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Sunshine Coast Regional Council v Leacy[2016] QLAC 2

Sunshine Coast Regional Council v Leacy[2016] QLAC 2

LAND APPEAL COURT OF QUEENSLAND

CITATION:

Sunshine Coast Regional Council v Leacy [2016] QLAC 2

PARTIES:

SUNSHINE COAST REGIONAL COUNCIL

(appellant)

v

EDNA JOYCE LEACY AS PERSONAL REPRESENTATIVE OF THE ESTATE OF KENNETH GEORGE LEACY AND EDNA JOYCE LEACY

(respondent)

FILE NOS:

LAC No.002-15

Land Court No. AQL033-08

DIVISION:

Land Appeal Court of Queensland

PROCEEDING:

Appeal from the Land Court of Queensland

ORIGINATING COURT:

Land Court at Brisbane

DELIVERED ON:

24 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

18 November 2015

JUDGE:

Peter Lyons J

WL Cochrane (Member)

WA Isdale (Member)

ORDERS:

  1. The appeal is allowed.
  2. Compensation is determined at Three Million, Four Hundred and Twenty-Eight Thousand, Three Hundred and Twenty-One Dollars ($3,428,321). 

CATCHWORDS:

REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – COMPENSATION ASSESSMENT – VALUATION METHODOLOGY – land resumed for recreation, park and flood purposes – development potential contended – application of sale – flood free portion – comparison sale and subject – costs of development – rate per lot or rate per hectare –  location – elevation – drainage easement – risk of refusal – planning appeal quantification – differences – judgement reflected influence of factors. 

REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – COMPENSATION ASSESSMENT – TOWN PLANNING – differences in zoning – development application – superseded planning scheme – planning approval risk – need – 42 lot – 66 lot development – performance based assessment – likelihood of approval – finding not disturbed.

REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – COMPENSATION ASSESSMENT–VALUATION METHODOLOGY – likely view of hypothetical prudent purchaser – highest and best use – likelihood of approval – Caloundra City Plan 2004 – Emerging Community Precinct – Q100 levels – delay and risk of suitable access.

REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – COMPENSATION ASSESSMENT –VALUATION METHODOLOGY – market movement – date of sale – date of resumption – relevance to valuation error – factors considered – valuers report – industry publication – not demonstrated by totality of evidence.

Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566

Brisbane City Council v Bortoli [2012] QLAC 8

Brisbane City Council v Mareen Development Pty Ltd (1972) 46 ALJR 377

Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33

De Ieso v Commissioner of Highways (1981) 27 SASR 248

General Motors-Holden’s Pty Ltd v Moularas (1964) 11 CLR 234

Intrapac Parkridge Pty Ltd v Logan City Council & Anor [2014] QPEC 48

Acquisition of Land Act 1967

Land Court Act 2000

Local Government Act 1993 (NSW)

COUNSEL:

D.R. Gore QC and M. Gynther for the applicant

G.W. Diehm QC and S.M. Ure for the respondent

SOLICITORS:

Garland Waddington for the applicant

Butler McDermott Lawyers for the respondent

THE COURT:

  1. [1]
    The respondent’s[1] land was resumed by the appellant Council on 18 February 2005 for “recreation grounds, park, flood prevention and flood mitigation purposes”. Compensation was determined, ultimately in the amount of $4,562,554, including improvements and disturbance[2]. The Council has appealed against the determination of the value of the land, reflected in the Order of the Land Court.

Background

  1. [2]
    The resumed land is located at Meridian Plains, to the north-west of Caloundra. It is approximately rectangular in shape. It has an area of 86.13 hectares[3].
  2. [3]
    A proposed railway corridor known as “CAMCOS” ran in a north-south direction through the eastern part of the land. The land was also dissected by the then-proposed “multi-modal transport corridor” (MMTC), which has since been constructed and is now known as the Caloundra-Mooloolaba Road. Currimundi Creek flows in the vicinity of the southern boundary of the land, with tributaries of Currimundi Creek passing through the land. Most of the land is flood prone, with only an area of 4.082 hectares in the vicinity of the land’s northern boundary being above the flood line[4].
  3. [4]
    Adjoining the land’s western boundary is a road then known as Sunset Drive (now known as Meridian Drive). It was common ground that Sunset Drive did not provide suitable access for development on the resumed land, as it was subject to flooding[5].
  4. [5]
    Adjoining the northern boundary of the land is an area of land known as Easement A, through which had been constructed a mains water supply pipeline[6]. To the north of Easement A lay the Kawana Forest Estate, which was being developed as a residential estate. On the eastern side of this estate, and north of the resumed land, was the site of the Pacific Lutheran College. The road system being developed within the Kawana Forest Estate included a road which ran north from the eastern end of Easement A, between the Pacific Lutheran College and the Estate and connecting via Woodlands Boulevard with the external road system. It also included a street, approximately parallel to the easement, called Wilkiea Street, at the eastern end of which, running north, was a street which became Rapanea Street[7].
  5. [6]
    At the time of the resumption, development of the land was regulated by the Caloundra City Plan 2004 (CCP). Under that plan, the land was included in the Open Space-Sport and Recreation Precinct of the Caloundra West Planning Area (CWPA). It was common ground that the designation reflects the scheme underlying the resumption and was to be ignored for the purposes of assessing compensation[8]. However, other provisions of the CCP were treated as relevant.
  6. [7]
    Prior to commencement of the CCP, development was regulated by the Caloundra City Planning Scheme 1996 (1996 Planning Scheme), under which the land was included in the rural zone[9].

The Land Court’s reasons

  1. [8]
    The learned President found that the hypothetical prudent purchaser would conclude, at the time of resumption, that suitable access for the development of the resumed land could be obtained via Red Cedar Drive and Rapanea Street, but would be aware that there was some risk in obtaining such access, and in any event delay would be likely[10].
  2. [9]
    The respondent had proposed, for the purpose of the determination of the compensation, three alternative development scenarios. One involved the development of an area of 4.082 hectares, producing 42 lots. This scenario did not require any filling below the Q100 flood level, but it was proposed that some excavation or cut of the flood plain would occur, to provide fill for the development[11]. The second involved some cut and fill, to extend the area above the flood level, resulting in a developable area of 6.252 hectares, producing 66 lots[12]. The third involved more extensive cut and fill, resulting in a developable area of 14.2 hectares, producing 145 lots[13]. The third of these proposals was not ultimately pursued, and was not considered by the learned President[14].
  3. [10]
    Evidence was adduced as to the costs, at times variously referred to as civil engineering costs, as construction costs, as costs of earthworks, and as development costs, for each proposal[15]. The learned President preferred the evidence of the engineer called by the respondent, Dr Johnson, to that of the evidence of the engineer called by the Council, Mr McAnany, and thus found that the development costs for the 42 lot development were $4,822,420; and for the 66 lot development were $7,604,525[16].
  4. [11]
    Need was an issue in the Land Court. The learned President concluded there was a need for residential development such as that contended for by the respondent; and that the hypothetical prudent purchaser would have been satisfied that there would be a market for the lots resulting from either development[17].
  5. [12]
    At the date of the resumption, and until 29 September 2006, a purchaser of the resumed land could have made a development application (superseded planning scheme), under the 1996 Planning Scheme[18]. Alternatively, a development application could have been made under the CCP; though there was some difficulty in determining the prospects of such an application, since the designation or zoning was to be ignored.
  6. [13]
    The learned President concluded that the hypothetical purchaser would consider that, under the 1996 Planning Scheme, an application to develop the 4.082 hectares of land for the 42 lot subdivision was likely to succeed[19]. However under that scheme, such a purchaser would consider that the 66 lot proposal was likely to be refused, because of the area of the land in the flood plain[20].
  7. [14]
    The hypothetical purchaser would have considered that, if an application were made under the CCP for approval of the 42 lot development, that was likely to succeed[21]. With respect to the 66 lot subdivision, the purchaser would also have considered an application under the CCP as likely to succeed, though the risk of refusal was greater than in relation to the 42 lot subdivision; and in any event an appeal to the Planning and Environment Court might have been necessary, involving significant time, cost and resources[22].
  8. [15]
    The learned President determined the value of the resumed land by determining the value of the land capable of development by reference to a number of sales referred to by the valuers;  and adopting a similar approach for the balance of the resumed land, treated as rural flood prone land. To determine the value of the areas capable of development, the learned President relied upon a sale of land at Parklands Boulevard, Meridian Plains, referred to by Mr Henderson, the valuer called by the respondent. The analysis of this sale resulted in a rate per hectare of $612,040[23]. It was referred to as Sale 1.
  9. [16]
    By reference to Sale 1, the learned President considered the appropriate rate to be applied to the area of 4.082 hectares for the 42 lot subdivision was $500,000 per hectare; and for the 6.252 hectares resulting in the 66 lot subdivision, the appropriate rate was $425,000 per hectare[24]. Ultimately, the learned President adopted a valuation based on the 6.252 hectares of developable area, resulting in the assessment of compensation (including allowances for improvements and disturbance) of $4,562,554[25].
  10. [17]
    The learned President rejected a valuation based on a rate per lot resulting from the development, and a valuation based on a hypothetical development approach.

