Walsh & Bergmans v The Brisbane City Council
[1993] QLC 25
•3 September 1993
|
BRISBANE.
3rd September, 1993.
Re: Determination of Compensation -
Resumption of Easements by the Brisbane City Council for Drainage (open cut) purposes -
A92-65 and A92-70
Desmond Ralph Walsh (A92-65)
and
Johannes Catharina Maria and Josephina Johanna Maria Bergmans (A92-70)
v.
The Brisbane City Council
J U D G M E N T
Falling for determination is compensation following the resumption by the respondent Brisbane City Council on 2nd March, 1991 of 2 drainage easements over lands owned by the abovementioned claimants, details of which are:-
A92-65 -Easement A in Lot 2 on RP 129859 on Plan No. 811567 County of Stanley, Parish of Bulimba, City of Brisbane containing an area of 611 m2 being part of the land contained in Certificate of Title Volume 5777, Folio 249 - Claimant: DR Walsh.
A92-70 -Easement B in Lot 13 on RP 146411 on Plan No. 811566 County of Stanley, Parish of Bulimba, City of Brisbane containing an area of 450 m2 being part of the land contained in Certificate of Title Volume 5377, Folio 100 - Claimants: JCM and JJM Bergmans.
The claimants' lands adjoin and are situated respectively at 26 and 25 Avenell Street, Wishart. The area of Lot 2 on RP 129859 (Walsh) is 3389 m2, and the area of Lot 13 on RP 146411 (Bergmans) is 3491 m2. The easement resumptions have been made to legalise an existing open drain which runs through the claimants' properties and for the purpose of improving the drain which receives water from a large residential subdivision to the south, from another drainage easement through the Bergmans property from the west, and from surface run off water from the east along Avenell Street. The resumptions will enable the Brisbane City Council to widen the existing drain to 7.5 metres with a flat bed and battered banks.
In one way this case is unusual. Nobody seems to know for certain who dug the drain in the first place. It extends through the subject properties and through the neighbouring Mt Gravatt South School property, through several other properties to the north and eventually under Wishart Road. There are two large underground 1,500 mm pipes which carry drainage water through the adjacent residential subdivision with the point of discharge being into the open drain on the southern boundary of the Bergmans' property. The open drain through the subject properties connects with a single underground pipe drain through the school property with a diameter of 1,650 mm. Water discharges from the school property again into an open drain to Wishart Road. While it is perhaps immaterial to the process of the determination of compensation to consider who dug the drain, I think it can probably be inferred from the evidence that it was dug many years ago by the Brisbane City Council which apparently has no records which throw any light on the origin of the drain.
The following claims for compensation were served upon the respondent Brisbane City Council in July, 1992:-A92-65 (Walsh) - A claim for $110,419 made up as follows -
New fencing required $ 6,038
Disturbance - Legal, engineering,
valuation fees & tree
removal $ 7,500
Severance $ 53,760
Injurious affection $ 43,121
TOTAL CLAIM $110,419
========
A92-70 (Bergmans) - A claim for $67,560 made up as follows -
New fencing required $ 1,296
Disturbance - Legal, engineering &
valuation fees $ 4,500
Severance $30,000
Injurious affection $31,764
TOTAL CLAIM $67,560
=======
During the hearing of the matter leave was sought and was obtained to amend the claims as follows:-
A92-65 (Walsh)
Disturbance - Legal, engineering & valuation
fees $ 5,813
Severance $58,014
Injurious affection $35,552
$99,370
=======
A92-70 (Bergmans)
New fencing required $ 1,296
Disturbance - Legal, engineering & valuation
fees $ 4,252
Severance $30,000
Injurious affection $27,793
$63,341
=======
To indicate the extent of the dispute as to compensation, I should here indicate that the respondent's assessment of compensation is nil in respect of each claim.
The cases were heard together and as a result I write a composite judgment. The hearing was lengthy occupying several days. The transcript of the proceedings runs to 349 pages and there are 31 Exhibits. I mention this because I
find it undesirable to refer in this text to all of the material produced and all of the evidence of the many witnesses. Suffice it to comment that I propose to refer to such of the evidence and submissions which I find relevant to my task of determining compensation in the matters.
