Ipswich City Council v Wilson[2011] QLAC 6

LAND APPEAL COURT OF QUEENSLAND

1. [1]
   THE COURT:  On 15 December 2006, land was taken from the respondents for road purposes, resulting in claims for compensation by them against the appellant.  The appellant contends that the Land Court erred in determining the pre-resumption value of the respondents’ land, on a number of grounds.  These relate principally to the significance of the road to be constructed on the resumed land.

Background

2. [2]
   For the purposes of the appeals, it is unnecessary to distinguish between the respondents. Prior to the resumption, they owned land described as Lot 55^[1] and Lot 40,^[2] both on Registered Plan 30124 in the County of Churchill, Parish of Purga.

3. [3]
   These lots were located at Yamanto, which is to the south-west of the Ipswich Central Business District, and on what might be described as the outskirts of the Ipswich urban area.  Both lots had frontage to Warwick Road, which ran in a north-easterly direction in this location.  They were separated by a strip of land, dedicated as road, and known as Palm Lane.  Palm Lane ran in a south-easterly direction from Warwick Road, terminating at its south-eastern end within a land holding referred to as the Doig land.  South of the Doig land is the Cunningham Highway, running in this locality in an east-west direction.

4. [4]
   Some distance to the south-west of Lots 55 and 40, Warwick Road intersects with the Cunningham Highway.  To the east and north-east of the intersection, between Warwick Road and the Cunningham Highway, two shopping centres have developed, the Yamanto 7 Day Centre and the Yamanto Shopping Village.  Woolworths is the major tenant of the Yamanto Shopping Village.  The respondents’ land is in close proximity to these shopping centres.

5. [5]
   On the northern side of Warwick Road, immediately opposite Palm Lane, though running in a northerly direction, is Hall Street.  On the western side of Hall Street, on land with frontage to Warwick Road, there is now an Aldi supermarket.

6. [6]
   Some hundreds of metres to the north-east of Palm Lane, Warwick Road intersects with Ash Street, which continues in an easterly direction.  Running south from this intersection is a corridor of land dedicated as road but, in this vicinity, unconstructed, known as Kerners Road.  Further south, and generally to the east of the respondents’ land, Kerners Road is constructed, passing under the Cunningham Highway.  Land on the southern side of the Cunningham Highway and generally in a south-easterly direction from the respondents’ land is in the course of being developed for urban purposes.  This land extends to the area of Ripley Valley/Deebing Creek, further to the south-east of the respondents’ land, this being an area which has been targeted for significant urban growth both by the appellant, and the State of Queensland.

7. [7]
   In regard to this growing area to the south and south-west of the city of Ipswich, it has for some years been necessary to plan for population growth.  There has been a need to plan for a road system, including for inter-suburban connections, and connections to the Ipswich Central Business District.  No doubt because Kerners Road passes under the Cunningham Highway, it has been seen as providing an opportunity for a connection between the growth areas on the southern side of that highway, and the urban areas to the north.  It has also been necessary to identify the location, and provide for the growth, of shopping and other commercial facilities in the southern and south-western parts of the city of Ipswich.

8. [8]
   It is necessary to make some reference to the history of documents relating to statutory planning for this area. In 1982, at a time when the respondents’ land fell within Moreton Shire, it was included in the Light Industry Zone. Subsequently, this land, along with other land to the south and south-west of Ipswich, came to be included in the city of Ipswich.

9. [9]
   The appellant commissioned a report entitled “The Ipswich City Road Transportation Study”, from Veitch Lister Consultancy Pty Ltd, which was prepared in June 1997 (Veitch Lister Report).  It addressed the major road network seen to be required by 2011.  It identified Yamanto and Deebing Creek as growth areas, and showed what was identified as a distributor road on the Kerners Road alignment, north of the Cunningham Highway.

10. [10]
    The Veitch Lister Report identified a connection from Kerners Road to Warwick Road in the vicinity of its intersection with Ash Street.  It is difficult to identify the precise position of the connection, but it may have involved a deviation or “dogleg” to Deebing Creek Road, in the northern part of the connection.  It is of some significance that that connection was recognised in the appellant’s Roadwork Contribution Planning Scheme Policy and Infrastructure Charges Schedule, being identified as Project 48.

11. [11]
    The Veitch Lister Report also indicated a lower order road link between Kerners Road and Warwick Road, in the vicinity of Palm Lane.

12. [12]
    The appellant had also commissioned a planning study, the Ipswich Southern Corridor Planning Study, produced in April 1999. This identified extensive urban development south of the Cunningham Highway (and in other areas), extending to Yamanto.  It recommended that the Yamanto Centre function as a restricted District Centre, although it was recognised that this centre would need to service the Ripley Valley population corridor.

13. [13]
    The 1999 Planning Study showed Kerners Road linking with Warwick Road in the vicinity of Ash Street.  However, it included a “conceptual link”, to be investigated, between Kerners Road, in the vicinity of its intersection with the Cunningham Highway, and Warwick Road, in the vicinity of Palm Lane.

14. [14]
    The Ipswich City Planning Scheme 1999 (1999 Planning Scheme) came into effect in that year.  It identified urban development, primarily residential, for the Yamanto and Deebing Creek localities.  The Yamanto Centre was designated as a District Centre, land in the Centre being included in the commercial zone.  Such land was intended for major convenience and comparison shopping facilities.  The respondents’ land was included in the Commerce and Trade zone, which allowed for a range of commercial and related activities, supporting a larger higher order centre; though a major shopping centre was not itself favoured in this zone.

15. [15]
    The 1999 Planning Scheme included the 1999 Strategic Plan. The 1999 Strategic Plan Map showed an arterial road connecting from the Cunningham Highway along the Kerners Road alignment to the Warwick Road-Ash Road intersection.  It did not show a connection to Palm Lane.

16. [16]
    In June 2001, a draft Southern Corridor Structure Plan (Preferred Future Urban Form) was produced, which showed Kerners Road linking to the road system to the north, by a deviation, initially in a north-easterly direction (along what is now referred to as Balsa Street), into Deebing Creek Road (the “dogleg”), Deebing Creek Road then connecting with Ash Street. A link between the intersection of Kerners Road and the Cunningham Highway, and Warwick Road in the vicinity of Palm Lane, was described as a major inter-suburban link.

17. [17]
    In December 2001, the 1999 Planning Scheme was amended by the insertion of the Southern Corridor Structure Plan 2001. The Southern Corridor Structure Plan 2001 was consistent with the draft Southern Corridor Structure Plan (though on one plan, showing road and rail networks, the northern part of Kerners Road, the dogleg and Deebing Creek Road are shaded in grey, and their status is not identified). In this plan, the Yamanto Centre was identified as a major neighbourhood centre; and the respondents’ land as being within a Local Employment Service Area precinct. The Yamanto Centre was to be promoted as the main node for the provision of convenience type shopping facilities up to a medium size supermarket, as well as for limited comparison/specialty shopping. The Local Employment and Services Area precinct sought to support the major neighbourhood centre, providing services and trades not catered for within the retail centre.

