Van Hoff Pty Ltd v The Commissioner of Main Roads
[1992] QLC 2
•4 February 1992
|
BRISBANE
4th February, 1992
Re: Claim for Compensation -
A91-56.
Van Hoff Pty Ltd
v.
The Commissioner of Main RoadsJ U D G M E N T
(Hearing at Maroochydore)
This is a claim for compensation consequent upon the taking by The Commissioner of Main Roads of certain lands, the property of Van Hoff Pty Ltd, on 7th October, 1989. It is appropriate to place on record some of the history relating to this land before it came into the ownership of the claimant company as the claim is interlinked with that history.
In 1985, Arnold M. Tate was the owner of a parcel of land described as Subdivision 1 of Resubdivision 2 of Subdivision 300 of Portion 8, parish of Mooloolah, containing about 2.934 hectares with frontage to Maroochydore Road. It would appear that in 1985 plans were made by the Department to re-route Maroochydore Road and this would necessitate acquiring part of this land. In a letter of 27th February, 1985, to the then Minister for Industry, Small Business and Technology and Member for Landsborough, Mr Ahern, the District Engineer of the Main Roads Department said:
"I refer to your letter dated 11th February, 1985, concerning proposed resumption of land from Mr Arnold Tate's property in Maroochydore.
The Department will not require this land for construction purposes for many years but as Mr Tate said that the future requirement would inhibit his plans for the use of the remainder of the land, the Department agreed to commence resumption procedures and an 'Agreement for the Taking of Land' was sought from Mr Tate.
It was proposed that this should be taken on the basis of Limitation of Access. The principal reason for this is that the Department would then be able to prevent the subdivision of the land into small parcels along the road frontage even if Maroochy Shire Council favoured such a subdivision. The number of accesses allowed to any parcel of land is controlled under other sections of the Main Roads Act and this does not depend on whether Limitation of Access has been applied.
However, because of Mr Tate's objection to the land being taken on the basis of Limitation of Access, it has now been decided to omit Limitation of Access from the resumption and invite Mr Tate to sign an Agreement for Taking of the Land on this amended basis.
Provided that Mr Tate signs this Agreement without adding conditions to those already on the Agreement Form, then the land required should be taken within six months. "
An area of about 5260 square metres of the parcel was taken, following agreement in writing, for Road purposes as from 1st June, 1985, and notice of the taking was published in the Government Gazette of that date. It would appear from the exhibits before me that conferences were held which led to a letter being forwarded to Mr Tate by the Respondent dated 17th April, 1986. The respondent advised he was prepared to pay the sum of $90,000 under all heads in full and final settlement of all claims whatsoever arising out of the resumption. The letter said that the payment of the amount was made on the basis that certain conditions applied, including the following:
"3.The resumed land was taken to form part of a Limited Access Road, the construction of which allows for road pavements only, without provision of service roads along the new property boundaries created by this resumption.
No access from your balance areas direct to or from the new road reservation will be allowed or provided for except as follows:
(i)Access to the southern severance will be to the existing Maroochydore Road.
(ii)Access to the northern severance will be to the new road when it is constructed however access across the resumed area to the existing road will be permitted in the interim period. "
A further letter addressed to Mr Tate dated 29th July, 1985 from the District Engineer at Gympie reads -
"I refer to your letter dated 4th July 1985 to Main Roads to Brisbane, concerning the above.
As Limitation of Access will not be applied over the road frontage to your property, the Department would approve access to a subdivision or development on your property once Maroochy Shire Council's approval for such a change in land use was obtained. Council approval is required for any subdivision or development and its standard procedures could be obtained from its Town Planning Department. The type of access would be governed by the volume of traffic generated by the development. "
The dispossessed owner was left with a parcel of land on the northern side of the resumption where that parcel touched Maroochydore Road at the apex of a triangle formed at the south-western corner of the parcel and access for this northern severance is set out in 3(ii) of the above letter of 17th April, 1986.
By contract dated 29th March, 1989, Van Hoff Pty Ltd purchased from Arnold Tate a number of lots including Lot 2 on RP 207743 with an area of 2.3096 hectares for $610,000. The combined parcel has access to the new Maroochydore Road and access to Cooinda Crescent. Lot 4 on RP 67815 has a tyre supply business conducted upon it, it has frontage to Maroochydore Road as has Lot 1 on RP 102273 which has a home upon it.