The first witness called by the claimants was Lawrence Arthur Protheroe who lives on a 1 hectare property at 333 Wishart Road, Mt Gravatt. Mr Protheroe purchased his property in 1965 and lived on it till 1970 and has contined to reside on it since 1974. He says that in 1969 or 1970 the Brisbane City Council cleared a strip about 20 metres wide and installed a sewerage line and drain which runs past the south east corner of his property. Mr Protheroe says that the land where the subject easements were resumed is higher in elevation than is his property which is located to the north of the easements.
Claimant Desmond Ralph Walsh was also called. Mr Walsh told us that the land over which the easement was taken through his property had been severed from the property where he lives on Wishart Road by a resumption for the Mt Gravatt South school. He says that Lot 2 (the parent parcel) slopes down to the north eastern corner which is the lowest part of the parcel. He describes Lot 2 as being a nice block of land growing beautiful gum trees and brush wattle trees. He says there are no water holes on the land and no erosion. There are waterholes on the neighbouring block to the north east.
Mr Walsh told us that the residential development to the south of the Bergmans property took place in the late 1960s. Originally there were small drainage pipes in the estate. The developer of the estate approached him to obtain permission to drain stormwater from the easement through his property which then adjoined the subsequently subdivided land and he refused. Mr Walsh says that in about 1970 the Council dug an open drain from the estate outlet through what is now Bergmans land and through his property. He claims that the position of the drain does not conform with the natural slope of the land. He did not give permission for the drain to be dug, and he first became aware of its existence when he saw it when visiting the land. It was originally about 1 metre wide and 1 metre deep. It has been widened and deepened since. Mr Walsh has placed about 18 inches (45 cms) of fill on land to the east of the bi-secting drain and now the land on the eastern side of the drain is higher than that on the western side. Mr Walsh told us that as the capacity of the 2 underground pipes through the residential estate (Glen Haven Estate) is greater than that of the underground pipe through the school property, there is backup of water at times in the drain to the extent that it has overflowed onto his land and onto the Bergmans land. Mr Walsh claims that the most convenient place for the drain through his property would be as far to the east as possible to coincide with his perception as to the natural fall in the land. With the existing position of the drain, Mr Walsh claims there is hardly enough land to the west of it (where the land fronts Avenell Street) to build a house.
Johannes Catharina Maria Bergmans informed the Court that he and his wife had purchased their property in September, 1981. At that time there were two bridges across the open drain through the property. One is a full traffic bridge with a handrail and has a 32 tonne load bearing capacity. The other bridge was a walkway bridge. Mr Bergmans says that in times of normal rain the existing drain through his property can quite easily handle drainage water but confirms that during heavy rain the drain overflows on the eastern side.
Valuation evidence was led by the claimants through practicing registered valuer Peter Geoffrey Byrne who assesses compensation for the resumption of the easement through Lot 2 (the Walsh property) at $93,566 and through Lot 13 (the Bergmans property) at $57,793. It is to be noted that these assessments of compensation are relied upon in the amended claims for compensation. Mr Byrne describes the Walsh parent land as being a rectangularly shaped inside allotment at the eastern end of Avenell Street with a frontage to it of 20 metres in its south west corner. Mr Byrne says that in its natural state the land falls gently from the south west to the north east. He describes the existing drain through the Walsh property as being large and irregular, ill defined and very difficult to cross. It runs diagonally across the land.
As for the Bergmans' property, Mr Byrne describes the land as a slightly rectangularly shaped block approximately 32 metres wide with a depth of 110 metres. He says it falls away from the southern boundary to the north and east. It has a frontage of 22.45 metres to Avenell Street in the south west corner. Mr Byrne says the drain through this property is also irregular and ill defined and very difficult to cross and also runs diagonally across the property in an average distance of 25 metres from the western end of the block. There is now a bridge built across the drain to provide access to a home which is constructed on the western end of the block. Mr Byrne confirms that two 1500 mm underground pipes from the adjacent residential estate terminate adjacent to the southern boundary of the Bergmans property.