18. [18]
    Notwithstanding some fluidity in the appellant’s road planning in this period, it continued to maintain an intention to connect Kerners Road to Ash Street via the dogleg.  In March 2003, it issued a Negotiated Decision Notice under the provisions of the Integrated Planning Act 1997 (Qld) (IP Act) for a development known as Paradise Waters Estate, located to the south of the Cunningham Highway, the developer being referred to as “the Kelly Group”.  That had effect as a development permit for a reconfiguration to create 57 lots; and a preliminary approval for another staged subdivision and operational works.  It required external road works contributions and works, by way of conditions of the approvals.  These related to Project 48, though at this time, the proposed alignment appears to have been on the Kerners Road reserve, north to the intersection of Warwick Road and Ash Street (sometimes referred to as the Kerners Road Extension).  The closure of the intersection of Kerners Road with Balsa Street, linking to Deebing Creek Road and then Ash Street, was expressly included in the conditions.

19. [19]
    By this time, the appellant was preparing a new planning scheme. The draft scheme was placed on display on 12 June 2003, the display period concluding on 5 September 2003.

20. [20]
    The draft scheme expanded the Yamanto Centre designation, including land to the north-east of the existing centre, and incorporating lots with frontage to Warwick Road, up to Palm Lane.  Thus Lot 55 was shown within the Yamanto Centre designation.

21. [21]
    The draft scheme included a proposed zoning map. On this map, Lot 55 (and other land west of Palm Lane, including the existing centres) was identified as MC3P (reflecting a designation as a Major Centre - Primary); and Lot 40 (and land east of Palm Lane, up to the northern, unformed end of Kerners Road) was identified as MC3S (reflecting a designation as a Major Centre - Secondary).

22. [22]
    The draft scheme included a proposed strategy map. This showed a link along the Kerners Road alignment directly north to the intersection of Ash Street and Warwick Road as an “Existing Major Inter-suburban/Intercommunity Link”.  It also showed a link from Kerners Road, commencing some distance north of the Cunningham Highway, and running in a generally westerly direction, to the south-eastern side of the land designated as the Major Centre at Yamanto, this link being identified as one to be further investigated.

23. [23]
    Not surprisingly, in the late 1990s and the years leading up to the resumption date, there was commercial interest in land at Yamanto. Kilcor Commercial Pty Ltd (Kilcor) acquired options over a number of parcels of land south of Warwick Road, and generally between the then existing Yamanto Centre and Palm Lane.  Ultimately it sold to Kelly Consolidated Pty Ltd (associated with the Kelly Group) in August 2003, its interest in an aggregation of land (Kelly land), located immediately to the south and south-west of Lot 55.  The Kelly land was the site of the proposed Coles Supermarket-based shopping centre.

24. [24]
    In about 2003, an application was made for a development approval for the Aldi supermarket, resulting in the sale of that land to Aldi on 13 September 2004, with a development approval for the supermarket having by then been obtained.

25. [25]
    Residential development was also continuing to occur around Yamanto. The Kelly Group entered into a contract to acquire the Doig land. It was also carrying out development south of the Cunningham Highway, as has been mentioned.

26. [26]
    An event of some significance for the present case occurred in July 2003. On 7 July 2003 the Acting Planning and Development Manager for the appellant submitted a memorandum relating to the appellant’s Planning Scheme Policy for Roadworks Infrastructure Contributions. It recorded the interest of the Kelly Group in development in and near Yamanto. It also recorded that for some time, officers of the appellant had been interested in facilitating a connection to Warwick Road via Palm Lane, as an alternative to the Kerners Road Extension.  The Kelly Group had made a proposal to the appellant that it would construct a link through the Doig land to Palm Lane, on the basis that it would receive infrastructure credits under the Planning Scheme Policy for that work, which would apply to a number of its developments.  The proposal required the Planning Scheme Policy to be amended, to include additional works.  The memorandum noted that it might be necessary to acquire land from properties on either side of Palm Lane, and at the intersection with Warwick Road, to facilitate appropriate intersection design.

27. [27]
    The memorandum continued, “[a]s the proposed new works are to replace Project 48, the roadwork contribution rates have been revised to include the estimated construction costs …” It also noted that the Doig land was to be given its own sub-catchment contribution area, in view of the fact it had access to “the new sub-arterial road”. It recommended that the relevant Contribution Policy in the Planning Scheme Policy be amended accordingly. On 30 July 2003 the appellant decided to act on this memorandum. On 17 September 2003 the Acting Planning Manager submitted a memorandum formulating amendments to the Planning Scheme Policy. The stated purpose included:

…

• To replace Project 48 (Kerners Road Extension to Warwick Road) with a new link from Kerners Road via Palm Lane to Warwick Road (new Project 48) including revised construction cost estimates;
• To include a new sub-catchment contribution area (Sector 22a) in recognition that this area has access to the new sub-arterial road.”

28. [28]
    These statements as to the purpose and general effect of the proposed amendment were included in an Explanatory Statement for the amendment, and in the public notice of the amendment.

29. [29]
    In the Planning Scheme Policy, Project Roads were identified by reference to Policy Support Documents, listed in Appendix A to the Planning Scheme Policy. The proposed amendment added the July 2003 memorandum to this list. The amendment was adopted at a meeting of the appellant on 15 October 2003.

30. [30]
    In 2002 and 2003, Kilcor carried out negotiations with Coles Myer Limited (Coles Myer) as to its taking a lease of a supermarket at Yamanto, on land between the existing centre and Palm Lane.  It will be necessary to return to the communications between those entities in greater detail.

31. [31]
    On 5 April 2004, a new planning scheme (2004 Planning Scheme) came into force for Ipswich.  The Yamanto Centre, and land to the north-east along Warwick Road, were included in the Major Centres Zone, consistent with the proposed zonings placed on display in 2003.  However, Strategy Map 2 as adopted was different to the strategy map which had been placed on display.  It continued to show an Existing Major Inter-suburban/Intercommunity link from the Cunningham Highway, north along the Kerners Road alignment for more than half the distance between the Cunningham Highway and the Warwick Road-Ash Street intersection; but it showed the “dogleg”, no doubt reflecting a deviation to Deebing Creek Road and then to Ash Street.  However, it also included a designation for a road running off Kerners Road, commencing at a point not quite halfway between the Cunningham Highway and Ash Street.  This was shown as running in a westerly direction, to what appears to be the southern end of the Palm Lane road reserve, and then deviating to the north-west along that reserve, linking to Warwick Road.  It would appear to be identified as a Future Major Inter-suburban/Intercommunity Link.  It does not seem accurately to reflect the connection referred to in the July 2003 memorandum, which appears to be wholly within the Doig land, and not to rely on Kerners Road north of the Cunningham Highway intersection.