Submissions on appeal

  1. [18]
    The primary submission on behalf of the Council was that the learned President erred in her application of Sale 1. The significant difference between the cost of development for the sale property and the subject were such that the rate adopted by the learned President could not be maintained[26]. Nor did the rate applied by the learned President sufficiently reflect: the differences in zoning, the greater risk of not obtaining a planning approval for the 66 lot development; the likely delay in obtaining access to the resumed land; the fact that services were immediately available to the property the subject of Sale 1 but not to the resumed land; and the inferior location of the resumed land[27]. Moreover, a proper application of the hypothetical development method would demonstrate that the determination was in error[28]. The only factor favouring the resumed land was its smaller area, which might justify a higher rate per hectare than for a larger area[29].
  2. [19]
    For the Council it was also submitted that the learned President erred in concluding that the hypothetical prudent purchaser would consider it likely that the Council would approve the 66 lot development proposal under the CCP. It was inconsistent with the finding that such a development proposal would not be seen as likely to get approval under the 1996 Planning Scheme[30]. It was also inconsistent with the finding that the evidence was not sufficient to establish that the land above the Q100 line would have been included in the Emerging Community Precinct, but for the proposed resumption. Her Honour had accepted evidence from Mr Vann, the town planner called by the Council, that under the 1996 Planning Scheme the Council had adopted “a philosophical position” that cutting and filling activities should not occur on the flood plain; and that under that scheme, development below the Q100 flood line would create “a major conflict” with the Plan. That formed part of her Honour’s reasoning which led to the conclusion that none of the resumed land would have been included in the Emerging Community Precinct under the CCP[31]. Her Honour’s conclusion was inconsistent with a number of provision of the CCP, namely s 2.4.1, also referred to as Desired Environmental Outcome (DEO) 3;  Specific Outcome 07 of s 6.5.3 of the CWPA Code;  and with Probable Solution S1.1 for Specific Outcome 01 of s 7.9.3 of the Flood Management Code. Her Honour erred in concluding that Mr Vann’s opinion that the Flood Management Overlay Provisions provided a clear direction that buildings and fillings should not occur in the floodplain was “open to question”; in regarding provisions relating to flooding in the CCP as subject to some “ambiguity”; and in concluding that the prudent purchaser would consider that the weight of the planners’ evidence was that the 66 lot development proposal would be allowed. Her Honour had already held, when dealing with the 1996 Planning Scheme, that the Council had adopted the position that it would not in future approve a development in the flood plain; that was a finding about the Council’s position as at the date of the resumption, and it was inconsistent for the learned President to adopt a different view in relation to the CCP. Nor did Mr Vann’s evidence support a conclusion that the development would be allowed, and the learned President overlooked parts of his evidence[32]. The learned President overlooked conflict with s 6.5.2(2)(d) of the CWPA Code[33].
  3. [20]
    Her Honour also failed to take into account both the Council’s information request for a development application made on behalf of the respondent on 28 September 2004[34], the response being discouraging, and the application, which was limited to 5.62 hectares of land[35]. Moreover, the learned President failed to determine the likely view of the hypothetical prudent purchaser, expressing her own opinion on the matter as if it were an appeal relating to a development application being determined by the Planning and Environment Court[36].
  4. [21]
    In determining the value of the resumed land by reference to the 42 lot development proposal, the learned President made similar errors to those which she made in respect of the 66 lot subdivision[37].
  5. [22]
    It was also submitted for the Council that the learned President erred in her conclusion that the hypothetical prudent purchaser would conclude that suitable access could be obtained via Red Cedar Drive and Rapanea Street. The evidence should have led her Honour to conclude that such a purchaser would not act on the basis that access could be obtained within a reasonable time[38].
  6. [23]
    It was submitted that the matters that had been identified led to the conclusion that the learned President erred in concluding that the highest and best use of a part of the resumed land was for residential development. The result was that the value of the land should have been determined at $2,575,000, consistent with the Council’s valuation evidence[39].
  7. [24]
    It was also submitted that in a number of respects, the learned President had failed to express adequate reasons[40]. It was submitted this served to “highlight the errors relating to the other grounds” of appeal[41]. In addition, the delay in giving judgment required that the findings undergo “special scrutiny”, and the decision of the learned President should be approached “without the usual assumption in respect of a trial judges (sic) advantage”[42].
  8. [25]
    For the respondent it was submitted that it was incorrect to introduce into a valuation based on a comparison of englobo parcels of land, calculations (such as those relating to the cost of earthworks) which might form part of a valuation based on a hypothetical development exercise[43]. Further, such an approach would assume that the sale price per lot would be the same for each development; whereas if a price were obtained which was $10,000 per lot greater for the resumed land than for Sale 1, that would result in an increase in value of about $100,000 per hectare[44]. Sale 1 faced considerable delay in obtaining access for development[45]. The effect of a finding of the learned President[46] was that a development application in respect of the resumed land could have proceeded somewhat contemporaneously with the process of obtaining development approvals for the nearby land in Kawana Waters Estate[47] (this submission was apparently directed to the proposition that the learned President did not make sufficient allowance for delay in relation to development of the resumed land). Since the learned President did not adopt the valuation advanced by either of the valuers, her assessment was necessarily discretionary in nature. In the application of Sale 1, her Honour had adopted substantial discounts; and no error has been shown in her reasoning[48].
  9. [26]
    For the respondent it was submitted that the learned President’s finding as to the approval of the 66 lots development under the CCP was not inconsistent with her conclusion about such a development under the 1996 Planning Scheme. The CCP reflected a movement to performance based assessment, rather than a determination by reference to arbitrary designations. Moreover, the learned President’s conclusion that she was not satisfied that that part of the land which was above the Q100 line would have been included in the Emerging Community Precinct reflected the Council’s approach to the preparation of the planning scheme, rather than the likely approach to the assessment of a development application[49]. Likewise, to the extent that the learned President accepted Mr Vann’s evidence, that is not inconsistent with her conclusion about the likelihood of an approval under the CCP, involving performance based assessment[50]. The learned President had in fact considered and made findings about conflict with s 6.5.2(2)(b) of the CWPA Code[51]. It was unnecessary for her Honour to deal with Mr Vann’s evidence about conflict with CWPA Code, given his concession in cross-examination that such conflict was technical[52]. In any event, the attitude of the Council, the subject of Mr Vann’s evidence, was unreasonable, and it was unnecessary to refer to it[53]. The Council’s information request was of no moment, and the learned President was correct to treat it in that fashion[54]. In any event, it, and the respondent’s application, emerged “in the shadow of the resumption”, a consideration that diminished the weight of this evidence[55]. It is clear from an examination of her reasons that the learned President understood that her task was to determine the view of a hypothetical prudent purchaser, a task which she carried out[56].
  10. [27]
    The respondent, in support of the learned President’s valuation based on the 42 lot development proposal, relied upon similar submissions to those relating to the 66 lot development proposal[57].
  11. [28]
    It was submitted for the respondent that the purchaser in Sale 1 would have anticipated delay in obtaining suitable access for a development. What delay a hypothetical prudent purchaser would have anticipated in obtaining suitable access is to be determined by reference to the facts known at the time of the resumption, rather than by reference to the actual delay until the access roads became available. They were expected to be available earlier than in fact happened[58]. The contention that Stockland, as the developer of the Kawana Forest Estate, would have opposed a connection over roads through the estate was unsupported by evidence. In any event, it may have been the purchaser of the resumed land. Moreover it had no ground for opposing such access; and a condition to that effect could have been imposed in respect of its development[59]. The objection by Stockland to providing a connection through its estate was an objection to linking it to Sunset Drive, which was not part of either of the proposed developments for the resumed land[60]. On the other hand, by the time of the resumption, the Council had approved documents which showed Red Cedar Drive extending across Easement A, and it and Rapanea Street were designated as “Access Street/Place” on documents approved by the Council[61]. The requirement to dedicate Easement A as a pathway reserve would have given the purchaser comfort as to its availability for a road, in light of the longstanding decision in Brisbane City Council v Mareen Development Pty Ltd[62]. It was unlikely that Stockland would delay the development of the Kawana Forest Estate, and so the risk which a hypothetical purchaser of the resumed would have faced because of delay in access was not significant[63].
  12. [29]
    CalAqua was, it was submitted, “a unit of the Appellant’s predecessor”. The Council did not seek to lead any evidence as to CalAqua’s attitude to a road over the main in Easement A, a factor to be weighed against the Council. On the other hand, there was positive evidence to suggest that this was not a matter of concern[64].
  13. [30]
    For the respondent it was also submitted that the learned President gave proper weight to the evidence of Mr Vann[65].
  14. [31]
    It was not correct to characterise the position of the respondent as having abandoned any reliance on the relevance of the 145 lot development proposal for the valuation of the resumed land. It was relied upon because there was a real potential for its approval, though it was accepted that it would not form the basis on which the hypothetical prudent purchaser would settle on a price. The learned President should have taken it into account[66].
  15. [32]
    It was also submitted that the learned President gave adequate reasons for her conclusions[67].
  16. [33]
    In submissions in reply, the Council submitted that the learned President failed to make transparent her application of Sale 1[68]. The learned President failed to take into account her own findings about the development cost for each of the properties[69]. There was no evidence that lots from a subdivision of the resumed land would achieve a higher price than lots from the development of the property the subject of Sale 1; and the respondent’s submission was inconsistent with the value of each parcel of land on a per lot basis[70]. The respondent incorrectly relied on actions of the Council in relation to the land, which occurred after the resumption[71]. There was no basis for the submission that the Council’s opposition to development of the resumed land would be unreasonable[72]. The issue decided in Mareen Developments was not of assistance in the present case[73]. It is incorrect to read the plan approved by the Council on 4 January 2005 as showing Red Cedar Drive extending across Easement A[74]. A view of the attitude taken by respondent to the 145 lot development proposal, and evidence relating to it, was irrelevant[75].