Mr Byrne confirms that an open drain was in existence on both properties at the date of the resumptions. There is no bridge across the drain through the Walsh property and Mr Byrne stresses that this leaves the largest part of the Walsh property to the east of the drain with no access to it.
Mr Byrne's valuation considerations include that the Walsh property should be looked at prior to resumption as a "virgin" site with no drain through it. This accords with advice received by Mr Walsh from the Parliamentary Commissioner for Administrative Investigations (Ombudsman) by way of letter dated 24th January, 1991. The ombudsmen expressed the opinion that since Mr Walsh did not put the drain in, then it would be most unfair for the Council to look at compensation on the basis that there was already a drain on the land.
Mr Byrne says that there is injurious affection caused by the easement resumption with respect to the Walsh property, and the associated drain. He says it causes a total loss of the area required for the easement and the drain with depreciation in the value of the balance area of the parcel. Mr Byrne says this depreciation is caused by the general undesirability of having an open drain through the land, and to its restricted potential for a tennis court, pool etc and due to the concession of access rights to Council to pass along the easement for maintenance of the drain. Mr Byrne told us that the severance of the major part of the Walsh land from its only access point to Avenell Street formed a major element in his assessment of compensation. He has sought advice from an engineering firm Sheehy and Partners as to the cost of providing a piped culvert/crossing over the drain together with associated earthworks including a Q100 flood building pad. This cost is estimated at $53,760.
As an alternative approach to his assessment of compensation, Mr Byrne says that if the drain is to considered to be "in situ" at date of resumption, then compensation would be limited to the depreciation in the value of the land encumbered by the easement at the rate of 50% of its value plus an allowance for severance. His alternative compensation assessments read:-
"SCENARIO "A"
Injurious Affection Component
ALLOTMENT "BEFORE" RESUMPTION
3389 m2 Future Urban land @ $40/m $135,560
ALLOTMENT "AFTER" RESUMPTION
2778 m2 Future Urban land @ $40/m $111,120
Dep. 10% for severance by Open
Drain and Easement $ 11,112 $100,008
Injurious affection to land by taking
611 m2 for drainage easement and open
drain $ 35,552
Severance: Cost of culvert access to
severed area of site
(Sheehy & Partners est.) $ 30,000
plus associated earthworks &
Q100 building site
(Sheehy & Partners est.) $ 18,000
Engineering Fees
(Sheehy & Partners est.) $ 5,760
Fencing Easement $ 4,254
Total Compensation Exclusive of Disturbance $ 93,566
========
SCENARIO "B"
Injurious Affection Component
Fee Simple Value of land over which easement
was taken - 611 m2 @ $30 $18,330
Depreciation in Value say 50% $ 9,165
Severance Component
(as per Sheehy & Partners Consulting Engineers
Est.) - Cost of culvert access to severed area
of site. $ 5,760
Fencing Easement $ 4,254
Total Compensation Exclusive of Disturbance $67,179"
=======
As for his assessment of compensation for the easement through the Bergmans property, Mr Byrne points out that the open drain was there prior to the Bergmans purchase of it. This notwithstanding, Mr Byrne suggests that the Bergmans land should be also treated as "virgin" land prior to resumption and accordingly as though no drain existed. He suggests on this basis that a claim for a small access link across the drain is warranted even though a bridge was in existence at time of resumption.