32. [32]
    There was evidence to suggest that at some point, the appellant placed a “moratorium” on residential development south of the Cunningham Highway, until such time as a link north of that highway to Warwick Road was established.  For the appellant, it was contended that this occurred in 2003; and for the respondents, 2005.

33. [33]
    In the period leading up to the resumption date, development in the Yamanto area was also delayed because of uncertainties about a transport corridor, perhaps including rail, but this corridor was not the proposed link from the intersection of Kerners Road and the Cunningham Highway.

34. [34]
    Against that background, it is convenient to identify the issues in the appeal.

Issues in the appeal

35. [35]
    The appellant contended that the compensation awarded for the resumed land reflected a value attributable to it immediately before resumption, which derived from the provision of the road link between the Cunningham Highway and Warwick Road; and accordingly, the pre-resumption values of Lot 55 and Lot 44 had been determined on an erroneous basis.

36. [36]
    The appellant relied upon a number of propositions in support of its ultimate contention. The first was that the value of Lot 55 and Lot 44 was dependent upon the provision of a road link from the Cunningham Highway to Warwick Road; and that from the latter part of the 1990s there had been a single project for the provision of that link, ultimately resulting in the resumption. Related to this was the proposition that the commercial designations in the vicinity of the Yamanto Centre, including for Lot 55 and Lot 40, were a consequence of this project.

37. [37]
    As an alternative position, on the assumption that there were two different projects or schemes, the second commencing in 2003 and involving a link from the Cunningham Highway via Palm Lane, it was submitted that the pre-resumption values adopted for Lot 55 and Lot 44 reflected values resulting from this second scheme, and accordingly were erroneous. A related proposition was that the commercial designations in the 2004 Planning Scheme were a consequence of the decision to carry out this scheme. Moreover, it was submitted that the interest of Coles Myer in leasing a supermarket on the Kelly Group land was entirely dependent upon the scheme; the implicit submission being that this in turn accounted for the values attributed to Lot 55 and Lot 44.

38. [38]
    A further submission on behalf of the appellant, related to the submissions which have just been summarised, was that the “need” for further retail and commercial facilities at Yamanto was a consequence of the scheme of resumption. It was also submitted that the learned President made some errors when referring to increases in population and trade area catchments for commercial and retail facilities at Yamanto.

39. [39]
    In the course of his oral submissions in reply, Counsel for the appellant made a submission capable of being understood as a submission that in the determination of the pre-resumption values of Lot 55 and Lot 40, the Land Court member applied evidence of sales which themselves were affected by the appellant’s decision to proceed with a link from the Cunningham Highway through Palm Lane to Warwick Road, without adjusting the sales evidence so as to exclude the influence of the scheme. However, Counsel made it plain that the submission was intended to be the same submission as appeared in paragraph 12 of the appellant’s written submissions in reply, generally reflected in the submissions which have been summarised earlier in these reasons.

40. [40]
    The respondents contended that there was but a single relevant scheme, being the scheme to create the link between the Cunningham Highway at Kerners Road, and Warwick Road along Palm Lane.  They contended that the assessment of compensation was not erroneous by virtue of any of the matters advanced by the appellant.

Nature of the appeal

41. [41]
    As the submissions from the respondents point out, these appeals are akin to an appeal by way of rehearing.^[3]  Accordingly, this Court is obliged to give the judgment which, in its opinion, ought to have been given at first instance, whilst observing the natural limitations that exist in the case of an appellate court proceeding wholly on the record.^[4]  Notwithstanding the duty of the Court which has just been referred to, it has been authoritatively held that the powers of an appellate court on an appeal by way of rehearing are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual, or discretionary error.^[5]  The requirement for the identification of error, as a condition of the exercise of the power of an appellate court to uphold an appeal, was recently re-affirmed, although in a quite different statutory context, in Lacey v Attorney-General of Queensland.^[6]

Significance of the underlying scheme in the assessment of compensation

42. [42]
    The assessment of compensation for land which has been compulsorily acquired under the Acquisition of Land Act 1967 (Qld) (AL Act) was governed by the following provisions, at the time of the resumption of Lot 40 and Lot 55:

“20 Assessment of compensation

3. (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) caused by either or both of the following, namely—

1. (a)
   the severing of the land taken from other land of the claimant;

2. (b)
   the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other land.

3. (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.

3. (3)
   In assessing the compensation to be paid, there shall be taken into consideration, by way of set-off or abatement, any enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom by the carrying out of the works or purpose for which the land is taken.

3. (4)
   But in no case shall subsection (3) operate so as to require any payment to be made by the claimant in consideration of such enhancement of value.”

43. [43]
    What is sometimes described as a principle for the assessment of compensation for the compulsory acquisition of land, referred to as the Pointe Gourde principle, is reflected in the following statement:^[7]

“It is well settled that compensation for the compulsory acquisition of land cannot include an increase in value which is entirely due to the scheme underlying the acquisition.”^[8]

44. [44]
    This principle or statement is reflected in the appellant’s submissions. It gives rise to the necessity to identify the underlying “scheme”.

45. [45]
    The Pointe Gourde principle has not been expressly incorporated into the AL Act.  However, in Springfield Land Corporation (No 2) Pty Ltd v Queensland (Springfield),^[9] the High Court referred to cases,^[10] the effect of which is that there is no “common law” principle derived from Point Gourde; rather, it reflects a view commonly adopted by the courts as to the meaning of expressions such a “the value of land taken” in s 20(1) of the AL Act, being the value the land would have if it were not affected by the “scheme”.

46. [46]
    It will be apparent from subsections 20(1) and 20(3) that the effect on land retained by the person claiming compensation for what might be referred to as the project to be carried out by the constructing authority, is also to be taken into account. These provisions refer specifically to “the exercise of any statutory powers by the constructing authority”, injuriously affecting retained land; and “the carrying out of the works or purpose for which the land is taken”, enhancing the value of retained land.

47. [47]
    The identification of “the works or purpose” which might enhance the value of the retained land was the subject of the High Court’s decision in Springfield.  The Court held that the relevant “purpose” is that which would provide the basis for the exercise of a power compulsorily to acquire land under the AL Act.^[11]  In that case, the content of the notice of intention to resume land, issued under s 7 of the AL Act, was held to be determinative.  However, Springfield concerned land transferred by agreement, the effect of the agreement being that compensation was to be determined (by an arbitrator) as if the land had been acquired under the AL Act.  The High Court also had reference to the terms of agreement as confirming the identified purpose.