Market movement 2004-2005

  1. [34]
    Before dealing with other matters relevant to the application of Sale 1, it is convenient to consider the evidence relating to movement in the market between the date of the sale and the resumption, a period of about 10 months.
  2. [35]
    The learned President noted the period between the date of the sale and the resumption in a manner which may have acknowledged some rise in the market[76], she did not refer to this factor when applying the sale[77]. Nevertheless, this matter is potentially relevant to the question whether the valuation was erroneous.
  3. [36]
    Sale 1 was effected on 20 April 2004, some 10 months prior to the resumption. In his reports, Mr Henderson did not suggest that this was a matter which affected the application of Sale 1[78]. Indeed it is a curious feature of his valuation that he described the Sale 1 property as slightly inferior, and suggested the market was rising after this sale, but applied a lower rate per hectare to the area of the 145 lot subdivision, and ultimately the 66 lot subdivision, of the resumed land[79]. In his response report, Mr Carrick did not suggest that there was a material movement in the market in this period[80].
  4. [37]
    Both in oral submissions and in supplementary written submissions for the respondent[81] and for the Council[82], evidence on this topic was identified. Mr Henderson gave oral evidence that, at the date of the resumption, demand for development land was strong[83]. In his primary report, Mr Henderson had expressed a similar view[84]. He also referred to Sale 1 and two other sales as showing a trend over the period including the date of resumption[85] (without expressly identifying the trend), noting “the absence of other comparable sales evidence at the time of this resumption”.
  5. [38]
    Mr Henderson also gave evidence of the state of the residential market, that is, the market for developed residential lots. He provided statistics for such sales in Kawana Forest Estate in the five year period from 2003 to 2007[86]; and gave further evidence of such sales as well as sales at Little Mountain over a similar period, with rising prices[87]. He referred to an industry publication (the Rafter & O'Hagen report of October 2005) relating to movement in this market[88]. He also gave oral evidence that a rising market for such lots would have provided “a very positive situation for any would-be developers”[89].
  6. [39]
    Mr Carrick provided some evidence of the state of the market between 2003 and 2005. He considered that the state of the residential market indicated the prevailing economic conditions and general market sentiments at the date of the resumption, which he said, were “pertinent to the residential component of the applicants’ claim for compensation”[90].
  7. [40]
    In his oral evidence, Mr Carrick accepted that Sale 1 occurred in a buoyant market for land capable of development for residential purposes, noting that the market slowed down subsequently, both prior to and beyond the date of the resumption[91].
  8. [41]
    The englobo sales relied upon by Mr Henderson in his report were his Sale 1; a sale in July 2006 at Village Way, Little Mountain; and a sale on 26 September 2007 at 166 Parklands Boulevard, Meridian Plains[92].  A comparison between Sale 1 and the Little Mountain sale does not support his conclusion. Rates for Sale 1 do not include development costs; but for Little Mountain, they are for filled land. Moreover, the area sold at Little Mountain was substantially smaller than for Sale 1. The size of the land sold at Parklands Boulevard, and the absence of any discussion of earthworks, make it hard to rely on this sale as evidence of a trend; and it is substantially later than the resumption date.
  9. [42]
    The written submissions for the Council correctly point out that Mr Henderson’s schedule of sales in the Kawana Waters Estate does not demonstrate a rise in the residential market in the relevant period[93]. His analysis otherwise covers too broad a period to be of much assistance. Mr Henderson’s reference to the Rafter & O'Hagen report of October 2005 stating that the “mainstream Sunshine Coast residential market reached a peak at late 2003/early 2004, although there had been no major correction”[94] does not demonstrate any rise in the residential market in the relevant period; rather, it suggests the contrary. Moreover the publications referred to by Mr Carrick in December 2004 and December 2005 indicate there was a “downward slide through 2004” in the residential market[95]. Against the background of this evidence, broad statements of impression as to market movement are not of great weight. The fact that Mr Henderson did not rely on market movement when applying Sale 1 is also of some significance.
  10. [43]
    Taken as a whole, the evidence does not demonstrate a material upward movement in the market for land capable of development from the date of Sale 1 up to the resumption.

