Wagner Investments Pty Ltd v Chief Executive, Department of Natural Resources
[1998] QLC 78
•10 July 1998
LAND COURT,
[1998] QLC 78
BRISBANE
10 JULY 1998
Re: Claim for Compensation -
Resumption for road purposes -
Acquisition of Land Act 1967 -
(A97-72).
Wagner Investments Pty Ltd
v.
Chief Executive, Department of Main Roads
(Hearing at Toowoomba and Brisbane)
J U D G M E N T
(1) Background:
This is a claim for compensation for the resumption of certain lands under the provisions of the Acquisition of Land Act 1967.
By agreement of 24 August 1994 between Wagner Investments Pty Ltd (the Company) and the Director-General, Department of Transport (the Department) the following lands were resumed for road truncation purposes:
(i)Lot 1 on RP 813778, Parish of Drayton, containing an area of 77 m²;
(ii)Lot 2 on RP 17363, Parish of Drayton, containing an area of 248 m².
The Government Gazette of 7 October 1994 contained a Proclamation of 6 October 1994 vesting the above lands in the Crown. The 7 October 1994 then becomes the date at which the compensation is to be assessed.
There were also certain easements over the total lands of the claimant which were not affected by the resumption.
(2) The Claim:
A claim for compensation dated 21 October 1997, was served on the respondent Department of Main Roads (formerly the Department of Transport) by the claimant comprising the following:
Land $16,250
Disturbance (including legal fees
and valuation fees) $ 1,440
TOTAL $17,690
Less
Part payment by Department of Main Roads
at 13 September 1996 $ 8,125
TOTAL $ 9,575
The total land represented in those claims was 325 m².
A supplementary amended submission for the claimant was lodged with the Court at the hearing in Toowoomba on 18 February 1998, comprising the following:
(i) Land comprised of -
(a) Capitalised value of Lot 1
on RP 813778 (77 m²) = $17,145
(b) Balance resumed land associated
to Lot 2 on RP 17363 (248 m2 @ $50/m2) = $12,400
TOTAL LAND = $29,545
(ii) Disturbance -
(a) Legal and valuation fees = $ 1,440
(b) Lost time for claimant
(148 hrs @ $50/hour) = $ 7,400
$38,385
Less
Payment from Main Roads = $ 8,125
TOTAL $30,260
Miss K Downes of Counsel represented the claimant, instructed by Shine Roche McGowan, Solicitors. Evidence was called from Mr PE Payne and Mr JK Keating, Registered Valuers, Mr GJ Glover, Technical Planning Officer of the Toowoomba City Council, and Mr DP Wagner and Mr JH Wagner, Directors of the Company.
Mr R Jones of Counsel represented the respondent, instructed by Crown Law, calling evidence from Mr JD Horrigan, Registered Valuer, and MP Hartley, Senior Planner of the Toowoomba City Council.
(3) The History of Events:
(i) The land resumed was part of land purchased by the claimant from Jeteld Pty Ltd on 4 February 1993 for an amount of $510,000. The contract involved:
·Lot 2 on RP 188552, of area 3.772 ha (parcel 277), and
·Lot 2 on RP 17363, of area 5.263 ha (parcel 276).
The contract of sale was subject to special conditions which included:
·The right to transfer at no cost to the claimant the freehold parcel described as Lot 1 on RP 813778, of area 77 m² (Parcel A), then being negotiated for purchase by Jeteld Pty Ltd from the Toowoomba City Council (the Council), and
·The receiving of building permits from the Toowoomba City Council for the construction and operation of a concrete batching plant, weighbridge, asphalt plant, administration offices, workshop facilities, steel retail building and associated works, within two months from the date of the contract, and
·For approval to operate road trains along Greenwattle and Alderley Streets and to gain access to the land.
In the event that the transaction between Jeteld Pty Ltd and the Council for Parcel A did not proceed, that was not to be grounds for the purchaser to terminate the contract.
Evidence was given however by Mr JH Wagner that the purpose of seeking transfer of Parcel A was to ensure that Parcel A did not pass into the hands of any other body which might then use the land for a purpose which could impact the high exposure of the Wagner property. The condition to obtain Parcel A for nil consideration was to ensure that the purchase price of $510,000 was not exceeded.
(ii) The Toowoomba City Council agreed to sell Parcel A to Jeteld Pty Ltd for an amount of $50 per m² or $3,850, on 5 February 1993. Notification of change of ownership (Form 100) shows the date of possession as 15 February 1993.
(iii)The Form 100 for the sale from Jeteld Pty Ltd to Wagner Investments Pty Ltd shows that Parcels 276, 277 and A were transferred to Wagner Pty Ltd with a proposed date of possession of 4 August 1993. The Form 100 was registered with the Department of Natural Resources on 26 August 1993.
(iv) About 10 days after purchasing the land in 1993, the claimant commenced stripping and stockpiling the top soil, filling the land, and started engineering investigations for drainage purposes. Consulting engineers were engaged, who then sought Department of Natural Resources approval for a licence for a stormwater system, which was then submitted to the Toowoomba City Council (the Council) for approval. Filling continued up until and beyond the date of resumption.
(v) A formal building permit to undertake building works upon Parcels 276 and 277 (application dated 30 June 1994), was issued by the Council on 23 November 1994. The permit did not include any approval for the erection of an advertising sign upon Parcels 276 or 277.
Filling was undertaken over the whole of Parcels 276 and 277, but engineering drawings of 10 November 1994 show that the buildings were confined entirely to Parcel 276. The stormwater drainage line extended across both Parcels 276 and 277. The permit made no reference to Parcel A. Prior to the formal permit the claimant had commenced filling operations under an "approval in principle" from the Council.
(vi) The subject land was resumed on 7 October 1994.
(4) The Nature of the Land:
The claimant's land is located at the intersection of Alderley Street and Anzac Avenue, Toowoomba, about 5.5 km south-west of the Central Business District. Anzac Avenue is a major vehicular arterial road for traffic passing north-south. The land is zoned as "Noxious Industry" under the Toowoomba City Council's Town Planning Scheme.
When the three parcels (276, 277 and A) were purchased in February 1993, the land fell fairly steeply from both Alderley Street and Anzac Avenue into a gully that passed towards the south-western corner of the land.
There is agreement between the parties that the land is strategically located adjoining Anzac Avenue which has recorded daily traffic counts in excess of 16,000 vehicles. The site has good visual exposure, which was part of the reason for purchasing the land in order to capitalise on their "walk-in" business activities. The land has now been filled and developed as a prime industrial building site. The extent of fill can be gauged by noting that there is now an approximate 15-metre embankment towards the south-western corner of the land.