48. [48]
    In the present case, the learned President determined compensation by determining the value of Lot 55 and Lot 40 before resumption; and the value of the interests in those lots retained by the respondents after the resumption.  That method is relatively conventional, the result being considered to reflect the value of the resumed land, assessed as required by s 20 of the AL Act, as well as compensation for injurious affection, or the reduction in compensation by virtue of enhancement as required by s 20(3).  It will be apparent that this only occurs if the value of land before resumption is assessed as if the land were not affected by the “scheme”; and if the pre-resumption value of retained land is assessed as if the land were not the subject of injurious affection, or its value were not enhanced, by the exercise of statutory powers of the constructing authority, or by virtue of the carrying out of the works or purpose for which the land is taken.

49. [49]
    It is not inevitable that the matters referred to in subsections 20(1) and 20(3) as the source of injurious affection or enhancement in value are identical with the “scheme” referred to in the Pointe Gourde principle.  However, this potential distinction was not adverted to by the parties.  In particular, it has not been suggested that some different approach should be taken in respect of the determination of the pre-resumption value of the resumed land, from that taken for the determination of the pre-resumption value of the retained land.  If the Pointe Gourde principle reflects an approach to the construction of s 20 of the AL Act, it would seem unlikely that the “scheme” to which it makes reference is to be something different to the matters identified in subsections 20(1) and 20(3), which give rise to injurious affection and enhancement of value.

50. [50]
    In Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority,^[12] the Court said:

“What was meant in Pointe Gourde and other cases by reference to ‘the scheme’ does not readily appear. … (I)n the context of statutory compulsory acquisition of land, a ‘scheme’ may be taken to be a broad expression derived from the promotion in the nineteenth century of bills for a special statute to permit the construction of canals, railways, dams and other complex infrastructure.  The ‘scheme’ referred to the obtaining by the promoters of compulsory powers without which their proposal could not be implemented.^[13]  With that background in mind, the description in Pointe Gourde of the resumption of land to assist the construction of an air force base under Lend Lease as part of a ‘scheme’, may readily be understood.”

51. [51]
    The reference in that passage to Vyricherla Narayana Gajapatiraju v Revenue Divisional Officer, Vizagapatam appears to be a reference to the following statement:^[14]

“It must, of course, be conceded that the existence of the scheme must not be allowed to enhance the price, if by ‘scheme’ is meant the fact that compulsory powers of acquisition have been obtained for the purpose of carrying into effect a particular scheme for the profitable use of the potentiality.”

52. [52]
    The learned President referred to other statements relating to the identification of the “scheme” for the purposes of the application of the Pointe Gourde principle.  One of those, taken from Wilson v Liverpool Corporation^[15] is as follows:

"Whenever land is to be compulsorily acquired, this must be in consequence of some scheme or undertaking or project.  Unless there is some scheme or undertaking or project, compulsory powers of acquisition will not arise at all, and it would, I think, be a great mistake if we tended to focus our attention on the word 'scheme' as though it had some magic of its own.  It is merely synonymous with the other words to which I have referred, and the purpose of the so called Pointe Gourde rule is to prevent the acquisition of the land being at a price which is inflated by the very project or scheme which gives rise to the acquisition."

53. [53]
    Another passage cited by her Honour, from San Sebastian Pty Ltd v Housing Commission of New South Wales (in the New South Wales Court of Appeal)^[16] is as follows:

“Thus in the railway cases, ... it was not necessary for the exact identity of the proposed site of the works to be known ... If the Government announced that an existing railway to A was to be extended to B, any resulting increase of the value of land in B would be disregarded, even though the exact route of the railway or the exact site of the new railway station was not known, or, before resumption, was changed to other land.”

54. [54]
    Her Honour also referred to statements by two members of the court in Roads and Traffic Authority (NSW) v Perry & Anor.^[17]  There, Handley JA (with whom Powell JA agreed) said:^[18]

“The particular purposes, in the sense of the uses to which particular land will be put, do not exclude the wider public purpose to be served by the acquisition.  If so it is this wider public purpose, scheme or project which underlay the acquisition …”

55. [55]
    That passage was followed by:^[19]

“The resumption of land in the middle of a substantial extension to an existing railway or highway will be for the public purpose of that scheme or project as a whole, and not just for whatever part of it is to be constructed on that land.”

56. [56]
    In the same case, Hodgson JA said:^[20]

“In a case such as the present, it is necessary to determine what is the public purpose for which the claimants' land was acquired, including the appropriate level of generality at which the purpose should be identified.

…

I do not think there are any clear rules determining how the relevant purpose or the appropriate level of generality is to be determined.  Factors to be taken into account would, in my opinion, include the degree of continuity and consistency of various elements of what is proposed and done, and fairness to both the claimant and the acquiring authority."

57. [57]
    These statements might be thought to suggest that the identification of the relevant scheme, for the application of the Pointe Gourde principle, may require a wider investigation than is necessary under s 20(1) and (3) of the AL Act.  However, the way in which this appeal has been conducted makes it unnecessary to reach a concluded view on that question.^[21]

The scheme or purpose for which the land was resumed

58. [58]
    Project 48, as it was identified at about the time of the Veitch Lister Report, provided for a road link from the intersection of Kerners Road and the Cunningham Highway, to a location in the vicinity of the intersection of Warwick Road and Ash Street.  It resulted in a contribution policy, which was included in the Planning Scheme Policy.  It had implications which affected planning decisions made prior to October 2003.  For example, access to the link, from allotments created adjacent to the link, was restricted.  This project itself did not require the preservation of a corridor for a link from the intersection of the Cunningham Highway and Kerners Road to Palm Lane.  While Project 48 reflected what was proposed in the Veitch Lister Report, a link to Palm Lane would obviously perform a different, though perhaps supplementary or related, function.

59. [59]
    The 1999 Strategic Plan Map reflected Project 48. It did not suggest a link to Warwick Road, utilising Palm Lane.

60. [60]
    Subsequent planning documents of the appellant might be said to create some uncertainty about its intentions. Thus the Southern Corridor Planning Study (April 1999) identified a link directly from the intersection of the Cunningham Highway and Kerners Road, to Palm Lane, as a corridor to be investigated.  The Southern Corridor Structure Plan (2001) showed a Major Inter-suburban Link following Kerners Road north from the Cunningham Highway, and then via the “dogleg” through Balsa Street and Deebing Creek Road to Ash Street.  It also showed, a short distance south of Balsa Street, a similar link to the end of Palm Lane and then along Palm Lane to Warwick Road.  However, Figure 2.4, showing “Road & Rail Networks”, included this link in an area surrounded by a designation entitled “Intersection to be Investigated”.