On 14th June, 1989, Notice of Intention to Resume was issued to Mr A.M. Tate advising the intention to take certain lands for a road to be subject to limitation of access. By letter dated 18th July, 1989, Mr R.L. Nock, on behalf of Van Hoff Pty Ltd, wrote to the District Engineer objecting to the proposed resumption in the following words -
"We refer to the above notice dated 14/6/89 and hereby register our objection to the proposed resumations to our properties for the reason that those properties effected will be subject to limitation of access, as indicated on page 2 of your above letter under schedule.
We object strongly to this proposal based on correspondence from your office giving an undertaking to the previous proprietor, Mr A.M. Tate, and to Mr M. Ahern the then Minister for Industry, Small Business & Technology, that no limitation of access would be applied over the road frontage of lot 2 of RP 207745 (formerly referred to as Sub 1 of Resub 2 of Sub 300 of Portion 8, parish Mooloolah).
We therefore with respect suggest that Limited Access on the northern side of the proposed road would commence on the eastern boundary of Lot 2 on RP 207743.
Please be advised that we wish to appear to support our objection on the 2nd August, 1989 at 10.00 a.m. "
The Proclamation resuming the lands as from 7th October, 1989, deals with the three parcels which have been affected. Lot 4 with an area of 1.014 hectares lost an area of about 8 square metres, Lot 1 on RP 102273 with an area of 1077 square metres about 200 square metres and Lot 2 on RP 207743 with an area of 2.3096 hectares lost an area of about 125 square metres. The notice appeared in the Government Gazette of 7th October, 1989. It is clear from the plans that the areas taken enabled the road linking the old Maroochydore Road to the new road to run in a smooth sweep against an ungainly protrusion which would have existed if the land had not been resumed.
A Claim for Compensation dated 12th July, 1991, was lodged in the Court in the sum of $110,000. The claim was increased to $207,062 during the course of the hearing (Exhibit 27).
Amendments were made from time to time during the course of the hearing but in the final result agreements were reached on appropriate amounts in certain cases and the final claim is -
Resumption from Lot 4
Loss of land$400.00
Cost to provide access $3,200.00
Injurious affection $35,154.00 $38,754.00
Area from Lot 1
Land and improvements $53,500.00
Cost of access $3,000.00 $56,500.00
Area from Lot 2
Loss of land $ 2,500.00
Cost of access $ 9,400.00
Injurious affection $81,700.00 $93,600.00
Disturbance
Valuation fees $ 2,650.00
Engineers fees $ 840.00
Town planners fees $ 2,126.00
Legal fees $ 5,292.00 $10,908.00
Total Claim $199,762
Evidence was given by Mr R.L. Nock, the Principal Executive Officer of the claimant company. He speaks of the negotiations leading to the purchase of the lands from Tate with negotiations over a period of some 12 months until a contract was signed on about 2nd February, 1989 (evidence by valuer, Mr T.S. Alexander, states 29th March, 1989) for $610,000. Subsequent to the signing he was advised by Mr Tate of the receipt of a notice of the intention of the Main Roads Department to resume part of the lands, the subject of the contract. He was able to peruse a Main Roads Department plan (SK10) and he ascertained that it was proposed that the new road would be a limited access road which differed from the information supplied by Mr Tate of previous statements from the Department that access would not be limited. He speaks of the changes which have occurred since the construction of the new road to the means of access from the road reservation onto the lands. Agreement has been reached on compensation to be paid to enable the claimant to provide such access and I do not intend to discuss them in detail.
He says that from the plan SK10 it appeared that there would be kerbing and channelling the full length of the road past all of the company's land and this was consistent with his belief that the road would be constructed to the standard adopted in the road along the frontage of the original Tate land. It was the intention when purchasing these lands to develop them in a staged fashion over a number of years. As to Lot 2 he believed the local authority would require construction of a fully formed footpath and gutter, kerb and channelling and bitumen to the road surface from the gutter. He believed that this would be done by the Main Roads Department on the basis that these were the roadworks along the frontage of the original Tate land and the Department would build the new road to the same standard.
An application was made to the Maroochy Shire Council on 13th December, 1990, for a rezoning of the three parent parcels here from the existing zonings to 'Residential C' zone. It showed the present use of the lands being for a dwelling house and a tyre sales and fitting business. The desired use was for accommodation units. After discussions with the officers of the Maroochy Shire Council the application was altered to one to rezone to 'Special Facilities' but Council will not proceed with the application at this stage because of access problems.
Mr Nock says that a few days before the commencement of this hearing he was advised by the Manager of the Scotts tyre business that it was the intention of the Main Roads Department to place a traffic island on the frontage into that land which will cause difficulties in that trucks will be prevented from turning across Maroochy Road into the tyre shop when travelling southerly.