Evidence was given that filling and compaction had commenced from the intersection of Alderley Street and Anzac Avenue and progressed towards the rear of the land. At the date of resumption it was estimated that approximately 90% of the earthworks had been completed, including a major deep stormwater drainage line running diagonally across parcels 276 and 277. Engineering plans supplied (3 November 1993), show the contour gradient of the land, and the proposed stormwater drainage line. It was agreed that some part of that filling had occurred over the land that was resumed.
Evidence of the cost of earthworks completed at the date of resumption was estimated by Mr Wagner as:
·600,000 m3 of fill @ $2 per m3 = $1,200,000
·384m of drainage @ $1200 per metre = $ 460,800
·123m of drainage along Alderley Street
@ $1200 per metre $ 147,600
TOTAL = $1,808,400
Mr Horrigan confirmed that those figures had indeed been given to him by Mr DP Wagner at a meeting in October 1995. However he queried the percentage of those development costs which related to the resumed land. Mr JH Wagner noted however that the drainage culvert and line were key parts of the development and impacted the whole site of some 9 ha as it picked up stormwater from both Alderley Street and Anzac Avenue
Mr JH Wagner agreed that the claimant did not purchase any of the fill, but had transported the fill from other sites, including two sites purchased by the claimant for that purpose. It was part of their method of operation to purchase a site, then excavate and fill that site for resale purposes as a developed site. Any fill from such operations was then used to fill the land on Parcels 276, 277 and A. However, while they had not paid for the fill, they had paid the cost of excavation and transport, which would then be apportioned with the levelling of the external sites. Mr Wagner's estimate of $2 per cubic metre under those circumstances was not challenged.
Filling from other large building sites such as the Myer Centre and the Grand Central Project were also used on the land under similar circumstances. Generally the claimant was not paid to cart the fill away from those sites, but they made a commercial decision to do so, bearing in mind any other potential loss of revenue opportunities as a consequence. The fill was also compacted and trimmed properly under normal development standards.
(5) The Use of the Land:
A key issue in this matter relates to the use of the land, both before and after the resumption. It is agreed by all parties that the highest and best use of the total land is as its current use as a concrete batching plant and associated works. It is also agreed that that use exists both before and after the resumption.
Mr Horrigan therefore argues that any reduction in that use, as a consequence of the loss of the relatively small area of land (325 m²), is nominal only in value, as it has only a marginal impact upon the use of the land after resumption. Mr Jones argues that the claimant can virtually still construct what they intended before the resumption. He suggests that following the resumption, but for a slight shifting of the location of the buildings and landscaping to conform to setback requirements, all the buildings can still be contained upon Parcel 276, and that exposure to passing traffic remains high.
Mr JH Wagner advised that the claimant has a staged development strategy, so that a redesign of the buildings can be accommodated to allow for the extra setback of about 15 metres as a result of the resumption. The claimant has a diverse range of activities planned for the site, but retains the flexibility to dispose of Parcel 277 should their business approach vary in the future. He noted that they have since purchased a second hard rock quarry site only 10 km away which could be used to accommodate their proposed asphalt plant. However, they currently plan to retain the retail base of supplying customers from the stockpiles on Parcel 277 which is a key part of their operations.
There is however a major difference between the parties in respect of the use of Parcel A. Mr Payne sees the separate title to Parcel A as providing some flexibility for the claimant to capitalise on its separate entity. While all parties accept that Parcel A had little likelihood of being used for any noxious industry purpose, because of its small size (77 m²), Mr Keating believes that an advertising sign could be erected upon Parcel A.
(6) The Methods of Valuation:
(i) Mr Payne's Valuation -
Mr Payne was engaged by the respondent and provided two valuation reports. His first report (Exhibit 8) rejected the "before and after" method often adopted for partial take resumptions, because of the lack of any severance or injurious affection, and also the existence of Parcel A. He relied on a direct comparison of sales approach and determined a valuation of $19,500 plus disturbance. He based his determination on comparable sales of industrial lands and found for a rate of $60 per m². Mr Payne made no allowance for any approval of an advertising sign. He agreed that there had been some filling of the total site at the date of resumption, and he had allowed for that in his valuation.
Following discussions with the respondent, Mr Payne reviewed his valuation of the resumed land, and provided a second report (Exhibit 9). The reason for the second report related to a diverging view about the method of valuing parcel A. Mr Payne then valued the land as:
·248m2 based upon the "before and after" method
(Partial take based on $30 per m2) = $ 7,440
·77 m2 (Parcel A) based upon direct comparison
of sales (Total take) = $ 3,850
TOTAL = $11,290
Plus Disturbance
He confirmed that the respondent was not satisfied with that approach, and engaged a second valuer (Mr Horrigan). Mr Payne is an experienced valuer who does a lot of work for the Council, although generally not for resumption purposes.
(ii) Mr Horrigan's Valuation
Mr Horrigan valued the resumed land using the "before and after" method, determining that the resumed area (total area 325 m²) had a nominal value of $2,000. He calculated that on the basis that the 325 m² represented only a small part of the total site area of 9.0427 ha, being Parcels 276, 277 and A. This calculation acknowledged that the total resumed area included Lot 1 for 77 m² (Parcel A), and Lot 2 for 248 m² (part of Parcel 276). However, Mr Horrigan concluded that Parcel A could not be developed in its own right, and should be considered in the light of a small resumed area from a large noxious industry parcel of land.
He therefore saw the loss of 325 m² to come from the area of 5.2707 ha (Parcel 276), which is held together with Parcel 277 (3.772 ha). Based upon this loss he saw no difference in the value of the potential of the land before and after resumption. He based his valuation on the basis "that at the date of resumption (7 October 1994) the land was in its original state". Mr Horrigan concedes in evidence that, on proof of the added value of the filling improvements, those costs should be added to his figure. However, he saw those additional costs as being minor.
Mr Horrigan felt that, because of the relatively small area resumed (325 m²) the value of compensation would be little different, because of the potential subdivisional value of the land, whether one considers only Parcels 276 and A (5.2707 ha), or Parcels 276, 277 and A (9.0427 ha). Based upon a likely area of 1 hectare parcels, he argued one could potentially subdivide the land into at least five lots.
However under examination Mr Horrigan conceded that, if one considered the resumption to only have occurred from Parcel 276, then perhaps a rate of $8.50 per m² may be applicable in view of the smaller area (ie $2,108 for 248 m²). He draws some comparison from a sale of land (his Sale 4) at $8.70 per m². However he still could not agree that the cost of filling at approximately $1.8 million could be attributed to the resumed land.
Mr Horrigan also agreed that his reference to "amalgamation" of the land referred only to how Parcels 276, 277 and A were used collectively, and for concessional rating purposes, and had no inference that the titles of the separate parcels were in some way legally tied together. His purpose of referring to the adjoining lands was to determine if there was any injurious affection relevant to the compensation. He agrees that if Parcels 277 and A could be sold separately to Parcel 276, that could impact his valuation. He also agrees that the building approvals for Parcels 276 and 277 place no restriction upon the potential use or sale of either parcel. He also agrees that the claimant had lost the separate use of Parcel A, and any right to sell or lease Parcel A, subject to the ability of obtaining approval to construct or erect a sign upon Parcel A.