61. [61]
    The decision made by the appellant on 30 July 2003 to amend the planning scheme policy in accordance with the memorandum of the Acting Planning and Development Manager of 7 July 2003 identifies, on the evidence, the first occasion on which it can be said that the appellant had decided to proceed with a link between the intersection of the Cunningham Highway and Kerners Road, and Warwick Road at Palm Lane. Implementation of that decision commenced with the amendment of the planning scheme policy in September 2003. A number of matters strongly indicate that this was a different “scheme” from that which the appellant, until then, had been pursuing. One indicator is that it required the utilisation of a quite different route to Warwick Road.  The connection points at the northern end of each link were differently located, said by Mr Holland, a consultant traffic engineer, to be about 750 metres apart.  In the context of a project of this magnitude, that difference would seem to be quite significant.  The implementation of this project or scheme required significant amendments to the planning scheme policy.  In particular, it required the identification of the project, and the adoption of different costings for its implementation.  Specific provision had to be made for a new catchment, the Doig land.

62. [62]
    Planning controls implemented in relation to Project 48 prior to July 2003 no longer remained relevant. The link to Palm Road did not require the restriction of access onto Kerners Road from a new residential development.

63. [63]
    Indeed, some of the plans for which the appellant was ultimately responsible showed both a connection to Warwick Road at Palm Lane, and a connection to Warwick Road in the vicinity of the Ash Street intersection.  These plans tend to confirm two different schemes for connection to Warwick Road or Ash Street with potentially a common element in the southern section.

64. [64]
    In Springfield, the majority noted the connection between the taking of land, and the purpose mentioned in the notice of intention to resume, given under s 7 of the AL Act.^[22]  They observed:^[23]

“Contrary to the construction given to s 20(3) (of the AL Act) by the arbitrator, which the Springfield companies support, the ‘purpose’ was not identified by some factual inquiry, beyond the terms of the s 7 Notices, into the reason why the s 7 Notices were given in the then current state of planning for the road corridor.”

65. [65]
    Part of this language reflects the relatively unusual circumstances of that case. However, the passage draws attention to the connection between the statutory power to take land compulsorily, and the purpose of the taking, as identified in the notice of intention to resume given under s 7 of the AL Act.  Although the parties referred to the decision, they did not direct submissions to the notices given in relation to the resumption of Lot 55 and Lot 40.  In view of what was said in Springfield, it is nevertheless appropriate to make reference to these notices, in case it might affect the conclusion which would otherwise be reached as to the underlying scheme, or statutory purpose.

66. [66]
    The notices were in terms which were in part identical. Each was accompanied by a letter from the appellant dated 16 January 2006, containing the following reference “Resumption of Land for Road Purposes – Intersection of Warwick Road, Hall Street & Palm Lane Yamanto”.  The letter relating to Lot 55 referred to a resolution of the appellant made on 14 December 2005 “…to resume part of the above property for road purposes to facilitate the upgrading of the above mentioned intersection.”  The letter relating to Lot 40 simply referred to a resolution “…to resume part of the property for road purposes as detailed on… (an attached plan)”.  The attached plan showed the northern part of Palm Lane, and its intersection with Warwick Road.

67. [67]
    Attached to each letter was a notice under s 7 of the AL Act.  The notice referred to the taking of land for “ROAD purposes”.  It also referred to a Statement of Reasons for the Proposed Resumption, which was Schedule B to the notice.  The introduction to Schedule B stated, “[i]t is necessary to resume the land for the purposes of facilitating the construction of a signalised intersection at Warwick Road / Hall Street / Palm Lane as part of the ‘Kerners Road Deviation’ project”.  It included as part of the reasons for the decision, a statement that various planning options for the intersection had been investigated, and an explanation for the selection of the chosen option.  It concluded with the following:

“The upgrading of Warwick Road / Hall Street / Palm Lane intersection is a critical first step in the implementation of a high-quality road link between Warwick Road and South Deebing Creek Road and thus meet the transport needs of existing and future residents and business owners of Ipswich.”

68. [68]
    Under the heading “FINDINGS ON MATERIAL QUESTION [sic] OF FACT”, the need for “a high quality inter-suburban road connection” between Warwick Road and South Deebing Creek Road was identified.  The purpose of the connection was “[t]o facilitate the efficient movement of traffic between the urban growth areas in the Deebing Creek Valley and the Yamanto major centre as well as the Ipswich City Centre…”  It recorded that the appellant’s Five Year Capital Works Program had the “Kerners Road Deviation” listed for construction in 2007-2008, with preliminary works at the Palm Lane intersection listed for 2006-2007.

69. [69]
    Read with Schedule B, the relevant notices display some ambivalence in the identification of the statutory purpose for the resumption. At its broadest level, the purpose was an inter-suburban road connection between Warwick Road and South Deebing Creek Road.  It is possible to discern a purpose at an intermediate level, that is, the realigning of Kerners Road, to intersect with Warwick Road at Palm Lane.  More specifically, the construction of the intersection at Warwick Road at Palm Lane is also identified.  However, it is not possible to understand the broadest statement of purpose without reference to the more specific statements in the notices.  The latter provide the content which would be required to enable any person to whom such a notice was given, sensibly to formulate an objection.  For example, it would not be possible sensibly to determine whether the value of retained land was enhanced, without reference to the more specific statements of purpose found in the document.  The reference in the accompanying letter (as described above), the identification of the upgrading of the intersection in adopting a preferred planning layout, the statement referring to a consideration of planning options, and the reference to the upgrading of the intersection as itself a separate step, would all support a narrow view of the purpose or scheme.  A consideration of the notices does not lead to a conclusion about the relevant scheme or person, different to that reached by the learned President.

70. [70]
    The use of the word “new” in the memorandum of 7 July 2003 (for example, “new Project 48”) is not of any particular significance in arriving at this conclusion. The language used in the memorandum reflects a characterisation of what was occurring, by the author of the memorandum, and for his own purposes. There is no reason to think that he had in mind the application of the Pointe Gourde principle, or the identification of the works or purpose relevant to the determination of enhancement of value under s 20(3) of the AL Act.

71. [71]
    It follows that the learned President was correct to conclude that the resumption of the respondents’ land was the result of a “scheme” which in fact came into existence in July 2003, and which was different to the previous scheme reflected until then in Project 48.

2004 Planning Scheme designations for the respondents’ land

72. [72]
    It is necessary to turn to the submissions of the appellant relating to the significance of its decision in July 2003 to implement a road connection from the Cunningham Highway to Warwick Road via Palm Lane.  It is convenient first to deal with its submission that the planning designations for the respondents’ land (and, it would seem consistent with the appellant’s submissions, other nearby land) was but a consequence of its decision to undertake the scheme for a connection at Palm Lane.