In cross-examination, Mr Nock agrees that just prior to the hearing the Department had agreed to provide internal access to the tyre shop site but he is somewhat sceptical that this will be done to his satisfaction and accordingly has claimed the cost of doing the work himself. He agrees that the original Tate resumption separated the boundary of the land the company subsequently acquired from Tate from that part of the old Maroochydore Road that did have kerbing and channelling and the plan he refers to supported this. He accepts now that there will be kerbing and channelling along the frontage of the tyre shop land, the house land and some metres of the frontage of the drainage problem land.
Evidence was given by Mr U.V. Blowers, valuer, who acted for Mr Tate on the claim for compensation in respect of the original resumption. He says that in those negotiations he made no allowance for any change in the new frontage from the old. He assumed the road would be reinstated to the same standard as the existing Maroochydore Road with kerbing and channelling.
Evidence was given by Mr Earl T. Covington, consulting engineer, who has estimated the cost of providing bitumen surface access to the tyre shop site, the house site and an estimate of the cost of a single gravel surface access to Lot 2. He has made a further estimate of the cost of provision of road widening of 3 metres kerb and channel and full footpath profile for the frontage of Lot 2 which he estimates at $81,700. This would be the cost to mirror the road as it existed along the frontage of the original parcel owned by Tate.
Valuation evidence in support of this claim on behalf of the claimant was given by valuer, Mr R.R. Henderson, and for the respondent, by valuer, Mr T.S. Alexander. I will deal with the valuation evidence as I address each of the three parcels of land.
Evidence for the respondent was given by Mr R.J. Bell, the Senior Engineer of Design and Traffic at the Gympie district office of the respondent. The new Maroochydore Road became part of his responsibility in about July 1989. He explains that it has now been decided that there will be kerbing and channelling along the frontage of the tyre shop land, the house land and extending for some 25 metres along the frontage of Lot 2 and he explains the footpath arrangements along the frontages. In cross-examination he explains that when a road widening takes place where kerbing and channelling existed at the time of resumption that generally the Department would rebuild the kerbing and channelling and footpaths and he agrees that the plan SK10 clearly indicated that at some stage there was a suggestion that there would be kerbing and channelling and a footpath along the whole of Lot 2 but he said that a conceptual plan did not indicate the final decision of the Department in resuming land. He says that it was decided that there was no requirement for kerbing and channelling from an engineering point of view. The local authority was approached as to whether it wished to provide kerbing and channelling and a negative reply resulted. This led to the decision not to install kerbing and channelling. In cross-examination he was asked of the requirements to get access from the road to Lot 2 and agreed the road works as constructed could not have been constructed without these current resumptions and he did not disagree with the estimate given by Mr Covington that it would cost some $9,000 to build the access ramp to Lot 2.
I propose to consider the loss in respect of the taking of these lands in their separate parcels as has been done by the parties and their valuers. The claim in respect of the resumption from Lot 4 - the tyre shop premises - is as follows:Loss of land $ 400.00
Cost to provide access $ 3,200.00
Injurious affection $35,154.00
TOTAL $38,754.00
The claim for loss of land and cost to provide access has been accepted by the respondent and I will determine that loss at the agreed figure of $3,600.00. The other claim is a claim for $35,154 which is a late claim arising when Mr Henderson was advised by the lessee of the intention of the constructing authority to construct certain median strips along parts of Maroochydore Road. This will result in south bound traffic being prevented from turning right across Maroochydore Road into the tyre shop. The lessee was concerned that a lot of business would be lost if prospective customers were unable to have ease of access to and from the site. Mr Henderson tenders a copy of a Departmental sketch showing the location of two islands, including the one to which he refers. This would result in south bound traffic having to proceed to the intersection of Ridge Road and if permitted, doing a U-turn back to the tyre shop. The current lease has a year to run and Mr Henderson is of opinion that a substantial reduction in rental would be required to maintain the tenant. If that particular tenancy moved from the site, the premises could be lost to the uses which they presently enjoy, particularly as it is a non-conforming use. In the result he has reduced the rental from $1,855 per month to $1500 per month to show a loss in the annual rental of $4,260. He has capitalised this at 10% over the expected life of the building of 25 years deferred for 12 months and arrives at his figure of $35,154. He concedes that the proposed median strip is constructed upon the original road reserve as it existed prior to the resumption and that the Department could at any time have built a median strip and there would be no claim open to the owner. He acknowledges that an application was made to rezone this land for another purpose and he further says that he has not discussed the matter with the directors of the claimant company in formulating the claim as the matter was only looked at on the morning of the hearing. He was cross-examined on the value of the land and improvements adopting his figures but as nothing hinges upon this I do not intend to discuss that evidence.