Mr Horrigan agrees that, at the date of the building approval (23 November 1994), it was not possible for Council to have included Parcel A in the approval, or required its amalgamation with adjoining Parcel 276, as Parcel A had already been resumed on 7 October 1994.
(iii) Mr Keating's Valuation -
Mr Keating inspected the property on 18 June 1995 as part of his preparation of his first valuation report (Exhibit 4). He adopted the method of direct sales comparison, and concluded the valuation of $50 per m², or $16,250, plus costs of disturbance.
Following an exchange of valuation reports, Mr Keating reassessed his valuation report and provided a supplementary report. He rejected the "before and after" method because the balance area (10%) is not developed, and the resumed land which was developed, had a higher value than the rear balance of the land. He said it was too simplistic an approach in those circumstances. This second report amended his previous estimate of the valuation as follows:
·(a) Capitalised value of Parcel A = $ 17,145
·(b) Balance of resumed land
248m2 @ $50 per m2 = $ 12,400
TOTAL $ 29,545
Plus costs of disturbance.
Under examination Mr Horrigan contested Mr Keating's reason for rejecting the "before and after" method, which Mr Horrigan claims is still applicable whether the balance of the land is developed or not.
Mr Keating adopted a rate of $50 per m² for the severed land (248 m²) from Parcel 276, based upon the sale of Parcel A (twice) at $50 per m². He saw both sales of Parcel A as "arms length" transactions (i.e. Council to Jeteld Pty Ltd and then Jeteld Pty Ltd to the claimant). He also drew support from two other resumption transactions for Tilly and CSR (discussed later). He based his capitalisation of Parcel A upon the premise that Parcel A could be used for purposes of an advertising sign.
Mr Keating conceded that, if the land was fully developed, on the basis of a resumption of 325 m² from the total package of Parcels 276, 277 and A, then the "before and after" method may have some application. However, he rejected the method when dealing only with Parcel 276 and where the rear part of the land remains undeveloped. He also claimed that, because of the maximum permissible site coverage of 50%, any additional setback of buildings on Parcel 276 inhibits flexibility to locate all buildings and landscaping.
Mr Keating confirmed that he based his rate of $50 per m² only upon the area of Parcel 276 (5 ha), and if he was to refer to Parcels 276 and 277 (9 ha), he would allow a rate of $35 per m².
(7) Comparison of Sales:
In support of his valuation Mr Keating adopted the following sales:
·Sale 1 - (Taylor Street, Toowoomba - Lot 1 on RP 148701.)
This is a 1 hectare corner industrial lot, which also has road train access. By comparison to the resumed land the sale is considerably larger and the rate per sq metre should be adjusted in comparison to the resumed land. The sale was seen as inferior due to its location and the lesser traffic flows passing; i.e. 10,800 vehicles per day compared to 16,000 vehicles per day for the subject.
The sale sold on 24 May 1994 for $425,000, which equates to a rate of $42.50 per m².
·Sale 2 - (Anzac Avenue, Toowoomba - Lot 1 on RP 813778).
This is the sale of Parcel A (77 m²) on 5 February 1993. The sale equates to an analysed rate of $50 per m². The sale is seen as prima facie evidence in apportioning value to the resumed land.
·Sale 3 -(cnr Taylor & McDougall Sts, Toowoomba - Lot 1 on RP 902912).
This is known as the CSR Pty Ltd property and involved the resumption for road truncation purposes of 179 m² of land from a parcel of 4.06 ha. The land was negotiated at $50 per m² for the land only, and reflects the exposure of the sale where 10,800 vehicles per day pass the site. The resumption occurred on 18 August 1995.
·Sale 4 - (cnr Taylor & McDougall Sts, Toowoomba - Lot 4 on RP902912).
This is known as the Tillys Crawler Parts Property and involved the resumption for road truncation purposes of 184 m² from a parcel of 2.014 ha. The land was negotiated at $50 per m² for the land only and reflects a similar exposure to traffic as Sale 3.
Mr Keating based his initial valuation on direct Sales 1 and 2, and included the "negotiated" Sales 3 and 4 which occurred after the date of resumption, in order to support his conclusions in his first report.
In support of his valuation Mr Payne also adopted Sale 1, together with a further subdivision of Sale 1 into three parcels, and the sale of the new corner lot (Sale 5), comprising 2,340 m² at a rate of $50 per m².
Mr Jones noted that Sales 1, 3, 4 and 5 are all zoned as "Reserved Industry", which allows subdivision down to 2,000 m², while the subject land is zoned as "Noxious Industry" and has no such potential. The "Reserved Industry" zoning also provides for site coverage of 75%, compared to 50% for "Noxious Industry". There are also less setback requirements. Mr Keating however disagrees with that conclusion as he believes that the subject land also has potential for further subdivision or rezoning to other industrial purposes. However, Mr Horrigan notes that subdivisional approval was more predictable for Sale 1 than for Parcel 276.
Mr Keating concedes that Sale 4 is smaller than Parcel 276, and therefore a higher rate per m² would apply to that sale. However, he points out that Sale 3 was only marginally smaller than Parcel 276. He had compared Parcel 276 to Sales 3 and 4 on the basis of being developed sites.
However Mr Horrigan argues that both Sales 3 and 4 were part of quite complex negotiations, which had the effect of impacting their total "arms length" nature. Both were resumed from existing ongoing businesses with inherent problems of impacts upon operations. For these reasons he discounts the relevance of Sales 3 and 4 as "resumption values".
Mr Keating agrees that as a general rule negotiated settlements, as part of resumption operations, should be treated with some caution, as they may include some unknown factors pertaining to the resumption of the land. However he believes that Sale 1 reflects a fair reflection of the market, which compared to further subdivision of Parcel 276 into 1 hectare industrial lots, would affect a value of about $50 per m².
To support his valuation Mr Horrigan supplied the following sales:
·Sale 6 - (301 Anzac Avenue, Harristown - Lot 1 on RP 813778).
This is the sale of Parcel A from the Council to Jeteld Pty Ltd on 5 February 1993.
·Sale 7 - (301 - 303 Anzac Avenue, Harristown - Parcels 276, 277 and A).
This is the sale from Jeteld Pty Ltd to the claimant on 4 February 1993.
·Sale 8 - (330 Anzac Avenue, Harristown - Lot 2 on RP 206533).
This is a sale of 4,150 m² of "Noxious Industry" land on 2 July 1993 for $145,000, and analysed at $34.94 per m².
·Sale 9 - (810 Alderley Street, Harristown - Lot 275 on RP 856567).
This is a sale of "Noxious Industry" land of 2.43 ha, on 22 April 1994 for $211,000 and analysed at $8.68 per m².