Application of Sale 1

  1. [44]
    As has been pointed out, the learned President determined the value of the resumed land on the basis that an area of 6.252 hectares should be valued at the rate of $425,000 per hectare. That resulted from the application of Sale 1, analysed as showing a rate of $612,000 per hectare[96].
  2. [45]
    The Council placed substantial reliance on the difference in development costs. For the development of the Sale 1 property, these were $75,000 per lot for a 137 lot residential subdivision. They thus totalled $10,275,000.
  3. [46]
    For the 66 lot subdivision, the learned President found the development costs to total $7,604,525.
  4. [47]
    In the submissions, the effect of the difference in cost was translated to a per hectare basis by multiplying the difference per lot by the number of lots in the development proposals relied upon by the respondent. That is not an accurate method of determining the difference in costs on a per hectare basis, because there was a different number of lots per hectare for each form of development. It is more accurate to divide the total development costs by the relevant number of hectares.
  5. [48]
    On that basis, the development costs per hectare for the Sale 1 property were $859,114[97]; and for the 66 lot proposal, $1,216,336[98]. As a matter of arithmetic, therefore, development costs for the 66 lot development of the resumed land exceeded those for the Sale 1 property by $357,221 per hectare.
  6. [49]
    The submissions for the respondent contended that the difference in rates per hectare for development costs should not be used quantitatively when considering the rates adopted by the learned President. While such figures are appropriately used in a hypothetical development approach, they should not be used when a value is determined by a comparison with sales. It was also submitted that a difference in selling prices for the lots in each development of $10,000 would make a considerable difference to the return (by implication, more than $100,000 per hectare of development area in the resumed land), demonstrating the unreliability of recourse to such figures.
  7. [50]
    If the difference in these costs was the only material difference between the two properties, it is difficult to think that a potential purchaser of the resumed land would not adopt a rate per hectare at least $350,000 below the analysed rate from Sale 1. Indeed, when allowance is made for interest, and for profit and risk, the difference might well be greater. It does not seem rational to ignore the evidence when applying the sale, simply because the difference in costs can be quantified. There are inevitably difficulties when weighing together considerations, some of which are quantifiable, and some of which are not. Care must be taken to ensure that sufficient weight is given to factors not capable of quantification. Nevertheless, a measurable difference of this significance (particularly in the context of the rate per hectare derived from the sale) should not be ignored; and its significance can be appreciated by reference to the amount involved.
  8. [51]
    As to the submission about the average selling price of lots, there was no evidence to show that there would be any difference between the sale property and the resumed land. In any event, it seems unlikely that a difference of the order referred to would be material. For the 66 lot subdivision, the yield was 10.6 lots per hectare. The land the subject of Sale 1 was developed for 137 residential allotments,[99] its yield being 11.45 lots per hectare. The sale price adopted by Mr Henderson for lots on the developable areas on the resumed land was $255,000 per lot. If lots developed on the resumed land sold at a price that was $10,000 greater than the price for lots on the land the subject of Sale 1, that consideration would be more than offset by the additional returns from the greater number of lots. Although not relied upon by the appellant, and unnecessary for a determination of the appeal, it would seem that the greater number of lots per hectare which could be developed on the Sale 1 land is an additional reason to think that the developable areas of the resumed land are substantially inferior. (For the 42 lot subdivision, the yield was 10.3 lots per hectare, and the same reasoning applies.)
  9. [52]
    On the findings of the learned President, other relevant factors in the comparison of the two properties favoured the sale property. It had the advantage of being within the Emerging Community Precinct[100]. Accordingly, its purchaser did not face the risk of the refusal of a development application, relevant for the resumed land; nor the prospect of an appeal and the associated time, cost, and resources to be expended by a potential developer of the 66 lot development[101]. While a developer of either property faced delay in obtaining access, in the case of the resumed land there was a risk that access might not be obtained. The learned President correctly recognised that that risk would adversely affect the price to be paid for the resumed land[102]. Her Honour also found that the property the subject of Sale 1 was superior to the resumed land in terms of location[103].
  10. [53]
    Another point of comparison which emerges from the evidence is that the sale property is inferior to the developable land on the resumed property because it is “of slightly lower elevation” and because of the presence of a drainage easement[104]. The difference in elevation appears not to have played any real role in the application of the sale, and accordingly not to be a material distinction. Given that the sale property achieved a higher number of lots per hectare than could have been achieved on the developable areas of the resumed land, the presence of the drainage easement also does not seem to be of material significance.
  11. [54]
    One difference between the two properties potentially of importance, and which favoured a higher rate per hectare for the developable area of the resumed land, is size. There is little guidance in the evidence as to the adjustment to be made for differences in area. Mr Henderson finally adopted a rate of $650,000 for the area the subject of the 42 lot subdivision; and a rate of $600,000 per hectare for the 66 lot subdivision[105]. It might be noted that he also adopted a rate of $550,000 for the 145 lot subdivision, involving an area for development of 13 hectares[106]. While the reduction in size from the 145 lot subdivision to the 66 lot subdivision is greater than for the application of the sale, an increase of about $50,000 per hectare when applying the sale to the 66 lot subdivision would be consistent with Mr Henderson’s approach. Mr Henderson gave no explanation for the amounts by which these rates varied; and it would seem to reflect his professional judgment, based on experience.
  12. [55]
    The learned President noted the difference between Mr Henderson’s rates for the 42 lot proposal and the 66 lot proposal. Her Honour, however, without further explanation, adopted rates which differed by $75,000 per hectare. In the absence of some explanation for that difference, it is difficult to give weight to her Honour’s approach.
  13. [56]
    Mr Carrick regarded the Sale 1 property as vastly superior to any of the relevant areas of the resumed land, by reason of its location, inclusion in the Emerging Community Precinct; access; and development costs[107]. It is implicit in his evidence that the smaller areas for development on the resumed land do not materially offset these disadvantages.
  14. [57]
    The conclusion reached by the learned President about the rates to be applied to the developable land in relation to either proposed development involved a matter of judgment, about which minds might legitimately differ. Most of the relevant factors favour the sale property. As to an allowance for the smaller area, the best available evidence comes from Mr Henderson, suggesting an adjustment of $50,000 per hectare, far outweighed by the greater development costs. Other points of comparison overall significantly favour the sale property. As has been said, market movement is not a significant factor in the application of the sale. The rate adopted by the learned President for the proposed 66 lot subdivision cannot be sustained.
  15. [58]
    For the 42 lot subdivision, the applied rate was $500,000 per hectare. Development costs were $1,181,387 per hectare[108], about $322,000 greater than for Sale 1. Mr Henderson’s evidence would suggest a higher rate for the resumed land, by about $100,000 per hectare. However, in light of the other matters relevant to the application of the sale, the rate adopted by the learned President cannot be sustained.
  16. [59]
    It follows that the rates per hectare adopted by the learned President cannot be maintained.
  17. [60]
    The submissions for the Council rely on the fact that services were available to the property the subject of Sale 1 at the date of the sale; but were not available to the resumed land at the date of the resumption, and were dependent on the progress of the development of the Kawana Forest Estate[109]. Reference has already been made to the fact that the timing of development on the resumed land might be delayed, because of the need for the provision of access through the Kawana Forest Estate. There is no reason to think that the unavailability of services to the resumed land was likely to add materially to this delay, and accordingly this matter does not add materially to the consideration already discussed.
  18. [61]
    Before considering the disposition of the appeal, it is convenient to deal with other matters relied upon by the Council.

The 66 lot development proposal and the CCP

  1. [62]
    It was submitted for the Council that the learned President erred in her conclusions as to the prospects of obtaining a development approval for the 66 lot development proposal under the CCP. The matters raised were the inconsistency of this conclusion with her Honour’s finding relating to the prospect of an approval for such a development under the 1996 Planning Scheme[110]; and that her Honour wrongly interpreted the evidence of Mr Vann (the town planner called in the Council’s case) as supporting a conclusion that such a development would be allowed[111]; her Honour overlooked some relevant evidence of Mr Vann and Mr McAnany[112]; her Honour failed to take into account conflict with s 6.5.2(b) of the CWPA Code[113]; her Honour failed to take into account the Council’s request for information relating to the development application for the resumed land, lodged in 2004, as well as the development application;[114] and her Honour’s conclusion was her own opinion about the likely prospects of an approval for this form of development, rather than a conclusion about the likely opinion of the hypothetical prudent purchaser[115].
  2. [63]
    It is convenient to commence with a discussion of the last of these matters. It is correct to say that the task facing the Court was to determine how the hypothetical prudent purchaser would have viewed the potential financial return when considering purchasing the land for development, rather than whether, as a fact, the planning authority would approve the development[116]. A notable difficulty with this submission is that the ultimate conclusion of the learned President, as identified elsewhere in the Council’s submissions[117], was in these terms[118]:

“… I have concluded that the prudent purchaser would consider that it is likely that Council would approve the 66 lot development although the risk of refusal is greater than in relation to the 42 lot development. An appeal to the Planning and Environment Court may be necessary and such an application may well involve significant time, cost and resources to obtain approval. A prudent purchaser would be aware of those factors and would take that into account in calculating the profit to be made from the proposed development, and the price to be paid for the subject land.”