As with the Walsh property, Mr Byrne is of the opinion that compensation entitlement includes injurious affection caused by the easement and the drain resulting in the total loss of the area required for the easement plus depreciation in the value of the balance area. He assesses compensation for severance of the major part of the land from the only access point on Avenell Street as equating the minimum cost of providing a piped culvert/crossing over the drain. Mr Byrne again has consulted engineers Sheehy and Partners as to cost of providing a culvert across the drain. Their advice is that it would cost $30,000. As with the Walsh property, Mr Byrne provides the alternative view that if the drain is to be regarded "in situ" then compensation would be limited to the depreciation of the value of land affected by the easement at the rate of 50% of its value plus an allowance for severance. Mr Byrne's alternative compensation assessments read:-
"SCENARIO "A"
Injurious Affection Component
VALUE OF ALLOTMENT "BEFORE" RESUMPTION
3891 m2 Future Urban homesite @ $35/m2 $136,185
VALUE OF ALLOTMENT "AFTER" RESUMPTION
3441 m2 Future Urban Homesite
@ $35/m2 $120,435
Depreciate by 10% for Easement
Acquisition $ 12,043 $108,392
Injurious affection due to Easement
Acquisition $ 27,793
Severance:
Cost of culvert access to severed
area of site (Sheehy & Partners Est.) $ 30,000
Total Compensation exclusive of disturbance $ 57,793
========
SCENARIO "B"
Injurious Affection Component
Fee Simple value of land over which easement
was taken - 450 m2 @ $28/m2 $ 12,600
Depreciation in Value - say 50% $ 6,300
Severance
(as per Sheehy & Partners Consulting Engineers
Est.)
Cost of Culvert access to severed area $ 30,000
Total Compensation exclusive of disturbance $ 36,300"
========
As for Mr Byrne's basis for his valuation of each parcel, he relies upon five sales of rural residential lots, four of which are zoned "Future Urban" and one which is zoned "Residential A". Lot 1 on RP 144754, Parish of Bulimba containing 2324 m2 sold on 12th February, 1990 for $127,000 ($55/m2) - zoning "Residential A". This land is situated at 433 Broadwater Road, Mansfield. It is a corner lot of fair elevation falling from the southern alignment to Broadwater Road and has since been subdivided. Lot 100 on RP 37944, Parish of Bulimba containing 4077 m2 sold on 3rd August, 1989 for $185,000 ($45/m2) - zoning "Future Urban". This block is situated in Bleasby Road, Eight Mile Plains. It is of mixed elevation with a gentle slope from the rear to Bleasby Road. Resubdivision 3 of subdivision 6 of Portion 351, Parish of Bulimba containing 1.814 hectares sold on 8th May, 1990 for $500,000 ($27.50/m2) - zoning "Future Urban". This site is situated at 562 Mt Gravatt-Capalaba Road, Wishart. It is of fair elevation. Lot 2 on RP 82455, Parish of Bulimba containing 1.012 hectares sold on 29th May, 1990 for $325,000 ($32/m2) - zoning "Future Urban". This site is situated at 576 Mt Gravatt-Capalaba Road, Wishart and is of fair elevation. Lot 7 on RP 37944, Parish of Bulimba containing 4029 m2 sold on 1st August, 1990 for $190,000 ($47/m2) - zoning "Future Urban". This land is situated at 73 Bleasby Road, Eight Mile Plains. Mr Byrne says it is an acreage residential site of medium elevation with no views.
Mr Byrne does not consider either the Walsh or the Bergmans properties have any potential for economic subdivision. He says they are too small and would require piped drainage on the easement and this cost if paid for by the owners would be prohibitive for subdivision.
Gabriel Joseph Sheehy, who is a practising engineer and who conducts the practise of Sheehy & Partners was also called by the claimants. Mr Sheehy says that as a result of his investigations and on site discussions, it seemed to him that the Brisbane City Council had not properly consulted Mr Walsh or Mr Bergmans about the drainage discharge from the upstream catchment and that the developers of upstream residential estate had elected to stop the drainage pipes short and approximately 1 metre below natural ground level. Mr Sheehy's task was to estimate the cost of providing an access across the drain assuming a Q100 flood. He says that the combined capacity of the (2) 1500 mm drainpipes is 10.3 m3/sec and this relates to a Q10 storm probability. He also says that it is normal for the Brisbane City Council to require an allotment to have sufficient land for a homesite higher that a Q100 flood - ie. a storm probability of once every 100 years. As a result then, Mr Sheehy has calculated the Q100 drain flows as being 15m3/sec at the bridge across the drain in the Bergmans property, 18.2 m3/sec at the site of the proposed culvert over the drain in the Walsh property, and 18.5 m3/sec at the 1650mm pipe under the school property. Mr Sheehy then provided us with his idea about the types of culverts required for crossing the drain, which is proposed to be enlarged by Council, as follows:-Walsh Property:
2 x 1950mm diameter pipes with a controlling head water level of RL 33.57 for a Q100 flood.