·Sale 10 - (Taylor Street, Glenvale - Lot 11 on RP 887569).
This is a sale of 4,779 m² of vacant land, subsequently developed by "ARC Smorgon". The sale sold for $257,000 on 13 February 1995, and was analysed at $53.77 per m².
·Sale 11 - (398 Taylor Street, Glenvale - Lot 13 on RP 887569).
This is a sale of 2,910 m² of "Reserved Industry" land sold on 8 February 1995 for $170,000, and analysed at $58.42 per m².
·Sale 12 - (400 Taylor Street, Glenvale - Lot 12 on RP 887569).
This is a sale of 2,250 m² of reserved industry land on 17 November 1994 for $137,000, and analysed at $60.88 per m².
Planning Matters:
It was agreed by Mr Hartley and Mr Glover that Parcel A was not part of the considerations of Council in respect of the building permit, and that Council requested no requirement for amalgamation of Parcel A with the adjoining land. As noted previously it would have been impossible for Council to do so at the date of the official approval of the permit on 23 November 1994, as Parcel A had already been resumed. However, there was no mention of Parcel A even in the "Approval in principle" prior to the contract of sale in February 1993. It may have been the understanding of Mr Hartley that Parcel A was to be resumed anyhow, however there was no documented evidence to that effect.
The building permit was for the total area of some 9 ha, although it was agreed that the claimant continue to retain the right to dispose of the individual titles separately should they so chose. Mr Hartley confirmed that there was no proposal to require amalgamation of Parcel A with Parcel 276 in respect to the application for a building permit, as the application referred only to Parcel 276 and all proposed buildings were included in Parcel 276. However it was generally agreed that there was little likelihood that Parcel A would be approved in isolation for use for Noxious Industry Purposes. In respect of any possible further subdivision of Parcels 276 or 277, Mr Hartley advised that there is no minimum area of new subdivision of lands zoned as "Noxious Industry". The important criteria, when considering any application of such lands is to demonstrate whether new lots could be utilised for a permitted use in the zone. Council generally does not favour small parcels in "Noxious Industry" zones. However, while there is power for Council to reject subdivision into smaller parcels, that must be exercised using sound planning principles, and of course subject to appeal to the courts.
Evidence was also given that normal landscaping requirements would be required along all road frontages. There is also an unwritten Council policy where, in respect of Anzac Avenue, which is a "declared main road", the matter of the erection of the sign would be referred to the Department of Main Roads for its advice. However, the final decision rested with the Council.
In the matter of the erection of advertising signs Mr Hartley confirmed that it is Council policy to require Council's permission before any sign is erected. He also confirmed that, in his view, any sign of significant size on Parcel A was unlikely to be recommended to Council for approval because of the siting constraints due to the small size of Parcel A. However, he conceded that final approval lay with the Council itself, and Council does relax its setback requirements under some circumstances. Both planners agree that any application for the erection of a sign is treated as a merits-based assessment, using criteria established in the Town Plan, as there is no specific local by-laws covering the erection of advertising signs.
Mr Hartley confirmed that he has certain delegations to exercise discretion for the approval of signs on Council's behalf. However, where there is likelihood of any contention, or where the sign is very large or strategically located, say, on a busy traffic route, then he always refers the matter to Council for approval. In the current location he agreed that any application for a sign on Parcel A would have been referred to the Council. He also advised that, at the date of resumption in 1994, there was some restriction upon the type of conditions that could be required by Council which has subsequently been relaxed, giving Council increased powers in respect of their approvals.
(9) The use of a Sign:
A key issue relates to the existence of Parcel A as a separate entity, and whether the claimant has lost any additional rights at the resumption, as a consequence of the loss of that separate parcel. The history of Parcel A discloses that the land was acquired by Council as a sewerage pump site of 101 m² in 1970. Following a truncation of that parcel in 1991, Parcel A was reduced in area to 77 m². Because Parcel A was no longer required for sewerage purposes, the former owner, Jeteld Pty Ltd, commenced negotiations to purchase Parcel A from the Council in May 1991. Council records disclose that a decision to sell the land was made by Council on 10 June 1991, and confirmed by Council on 27 January 1993. The consideration for the land was $3,850.
The matter of whether Parcel A could be used for the erection of an advertising sign was strongly contested by the respondent, who claims that Council "setback" requirements virtually preclude the use of any of the land for that purpose. It was argued by Mr Horrigan that normal "setback" requirements were 15 metres from a road alignment, and 7.5 metres from adjoining parcels of land.
However, it was agreed that a large advertising "pillar" sign might be used, similar to a sign erected further north along Anzac Avenue. Such a sign would only require an actual building area of 2 m², and, if approved by Council, might return an annual lease rental from an advertiser of between $1,200 and $1,500 per annum. It was also agreed that Council was more likely to approve such a sign if intended to direct people to the business of the owners of Parcels 276 and 277, than if for another independent advertiser. However, the use by a third party was not excluded as a possibility.
Mr Horrigan argues that even allowing a relaxed setback of 7.5 metres from the road alignments and a zero setback to parcel 176, then an area for a sign of only 2.739 m² was available for use. Mr Hartley conceded that while normal setbacks for landscaping, and development in general, in "Noxious Industry" zones was 10 metres, there was more flexibility in relation to setbacks for signs. He agrees that while a minimum setback of 7.5 metres was required along road frontages for visibility purposes, he felt confident that Council was likely to approve even a zero setback from the adjoining boundaries with Parcel 276. There was no certainty that an application for a suitable sign upon Parcel A would be refused by Council.
Mr JH Wagner gave evidence that the claimant saw the strategic location of Parcel A as important when it purchased the land. It did not want Parcel A to fall into the ownership of a third party, as that could adversely impact the exposure of its businesses to the heavy volume of traffic along Anzac Avenue.
It is therefore a reasonable conclusion by the respondent to assume that the use of Parcel A, for anything other than even as a sign for their own purposes, was most unlikely. Mr Jones also argues that, even without the separate Parcel A, the claimant would have been in a position, had they wished, to lease a further small area from Parcel 276, for use as an advertising sign. Thus, while any sign was most likely to relate to the Wagner business, the right to lease an area for a sign by a third party was not totally foregone.
However, while the probability of the above scenario was most likely, there remains the residual possibility that another scenario could develop. When discussing the future use of Parcel 277, Mr JH Wagner noted that in business it is wise to retain future options for the land. It is often said in business that everything is for sale at a suitable price. It is possible therefore that, for whatever reason, Wagner Pty Ltd could decide to relocate its business to another site. The strategic retention then of Parcel A would have some negotiating value to the new owners, and therefore some additional worth to the claimant. Mr JH Wagner also noted the possible future use of the corner as a petrol service station, thus confirming his flexibility to maximise the use of the total site.
