say now that no point was raised in that case by the respondent concerning a need for the developer bridge. The resumption in Parkside No 2 occurred on 25 March 1994.
Both Mr Horman and Mr Brameld gave evidence in Parkside No 2 and neither mentioned the need for a developer bridge. I note from the report that Mr Brameld provided to the Court on that occasion that he expressed the view that the Parkside No 2 land would, after resumption, gain an access advantage from the Douglas Arterial. Before me Mr Brameld was asked to consider the question of the level of contribution that a developer of the Parkside No 2 land might have been required to make for the developer bridge, assuming the same argument the respondent relies on before me. He estimated that a contribution of about 5% would have been justified. That is a level substantially below his estimate of one-third contribution in the case of the Parcel B land. On the basis of the estimated bridge costs in the present case, an amount of $181,650 could, having regard to Mr Brameld's 5% estimate, have been argued as enhancement in Parkside No 2. This is not a nominal sum, however it appears that neither Mr Brameld nor Mr Horman directed their minds to that issue on that occasion.
The failure of the respondent to raise the issue of the developer bridge in Parkside No 2 does not, as I see it, take the issue any further. Given that the respondent had a firm intention of building the Douglas Arterial and its bridge, there was no objective evidence at the relevant date in either Parkside No 2 or the present case of an intention to build the developer bridge. I would not expect there to be.
It may have been the case that the enhancement argument was simply not thought of by the respondent in its preparation for and conduct of its case in Parkside No 2. Indeed, that seems to be the case as the meeting of experts ordered by the Court in the present case and held on 14 June 2002 did not record the issue as one arising between the parties. Also, in letters to the claimant on 23 and 25 August 2002, the respondent made it clear that no decision to advance an enhancement case had been made. I will now turn to more objective matters concerning the question of the need for the developer bridge in 1994.
In the after situation he removed the cost of a standard fence from the Riverside Boulevarde costs, added the cost of noise mounds and acoustic fence, to produce a 2002 cost of $663.99 per lineal metre or 2,041 metres. He again inflated then discounted that to produce an after cost of $542,500.
The difference in before and after cost of $178,500 comprised this disturbance claim. This figure was not seriously challenged by the respondent. I accept it as being appropriate.
Parcel A Preparation of Claim
The claim for professional costs incurred in the preparation of the claim for compensation as it relates to Parcel A amounted to $7,240. Valuation fees, acoustical engineering fees and legal fees were included in the claim which was not directly challenged by the respondent. The claim is allowed.
Determination of Compensation
For Parcel B compensation may be summarised thus:
Land, severance and injurious affection $3,751,000.00
Disturbance:
·Noise barriers $921,700.85
·Preparation of claim - professional fees $225,209.68 $4,897,910.53
For Parcel A compensation may be summarised thus:
Land, severance and injurious affection $300,380.00
Disturbance:
·Noise barriers $178,500.00
·Preparation of claim - professional fees $7,240.00 $486,120.00
I therefore determine compensation in the amount of $5,384,030.53
Interest
Section 28 of the Acquisition of Land Act grants to the Court a discretion to order the payment of interest on compensation subject to the proviso that:
"(2) Interest shall not be payable in respect of any amount of compensation advanced under section twenty-three of this Act."
An advance against compensation in the amount of $321,500 was paid to TCC on 9 June 1995. The parties agreed that of that amount $14,500 should be applied to Parcel A and $307,000 to Parcel B.
The claimant provided evidence as to the dates of payment of the various relevant invoices connected with professional fees incurred in the preparation of the claims for compensation. Interest may be ordered with respect to such expenditure to run from the date expenditure is incurred.
The disturbance claim with respect to noise barriers was based on actual costs discounted back to the date of resumption. The total claim in this respect applies to anticipated expenditure from that date. Accordingly, interest would apply to that head of claim in the same way as it applies to compensation for the loss of land, severance and injurious affection. Indeed, this item of the claim might properly be classified as injurious affection.
Evidence showed that Mr Harkness' firm had been retained by TCC to prepare a claim for compensation on or about 31 October 1995 and that the file was active for a period until about the end of 1995, then little happened until Delfin became involved in the development in 1997. Even then there was little activity until 2000. The respondent drew my attention to this evidence and to the considerable delay in progressing, then lodging the claim.