The law in Queensland has been well settled as to what falls to be assessed in determining compensation pursuant to section 20 of the Acquisition of Land Act 1966-1986 -
"Sub-section (1)
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. "
These matters were fully considered and reference was made to the numerous authorities by the then learned President of this Court, Mr W.F.G. Smith, in Claim for Compensation - Resumption for Railway purposes - M.A. and D.P. Syme v. The Commissioner of Railways (1988-89) 12 Q.L.C.R. 98, commencing with Edwards v. The Minister for Transport (1964) 2 Q.B. 134 (C.A.) where it was held that a claim for injurious affection could only be sustained for damage which can be attributed to activities on the land which was formerly his own land. In The Crown v. R.H. and J.M. Corbould (1986-87) 11 Q.L.C.R. 50, it was found that the activities allegedly injuriously affecting the retained land were found to be not on land resumed and therefore not compensable.
I am satisfied on the evidence that the median strip is not erected upon the land resumed and the claim is disallowed on that ground.
The next claim is in respect of the area from Lot 1 (the house block) - land and improvements $53,500, cost of access $3,000 - total $56,500. The sum of $3,000 for access is agreed. At the date of resumption there was a dwelling house erected upon the land which was tenanted at $140 per week. As a result of the resumption the dwelling had to be removed from its site on the land. Mr Henderson described the dwelling as being about 50 years old with a living area of about 93.3 square metres at first floor level and about 74.52 square metres at ground floor level with a skillion carport along the western side. A separate W.C. and shower room is constructed off the rear access landing. The ground floor area contains a bedroom, laundry and W.C. room, storage and lock-up garage. It was constructed on a concrete masonry external base with chamfer board and asbestos cement external walls, asbestos cement internal walls and asbestos cement and 3-ply ceilings and corrugated galvanised iron roof. Flooring is pine tongue and groove with the ground floor area concreted. The carport area is constructed on a reinforced concrete slab floor with fibre glass roofing. Mr Henderson notes that the grounds were well established with trees, shrubs and lawns and the driveway was mostly fully concreted to the road. In the before situation, he values the house and land as follows:
Land1075m2 $ 35,000
Dwelling93.3m2 @ $325/m2
74.52m2 @ $175/m2
carport -55.68m2 @ $ 75/m2 $ 47,539
$ 82,539
Valuation adopt $ 82,500
His after resumption valuation reads:
875m2 allotment requiring fill
and with more difficult access $ 27,500Dwelling for Removal $ 1,500
$ 29,000
Value before $ 82,500
less $ 29,000
$ 53,500
Mr Alexander arrives at a loss of $44,500 with the following figures:
Before
Cottage and 1077 m2 $77,500After
877m2 of Res A land $33,000
$44,500
Mr Henderson has a schedule of sales but concedes that some of these sales are in residential areas and while in reasonable proximity to the subject land they are not upon a busy highway. His main basis of valuation is of two properties acquired by the respondent. On 12th July, 1989, a house on land of 759m2 (Lot 20 on RP 72274) at 115 Main Road which used to be the old Maroochydore Road going back some years. Total consideration was $96,000. Another property acquired was Lot 15 on RP 86872 containing 721 square metres at 119 Main Road which was acquired on 31st July, 1989, for $93,000. He was aware that these were acquisitions associated with this particular project. He believed that the items of disturbance for the property at 115 Main Road were agreed at $5,590 which left him with a figure of about $90,000 for the land and fixed improvements and it is virtually directly opposite the subject land. He does not know how much was paid for items of disturbance in respect of the property at 119 Main Road but assumes it would be somewhat similar. He does not know what factors were included in the items of disturbance. He lists another sale at 281 Main Road on 21st September, 1989, when Lot 319 on RP 193426 - an area of 899 square metres - sold from Custance to Paddison for $75,000. He says his open market sale was of a basic dwelling located the best part of 3 metres below road level. It was not quite as old as the subject house but it was smaller. In explanation of why he has reduced the value substantially in the after situation, he says that the rear part of the allotment was poorly drained and required fill before it could be utilised and he estimated that some 750 square metres of compacted fill would have been required in the after situation.
Mr Alexander gives his impression of the dwelling in the following words in his written valuation -
"..... part of a weather board cottage and carport in poor condition. The three bedroom highset cottage needed painting and repairs. the front landing had dry rot in the south-east corner. The three bedrooms were lined pine and ceiled with asbestos cement or masonite. The lounge/dining room and separate kitchen were lined and ceiled masonite. The shower and toilet were separated from the main section of the house by a landing and stairs. It was lined and ceiled masonite and had a plastic vanity unit and a tiled 3/4 bath/shower unit.