In seeking to understand the potential value of Parcel A as a possible site for a sign, I note that Mr Keating has sought to capitalise the annual lease rental at 7%. Mr Keating also argues that it is the capacity to be able to sell Parcel A, as distinct from just leasing a comparable area of Parcel 276, which identifies the additional value to the claimant, now lost. He concedes that generally commercial advertisers might prefer to lease a site rather than purchase because of certain fluctuations in the pattern of marketing.
Mr Horrigan agrees that, if Council approval for a sign could be obtained, then one could allow for some capitalised value for Parcel A. However, he contests the capitalisation rate applied by Mr Keating, and argues that a slightly higher rate might apply in view of the risk of getting the approval. He suggests a figure of 10% to 12% as more appropriate in those circumstances, giving a capitalised figure of $10,000. However he strongly believes that the chances of a sign being approved were slight.
Decision:
(i) The Nature of the Land -
I turn first to the nature of the land at the date of resumption of 7 October 1994 and note that it is agreed that, following purchase of the land on 4 February 1993, filling and development of the total site of 9.0427 ha was approximately 90% completed, and that filling commenced from Alderley Street and worked south. I note also that, while there was no estimate of the filling that occurred upon the total resumed area of 325 m², engineering design plans (Exhibit 25) would suggest that the volume of fill upon the resumed area, because of the triangular nature of the truncation, would represent approximately only 80 m³. I would agree with Mr Horrigan that, at the agreed cost per m³, those costs represent only a nominal amount for the development of the resumed land.
Whether some partial contribution towards the overall costs of the drainage lines should also be included is perhaps also worthy of consideration. Although all the stormwater drainage line falls outside of the resumed area, the purpose of that line is to drain the entire area, including runoff from the resumed area.
I accept Mr Jones' argument that the initial failure by the claimant to produce the engineering plans in respect of the proposed filling of the site, could be inferred to mean that the plans were not helpful to its case. (Jones v. Dunkell & Anor (1959) 101 CLR 298, at pp.312 and 319). As the Court said, "Silence may amount to much more than acquiescence in the primary facts" (p.319). On that basis the lack of the engineering plans could be found to disadvantage the claimant's case. However, the plans were later supplied (Exhibit 25) and the quantum of the filling to the resumed land adds little to the outcome.
However, I accept the estimated costs of filling and development of the land and I find that as a partially developed site (90%) there has been a total financial commitment by the claimant of:
·Land $510,000
·Development $1,808,400
·TOTAL $2,318,400
This indicates a unit rate of $25.64 per m² for the 9.0427 ha to that time. I accept the rate of $2 per m³ for a fully compacted and trimmed site, but note that it is at the low end of the range of costs for such actions. I believe the added value of the developed site is likely to be greater than the actual costs provided.
(ii) The Use of the Land -
I note that while the use of the total area of 9.0427 ha is part of the planning for Parcels 276, 277 and A, all of the building improvements are confined to Parcel 276. The claimant is currently using Parcel 277 as storage for bulk materials, however it retains the right to separately deal with that parcel independent of actions upon Parcel 276. In the context of the resumption I believe that the land should be seen as being resumed only from Parcels 276 and A.
In the matter of the potential use of Parcel A as a separate entity, I note that there is little likelihood of its use for other than as a site for an advertising sign. I note also that, without some concession in respect of normal setback requirements from boundaries, there would be little chance of approval of a sign.
I note also that, as parcel A is strategically located near a busy arterial road, the usual unwritten practice of Council planning officers would be to refer the matter to the Department of Main Roads for advice. In the current circumstances, I believe that there was a reasonable chance that the Department of Main Roads (the respondent) may have recommended against approving any possible sign.
However, I also note that, under certain circumstances, the Council allows relaxation of the setback requirements, and that final approval of the sign rests with the councillors. I note also that in the event of a refusal of an application for a sign, the dissatisfied applicant has a right of appeal to the Planning and Environment Court under s.7.1 (1)(b) of the Local Government (Planning and Environment) Act 1990.
In considering the potential use of Parcel A as a site for a sign, I note that such a use would have been legal, subject to consent by the Council, and that the existence of a sign was considered by the claimant at the time of purchase of the property. I have therefore to assess whether the approval of a sign fell within the realm of probability for the claimant.
In this regard I note the word "probable" was found to be a common enough word, used to mean something that is likely to happen. (Goldman v. Thai Airways International Limited [1983] 3 All ER 693 at p.700 CA, per Eveleigh LJ). In the current matter I would agree with Miss Downes that there was no evidence given that an application for the erection of a sign would definitely have been refused, and that the claimant had a latent right to seek approval of a sign. The evidence that others had successfully obtained approval supports the claimant's expectation of its success in that enterprise.
On the evidence of the existing pillar signs along Anzac Avenue I believe there would have been some chance that an application for the erection of a pillar sign structure upon Parcel A may have been successful. While these suppositions provide only alternative likely outcomes for any application, their existence demonstrates that there was some residual interest in Parcel A, above and beyond its existence as part of the overall resumption of the 325 m². For that reason I believe it should be valued separately.
(iii) The Method of Valuation -
A key difference between the parties in this matter lies in the methods adopted by the valuers to determine the loss to the claimant. The task before the valuers is set out in s.20 of the Acquisition of Land Act 1967, and guidance may be found in precedents of other Courts. In this regard I note that Mr Horrigan has relied upon the "before and after" method, arguing that there was no difference in the value of the total land both before and after the resumption. In support of this approach I note that the "before and after" method has been upheld in many situations of resumptions of parts of properties.
In this regard Mr Jones has drawn my attention to the findings of HA & SB Shann v. The Commissioner of Water Resources (1986-87) 11 QLCR 194. In that matter the learned Member found that in cases where the property is left as a block which at best may be contrasted with its former self, rather than be compared with other properties, then the "before and after" method is the only true means of measuring the compensation due. The Member went on to conclude that method must take precedence over the alternative method of a piecemeal assessment.
The Shann matter dealt with the resumption of an area of 41,958 ha for the purpose of the Burdekin Falls Dam. It was agreed that, because of the special circumstances of the land, which could be impacted within a few days of rain falling within the catchment of the dam, which was already built at the time of resumption, then the land would be best compared with itself.
The respondent argues that the land in the current matter has some analogy with the Shann matter. Mr JH Wagner had noted that the claimant looked extensively around Toowoomba to find a 20-acre site to cater for their long-term growth that had at least 10 acres of land that they could currently use, and there was "simply none about" (record p.63). On that basis it may be argued that the unique nature of the land was similar to the Shann situation, which would support the use of the "before and after" method.
However, the Shann finding can be distinguished if one seeks the full meaning of the Member's finding at p.222:
"The before and after method of the assessment of compensation where severance has occurred because of the resumption is a well accepted method having weight in some cases more so than in others. In a case like the subject case where the property has been devastated by the resumption and is left as a block which at best may be contrasted with its former self rather than compared therewith the method in my opinion is about the only true means of measuring compensation and must take precedence over the alternative method of a piecemeal assessment."