  1. [64]
    Moreover, as the submissions for the respondent point out, the reasons for judgment are replete with passages which make it abundantly clear that the learned President was conscious of the task that she was required to carry out[119]. The Council’s submission is without merit.
  2. [65]
    The Council contended that the learned President overlooked, and failed to make any finding about, the conflict between this development proposal and s 6.5.2(2)(b) of the CWPA Code[120].
  3. [66]
    This provision of the CWPA Code was set out by her Honour in her reasons for judgment[121]. Her Honour then considered a submission made on behalf of the respondent as to the significance of the provision in the appeal. Her Honour also referred to the evidence of Mr Vann on some related matters[122]. Her Honour then recognised conflict with s 6.5.2(2)(b), but concluded that there were sufficient planning grounds to justify approval of the 42 lot development proposal;[123] and then went on to observe that the 66 lot development proposal raised more difficult issues[124]. It is difficult to conclude that her Honour, when dealing with the 66 lot development proposal, overlooked conflict with the provisions of s 6.5.2(2)(b) of the CWPA Code.
  4. [67]
    The discussion which follows in the learned President’s reasons focuses on provisions which deal more specifically with what might be regarded as the substantive question raised by this provision, namely the intent to retain the flooding characteristics of the floodplain. Her Honour had earlier dealt with the question of where urban growth boundaries would be maintained[125], a matter raised by s 6.5.2(2)(b). Her Honour, in her concluding observations, then dealt generically with the prospect of approval, notwithstanding the provisions of the CWPA Code[126]. In the context, in doing so, she reached a conclusion about whether the hypothetical prudent purchaser would consider it likely that the development proposal would be approved notwithstanding provisions such as s 6.5.2(2)(b). Her Honour did not overlook, or fail to make a finding about, conflict with this provision.
  5. [68]
    It was submitted that the learned President’s conclusion as to the hypothetical purchaser’s view of the prospects of obtaining a development approval under the CCP was inconsistent with her reliance on Mr Vann’s opinion that “the Council would in future, continue not to approve developments in the floodplain”[127]. Her Honour did so in the context of the 1996 Planning Scheme; and she went on to point out that she had accepted Mr Vann’s evidence on this question as establishing the position of the Council based on DCP 3 of that scheme. Her Honour’s finding about the Council’s position under the 1996 Planning Scheme is irrelevant to her conclusion relating to an approval under the CCP, and the asserted inconsistency does not arise. In any event, her Honour recognised that, notwithstanding the effect of the CCP, an appeal to the Planning and Environment Court might be required, no doubt because of the prospect that the Council would nevertheless refuse the application[128]. No error is shown in her Honour’s reasoning.
  6. [69]
    The submission that the learned President wrongly interpreted the evidence of Mr Vann as supporting a conclusion that such a development would be allowed does not accurately reflect her Honour’s appreciation of the effect of Mr Vann’s evidence. Her Honour referred on a number of occasions to evidence of Mr Vann which might lead to a conclusion that the development would not be approved[129]. At no point did her Honour suggest that this evidence supported a conclusion that the development was likely to be approved.
  7. [70]
    The submissions for the Council did not identify the passage in the reasons of the learned President relied on for the asserted misinterpretation of Mr Vann’s evidence[130]. Her Honour stated that she had reached her conclusion because the weight of the planners’ evidence was that the development would be allowed[131]. If that is the passage relied upon, the submission is not accurate. Her Honour also concluded that, “in the end, Mr Vann conceded that any conflict may be technical”[132]. It is by no means clear that this overall view of the effect of Mr Vann’s evidence was not influenced by impressions formed by her Honour from her observations of Mr Vann in the witness box; and for that reason it should not be departed from on an appeal. She has also had the benefit of hearing all of the oral evidence and a great familiarity with the documentary evidence, benefits not available on appeal. Her conclusion also finds clear support in some of Mr Vann’s evidence.
  8. [71]
    In particular, in cross-examination Mr Vann accepted that the matters specified in the sub-paragraphs of s 6.5.2(2)(b) of the CWPA Code would not be offended by the proposal; and that s 6.5.2(2)(f) would relevantly be satisfied[133]. He also accepted that, in the absence of adverse hydraulic consequences, any conflict with Specific Outcome 07 of s 6.5.3 of that Code would become “just a technical conflict”[134]. He also accepted that “a fair reading of the words” of DEO 3(3)(b) had the consequence that the development would not compromise or conflict with the DEO, because it did not involve any potentially damaging activities in the floodplain[135].
  9. [72]
    The Council’s submission placed reliance on evidence given by Mr Vann in re-examination[136]. The evidence goes to the attitude of the Council to development in the floodplain, and not to conflict with the planning scheme. There was no change from his evidence in cross-examination about the latter topic.
  10. [73]
    Mr Vann’s evidence in re-examination was evidence which, the Council submitted, the learned President overlooked. It does not bear on her Honour’s conclusion about conflict with the scheme. Nevertheless, there is no reason to think that the learned President failed to take account of this evidence. It is reflected in her Honour’s finding that the hypothetical prudent purchaser would have recognised that an appeal to the Planning and Environment Court might be necessary[137].
  11. [74]
    It was also submitted that the learned President overlooked the evidence of Mr McAnany, the civil engineer for the Council, to the effect that development of the 66 lot scenario would interfere with 12.854 hectares of the floodplain[138]; said to be relevant to “the intention … to keep the land in its natural state”, consistent with DEO 3[139]. The learned President clearly recognised that there would be earthworks in the floodplain. Her Honour said, “Only a small amount of fill would be required below the 100 year ARI flood level and therefore only minor compensatory earthworks would be required in the floodplain”[140]. This characterisation of the works has not been challenged. Obviously, the floodplain extends over a far greater area. Her Honour also recorded that Mr McAnany accepted that, for both developments, there would not be measurable changes in peak flooding conditions, and no adverse impacts on adjacent lots[141]. Her Honour also had the evidence of Mr Vann, discussed earlier. The submission did not attempt to demonstrate that reference to the area identified by Mr McAnany could have any effect on her Honour’s appreciation of the nature and significance of the works in the floodplain. The fact that her Honour did not make reference to Mr McAnany’s evidence of the area affected by earthworks does not reveal any error.
  12. [75]
    It was also submitted that her Honour’s conclusion on this topic was inconsistent with her earlier conclusion that it was unlikely that, but for the intended resumption of the respondent’s land, the higher part of that land would have been included in the Emerging Community Precinct.
  13. [76]
    The learned President’s conclusion about the potential designation of the resumed land in the CCP was a conclusion about the likelihood that the Council, when considering the overall planning of the scheme area, would have changed the zoning or designation of a part of the respondent’s land. That is a different question from the question whether a potential purchaser might conclude that a development application, to be assessed under the planning scheme, was likely to be approved. In the latter case, as her Honour recognised, an appeal to the Planning and Environment Court was available. The difference was recognised by her Honour’s statement that a change in the designation of a part of the respondent’s land on the introduction of the CCP was unlikely to occur, unless there had previously been a relevant development approval. Indeed, her Honour, in this context, referred to her earlier conclusion that an application for a material change of use of the higher part of the respondent’s land would have been likely to receive approval under the 1996 Planning Scheme, and such an approval would itself have been likely to lead to a changed designation[142]. Her Honour’s conclusion about the likely designation of the land in the CCP, had the resumption not been under consideration when the CCP was being prepared, is not inconsistent with her conclusion about the hypothetical purchaser’s view as to the prospects of obtaining the development approval under the CCP.
  14. [77]
    For the Council it was submitted that the learned President “wrongly failed to take into account the Council’s information request response” to an application lodged by the respondent on 28 September 2004[143]. The development application related to the flood-free part of the resumed land. The request for information was said to be “quite discouraging”, relevantly, because it identified conflict with the CCP[144].
  15. [78]
    The request for further information was a very brief document. It commenced with an observation that the proposed development conflicted with the 1996 Planning Scheme, and the CCP. However, it expressly recorded that the request for information gave rise to no implication as to the position likely to be taken with the application. Moreover, for the CCP, it invited the applicant to demonstrate how the proposal would accord with a number of its provisions. While the document showed that an application for development of the higher land would be assessed with some care against the provisions of the CCP, it does not materially affect the conclusion reached by the learned President. Reference to it does not demonstrate error by her Honour.
  16. [79]
    It follows that her Honour’s finding that it was likely that the Council would approve the 66 lot development, under the CCP, with the qualifications referred to by her Honour, should not be disturbed.