73. [73]
    The respondents make two submissions in response. The first is, in effect, that the appellant’s submission that the planning designations for the respondents’ land was but a consequence of its decision to undertake the scheme for a connection at Palm Lane must, as a matter of law, fail.  The basis for the respondents’ submission was said to be the decision of the High Court in Housing Commission of New South Wales v San Sebastian Pty Ltd,^[24] which, it was submitted, stood for the proposition that the zoning (or planning designation) of land is to be ignored in determining the pre-resumption value of land only if the designation is “a step in the process” of resumption.^[25]  It by no means clear that this submission is correct.^[26]  However, it is unnecessary to consider this submission further, in light of the respondent’s second submission.

74. [74]
    The respondents also submit that the appellant’s submission is factually incorrect. That is to say, the respondents submit that the appellant has not demonstrated that that, but for the Palm Lane project, the respondents’ land would not have been designated for commercial and retail purposes in the planning scheme; rather, the evidence demonstrates the contrary.

75. [75]
    The zoning in the 1999 Planning Scheme showed an extensive area of land, generally north east of the Yamanto Centre, zoned as Commerce and Trade. This might be thought to provide some limited support for the respondents’ submission. The strategic plan map from that planning scheme showed a District Centre on the southern side of Warwick Road, extending from the Kerners Road alignment to the existing Yamanto Centre.  Again, this might be thought to provide some limited support for the respondents’ submission; but the generalised nature of the designation is not particularly helpful.

76. [76]
    The 2001 Structure Plan showed a Major Neighbourhood Centre, in the vicinity of the Yamanto Centre. The designation did not extend to Palm Lane; but again, the designation identifies a location in a rather generalised way.

77. [77]
    However, the proposed zoning map which is dated May 2003, and which was placed on public exhibition in June of that year, showed a Major Centre designation extending from the existing Yamanto Centre past Palm Lane to the Warwick Road-Ash Street intersection; with the area identified as the primary business area extending to Palm Lane. The contemporaneous Strategy Map is, at least on the southern side of Warwick Road, consistent, identifying a major centre extending from the Yamanto Centre to the Warwick Road-Ash Street intersection.  Neither plan showed the connection from the Kerners Road-Cunningham Highway intersection to Palm Lane, which was the subject of the July 2003 memorandum.  As has been mentioned, the Strategy Map showed a connection from Kerners Road (a short distance south of Balsa Street) west to the south eastern end of Palm Lane as a “Possible Future … Link”; but did not show the link continuing along Palm Lane.  The same map however did show Kerners Road from the Cunningham Highway to the Warwick Road-Ash Street intersection as an “Existing … Link”.  At the time these documents were prepared, and when they were first placed on public exhibition, the contributions policy, and Project 48, supported the provision of this link, but did not seek contributions for a link at Palm Lane.

78. [78]
    In the planning scheme that came into force in 2004, the zoning and the designation on the strategy map for the respondents’ land remained consistent with that on the maps the subject of public exhibition commencing in June 2003. This points very strongly to a conclusion that the planning scheme designations for the respondents’ land, favouring as they did retail and other commercial development, were not a consequence of a decision to provide a link from the Cunningham Highway to Warwick Road at Palm Lane.  The appellant identified no evidence to support a different conclusion.

79. [79]
    It would follow, therefore, that the appellant’s submission should be rejected, and the finding of the learned President that, in the absence of the “scheme” which led to the resumption of parts of Lot 55 and Lot 40, it was unlikely that different designations of those lands (and other lands along the southern side of Warwick Road) in the 2004 Planning Scheme would have occurred, was correct.

Need for retail facilities at Yamanto

80. [80]
    At this point, it is convenient to turn to the appellant’s submissions relating to a “need” for additional retail facilities at Yamanto.

81. [81]
    In the hearing in the Land Court, each side called an expert witness to deal with this issue.  The appellant called Mr Jon Norling, a management consultant specialising in the provision of economic and market research, including for the development of retail and other commercial facilities.  The respondents called Mr Michael McCracken, whose expertise appears to be similar to that of Mr Norling.

82. [82]
    Mr Norling and Mr McCracken prepared a joint report, dealing with the need for the expansion of the retail facilities at Yamanto, at the time of resumption. Mr McCracken expressed the view that as at December 2006, there was such a need. Mr Norling disagreed, his view being that, as at the resumption date, there was a need for retail facilities at Yamanto to be expanded in the future, but that did not result in all of the zoned land being developed within the foreseeable future (nominated as 10 years). Mr Norling clarified his view by stating that there was a need for additional retail facilities in the Yamanto area which could at the time of resumption have been met by an expansion of the Winston Glades Shopping Centre (in the course of expansion at the time of the joint report); and, post 2011, by the development of a Coles-based centre on the land adjoining Lot 55.

83. [83]
    However, it is of some significance for the appellant’s case on the appeal, that both Mr Norling and Mr McCracken agreed that the provision of the road connection from the Cunningham Highway to Palm Lane would not affect their view about the need for additional retail facilities at Yamanto.  The future population most likely to be able to take advantage of the road connection would be that located south of the Cunningham Highway, as well as some areas north of the Cunningham Highway (presumably development on the Doig land).  This population would nevertheless be closer to Yamanto than to any other significant retail facility.  The joint report of Mr Norling and Mr McCracken included the following:

“In other words, whilst the Kerners Road Deviation would be expected to improve the travel time of this population to the Yamanto Centre, this population would be likely to still use the Yamanto Major Centre as their main centre in the absence of the Deviation.”

84. [84]
    It will be apparent that their commonly held view about the significance of the Palm Lane connection is highly damaging to a significant element of the appellant’s case.  These experts plainly did not consider that the Palm Lane connection played a significant role in determining whether there was a need for additional retail facilities at Yamanto.  As has been mentioned, one of the appellant’s submissions was to the effect that the “need” for further retail and commercial facilities at Yamanto was a consequence of the scheme of resumption.  No evidence was identified in support of that submission.  In view of the opinion expressed by both Mr Norling and Mr McCracken, the submission should be rejected.

85. [85]
    The appellant’s written submissions in reply appear to identify “need” as one market consideration on which the learned President relied in determining the value of the land. The appellant submitted that the learned President’s finding as to the need for an additional supermarket-based shopping centre at Yamanto was based on evidence “tainted by the influence of the proposed Scheme of Resumption”, specifically Mr McCracken’s evidence. It will be apparent from what has been earlier said in respect of the view of both the retail experts that this submission should be rejected.