There is no suggestion that the subject land has been "devastated" by the resumption, and there is no severance to be considered.
In seeking further support for the "before and after" method, I note the findings of CF Standfield v. Commissioner of Main Roads (1969) LAC 36 CLLR 76, where the Land Appeal Court adopted the method based on a hypothetical subdivision basis. However, that matter involved a determination of severance, not applicable in the current case. A similar finding on the "before and after" method was found in Brisbane City Council v. RD & DE Lansbury (1977) 4 QLCR 502, again involving severance of a rural homesite. While that matter was seen as the first occasion in this jurisdiction that the legality of the "before and after" method was questioned (p.505), it should be distinguished because of the lack of any severance in the current matter.
The "before and after" method was also preferred by the Land and Environment Court in Gwynvill Properties Pty Ltd v. Commissioner for Main Roads (1981-83) 50 LGRA 322. In that matter the comparable sales method was rejected because of a paucity of sales, and the "before and after" method based upon a hypothetical development approach was adopted. That matter involved a resumption of a corner area of 70 m² for road purposes, and has some analogy with the current matter. However, the Gwynvill matter can be distinguished as it was agreed that "there is no market for 70 m² as a separate parcel in the Turramurra shopping area" (p.323).
Mr Jones also argues that the resumption should be distinguished from the findings of Pastoral Finance Association Limited v. The Minister [1914] AC 1083 as, in his opinion, there was no additional "special value" attached to the land. He also argues that the matter of disturbance has no application, as it is agreed that the highest and best use of the land is for the existing use of the land by the claimant. (The Commonwealth v. Milledge [1952-53] HC 90 CLR 157).
If I consider first the matter of "special value" I note that, while the claimant agrees that the subject lands have a certain uniqueness in suitability for its business, it nevertheless paid the going market price for the land. In determining any compensation due, all valuers agree that $510,000 represented a fair market price for the total site. On that basis I believe that the claimant, as a prudent purchaser, did in fact pay a price which ensured that it did not "fail to obtain it".
I note also that the condition on the contract for the purchaser to include Parcel A (77 m²), did in fact allow for any special value for that additional parcel in the total purchase price of $510,000. I would therefore agree that there is no additional "special value" to be attached to the land over and above the agreed purchase price of $510,000.
In the matter of any disturbance as a result of the resumption I note that both parties agree that the land is currently used for its highest and best use, but there is difference between the parties in respect of the highest and best use of Parcel A. For the reasons mentioned earlier, I believe the highest and best use of Parcel A is other than as a small parcel of land for "Noxious Industry" purposes. I believe it had some potential use, probably as a site for an advertising sign.
Miss Downes has drawn my attention to the findings of Turner & Anor v. Minister of Public Instruction [1956] HC 95 CLR 245, where Dickson CJ said at p.264:
"After all the purpose is to ascertain the full return which may reasonably be expected from the sale of the land, not the most conservative value. The ultimate purpose of the inquiry is to find a figure which represents adequate compensation to the landowner for the loss of his land. Compensation should be the full monetary equivalent of the value to him of the land."
In order therefore to achieve this objective the land must be valued at its highest and best use. I note Mr Horrigan's argument that the "before and after" method is generally applicable in matters where a strip of land is resumed for road widening purposes. (Land Acquisition, Fourth Edition by D Brown (1996), p.191). I note also that the "before and after" method has application where enhancement and depreciation may be involved. In the context of the balance of the 248 m² from Parcel 276, I would agree with Mr Horrigan that the most appropriate valuation of that area would be on a "before and after" basis.
However, in respect of the valuation of Parcel A as a whole parcel of land resumed, I believe the method adopted by Mr Payne and Mr Keating in directly comparing the land with sales of comparable land has some application.
On the basis of comparison of sales with Parcel A, I accept the principles established in Spencer v. The Commonwealth of Australia [1907] 5 CLR 418, and in particular the findings of Griffith CJ who said at p.432:
"In my judgment the test of value of land is to be determined, not by inquiring what price a man desiring to sell could actually have obtained for it on a given day, i.e., whether there was in fact on that day a willing buyer, but by inquiring 'What would a man desiring to buy the land have had to pay for it on that day to a vendor willing to sell it for a fair price but not desirous to sell?' It is, no doubt, very difficult to answer such a question, and any answer must be to some extent conjectural. The necessary mental process is to put yourself as far as possible in the position of persons conversant with the subject at the relevant time, and from that point of view to ascertain what, according to the then current opinion of land values, a purchaser would have had to offer for the land to induce such a willing vendor to sell it, or, in other words, to inquire at what point a desirous purchaser and a not unwilling vendor would come together."
In considering the adopting of those principles I am reminded that, while enshrined in the history of decisions in many Courts, the principles are merely important matters for Courts and valuers to observe, but they are not part of the common law. That was clarified by the Full Court of Queensland in Melwood Units Pty Ltd v. The Commissioner of Main Roads (1976) 3 QLCR 209, where Dunn J said at p.220:
"I have found no case which suggests that 'principles of valuation' form part of the law and custom of England, in other words the common law. The principles are commended to valuers and to valuation courts because they state accurately the matters which such gentlemen and such courts are asked to consider in respectively forming opinions as to value or determining values as matters of fact. Because distinguished courts have determined value in the exercise of original jurisdiction, or have reviewed the valuations of inferior Courts (with power to correct errors of fact) the principles have been repeatedly and authoritatively stated, and it has become acceptable to describe them as 'valuation law'. That expression stresses their importance and the necessity that they be observed; but they are not part of the common law."
The relevance of the nature of the principles established in Spencer supra, was considered in respect of whether, in seeking to follow them, the Land Appeal Court had taken an erroneous step in reasoning about matters of fact, which may have been in contravention of the legislation. Because they were not found to be part of the common law, the Land Appeal Court was found not to have made an error in law.
However, on appeal the Privy Council directed in Melwood Units supra (1978) 5 QLCR 145, that the evidence of certain sales was not precluded from complying with the Spencer test (p.158). In the current matter I believe that the Spencer test is relevant to both the compensation for Parcel A (77 m²) and the balance of the resumed land (248 m²).
I note also that the claimant has sought support for its method of valuation of the resumed areas by a direct comparison of sales as noted in Commonwealth v. Arklay (1952) 87 CLR 159, where the full High Court found at p.170:
"The best evidence of this value is that of comparable sales of other land either before or after the date of acquisition but this evidence is often not available."