The downstairs accommodation consisted of a bedroom, living area and toilet which were lined and ceiled asbestos cement. The laundry and garage were not lined or ceiled. The shower was separated from the main part of the house. The attached carport was in fair order. The house before resumption would suffer from Vehicular Traffic light pollution, being in the direct line of traffic entering or leaving Maroochydore also it is situated next to the industrial usage on Lot 2 on Registered Plan 803029. "
As a basis of valuation he makes reference to a sale of a 759 square metre parcel being Lot 15 on RP 72274 located at 105 Main Road which sold on 6th February, 1989, for $75,000. He describes the building and summarises by saying that the land value is considered to be similar to the subject but the cottage is considered to be slightly inferior and overall he assesses the sale as being slightly inferior. He refers to another sale on 15th January, 1990, of Lot 16 on RP 72274 with an area of 711 square metres located at 107 Main Road for $80,000. He was not able to carry out an internal inspection of the house in this sale but says it is a low-set asbestos cement cottage with a corrugated asbestos cement roof built about 1940. He considers the land value would be similar but the sale overall would be slightly superior. Mr Alexander says that the two sales indicate that people do not wish to live on a busy main road and are unwilling to pay prices similar to adjoining non-highly trafficable roads. For his after value he has had regard to a sale from Gooch and Shakespeare to Hope Ridge Pty Ltd of Lot 12 on RP 127048 with an area of 519 square metres which sold on 1st March, 1989, for $38,000. He considers it is superior with better elevation and not on a high visual corner as is the subject.
The evidence is that the dwelling was sold for removal for the sum of $1500. It was acquired by a builder and it is presently being located on land at Glasshouse. In the before situation, Mr Henderson values the house and land at $82,500 and Mr Alexander at $77,500. They have used different sales evidence to reach this conclusion. Mr Henderson relies on sales to the resuming authority acquired for the same project at about the same time. Mr Alexander has used two private sales in the same location but on the opposite side of the road which is the high side which he contends is much superior to the low side of the road, especially where there is a drop of about 4 metres. He also says that the subject house suffered traffic light pollution with headlights coming straight into the house and the sales do not suffer in this way. He says that he has had no regard to the sales to the resuming authority which he believes are of doubtful value without having full details of what factors were taken into account in the final figure, by way of disturbance, interest, etc. He says that he had regard to the fact that the subject home was located next to the tyre shop and the tenants would suffer noise pollution from that business activity. In cross-examination, he agreed that the subject dwelling had a substantial shrub and tree line along the road frontage before it was destroyed when the house was removed.
It is well established that settlements have, for valuation purposes, been treated by the courts as having inherent qualified weight when admitted as evidence of value. The question is not one of admissibility but one of weight to be given to such transactions - Merivale Motels Investment Pty Ltd v. The Brisbane Exposition and South Bank Redevelopment Authority (1986-87) 11 Q.L.C.R. 235. Mr Alexander has not investigated the sales to the resuming authority used by Mr Henderson. Mr Henderson says that in one case he was advised of the amount paid for items of disturbance and has taken this into consideration in making his comparison of the settlement to the subject. In the second settlement he was unable to ascertain such figures. There is not a great deal between the valuers in their before valuation with a difference of $5,000 and to resolve the doubts I have on how the sales and settlements should be applied, I will adopt the valuation of Mr Henderson at $82,500.
In the after situation both valuers have considered the sale of Lot 12 on RP 127048 on 1st March, 1989, for a 519 square metre parcel of 'Residential B' zoned land for $38,000. It is smaller than the subject land but is above road level and I have already referred to the description given to it by Mr Alexander. Mr Alexander sees the subject land having a value of $33,000 while Mr Henderson sees it at $27,500. On the meagre evidence before me I have concluded that the figure adopted by Mr Henderson is too low but having regard to the situation of the subject land and the necessity for filling, I will adopt a figure of $30,000 as appropriate in the after situation, arriving at the amount of compensation in the sum of $52,500. To this I add the sum of $3,000 for cost of access for a total of $55,500.