Access

  1. [80]
    For the Council it was contended that the learned President should have concluded that the hypothetical purchaser would not consider that access to the subject land could be obtained within a reasonable time, if at all[145]. A number of points were relied upon in support of this contention.
  2. [81]
    It was submitted that her Honour erred because she found that delay in the provision of access was likely, when such delay was certain. The submission is somewhat semantic. No attempt was made to show that it would have materially affected the application of Sale 1. Her Honour noted that delay in obtaining access was likely to be greater for the resumed land, than for the property the subject of the sale. Nor did the submission show that some certain (but unquantified) delay would mean that the prudent purchaser would not purchase the land for development. Her Honour did not err in this respect.
  3. [82]
    Reliance was placed on a provision of DCP 1 of the 1996 Planning Scheme, which stated that “there shall be no access other than pedestrian and bikeway to Sunset Drive”[146]. The provision applied to the Kawana Forest Estate, immediately to the north of the resumed land. One difficulty with reliance on this provision is that no similar provision was identified in the CCP, in force at the time of the resumption. More significantly, it was common ground that development on the resumed land should not have access via Sunset Drive[147]. In the 66 lot development proposal, none of the lots rely for access on Sunset Drive[148]. In the 42 lot proposal, two lots appear to rely on access from Sunset Drive along a new road immediately north of the resumed land to Red Cedar Drive[149]. If weight were to be given to the provision relied upon by the Council, it is difficult to think that in the course of the final preparation of a development application, or as a result of requirements notified by the Council, a minor adjustment of the layout could not have been designed to avoid reliance on any part of Sunset Drive for access to the proposed residential lots[150]. The submission is without substance.
  4. [83]
    It was submitted that the history of the planning and approval process for the Kawana Forest Estate “revealed that the developer (Stockland) did not intend to extend the road network (in Kawana Forest Estate) to the south (beyond Kawana Forest Estate)”[151]. Reference was not made to evidence to support this submission. In the report of Mr Vann, he records that “the planning for Kawana Forest Estate envisaged the extension of Red Cedar Drive to the boundary of the subject site (the resumed land) would occur as the development proceeded”[152]. That evidence was consistent with the plan approved by the Council on 4 January 2005,[153] as well as earlier approved planning[154]. While it may be accepted that Stockland did not intend to construct a road extending beyond the southern boundary of the Kawana Forest Estate, neither of the development proposals relied upon by the respondent depended upon this. This submission is also without substance.
  5. [84]
    It was also submitted that Stockland was likely to oppose any extension of Red Cedar Drive beyond Kawana Forest Estate[155]. Again, no evidence was identified in support of that submission. As the learned President stated, a hypothetical purchaser would only be concerned about such opposition, to the extent that there were planning grounds to support it. Her Honour found that there were no grounds, from a traffic point of view, on which the extension could reasonably be refused, a finding which has not been challenged[156]. Her Honour’s conclusion is not shown to be in error, by reference to any potential objection from Stockland.
  6. [85]
    The submissions for the Council relied upon “the opposition maintained by Stockland to a request by the Council to provide for the future extension of Red Cedar Drive”[157]. The submission ignores the fact that the documents relied upon for it came into existence well after the date for resumption[158]. In one of the documents[159], the point appears to have been taken for the purpose of obtaining an unrelated advantage to Stockland. The only matter of any apparent significance in any of these documents is a statement that the volumes of traffic which might use Red Cedar Drive, and Woodland Street as a result, would cause unacceptable traffic impacts[160]. All of the documents were produced in relation to some form of development on the resumed land by the Council, but obviously not in relation to subdivisions of the size relied upon by the respondent. No evidence was identified which would suggest that either of these proposed developments would cause unacceptable impacts on either of the roads. The learned President found that Stockland would have no grounds, from a traffic point of view, for opposing a connection to either form of development on the resumed land[161], a finding not challenged on this appeal. There is no reason to think that opposition from Stockland was likely to have led a hypothetical purchaser to a different conclusion about access, than that found by her Honour.
  7. [86]
    Another matter relied upon was the uncertainty as to when Red Cedar Drive (or any other road) would be extended to the northern boundary of the resumed land[162]. This was expressly recognised in the conclusion of the learned President, and no error is identified by the Council[163].
  8. [87]
    It was also submitted that the approved plans only showed a minor street in the southern part of Kawana Forest Estate[164]. Again, the submissions do not identify the approved plans relied upon. The significance of the reference to “minor street” in the submission was not explained. It was not shown that this designation would be an impediment to the use of Red Cedar Drive or Rapanea Street for access to development on the resumed land. The plans previously referred to demonstrate that for several years before the resumption, the large parcel of land on the eastern side of Red Cedar Drive was intended to be the site of the Pacific Lutheran College. It seems clear from the plans, that a function of Red Cedar Drive was to provide access to the college[165]. The function of Red Cedar Drive was not that of a street in a residential area, serving only houses fronting the street. It would inevitably carry traffic which was not generated by nearby residences, and which at times was likely to be substantially higher than some in the minor streets in the Kawana Forest Estate. The early plans showed this road linking across Easement A to the resumed land. In the circumstances, if in some approved plan Red Cedar Drive was shown as a minor street, that is a matter of no significance, and the submission is again without substance.
  9. [88]
    It was also submitted that the learned President erred in concluding that the construction of Red Cedar Drive and Rapanea Street could be coordinated with development on the resumed land, to provide appropriate access[166]. Elsewhere, her Honour found that the hypothetical purchaser would appreciate that the timing of the development of the Kawana Forest Estate was not within its control[167]. The finding at present under consideration appears not to be about the timing of construction, but rather about its form. It follows a reference to the Council dealing with development applications for Kawana Forest Estate and the resumed land in a coordinated way. It would appear, therefore, to be a reference to ensuring road designs in each development took account of the other development. Plainly, conditions could be imposed to bring this about. In any event, conditions could be imposed (where reasonable and relevant), as to the timing of the provision of roads[168]. There is no error in the finding.
  10. [89]
    It was also submitted that her Honour failed to recognise, in relation to the prospect that Stockland might oppose the development of the resumed land, that the prudent purchase could not assume that planning issues would be resolved in its favour. What planning issue Stockland might focus on was not identified. There was no suggestion that there was evidence to show that it maintained the same “philosophical” opposition to any form of development in the floodplain, which the Council had apparently maintained under the 1996 Planning Scheme; or that it supported a literal or technical approach to the application of the CWPA Code. Nor is there any reason to think that the addition of Stockland’s opposition would materially affect the proper assessment of a development application. It might also be noted that these matters were not in themselves material to the question her Honour was considering when she made the assumption, namely, the hypothetical purchaser’s view about the prospects of obtaining access. No error has been shown.
  11. [90]
    A number of points were made about Easement A. One was that, by the time of the resumption, the Council had required, as a condition of an approval, that it be dedicated as a pathway reserve[169]. That would mean, according to the submission, that it was held in trust for that purpose, so that there might be an issue about the power of the Council to permit or require dedication of part of Easement A as a road. The submission made reference to Bathurst City Council v PWC Properties Pty Ltd[170]; and Mareen Development Pty Ltd v Brisbane City Council[171]. It was also submitted that, in the absence of evidence from CalAqua, the learned President erred in relying on the fact that there was “no compelling evidence to establish that the issue was such as to prevent development of (the resumed land)”[172].
  12. [91]
    The first major difficulty with these points, as with a number of the Council’s submissions relating to access, is that they do not sufficiently acknowledge the limited nature of the finding of the learned President, namely, that the hypothetical purchaser would know that there was some risk involved in obtaining access, and that delay was likely. The second difficulty of some significance is that plans approved by the Council for Kawana Forest Estate, for some time prior to the resumption, had identified Red Cedar Drive as continuing across Easement A to the northern boundary of the resumed land.
  13. [92]
    The reference to Bathurst is of no assistance. The case concerned land which had been transferred to a Council for nominal consideration, to give effect to a condition of a development approval requiring the provision of land for carparking for a shopping centre. To that point, there might be said to be some superficial similarity with the circumstances relating to the condition relied upon by the Council in the present case. In Bathurst, the Council had purported to classify the land, in the exercise of a power found in cl 6(3) of Schedule 7 to the Local Government Act 1993 (NSW), as “operational land”, thereby avoiding restrictions affecting the sale, disposal, leasing and licensing of the land. However, the power was not available, by virtue of cl 6(2)(b) of the Schedule, in respect of land which was “subject to a trust for a public purpose” at the commencement of the 1993 Act. The Court considered it “determinative” that the expression in cl 6(2)(b) was “not to be understood in its technical sense”[173]. When the 1993 Act came into force, the land was held “for a public purpose” as that expression was used in s 526 of the Local Government Act 1919 (NSW). Section 518 of the 1919 Act excluded such land from the power otherwise conferred by the section on a Council to sell or exchange any land vested in it. These considerations led the court to the conclusion already mentioned about the construction of the provision. Thus, the case was concerned with the question whether the carpark was “subject to a trust for a public purpose” as that expression was used in cl 6(2)(b). That is a far cry from a determination of the effect of the condition which required Stockland to “dedicate a … pathway reserve (in Easement A)”[174]. It is by no means obvious that such a dedication (if it did occur) would be inconsistent with the use of part of the land so dedicated as a means of access to the resumed land. Given the Council’s intentions for the resumed land, that seems unlikely. No attempt was made to identify statutory provisions which would give rise to questions similar to those which arose in Bathurst. The fact that in that case a dispute arose as to whether the Council had a power to sell, dispose of, lease or grant a licence in respect of the carpark land is of no assistance in the present case. No basis whatever has been shown, by reference to Bathurst, for thinking that the learned President erred in her conclusion relating to access to the resumed land.
  14. [93]
    Nor does the reference to Mareen Development add strength to the Council’s case. There it was held that where three link strips of land had been dedicated to the Council adjacent to a road, pursuant to a condition of an approval to subdivide land, the Council might be required by the Local Government Court (as the Planning and Environment Court was then known) to order the Council to dedicate those strips for road purposes. Here, the condition did not require the transfer of land to the Council. The case is of no present relevance.
  15. [94]
    The submissions for the Council referred to “evidence that the water authority (CalAqua) was concerned that the water main (under Easement A) would not be sufficiently protected” if there were access to the resumed land across the easement[175]. The evidence relied upon appears to be a statement by a surveyor, apparently retained by Stockland, responding to a request for further information relating to a reconfiguration of lot application for part of the Kawana Forest Estate, in which the Council sought revision of the subdivision plan, to extend the road reserve for Red Cedar Drive to the resumed land.[176]  The surveyor’s letter included, relevantly, the following:

“We are also concerned with the impact the extension of Red Cedar Dr will have on the existing and proposed infrastructure. In the past CalAqua has raised concerns regarding the construction of a pathway over the existing water main. The suggestion has been that the water main is not deep enough to accommodate a road being constructed over it. If the infrastructure requires modification we believe it would be unreasonable for us to bear the associated cost.”