Bergmans Property:
2 x 1950mm diameter pipes with a controlling head water level of RL 34.07 also for a Q100 flood.
Mr Sheehy suggests that the culverts would require end walls, wing walls, and aprons, a concrete slab over and guard rails to be adequate and safe. In addition, Mr Sheehy suggests that the Walsh property would require a house pad of say RL 33.50 for a Q100 flood requiring earthworks of 1,200 m3 to form a building platform. Mr Sheehy points out that the existing dwelling on the Bergmans property is above the Q100 flood level. He then estimates the costs of construction as follows:-
Walsh Property -
Culvert $30,000
Earthworks for pad $18,000
$48,000
=====
Bergmans Property -
Culvert $30,000
Mr Sheehy's cost estimate for the culverts is made up 14.6 metres of piping at $1,000/m, 24 metre guard rail at $100/m, 20 m3 of concrete at $500/m3 and slab over pipes at $3,000. Mr Sheehy says that his design culverts provide for the passage of two vehicles and are designed to Main Roads Department standards. He is also of the opinion that the natural drainage flow across the Walsh property is to the north east and that a more desirable route for the drain would have been to the north east corner.
Mr Sheehy expressed the view that if a dwelling house was to be constructed on the Walsh property to the east of the drain, then filling for a house pad would be required even if the drainage easement did not exist.
Valuation evidence for the respondent Brisbane City Council was called through Peter Laurence Hillas who is a registered valuer in its employ. Mr Hillas says that due to the nature and extent of the works proposed by council on the easement through Mr Walsh's property, ie an open cut drainage channel, the land would be physically divided into three areas, being the easement area and two quadrangles with areas of 914 m2 to the west of the easement and 1864 m2 to the east of the easement. Mr Hillas describes the Walsh land as being relatively level and situated in a low lying part of the locality in a direct path of stormwater drainage. He said there is a slight fall across the land to the north and claims this is shown by a contour map which was placed in evidence (Exhibit 5) which Mr Hillas says shows the path of a natural watercourse. Mr Hillas estimates that the drain through the Walsh property is now about 2 metres deep and varies in width from 3 to 5 metres. He informed the Court that the easement through the Walsh property is 12 metres wide and confirms that the drainage channel as designed is generally 7.5 metres wide with a base of 2 metres.
Mr Hillas says that the Walsh land is contained within the "Future Urban" zone and this indicates Council's intention that the property will be developed in for future for residential purposes.
Mr Hillas told us that an aerial photograph taken in 1972 clearly shows the existence of the channel in the Bergmans property but due to vegetation the drain is difficult to see in the Walsh property. But Mr Hillas suggests that it is not difficult to identify the natural watercourse through the property. He says that if the drain was to be bridged in the Walsh property, then the cost would be the responsibility of Mr Walsh.
Mr Hillas says that prima facie the logical development for the Walsh property would be to rezone the land to "Residential A" and extend Avenell Street through the eastern boundary and subdivided into 4 lots with areas of about 560 m2 each. But the drain is a problem. Mr Hillas indicates that there are two ways of dealing with the drain - to pipe it or construct an open channel. His enquiry suggests that the cost to pipe the drain through the Walsh property would be $95,000 for 2 by 1850 mm pipes. He also says this cost is prohibitive for such a small development. By contrast, Mr Hillas suggests that the cost to construct an open drain such as proposed by Council is $12,900.
Mr Hillas has considered three possible viewpoints with regard to a "before" and "after" resumption valuation of the Walsh property. They are:-(a)The highest and best use of the site both immediately prior to and subsequent to the resumption being considered for use as a single homesite;
(b)The highest and best use of the site both prior to and subsequent to the resumption being considered to be for development into residential allotments; and
(c)The highest and best use prior to the resumption being for use as a single homesite, and, subsequently, for development into residential allotments.