In Marshall v Director-General, Department of Transport (1998) 19 QLCR 9 the Court dealt with a submission that interest ought not be awarded to the claimant for the full period that would otherwise apply. The reported case sets out the submissions, the relevant facts and the law at pp. 48-54 and concludes at 53 that the question to be asked in considering this issue is "Was the claimant dilatory?" In Alex Gow Pty Ltd v Brisbane City Council (A99-44, Land Appeal Court, 5 June 2001, to be reported) the Land Appeal Court effectively endorsed the approach adopted in Marshall.
The facts of the present case can easily be distinguished from those in Marshall where it took about three years from the date the matter was first to be heard for the hearing to actually commence and for the claim to be particularised. The Court concluded that the claimant had been dilatory, based on voluminous evidence in support of that conclusion. In the present case there is evidence of delay, however that delay may be explained both by the various assignments of development rights of the Parcel B land and an apparent desire by Delfin as to how the claim might be prepared. Delfin's deliberations seem quite appropriate to me, given that the Douglas Arterial design itself metamorphosed on at least three occasions during the claim preparation period.
In this case and on the initiation of the respondent, an advance was made at a figure which is higher than the amount the respondent finally contended for as compensation. In such circumstances I do not accept an argument that suggests that any delay in lodging the claim for compensation has caused loss or disadvantage to the respondent. The respondent could have made an advance of nil had its final position been known at the time the advance was made.
I will, therefore, not reduce my interest award on the basis that the claimant ought to have lodged its claim for compensation at an earlier date than December 2001.
In the orders which appear below, I refer to "the table which appears in para [836]". This is the table referred to:
ItemAmount Interest Rate Date of Commencement
Re:Parcel B $ %
Wilson Ryan & Gross 21,418.20 6.25 01.10.1996
213.126.00 09.04.1997
3,601.675.75 03.07.1998
14,902.165.75 31.08.2000
24,220.675.5 29.01.2001
14,518.555.5 14.08.2001
27,683.815.5 24.01.2002
PJ Lyons QC 11,072.93 5.5 26.06.2001
3.040.705.5 21.11.2001
4,203.875.5 21.06.2002
R Needham 3,867.43 5.5 28.02.2002
1,521.265.5 30.04.2002
1,753.385.5 23.04.2002
Brazier Motti 1,952.00 5.75 07.12.2000
3,659.825.75 07.11.2000
659.005.5 07.03.2001
1,450.005.5 07.04.2001
5,313.005.5 07.11.2001
133.645.5 07.01.2002
Ron Rumble 13,069.97 5.5 23.07.2001
3,445.035.5 01.01.2002
Development Consulting 704.00 5.75 14.11.2000
3,1355.5 14.01.2002
Eppell Olsen 2,515.11 5.75 26.12.2000
542.11 5.5 06.04.2001
3,974.11 5.5 07.12.2001
Collins and Eales 20,944.44 5.5 04.05.2001
18,911.77 5.5 23.04.2002
Re: Parcel A
Wilson Ryan & Grose 1,500.00 5.5 24.01.2002
Ron Rumble 740.00 5.5 18.12.2001
Orders
1.I ORDER that the respondent pay to the claimant or, at the election of the respondent, in accordance with any direction of the claimant, compensation in the amount of Five Million Three Hundred and Eighty-four Thousand and Thirty Dollars and Fifty-three Cents ($5,384,030.53).
2.In the exercise of the discretion granted under s.28 Acquisition of Land Act 1967 I ORDER that interest be paid by the respondent to the claimant or, at the election of the respondent, in accordance with any direction of the claimant, such interest to be calculated by reference to the table which appears in para [836] on each of the amounts appearing in the "Amount" column at the rate of interest per annum appearing in the "Interest Rate" column next to the relevant amount, with such interest being calculated with respect to each amount from the date appearing in the "Date of Commencement" column referable to the relevant amount up to and including the day immediately preceding the date of payment.
3.I ORDER that the respondent pay to the claimant interest at the rate of 6.75 per centum per annum calculated, with respect to Parcel A on the amount of $478,880 and, with respect to Parcel B on the amount of $4,672,700.85 both from 13 May 1994 to 9 June 1995; then, with respect to Parcel A on the amount of $464,380 and, with respect to Parcel B on the amount of $4,365,700.85 both at a rate of 6.5 per centum per annum from 10 June 1995 up to and including the day immediately preceding the date of payment.
RP SCOTT
MEMBER OF THE LAND COURT
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