That matter dealt with the resumption of a brick shop by the Commonwealth during a period when economic controls during hostilities had been exercised for some years by the Government. The Commonwealth argued that its sales evidence related to the state of the market at that time, while the claimant argued that, had the land not been resumed, she would have retained the property until such time as the controls were lifted and the market returned to a normal free market situation. In the decision appealed to the Full Court, Webb J found at p.163:
"But on a compulsory acquisition, even while controls continue, he is always entitled to the full value of what he has under the general law as it then is. During controls the general law prevents a buyer from lawfully giving him more than the control price, but it permits him to postpone the sale until controls are lifted, and he is to be compensated accordingly."
Webb J also noted at p.163:
"However, as Dixon J pointed out in Nelungaloo Pty Ltd v. The Commonwealth (1948) 75 CLR, at pages 571 and 572, the hypothesis upon which the inquiry must proceed is that the owner had not been deprived of his ownership and of his consequent rights of disposition existing under the general law at the time in question.
A value so reached on a compulsory acquisition during economic controls must ensure just terms."
The matter of just terms is therefore fundamental to the legislation. The Full Court found at p.174:
"Land is a permanent asset and it has a value capable of surviving temporary controls and financial strains and stresses that occur during hostilities."
In coming to its conclusions, the Full Court followed the principle found in Commissioner of Succession Duties (SA) v. Executor Trustee and Agency Company of South Australia Limited (1947) 74 CLR 358 at p.367, that a superior Court should not interfere with a decision unless it is shown that there is "some fundamental principle affecting the valuation which renders it unsound." That principle was also considered in Brisbane City Council v. The Valuer-General (1978) 5 QLCR 283, where Gibbs J noted at p.303:
"In my opinion once it is shown that in making the valuation the Valuer-General acted upon a wrong principle, or made a serious error of fact, the presumption created by s.13(7) is rebutted."
In the Arklay matter the Full Court upheld the decision of Webb J.
In considering the comparison of sales by the claimant, I also note that Mr Keating has sought support from two sales which were part of negotiated purchases as a result of other road resumptions. I am also reminded by Miss Downes that it has been held that such evidence of sales should not necessarily be rejected, but may be admissible subject to some caution.
In this regard I have been directed to Woollams v. The Minister (1957) 2 LGRA 338, at p.347; Jovist Pty Ltd v. Campbelltown City Council (1970) 19 LGRA 134; and Celtic Agencies Pty Ltd v. South Australian Land Commission (1978-81) 40 LGRA 172. In considering those matters I note also that the negotiated land values in the CSR sale (Sale 3), and the Tilly sale (Sale 4), both were exclusive of any additional costs for disturbance.
After considering all of the above precedents, on the evidence in the current matter, I find that the most appropriate method for valuing the highest and best use of the resumed land should be as follows:
·for Parcel A (77 m²) as a separate parcel, to be compared on a direct comparison of sales or on a capitalisation method;
·part of Parcel 276 (248 m²) to be assessed on the "before and after" method.
(iv) Determination of the Value of the Land -
(a) Land from Parcel 276 (area 248 m²) -
In assessing this component of the resumption, I have three estimates of the value:
·Mr Payne - $7,440 ("before and after");
·Mr Horrigan - $2,108 ("before and after");
·Mr Keating - $12,400 (comparison of Sales).
Having accepted the "before and after" approach for this parcel (248 m²), I am faced with the difference per unit rate of the two values of Mr Payne ($30 per m²) and Mr Horrigan ($8.50 per m²) - based on part of parcel 276 only. However, I note that Mr Horrigan has based his valuation upon the land being "in its original state" (Exhibit 5, p.4), a fact now understood to be not correct at the date of resumption. Based upon 90% of the development costs completed, a figure of $2,320,000 for the partially developed site of 9 ha would be appropriate. I note that if the extent of filling and drainage is allowed (90%), then a unit rate of $25.64 per m² would be appropriate. On balance, I believe Mr Payne's figure of $30 per m², as the likely unit rate for the fully developed land at that date, would probably represent a fair estimate of the market value.
However, what is important in applying the "before and after" method is to consider the overall impact upon the balance of the land by the resumption of the 248 m². I would agree with Mr Horrigan that the loss of that 248 m² would represent little loss to the claimant. On balance, I would agree with a nominal figure for that parcel of $2,000.
(b) Parcel A (77 m²) -
In considering the value of Parcel A as a separate identity, I have the following estimates:
·Mr Payne (77 m² @ $50) = $3,850 (comparison of sales);
·Mr Horrigan (77 m² @ $8.50/m²) = $655 (before and after);
·Mr Keating ($1,200 @ 7%) = $17,145 (capitalisation of a site for a sign).
I recognise that Mr Horrigan does not agree that Parcel A has any separate "added value", however, on that matter I disagree. I do agree, however, with Mr Horrigan in respect of the likely capitalisation rate. Should there be some possibility of the approval of a sign, I believe a capitalisation rate of, say, 12% may be appropriate in view of the possible risk of obtaining the approval for the sign. On that basis a value of $10,000 would be appropriate. I reject Mr Payne's figure as it does not represent the highest and best use as a site for a sign.
(v) The Matter of Disturbance -
I note that there is agreement between the parties in the matter of the legal and valuation costs at $1,440. Despite the practice in other States, it is well established in Queensland that the cost of legal and valuation fees reasonably incurred in preparation and lodgment of a claim for compensation may properly be awarded as an item of disturbance (Thirty-fourth Philgram Pty Ltd v. The Crown [1992-93] 14 QLCR 13). That matter also addressed the matter of expenses of the dispossessed owner in organising the claim for compensation.
However, the parties here are apart on the additional claimed costs in respect of the owner's time involved in the resumption. It is not challenged that the owners may have spent considerable time associated with the resumption, what is challenged is whether such expenses may be considered as part of the settlement. There was also no details supplied by Mr Wagner in respect of the time spent, and it was confirmed that there was no diary kept of the actual times involved.
In considering these additional disturbance claims, I turn to the statutory provision and note that the assessment of compensation is included in s.20 of the Acquisition of Land Act 1967 which states:
"20.(1) In assessing the compensation to be paid, regard shall in every case be had not only to the value of land taken but also to the damage (if any) cause 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.
(2) Compensation shall be assessed according to the value of the estate or interest of the claimant in the land taken on the date when it was taken."
I am also directed to the decision in King v. Minister for Planning and Housing [1993] 1 VR 159, where the matters of pre acquisition expenses and losses were considered, including time lost by the claimant. In seeking to draw a dividing line between costs incurred prior to the notice of resumption and those consequent to the notice of resumption, Gobbo J was confronted with some complexity in the actual date of the notice. In the end he found at p.181:
"I find that the actual rates that had been claimed are reasonable and that the actual hours that have been claimed are also reasonable and I see no reason why these claims should not, as a matter of quantum, be treated as proved. The critical question is, however, whether the time spent is recoverable under s.40 of the Act where it precedes the notice of intention to acquire."