  1. [95]
    When (the letter was dated 5 October 2005), and in what circumstances, these concerns were raised has not been identified; nor was evidence referred to which showed it to be more than a “suggestion” that the main was not deep enough to permit the construction of a road over it. The evidence rather strongly suggests that any difficulty could be dealt with by “modification” of “the infrastructure”. It provides good support for the conclusion of the learned President as to the effect of the evidence.
  2. [96]
    Beyond that, as the submissions for the respondent point out[177], and not challenged in the Council’s submissions in reply, it is well known that CalAqua was “a unit of (the Council’s) predecessor”; but no one was called to give evidence of CalAqua’s attitude. Although unnecessary for a determination that the learned President’s conclusion was correct, this circumstance provides additional support for it.
  3. [97]
    It was submitted that her Honour erred in relation to the onus of proof because of her reference to the absence of “compelling evidence”. Her Honour’s statement reflected the state of the evidence as to any difficulty relating to the presence of the water main; and in truth, as has been noted, in context the evidence indicated that any difficulty could be resolved. Moreover, her Honour had to reach a conclusion about the prospect that access would be obtained by reference to the evidence as a whole. Her observation about one piece of it does not demonstrate that she incorrectly applied the onus of proof.
  4. [98]
    A number of the submissions made by the Council related to a proposal by Mr Brown, the planner called in the respondent’s case, about a condition relating to the approval of an application for reconfiguration of lots for the development proposals, preventing the sealing of survey plans until access became available along Red Cedar Drive[178]. No attempt was made to demonstrate that Mr Brown’s proposed condition played any role in the learned President’s determination relating to access. These submissions are accordingly of no assistance in the appeal.
  5. [99]
    It was submitted for the Council that the learned President “erroneously failed to directly address” a number of issues raised in the Council’s submissions[179]. It is a curious feature of the submission that it does not go so far as to contend that the learned President had failed to take into account matters which in fact were relevant to the conclusion reached by her Honour. As has been shown, a number of the matters relied upon by the Council are without substance. Any matter of significance was taken into account by her Honour. The Council’s submissions do not demonstrate error by her Honour in reaching her conclusion about access; nor should they lead this Court to a different conclusion.
  6. [100]
    For the Council, it was contended that the learned President concluded that a hypothetical purchaser would anticipate lodging a development application “with Stockland’s development application for stages 5 to 9 to enable the Council to deal with both application (sic) in a coordinated way”. The conclusion was said to be “at best, speculative”. It was submitted that her Honour’s conclusion “wrongly assumes that Stockland would agree to such a coordinated approach”[180]. The submission does not accurately reflect her Honour’s findings. Her Honour found that the hypothetical purchaser would know what progress had been made towards lodging a development application for those stages; and would be in a position itself to make a development application “in sufficient time to enable Council to deal with both applications in a coordinated way”[181], a finding which had some basis in the evidence[182]. Her Honour also found that such a purchaser “would expect to be able to coordinate the development of the subject with the ongoing development of Kawana Forest”[183]. Her Honour’s findings did not assume that any agreement would be reached with Stockland. They recognised that the timing of the development of Kawana Forest Estate would not be in the control of the purchaser of the resumed land[184]. Nor did her Honour’s findings envisage the simultaneous lodgement of applications by the hypothetical purchaser, and by Stockland for Stages 5 to 9 of the Kawana Forest Estate. As is apparent from her Honour’s reasons, all that was necessary was for the Council to be aware of the intended development of the higher part of the resumed land, in time to enable it to coordinate the two developments.
  7. [101]
    No error has been shown in relation to the learned President’s findings about access to a development on the resumed land.

Highest and best use

  1. [102]
    The Council’s submissions build on its earlier submissions, which were discussed in these reasons, and most of which have been rejected. A question remains as to whether the findings of her Honour which have been upheld warrant a higher value for the resumed land, than it value for rural purposes only. That question is discussed later.

Adequacy of reasons and delay

  1. [103]
    A broad submission was made on behalf of the Council that the learned President failed adequately to address a number of matters in her reasons[185]. They include her Honour’s treatment of development costs, when considering the applicability of Sale 1 to the developable parts of the resumed land. There were, however, other matters relied upon in support of the submission. One was her Honour’s finding that the hypothetical purchaser would appreciate that the obtaining of a development approval may require an appeal to the Planning and Environment Court, involving “significant time cost and resources”. It was said that her Honour erred in not making any reasoned and specific assessment on the particular amounts or deductions to be taken into account for these matters[186]. Another was said to be her Honour’s failing to make a specific finding as to whether a development approval could be obtained prior to the availability of practical access[187]. It was said that her Honour had “not exposed any detailed reasoning” as to her allowance for the difference in size between the property the subject of Sale 1, and the areas capable of development on the resumed land[188]. It was also submitted that her Honour made no attempt to reconcile her finding that the 66 lot development proposal would be regarded as likely to receive approval under the CCP, with her finding that such a purchaser would not have considered it likely that that development proposal would be approved under the 1996 Planning Scheme; and her finding that the evidence did not establish that the higher ground on the resumed land would have been included in the Emerging Community Precinct, but for the resumption[189]. Yet another was her failure to deal with specific parts of the evidence of Mr Vann[190]. Another was said to be her Honour’s failure to make a finding about conflict with s 6.5.2(2)(b) of the CWPA Code[191]. Still another was the submission that the learned President implicitly found that the 66 lot scenario was in conflict with s 6.5.2(2)(b) of the CWPA Code, and a reference to her finding that that proposal was in conflict with the 1996 Planning Scheme, which, it appears to be submitted, she did not address, or she overlooked[192]. A further submission was that her Honour failed to take into account the Council’s information request of 28 September 2004 and the development application made shortly before that in respect of an area of 5.6 hectares of the resumed land[193]. It was also submitted that the learned President failed “to directly address” a plethora of issues relating to access[194]. Finally, it is submitted that the learned President erred by not taking into account the fact that the plaintiff abandoned the 145 lot development proposal; which should have led her more carefully to scrutinise the difficulties relating to the 42 lot proposal and the 66 lot proposal[195].
  2. [104]
    Her Honour’s appreciation of the significance of the costs of earthworks may, for present purposes, be put to one side. Her allowance for the difference in size of the developable areas on the resumed land will be discussed later. Otherwise, none of these submissions has any substance. The multiplication of points of this nature is to be strongly discouraged. Nevertheless, it is proposed to deal briefly with some of them.
  3. [105]
    With respect to the application of the evidence of Sale 1, some of the differences are incapable of quantification. Her Honour’s reasons generally (and with the exception previously noted relating to development costs) reveal a clear appreciation of the effect of the evidence relating to matters of difference between the property the subject of Sale 1, and the areas proposed for development on the resumed land. No more than that can be expected. What is then required is the making of a judgment reflecting the influence of these factors[196]. Her Honour’s approach to the task does not reflect any error.
  4. [106]
    The learned President’s finding that there was some risk and delay relating to obtaining access[197] made it rather pointless to reach a specific conclusion as to whether, if access were to be obtained, that would occur before or after it was likely that a development approval for the 66 lot proposal (as to which there was also risk[198]) might be obtained. Relevantly, her Honour appropriately concluded that the likely delay in obtaining access to the developable areas on the resumed land was greater than for the property the subject of Sale 1[199]. No inadequacy has been shown in her Honour’s reasons, by reference to this matter.
  5. [107]
    There is no inconsistency in the findings of the learned President as to the prospects of obtaining a development approval for the 66 lot proposal under the CCP, and her finding about such a proposal under the 1996 Planning Scheme, as well as her finding about the likely designation of the higher part of the resumed land under the CCP, but for the resumption. Different considerations were involved. Likewise, as was made clear earlier, her Honour did not overlook conflict with s 6.5.2(2)(b) of the CWPA Code.
  6. [108]
    No basis has been shown for submitting that the application or the information response were of such significance that they required express consideration in the reasons for judgment. The same may be said about the abandonment by the respondent of reliance on the 145 lot development proposal.