The final claim is in respect of the land taken from Lot 2 which lot is zoned 'Drainage Problem' under the relevant Town Plan. The resumed land is now described as Lots 5 and 6 on RP803030. The original parcel contained 23,096 square metres and in the after situation, described as Lot 2 on RP 803030, it has an area of 22,970 square metres which, in effect, is a loss of 124 square metres out of the large parcel. Mr Henderson values this at $2500 ($20 per square metre) while Mr Alexander values the total parcel in its before situation at $184,768 and after resumption, at $183,760, applying a rate of $8 per square metre to the lands in the before and after situation, to assess the loss at $1,000. In his written report Mr Henderson says that this parcel is
"nominally affected by loss of land and loss of frontage. However, alteration to road levels leaves this parcel of land with extremely difficult and costly access to the roadway (refer photographs before and after). A large open drain runs parallel to the road which is now cambered away from the land and consequently provides a greater difficulty for future access in addition to the built up levels of the new roadway. "
Mr Henderson describes the lost land in his written valuation in the following words:
"Lot 2 has a small one square metre resumption at the south-east corner of the land whilst 124 square metres of triangular shaped land has been resumed from the south-west corner and reduces the overall road frontage by approximately 18 metres. The resumption has lessened slightly the acute angle at the south-west corner of this parcel. The depth of the resumption along the western side boundary is approximately 18 metres. "
In his evidence in chief, Mr Henderson says that he has made allowance for the access problem in adopting the $9,400 estimate of cost of providing access from the information supplied by Mr Covington. This is agreed upon and the only matter in dispute is the value of the land taken.
Mr Henderson was cross-examined on how he had arrived at a rate of $20 per square metre for this 'Drainage Problem' zoned land. He has looked at other sales in the area but not the purchase of the subject land itself. He says that there has been no market collapse during 1989 and this did not occur until the first quarter of 1990. He has not had regard to the purchase of the subject land itself on 29th March, 1989, for $610,000 in a package including the parcels referred to in this judgment and other land for a total of 3.994 hectares. The application of his rate of $20 per square metre to the 'Drainage Problem' zoned land of 23,096 square metres would apply some $450,000 to the 'Drainage Problem' land from a total sale price of $610,000.
For the respondent, Mr Alexander has valued the land at $8 per square metre based principally on the sale of the land from Tate to Van Hoff on 29th March, 1989. He has analysed this sale by applying values to the various lands already zoned 'Residential A' and in the result he derives a value of the total 'Drainage Problem' land at $270,500 ($7.79 per square metre) and he adopts $8 per square metre as an appropriate rate to apply in the valuation. He was cross-examined at length on his approach to the valuation but on the whole of the evidence I find it difficult to appreciate how these minimal areas resumed added value to the total parcel. In the words of Mr Henderson, "the resumption has lessened slightly the acute angle at the south-west corner of this parcel". There is no cogent evidence to support the conclusion reached by Mr Henderson of the value of the parent 'Drainage Problem' land, having regard to the best evidence of value which is the purchase by the claimant company in a time of at least a stable market. Having rejected that valuation I have no grounds arising out of the evidence to do other than accept the valuation of Mr Alexander and I adopt his figure of $1,000.
The parties are agreed on the sum of $9,400 for the cost to the claimant of installing access and I will determine compensation in the total sum of $10,400.
The next claim is the sum of $81,700 which is based on the calculations from Mr Covington of providing kerbing, channelling, road works and footpaths as already described. He had calculated this on the basis that no kerbing and channelling was to be provided but it is now ascertained that some 25 metres of the frontage will have that work completed by the respondent. If the claim is to be allowed, a pro rata adjustment would be required.
It is the submission by Mr Hughes, Counsel for the claimant that the resumption of land from Tate in 1985 and this resumption are inextricably linked. They are part of the same scheme and one cannot sever one resumption from the other. The present resumptions form an integral and inseparable part of the resumptions necessary for the construction of the road. It is the claim that compensation should be paid for damage suffered by the claimant in respect of the balance lands flowing from the use made of the land acquired in conjunction with other land, because in a practical sense the separation of damage flowing from the use of the lands taken cannot sensibly be made. He said here the problem relates to access and the benefit and value of obtaining properly formed footpaths, kerbing and channelling and bitumen sealing of the road from kerb and channel to the main road service. It is submitted that this was a benefit which the claimant previously had and this has been lost. He directs my attention to the decision of the Land Appeal Court in The Crown v. R.H. and J.M. Corbould (1986-87) 11 Q.L.C.R. 50 and to the principle expounded on page 57 -
"Where the resumption forms an integral and inseparable part of the resumptions necessary for the construction of the road the claimant may obtain compensation for damage suffered by him in respect of his balance land flowing from the use made of the land acquired in conjunction with other land acquired for the same purpose where in a practical sense separation of damage from the use of the lands taken cannot be made."