Mr Hillas says that from the viewpoint of (b) and (c), the drainage easement would have had to be required to have been transferred to Council as a reasonable and relevant condition of development approval, had it not already been resumed. Should scenario (a) be adopted, then it is necessary to establish all effects of the resumption on the value of the homesite. Mr Hillas is of the opinion that the works proposed for the drain through the Walsh property will result in an additional area of about 191 m2 being occupied by the drain than is the area affected by the existing drain. It is his opinion that the benefits flowing from the construction of the proposed drain will outweigh the reduction in the utility of the 191 m2 of land. They are:-
1.The path of the drainage channel will be straightened, thereby providing a direct passage of the water from the inlet of the southern alignment of the Bergmans property to the outlet at the northern alignment of the Walsh property.
In respect of the Walsh property, Mr Hillas says there are two important results of this action. Firstly, the direction of the flow of stormwater will reduce the likelihood of scour and erosion, thereby reducing the possibility of the watercourse "silting up" in the future. Secondly, the area of the site to the west of the easement will be increased by about 140 m2 to 914 m2 and widened at the southern alignment. This provides an area obviously of adequate size and shape to accommodate a substantial dwelling. Nonetheless, Mr Hillas considers the larger portion of land to the east of the easement is to be a preferred location of a future dwelling with the western portion of it being for additional landscaping or recreational activities.
2.The straightening of the channel together with the imposition of the easement, allows for ease of maintenance. The easement conditions allow for Council to enter onto the easement area, if necessary, to maintain the channel.
It is therefore Mr Hillas' opinion that the market value of the site, should the highest and best use be deemed to be a single homesite pre and post resumption, does not diminish as a result of the resumption. Although the easement puts a blot on the title, he considers the "hypothetical prudent purchaser" would ensure that an inspection of the property would be made and recognise that if the drainage easement was resumed, then the responsibility of the maintenance of the drain would be on the Council rather than on Mr Walsh in the pre resumption situation.
Mr Hillas values the Walsh land at date of resumption as a single homesite as follows:-
Homesite - 1864 m2 $80,000
Additional Land - 914 m2 $ 5,000
$85,000
Less cost of bridging channel $11,600
Value of Land $73,400
=======
However, Mr Hillas is of the opinion that the highest and best use of the Walsh property at date of resumption is for subdivisional development into 3 large development sites. On this basis he sees it as having a value of $106,643. Mr Hillas' valuation of the Walsh land by the process of hypothetical subdivision is in evidence. He stresses that the transfer of the easement through the Walsh property to Council would be a reasonable and relevant condition of development approval. On this basis then, Mr Hillas sees that Mr Walsh is entitled to no compensation for the resumption except for disturbance items.
Mr Hillas told us that much of the detail about the easement resumption across the Walsh property is similarly applicable to the easement across the Bergmans property. He says both properties are similar in topography but the major difference is that the Bergmans' property is improved with a substantial low set dwelling to the east of the drain over which is constructed an aesthetically appealing timber bridge which provides for vehicular access across it.
Mr Hillas estimates that the area of the Bergmans property to the west of the easement to be 706 m2 and the area to east of the easement to be 2,735 m2. He is of the opinion that the works proposed in the easement through the Bergmans property will not change substantially the flow path of the water, nor will it be necessary to demolish the existing bridge. Mr Hillas has obtained a cost estimate of $68,500 for piping and filling the easement through the Bergmans property and he says this cost is prohibitive if subdivision of the Bergman's land is contemplated. By contrast he says the construction of the proposed channel is $16,700.
Mr Hillas says that the value of the Bergman's property when considered as a single homesite has not been effected by the resumption of the easement. Again there is a blot on the title after resumption, but it is Mr Hillas' view that the defined boundary of the proposed drain and the commitment to the necessary maintenance by Council is sufficient to offset what he regards as this minor issue. As with the Walsh property, Mr Hillas considers that the Bergmans' are not entitled to compensation for the resumption save for disturbance items.