In the current matter the respondent has not challenged the hourly rate for the claimant, but queries whether the time was related directly to the actual resumption, and not to other matters which may have been associated with the ongoing use of the land. This lack of particularity was noted in Pejama Pty Ltd v. The Commissioner of Main Roads (1988-89) 12 QLCR 278, which rejected the claim for owner's time in consulting legal advisers etc, following the findings of HA & SB Shann v. The Commissioner of Water Resources (1986-87) 11 QLCR 194.
In the Shann decision the matter of "owner's time" was considered widely, and the learned Member followed, among others, the findings of the President in RW Barber v. The Landsborough Maroochy Water Supply Board (A86-67), 11 December 1986, unreported, which said at p.225:
" I am not prepared to grant claims for time expended by dispossessed owners in formulating or preparing their claims for lodgment in this Court. The position would appear to me to be akin to a vendor in the market place seeking to recoup from a purchaser his expenses for the time he spent in consulting an agent and in other activity to negotiate a purchase price. This approach is consistent with that taken by this Court in other cases vide Len Cali Holdings Pty Ltd v. Brisbane City Council (A83-25) and EG Baillie v. Commissioner for Railways (A86-22).
To the above judgment I would add that I have researched Report No. 14 of the Law Reform Commission (Australia) on Lands Acquisition and Compensation dealing with the question and have found nothing to support such a claim. The report goes no further than recognising that compensation should include any legal or other professional costs reasonably incurred by the claimant."
The importance of proving their claim was also examined in AD & ML Murray v. Queensland Electricity Generating Board (1983) 9 QLCR 172. The costs of compiling a claim preparatory to lodging an appeal were addressed in S & J Szirtes v. Pine Rivers Shire Council (1969) 36 CLLR 97, where the acting President found at p.104:
"Whilst I have not had the advantage of considered legal argument from both sides it seems to me as presently advised that the granting of reasonable and necessary costs incurred preparatory to filing a claim is a logical extension of the principle of ascertaining the value of the land to the dispossessed owner."
The acting President then went on to condition that view at p.105 where he found:
"However a claimant who seeks to obtain costs incurred preparatory to lodging a claim must prove not only that the costs have been incurred for the purpose of formulating and lodging his claim but also that they were necessary and reasonable in the circumstances of his case."
In the end, the lack of a substantiated detailed statement of costs resulted in a nominal amount of those disturbance costs being awarded.
However, a more recent direction on whether an owner's time spent on conferences and meetings is compensable is to be found in RH Hill v. The Director-General, Department of Transport [1992-93] 14 QLCR 205, where the learned Member (now President) found at p.222:
"I do not propose to allow this claim as I agree with the reasoning of the learned former President of the Land Court in Barber's case, where he held that a claim for the attendance at such conferences and meetings is akin to a vendor in the market place seeking to recoup from a purchaser his expenses for the time he spent to negotiate a purchase price."
In closing the case for the claimant, Miss Downes made reference to the findings of Universal Sands and Minerals Pty Ltd v.The Commonwealth (1980) 30 ALR 637, where the Court refused an application for the awarding of disturbance on the basis that disturbance is not a separate head of compensation, but is related to an economic loss which can reasonably be related to the consequences of the acquisition (p.640). I note that conclusion and confine my considerations to matters directly related to the resumption.
In the record Mr Jones also notes that the King decision raises the matter of solatium, which is an allowance head of compensation under s.44 of the Land Acquisition and Compensation Act of Victoria, but not encompassed in the Queensland legislation. Miss Downes argues that the Victorian legislation simply recognises that particular in the legislation, and the consideration of solatium under the general heading of disturbance could also be considered in Queensland.
I am aware that such costs have not been allowed in matters of this nature in Queensland, where the findings of Harvey v. Crawley Development Corporation (1957) 1 All ER 504 have been followed. The key principle in that matter in respect of disturbance was noted by Romer LJ at p.507:
"The authorities to which our attention was drawn establish that any loss sustained by a dispossessed owner (at all events one who occupies his house) which flows from a compulsory acquisition may properly be regarded as the subject of compensation for disturbance, provided, first, that it is not too remote and, secondly, that it is the natural and reasonable consequence of the dispossession of the owner."
I am also aware that in the matter of compensation under the Local Government Act 1958 (Victoria), an amount for solatium was not allowed as that Act provided no power to do so. (March and Anor v. City of Frankston (1971-72) 24 LGRA 420, at p.427). In view of the lack of direction to that end in the relevant Queensland legislation, I find I also have similar restrictions in considering the claim for owner's costs.
On the balance of those cases I find that the lack of specific detail does not allow me to identify what parts of Mr D Wagner's and Mr J Wagner's time was spent on briefing and valuation advice for the appeal; and what part was related to some other aspects not directly associated with the resumption appeal.
There was no evidence that the claimant needed to seek alternative land as a consequence of the resumption, and any time spent by both Mr D Wagner and Mr J Wagner would appear to be related to the briefing of their experts (which would normally be covered under costs associated with the appeal), or in seeking in some way to influence the decision to resume the land (Hill v. Director-General, Department of Transport (supra)). I therefore find I have no power to award such costs of the owner.
(vi) Determination of Compensation -
In arriving at the final quantum of the compensation due, I note the findings of Commissioner of Succession Duties (SA) v. Executor Trustee and Agency Company of South Australia Limited (supra), where Dixon J said at p.373:
"I have had the advantage of reading the judgment prepared by Williams J and agree in it. I should like, however, to add for myself that there is some difference of purpose in valuing property for revenue cases and in compensation cases. In the second the purpose is to ensure that the person to be compensated is given a full money equivalent of his loss, while in the first it is to ascertain what money value is plainly contained in the asset so as to afford a proper measure of liability to tax. While this difference cannot change the test of value, it is not without effect upon a court's attitude in the application of the test. In a case of compensation doubts are resolved in favour of a more liberal estimate, in a revenue case, of a more conservative estimate."
Bearing in mind that guidance, I find that compensation should be summarised as follows:
·Value of land resumed (Parcel A 77 m²) = $10,000
·Value of land resumed (part of Parcel 276 - 248 m²) = $2,000
·Disturbance (legal and valuation fees) = $1,440
·TOTAL = $13,440
·Less part payment from Department of Main Roads = $8,125
·BALANCE OWING = $5,315
(vii) Interest -
In accordance with s.28 of the Acquisition of Land Act, the Court may order that interest be paid upon the amount of compensation determined. I am advised that an advance of $8,125 was paid by the respondent on 13 September 1996. I order that the respondent pay to the claimant interest at the rate of 8.0% per annum on the sum of $12,000 (being $13,440 less the agreed legal and valuation fees) from 7 October 1994 up to and including 13 September 1996 (the date of payment of the advance). Then on $3,875 (being $12,000 less advance of $8,125 paid on 13 September 1996) up to and including the day immediately preceding the date on which the final payment of compensation is made.
NG DIVETT
MEMBER OF THE LAND COURT
1