86. [86]
    It was also submitted that the Land Court’s findings in respect of the need “involved crucial errors” relating to the role of the development south of Warwick Road, in the growth and demand for retail facilities at Yamanto. One alleged error is the rounding of a figure for 2011 for the population increase in a part of a catchment on the southern side of the Cunningham Highway.  While the rounding does not reproduce accurately the figure which appeared in evidence, it was not explained why it was erroneous to round the figure, and whether doing so made any difference to the reasoning of the learned President.  The alleged error occurred in the course of recording a conclusion of Mr McCracken, apparently accepted by the learned President.  It should be said that it is unlikely that Mr McCracken’s conclusion was sensitive to the rounding which is the subject of the appellant’s submission.  Equally, there is no reason to think that had the figure not been rounded, the learned President would have been unlikely to accept Mr McCracken’s conclusion.  The picture presented by the statistics does not appear to change materially, as a consequence of the rounding.

87. [87]
    The learned President is also criticised in this context for relying on the projections for 2011, and not referring to those for 2016; nor to other areas which (at least in part) might utilise the connection at Palm Lane to gain access to the Yamanto Centre. The appellant’s submissions drew attention to traffic projections in this context, though they did not demonstrate why these projections were significant.

88. [88]
    These submissions focus on a passage in the reasons for judgment of the Land Court, where the learned President recorded a view of Mr McCracken that there would not be a great impact (no doubt referring to an impact on the demand or need for additional retail and commercial facilities at Yamanto) if the residential developments to the south were not to proceed. The appellant has not attempted to identify the significance of this particular passage of evidence, or of its acceptance by the Land Court.  It would appear to be, at best, peripheral.  The basis for the suggestion that development in this area might not proceed (notwithstanding planning for it at both Local Government and State Government levels) appears to be the assumption that the Palm Lane connection was not provided.  The appellant’s own planning in the period up to July 2003 demonstrates that it was likely that some form of road connection from these areas to the north to Warwick Road (more specifically, to Warwick Road near Ash Street) was likely to occur.  The reality of that is demonstrated by the appellant’s own planning scheme policy, and its imposition of conditions requiring contributions and work for the Kerners Road Extension (Project 48).  In those circumstances, it would seem extremely unlikely that the residential development to the south and south east of Yamanto would not have occurred, but for the provision of the Palm Lane connection between Warwick Road and Kerners Road at the Cunningham Highway.  The appellant has failed to demonstrate that, in the event that its submissions were otherwise rejected, an error in the acceptance of this part of Mr McCracken’s evidence is of any significance in the assessment of compensation.

89. [89]
    There is, however, one aspect of the appellant’s submissions which is related to this topic, which calls for separate consideration. It deals with the interest of Coles Myer and of the Kelly Group in the Kelly land, immediately to the west and south of Lot 55.

Interest of Coles Myer and the Kelly Group

90. [90]
    The appellant submits that its decision in July 2003 to adopt a route from the Cunningham Highway to Palm Lane played a significant role in “the keen interest of the Kelly Group and Coles in developing a new supermarket-based shopping centre at Yamanto”.  Its submissions do not attempt to demonstrate the significance of this contention, but it seems that the appellant would contend that if it were accepted, the Land Court would have adopted different pre-resumption values for Lot 55 and Lot 40, with obvious consequences for the determination of compensation.

91. [91]
    For this contention, the appellant relies on an exchange of correspondence between Kilcor and Coles Myer. The evidence commences with a letter of 9 April 2003 from Kilcor to Coles Myer. The letter referred to an earlier letter from Kilcor of 14 February 2003 which apparently had made reference to an application for a development approval on land at Yamanto. The land is not specifically identified, but would appear to be the Kelly land. The letter recorded that Ipswich generally was the subject of a strategic study by Coles Myer.  It also stated that the Kelly Group had purchased land, which appears to be the Doig land, for the purpose of further residential sub-division, and that the Kelly Group intended to use Palm Lane as a major access point to their new sub-division.  A later letter from Kilcor to Coles Myer of 8 May 2003 referred to a discussion on 2 May 2003 with Mr Atkins of Coles Myer, in which Mr Atkins advised that Coles Myer had elected not to proceed on the site controlled by Kilcor at Yamanto.  A subsequent facsimile communication from Kilcor to Coles Myer on 12 May 2003 recorded the interest of Hungry Jacks and Kentucky Fried Chicken in establishing outlets at this location, and advised that the Kelly Group had lodged an application for a 150 lot sub-division on the Doig land, possibly relying on Palm Lane for access.

92. [92]
    On 30 May 2003 Mr Atkins on behalf of Coles Myer wrote to Kilcor. He confirmed the company’s interest in pursuing a supermarket tenancy on the site but stated that the company’s interest was “totally subject to and dependant upon a new access road being created adjacent to the site linking Kerners Road, which will provide direct access to the new and planned residential sub divisions south west of the site.”

93. [93]
    On 13 June 2003 Kilcor sent an offer of lease to Coles Myer. The letter recorded the options held by Kilcor and the willingness of the owner of Lot 55 to include that lot in the proposed development.  The expected opening date was said to be the third quarter of calendar year 2004.

94. [94]
    On 1 August 2003 Kilcor again wrote to Coles Myer, noting the decision of the appellant to support the extension of Kerners Road to Warwick Road via Palm Lane.  The letter stated that Kilcor was willing to contribute to the road connection, but its position was dependant upon Coles Myer’s commitment to a supermarket on the site controlled by Kilcor.

95. [95]
    On 22 August 2003, Coles Myer sent to Kilcor an offer to lease premises in the proposed centre at Yamanto. The offer identified representations on which it was based. One was that a signalised intersection would be created at the junction of Warwick Road and Palm Lane.  Another was that Palm Lane would be constructed to join Kerners Road, “creating a direct link to the future residential subdivision to be undertaken by” the Kelly Group.  If the road works were not completed, then the rent would be at a greatly reduced level.

96. [96]
    Reliance was also placed on the July 2003 memorandum of the Acting Planning and Development Manager, which has already been discussed. The memorandum recorded meetings in the course of which a proposal had been developed for the construction of the connection between Kerners Road at the Cunningham Highway, and Palm Lane.

97. [97]
    As has also been previously mentioned, on 18 August 2003 the Kelly Group entered into a contract to purchase the land on which it was proposed to construct the shopping centre, to the south west and south of Lot 55 (the Kelly land).