Mr Hughes further submits that the resumptions must be considered together because the Tate resumption had the effect, unless road works were eventually done on that land, of, in fact, landlocking the Tate land which eventually became Lot 2 in the ownership of the claimant so that work had to be done at some stage to avoid the unpalatable consequence. Prior to the Tate resumption, the lands had the benefit of a formed footpath and formed kerb and channelling and bitumen seal between that and the main carriageway. It is submitted that the advantage of those utilities is a very relevant matter in assessing both before and after valuations. He says the complaint is not the failure to construct the proper footpaths, etc., but the fact that the claimant has lost as part of the value of its estate in the land, those types of facilities adjacent to the parent parcel. He submits that a parcel of land with footpath, kerbing, channelling and a sealed access road is worth more than the exact same parcel without those external improvements. The demolition of the kerbing and channelling which was previously in front of the land before the Tate resumption has affected the value of the subject land. Further submissions were advanced to whether the claim rightly falls under one for injurious affection or one for disturbance but I do not propose to discuss this argument.
Mr Jones, Counsel for the respondent, says that Mr Nock, on behalf of the claimant copy, when acquiring the land from Tate, had regard to the preliminary plan SK10 and assumed that if and when the new road was constructed, kerbing and channelling would be provided because it existed along the frontage of the Tate land prior to the resumption from Tate. He submits that the kerbing and channelling along the frontage of the Tate land could have been removed at any time by the relevant authorities and the owner would have had no claim for the loss of that amenity.
I find that the claimant company by contract dated 29th March, 1989, purchased from Arnold Tate, a number of lots including the 'Drainage Problem' zoned land which at the time of purchase touched Maroochydore Road at the apex of a triangle formed at the south-western corner of the parcel with the expectation of access to the new road when constructed. I accept that Mr Nock derived comfort from a perusal of the preliminary plan SK10 in concluding that when the road was built there would be kerbing and channelling provided and he expected to benefit by such external works. At the date of the taking of land from Tate on 1st June, 1985, the claimant company had no estate or interest in the land taken on that date. The land acquired by the claimant company in 1989 is the only land to be considered in arriving at an assessment of compensation in accordance with the provisions of Section 20 of the Acquisition of Land Act and I find that there is no basis for amalgamating the two parcels. I accept the evidence from Mr Nock that in negotiating the sale and purchase he did so in the belief that the new road would be constructed in the manner he contemplated. There was, however, no undertaking from the respondent guaranteeing that the road would be built in any particular way nor within any time span or at all. Had the resuming authority decided not to proceed with the construction of this particular section of road, then the expectations would have been dashed without any right to compensation. It is a case where the expectations of the claimant were that the road would be constructed to its advantage but disappointed hopes and expectations are not compensable. The injurious affection to the balance land has been caused because the road has been constructed without kerbing and channelling, etc., along the whole of the frontage of this parcel. It is not suggested that there was any activity on the resumed land itself which injuriously affects the balance land and I find accordingly. In the result, the claim fails.
There is a total claim for disturbance of $10,908 for professional expenses incurred by the dispossessed owner up to the date of lodgment of the claim in the Court. Valuation fees of $2,650 were paid on 31st January, 1991, and consulting engineers fees of $840 were paid on 13th November, 1989. Counsel for the respondent agrees that these are properly payable to the claimant. There is a further claim for professional costs incurred in engaging consulting town planners, Schomburgk and Long Pty Ltd in the sum of $2,126. The account indicates this is for work up to 31st May, 1990, giving advice on the resumption. This account was paid on 2nd July, 1990. Mr Jones submits that there is not sufficient evidence to show how the claim is properly associated with the formulation of the claim. It may be that it provided information which the valuer may have relied upon but it is uncertain. My reading of the account leads me to conclude that the town planners are referring to conferences, correspondence and liaison with other professional experts for the formulation of the claim and it will be allowed.