Mr Hillas has relied for his respective valuations upon six sales. A site at 40 St Clair Crescent, Wishart containing 891m2 sold on 20th May, 1991 for $72,500. Mr Hillas says this land has no views, falls gently from the road, and backs onto a major thoroughfare ie the Mt Gravatt-Capalaba Road. This allotment has no drainage channel adjacent to it but lacks the quiet location and pleasant setting of Avenell Street. A site at 15 Boyanda Street, Wishart containing 880 m2 sold on 11th June, 1991 for $70,000. This allotment has a moderate to gentle cross slope and is located on a fairly busy road and has no drainage channel in its vicinity but, like sale No 1 land, lacks the amenity provided at Avenell Street. A site at 104 Goorari Street, Eight Mile Plains containing 819 m2 sold on 17th May, 1991 sold for $52,000. This is a low lying allotment with a large electricity pylon immediately adjacent to the rear alignment. It has no drainage channel as exists in Avenell Street, and is in Mr Hillas' opinion substantially inferior to the subject sites due to the power pylon and line. A site at 43 Nardie Street, Eight Mile Plains containing 931 m2 sold on 7th June, 1991 for $78,000. Mr Hillas describes this allotment as being low lying and situated on an entrance road into an estate. It is not adjacent to a drainage channel. A parcel at 75A Pullen Road, Everton Park containing 4815 m2 sold on 30th October, 1989 for $105,000. This allotment has an easement access. It is level, adjoining older established development to the west and acreage properties to the east. Mr Hillas says its location is inferior to Avenell Street, and that as a site it is superior to Mr Walsh's property when viewed as a single homesite. It is a level allotment with no drainage channel adjacent to it. A site in Rogers Parade West, Everton Park containing 4047 m2 sold on 4th June, 1992 for $125,000. This allotment rises gently from the road and then falls to the rear. It does not have a drainage channel adjacent to it. It is larger than the Walsh property and is in a more attractive location.
Robert Athol Hugh Halcrow who is an engineer in the employ of the respondent Brisbane City Council was called in evidence. Mr Halcrow produced costings for the installation of pipes along the easement within the Walsh property. He estimates that it would cost $94,987 to pipe the drainage easement but only $12,912 to install the proposed open cut channel. As for the Bergman's property, Mr Halcrow sees the cost of piping the easement to be $68,434 and the cost to install the proposed open cut channel to be $16,660.
As for the cost of construction of a box culvert crossing over the proposed channel in the Walsh property, Mr Halcrow estimates this at $11,661. He estimates the cost of a crossing using twin 1950 mm drainage pipes as did Mr Sheehy at $21,163, but Mr Halcrow has allowed for a smaller crossing with no concrete paving or guard rails.
After examining contour maps, Mr Halcrow is of the opinion that the existing drain follows the low point of the Walsh and Bergmans land although he says it is very difficult to accurately pin point the lowest point.
I cannot agree with the advice of the Ombudsman that Mr Walsh's property should be regarded as "virgin" land at date of resumption for compensation assessment purposes ie without a drain. Irrespective as to how the drain came into existence, it is in reality in place and actually carries storm water run off through both the Bergmans and Walsh properties mainly from the subdivision upstream to the school drain. In my view if Mr Walsh is entitled to compensation for the construction of the drain through his land without his permission, then action for damages for such entitlement lies in a place other than the Land Court.
It was suggested during the hearing of these matters that it would be open for Mr Walsh to fill in the existing drain and relocate it towards the north east corner of his property. Now while this may be legally possible, I feel there would be great difficulties and problems with running a new drain through neighbouring properties to the north east of the Walsh Property.
This being the case then, I say that compensation for the taking of the easements is to be assessed not on the basis of the encumbered properties being "virgin" land without a drain but as they actually existed at the date of resumption ie the Walsh property with a drain through it and the Bergman's property with the drain through it and the bridge in place across it.
It seems to me on the weight of the valuation evidence, that the highest and best use of each encumbered property as at resumption date was as a Future Urban zoned single unit homesite. I cannot accept the assessments of compensation as made by Mr Byrne. I cannot hold that the easement resumptions have had such a deleterious affect on the valuation of each property. I am more influenced in this decision by the valuation evidence of Mr Hillas. As for the Walsh property, I accept the proposition by the respondent that, if a house was to be built to the east of the existing drain, then a culvert crossing over it would be required. I also accept that there is sufficient land area to the east of the easement to construct a house, albeit may require relocation or construction over sewerage lines. I see compensation for the resumption of the easement through the Walsh property to be assessed on the basis of loss in value due to the blot on the title and the easement access of Council, together with the additional cost of the construction of a culvert crossing over the drain post resumption works ie over a wider drain. Although I have no evidence as to this additional cost, I find that it would not be unreasonable to determine this additional cost at $10,000 in view of the engineers estimates of costs for the crossing of the proposed drain. I make no award of compensation for the building pad since the evidence is that it would be required whether or not the easement was resumed.