98. [98]
    On the basis of these facts, the appellant submits that the interest of Kilcor, the Kelly Group and Coles Myer was entirely dependent upon the provision of the link from Palm Lane to the intersection of Kerners Road at the Cunningham Highway; and that the Land Court erred in finding that as at the date of the resumption the proposed Coles-based shopping centre was likely to proceed, even if the appellant had not decided to adopt the connection from Kerners Road to Palm Lane.^[27]

99. [99]
    The correspondence which has been summarised earlier reveals that Kilcor had an interest in the Kelly land prior to 2003. As has been previously identified, in this period the appellant’s planning scheme policy identified the location of the connection from Kerners Road to Warwick Road as somewhere in the vicinity of the Warwick Road-Ash Street intersection; and requirements to pay infrastructure contributions were imposed on this basis.

100. [100]
     The correspondence also reveals an interest of Coles Myer in establishing a supermarket in this locality, prior to 2003; although the position adopted in 2003, as recorded in the correspondence, was that this interest was conditional on a connection to Warwick Road at Palm Lane.

101. [101]
     The learned President did not deal with the matter in the terms in which the appellant’s submissions are made in this Court. Rather, her Honour considered the likelihood of the expansion of the Yamanto Centre to include a supermarket-based shopping centre on the Kelly land by reference to the likely view of a prudent purchaser on that subject as at the date of resumption. Her Honour concluded that such a purchaser would consider that there was sufficient need for improved and increased retail facilities at the Yamanto Centre, and accordingly that such a centre on the Kelly land was likely to proceed.

102. [102]
     Her Honour’s reasons identified a number of bases for that conclusion. She referred to Mr Norling’s opinion that while there was some need at the date of resumption for improved shopping facilities, that need could be met by the expansion of the Winston Glades Shopping Centre. Her Honour stated that there was no evidence to suggest that such expansion was contemplated at the resumption date. Her Honour’s statement was not the subject of challenge on this appeal.

103. [103]
     There is no reason to think that her Honour’s reliance on this evidence for her finding about the possible expansion of Winston Glades is misplaced. The 2004 Planning Scheme provided a superior planning designation for the land at Yamanto, including the Kelly land, to Winston Glades. The fact that the owner of the Winston Glades Shopping Centre was prepared to undertake an expansion of that centre by late 2008, tends to confirm Mr McCracken’s view about the need for an expansion of the Yamanto centre in 2006. The decision to expand Winston Glades was made, notwithstanding the appellant’s commitment to the connection at Palm Lane in 2003, and the advantages which it would provide to the proposed supermarket-based centre on the Kelly land; and it was made at a time when Coles had committed to the proposed new centre at Yamanto.

104. [104]
     Her Honour also identified reasons why a supermarket-based centre at Yamanto would be attractive to residents of the catchment, in the absence of the connection at Palm Lane.  Generally, there is little reason to reach a different conclusion.  The planning designations in the general area, at least from the latter part of the 1990s, would tend to confirm her Honour’s conclusion.

105. [105]
     Her Honour referred to the evidence of Mr Brown, a town planning consultant, which suggested that in the absence of the Palm Lane connection, there would be decreased demand for the Coles-based shopping centre, because residential developments to the south would not proceed.

106. [106]
     Her Honour appears to have rejected that conclusion, by reference to the evidence of Mr Douglas, the traffic engineer called in the appellant’s case, that, in the absence of the Palm Lane connection, Kerners Road would have been extended to Ash Street.  That evidence is consistent with the appellant’s planning scheme policy, and generally with its other planning instruments, prior to July 2003.  It is also consistent with the appellant’s conduct, in requiring contributions and works related to this extension of Kerner’s Road.  Indeed, it is difficult to think that, if a decision had been made not to proceed with the Palm Lane connection, residential development generally to the south east of the existing Yamanto Centre to Cunningham Highway, and further south and south-east on the southern side of the Cunningham Highway, would not have proceeded.  That would have been inconsistent with the appellant’s planning in the years leading up to and including 2004; and also with planning at State Government level.

107. [107]
     The learned President referred to the fact that Coles Myer had made an offer to lease a supermarket in the development proposed for the Kelly land. She expressed the view that it was likely that Coles wanted a position in the market, and noted the likelihood of alternative access to that provided by the connection at Palm Lane.  She also expressed the view that Coles would have been prepared to take any risk that the supermarket would not be initially profitable, to secure its position in the market.  That view seems to have been based on the evidence of Mr Brown, recorded by her Honour as being that “Coles simply wanted to put their footprint (at Yamanto), particularly as it was a locality where Woolworths were already present”.  Her Honour also expressed the view that in the absence of the Palm Lane connection, she did not consider that “there would have been such a decrease in demand for the new supermarket facilities the developer would not proceed.”  Her Honour was not unaware of the correspondence which has been summarised earlier in these reasons.

108. [108]
     It should be noted that no evidence was called from a representative of Coles Myer, the Kelly Group or Kilcor. No person in a position to do so has sworn that the position expressed on behalf of Coles in the correspondence reflects the position that Coles would have taken, had there been no prospect of the Palm Lane connection.  Moreover, there is some ambiguity in the position expressed in the letter of Coles Myer of 30 May 2003.  The letter refers to residential development “south west of the [Kelly land]”.  It is possible that this is a reference to the Doig land, rather than to further developments south of the Cunningham Highway.  Some support for that reading might be found in the representations recorded in the letter of offer from Coles Myer of 22 August 2003.  Moreover, the letter of offer indicated a willingness for Coles Myer to take a lease at what appears to be a significantly lower rental.

109. [109]
     These negotiations occurred at a time when the Kelly Group was seeking to achieve a change to the planning scheme policy, a change which the appellant had decided to implement by June 2003. In the absence of evidence from the participants, it is difficult to reason from the limited evidence available to a firm view that, at the date of resumption, a prudent purchaser of land in the vicinity of the Yamanto Centre would proceed on the basis that a supermarket-based centre on the Kelly land would not proceed, absent the Palm Lane connection to Kerners Road. Indeed, for the reasons summarised by the learned President, including her Honour’s apparent acceptance of the evidence of Mr McCracken of the level of need at the date of resumption, and having regard to the matters discussed above, her Honour’s conclusion appears to be the better conclusion to be reached from the available evidence. It should be added that the evidence does not demonstrate that Kilcor would not have been interested in acquiring the Kelly land for the purpose of a shopping centre, absent the Palm Lane connection.  It had obviously been interested in that land prior to 2003, and no evidence was called from any person who could give evidence on its behalf about its intentions at that time.

110. [110]
     The same may be said about the Kelly Group. It is even more difficult to reach the conclusion for which the appellant contends, given that the Kelly Group had it in mind to develop the Doig land for residential purposes, and may well have seen a new shopping centre on what became the Kelly land as an additional attraction for its potential purchasers.

Conclusion

111. [111]
     In each case, the appeal should be dismissed with costs, including reserved costs.

JUSTICE PETER LYONS

WL COCHRANE

MEMBER OF THE LAND COURT

WA ISDALE

MEMBER OF THE LAND COURT