The final item is the claim for legal fees. To support the claim for legal fees, copies of three accounts were tendered. They are -
Account to 9th October, 1990 - $2,508
Account to 8th February, 1991 - $1,334
Account to 29th August, 1991 (one half) $1,450
TOTAL $5,292
Mr Jones says that the respondent accepts the first account for $2,508 is compensable as disturbance but does not accept payment of the balance fees. It is his submission that a significant part of those fees over and above that amount indicated as acceptable are associated with an amendment of the claim and it would be unreasonable for the resuming authority to bear those costs associated with an amendment particularly when the amendment is not simply a minor one but relatively significant. He submits that it is a cost which should be borne by the claimant insofar as the claimant has shifted ground and the evidence is too uncertain generally to allow it to be properly identified as a disturbance item. Mr Hughes says that his instructions are that all of the charges relate to the claim but one of the accounts was rendered on 29th August, 1991, after the date of lodgment of the claim in the Court on 15th July, 1991, and only one half of this account has been claimed as being for work done prior to the date of lodgment. He makes reference to correspondence at an earlier date addressed to the Court concerning the matter but the Registrar did not accept that the documents submitted constituted a claim and referred the matter back. I accept the date of lodgment of the claim in the Court is 15th July, 1991. Counsel for the respondent did not ask for evidence to be given in relation to this claim but accepted that this and the other claims could be introduced by Counsel for the claimant. It would have been desirable to call for evidence on any matters of dispute. In the absence of cogent evidence I will allow the claim for legal fees as being properly incurred by the dispossessed owner in formulation of his claim up to the date of lodgment of the claim in the Court. In the result I will allow the sum of $10,908 by way of disturbance.
On the question of the payment of interest on the award of compensation, Mr Jones submits that in respect of the resumption of the land from the tyre shop, no interest would be payable because the evidence is that it was at the time of resumption and continues to be an income-producing property. He submits that the house continued to be tenanted until shortly before it was sold for removal during 1991 and that interest on that award should only apply from the date when the rental income ceased.
In the matter of Silverton Grazing Pty Ltd v. The Commissioner of Water Resources (1980-81) 7 Q.L.C.R. 197, at page 198 I said:
"When a dispossessed owner loses possession of his land at the date of resumption interest is usually granted by the Court from the date of resumption to the date of payment. Where the owner continues to reside on or make productive use of the resumed land after the date of resumption I have held that the owner is not entitled to an allowance for interest on compensation during the period he resides or makes productive use of the land rent and rate free but that interest should only be paid from the time he ceases to enjoy such rights. In the Conroy case (supra) at page 363 the Land Appeal Court said that no award of interest would be made because the claimant had continued to occupy the resumed land.
While I have sympathy for the claimant company on the question of an advance of compensation, the fact remains that the company has elected to remain in occupation of the resumed land and has continued to use it without any interference in the way it was used prior to resumption, both rent and rate free. By its own action it has not placed itself in a position at resumption date to command money equivalent to the higher use value of the land as found. The Privy Council in Inglewood Pulp and Paper Company Limited v. New Brunswick Electric Power Commission (1928) A.C. 492 held that upon the expropriation of land under statutory power, whether for the purpose of private gain or of good to the public at large, the owner is entitled to interest upon the principal sum awarded from the date when possession was taken, unless the statute clearly shows a contrary intention. In delivering the judgment of their lordships, Lord Warrington of Clyffe at page 499 said:'the right to receive interest takes the place of the right to retain possession'. "
In this case, no award of interest will be made in respect of the compensation payable for the tyre shop land and interest will flow on the award in respect of the house land from the day following the date when payment of rental ceased.
In the result I determine compensation payable by the respondent to the claimant under all heads of claim in respect of the resumption from Lot 4 (tyre shop land) in the sum of Three thousand, six hundred dollars ($3,600).
I determine the compensation payable by the respondent to the claimant under all heads of claim in respect of the resumption from Lot 2 (the house land) in the sum of Fifty-five thousand, five hundred dollars ($55,500).
I determine compensation payable by the respondent to the claimant under all heads of claim in respect of the resumption from Lot 2 ("Drainage Problem" zoned land) in the sum of Ten thousand, four hundred dollars ($10,400). I determine the compensation payable by the respondent to the claimant in respect of items of disturbance associated with the resumption of all three parcels of land in the sum of Ten thousand, nine hundred and eight dollars ($10,908).
I am advised that there was an advance in the sum of $18,500 on 28th August, 1990 and a further advance of $1,500 on 10th July, 1991, against the award of compensation. I make no award of interest in respect of the land taken from the tyre shop. For the balance I order the respondent to pay to the claimant interest thereon at the rate of 12.75 percent per annum commencing -
(a)on the award in respect of the house property from the day following the date when payment of rental ceased;
(b)on the award of compensation for various items of disturbance from the date of payment of those accounts; and
(c)on the award in respect of the drainage problem land from the date of resumption up to the date of payment of the first advance of $18,500 on 28th August, 1990, with adjustments to be made so that interest overall under any award of compensation is not payable on the amounts advanced. Interest calculated and agreed will be paid up to and including the day immediately preceding the date on which payment is made.
I grant liberty to apply for further directions if the parties so desire.
(D.J. Barry)
President of the Land Court
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