With regard to the Bergmans property, I cannot see that there is a compensation entitlement for the cost of a crossing over the drain as the existing bridge is adequate. Compensation here is limited to the loss in value of the land due to the easement encumbrance (blot on title and easement access of council).
I make no award of compensation for the claim for new fencing required as contained within the Bergmans claim. I cannot see that the resumption of the easement gives rise to the need for extra fencing which may have been already required for the existing drain.
Upon my appreciation of the evidence and submissions, I find that compensation is fairly represented by the following assessments:-
A92-65 (The Walsh Property)
Value of land Before resumption with
existing drain in place $110,000
Less value after resumption taking into
consideration the easement (blot on title)
and the larger proposed drain $100,000
$10,000
Plus the additional cost of constructing a culvert
over the proposed wider drain rather than over the
existing narrower drain say $10,000
Compensation $20,000
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A92-70 (The Bergmans Property)
Value of land Before resumption with
existing drain in place $110,000
Less value after resumption taking into
consideration the easement (blot on title)
and the larger proposed drain $100,000
Compensation $10,000
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I turn now to consider the items of disturbance. It is agreed between the parties that valuation and engineering fees in the sum of $750 and $600 respectively are compensible. There has been no agreement in respect of legal fees and the parties submitted that an order should be made to tax the legal fees which, I might say, are limited to the fees involved in the preparation and lodgement of the respective claims for compensation.
I make the following determinations of compensation -
A92-65Easement A in Lot 2 on RP 129859 on Plan 811567, County of Stanley, Parish of Bulimba, City of Brisbane (The Walsh Property).
Compensation due to the resumption
of the easement $20,000
Compensation for disturbance -
valuation and engineering fees $ 1,350
Total award of compensation $21,350
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A92-70Easement B in Lot 13 on RP 146411 on Plan 811566, County of Stanley, Parish of Bulimba, City of Brisbane (The Bergmans Property).
Compensation due to the resumption
of the easement $10,000
Compensation for disturbance -
valuation and engineering fees $ 1,350
Total award of compensation $11,350
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Section 28 of the Acquisition of Land Act of 1967 provides that the Land Court may order that interest be paid upon the amount of compensation determined by it, and further that such interest shall be at such rate per cent per annum as the Land Court deems reasonable. In this case there has been no advance made against compensation. Accordingly, I order that the respondent Brisbane City Council pay to the respective claimants interest at the rate of 9.25% per annum on the following sums and for the following periods.
A92-65(Walsh)On the sum of $20,000 for the period commencing on the date of resumption (2nd March, 1991) and ending on the day immediately preceding the date upon which final payment of compensation is made and;
On the valuation fees ($750) and on the engineering fees ($600) for the period commencing on the date the fees were paid by the claimant and ending on the day immediately preceding the date upon which final payment of compensation is made.
A92-70(Bergmans)On the sum of $10,000 for the period commencing on the date of resumption (2nd March, 1991) and ending on the day immediately preceding the date upon which final payment of compensation is made and;
On the valuation fees ($750) and on the engineering fees ($600) for the period commencing on the date the fees were paid by the claimants and ending on the day immediately preceding the date upon which final payment of compensation is made.
It is further ordered in the exercise of my discretionary powers that the respondent Brisbane City Council pay to each of the claimants the legal fees involved in the preparation of and lodgment of the respective claims for compensation. The amount of such costs shall be ascertained and fixed by the costs taxing officer of the Supreme Court at Brisbane according to the scale of costs prescribed by law for the time being in respect of proceedings in the Supreme Court and in accordance with the provisions of Section 41(9) of the Land Act 1962.
(C.H. Carter)
Member of the Land Court.
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