Notice of Contention

  1. [109]
    In its Notice of Contention[200] the respondent contended that the potential for the 145 lot subdivision proposal supported the value determined by the learned President. It was submitted there was a real potential for an approval of such a form of development, though one which would not be relied upon by the hypothetical purchaser as a basis for entering into a contract to purchase the resumed land[201]. The submission acknowledged the greater extent of works to be performed within the floodplain, increasing the risk of refusal of the development proposed; but it was submitted that that risk was recognised by reducing the amount that would have been paid for the land had it been likely that this development was approved, to the amount determined by the learned President[202]. The Council maintained its submission that reliance on this development proposal had been abandoned at the hearing of the Land Court, referring to the limited basis on which the evidence relating to it was admitted. It was also submitted that once the claimant had accepted that a hypothetical purchaser would not enter into an unconditional contract to purchase the land on the basis of such a proposal, it was irrelevant to the determination of compensation[203].
  2. [110]
    The submission made in the Land Court on behalf of the claimant, in response to an objection to evidence relating to the 145 lot development proposal, was that the prospect of such a development would influence the minds of the hypothetical prudent purchaser and vendor[204]. In other words, it was seen as confirmatory of the amount which would be paid, based on the other proposed developments. That is consistent with the position taken in the notice of contention.
  3. [111]
    A major difficulty with the respondent’s contention is the absence of findings which would permit reliance on this form of development. Given the fact that it extended further into the floodplain, the risks of refusal would appear to have been greater than for the 66 lot proposal.
  4. [112]
    There is no reason to think that the development costs for the 145 lot proposal would have been of less significance than for the 66 lot proposal.
  5. [113]
    In these circumstances, reference to the 145 lot proposal can not be seen as a basis for maintaining the determination of the learned President. Accordingly, the notice of contention does not raise any matter which affects the outcome of the appeal.

Remitter

  1. [114]
    For the respondent it was submitted that, in the event this Court concluded that the appeal should be allowed by reason of the incorrect application of Sale 1, but otherwise upheld the findings made in the Land Court, a retrial would be warranted, limited to valuation issues, and in particular dealing with market movement between the date of Sale 1 and the resumption[205]. It was submitted that this Court cannot satisfactorily deal with the issue raised by the failure properly to take engineering costs into account in determining the value of the resumed land[206]. The submission was supported by the proposition that there had been no finding about the extent to which the market had risen since Sale 1[207].
  2. [115]
    For the Council it was submitted that no weight should be given to the submission that the market rose from the date of Sale 1 to the date of resumption[208]. In any event, this Court on appeal is in a position to reach its own conclusion as to the proper value of the land, bearing in mind that the respondent led evidence on the rising market issue, and the Land Court made relevant findings as to development costs[209]. The public interest in the finality of litigation supports this approach[210].
  3. [116]
    This Court’s power to remit a matter to the Land Court is to be found in s 57 of the Land Court Act 2000 (QLD) (LC ACT). Neither party has identified relevant authority dealing with this section. The respondent’s submissions made helpful reference to some authorities dealing with a similar provision for other courts. In Calin v Greater Union Organisation Pty Ltd[211] four members of the High Court[212] said that the jurisdiction of the New South Wales Court of Appeal to order a new trial “depends on the demands of justice”; but stressed the importance of the manner in which the trial at first instance had been conducted. In General Motors-Holden’s Pty Ltd v Moularas[213] Barwick CJ said that in exercising its jurisdiction to grant a new trial, the Supreme Court acted “to ensure that no miscarriage of justice occurred”; and that it had a wide discretion. These principles appear to be relevant to the present question, and the fact that this Court must “act according to equity, good conscience and the substantial merits of the case” when exercising its jurisdiction[214] does not add to them.
  4. [117]
    As has been pointed out, there was a body of evidence relating to market movement between the date of Sale 1 and the resumption. It was sufficient to make a finding on this question. It has not been shown that any further material evidence would be available if the matter were remitted. The respondent had the opportunity in the Land Court to lead such evidence. This consideration does not warrant an order that the matter be remitted to the Land Court.
  5. [118]
    Notwithstanding that it raises some complexity, there is no reason to think that this Court can not properly deal with the question of the proper valuation of the land, in light of its findings and those of the learned President which have not been disturbed. There is a public interest in the final determination of litigation, which militates against remitter, with the attendant risk of a further appeal. There would also be additional costs to the parties. It has not been shown that the demands of justice would mean that the matter should be remitted; nor that otherwise, a miscarriage of justice might occur.
  6. [119]
    Accordingly, it is appropriate, for this Court to determine the value of the resumed land, and the compensation to which the respondent is entitled.

Disposition of appeal

  1. [120]
    It was orally submitted for the Council, that if its submissions about the application of Sale 1 were accepted, then Mr Carrick’s valuation should be adopted. Mr Carrick valued the area above the Q100 line as flood-free grazing land at a rate of $153,000 per hectare, resulting in a figure of $627,300; and the balance, 82.03 hectares, as flooded grazing land and environmentally sensitive forest at $23,500 per hectare, resulting in a figure of $1,127,705. The total value for the land was $2,555,005, which together with improvements, led to a value of $2,570,000[215]. The learned President adopted the rate for the flood prone land identified by Mr Carrick[216]. That finding was not challenged on appeal.
  2. [121]
    For the respondent it was orally submitted that the adoption of Mr Carrick’s valuation would not give effect to the findings made by the learned President as to the prospects of developing some part of the resumed land.
  3. [122]
    Mr Carrick’s valuation for the land above the flood line assumes that there is no development potential. Given her Honour’s findings about the likely view of the hypothetical purchaser as to the prospects of developing part of land, his valuation would be too low if that part of the resumed land has a higher value by reference to this potential.
  4. [123]
    Sale 1 remains the sale potentially of most assistance in determining whether the value of the land is affected by the prospect of development. The features which make comparison most difficult are the difference in development costs, and, to some extent, the greater risks associated with obtaining a development approval and securing appropriate access. Otherwise, there is no great difficulty in relying on this sale. Because it is quantifiable, the difference in development costs is easier to take into account. Notwithstanding the difficulties, in the absence of better evidence, it is appropriate to have regard to it to determine whether the value of the resumed land is affected by its development potential.
  5. [124]
    It is convenient at this point to refer to some calculations presented in the Council’s submissions[217]. They are of some assistance in determining whether the land has a higher value than its value for rural purposes. It is, however, necessary to make some observations about those calculations.
  6. [125]
    In the transposition from the rate derived from Sale 1 to a rate for the 66 lot subdivision, an adjustment of 30% was made, related to the profit and risk factor identified by her Honour[218]; which was said also to reflect inferior location and delay[219]. However, the rate derived from Sale 1 should itself reflect profit and risk, the land being purchased for development. It would follow that before a deduction of 30% is made to reflect profit and risk associated with the development of the resumed land, a lower profit and risk factor should be added back to the rate derived for Sale 1.
  7. [126]
    Since the Sale 1 property did not have formed, legal access and faced some obstacles in achieving it[220], some allowance for delay in obtaining access is implicit in the rate derived from the sale. It is difficult to quantify the significance of the greater delay for the subject; as well as the significance of its inferior location. For the purposes of the calculations, it is sufficient, as did the Council, to regard these as encompassed by the profit and risk factor.
  8. [127]
    Some of the calculations[221] included a deduction for the delayed receipt of funds, it appearing from the calculations that this represented the delay between the outlay to purchase the land, and receipt of the proceeds of sale of developed lots. Apart from the fact that this should apply to the rate after all other adjustments are made, it, too, is implicit in the rate derived from the sale. Any greater delay for the development of the resumed land can, for present purposes, be regarded as covered by the 30% adjustment already mentioned. However, it is appropriate to make an allowance for interest on the greater costs for earthworks, consistent with Mr Henderson’s calculations[222].
  9. [128]
    Multipliers of 1.1 and 1.5 were adopted in the calculations when adjusting the rate per hectare derived from Sale 1 for the smaller areas of the 66 lot development and the 42 lot development respectively. Adjustments of this kind have been considered earlier. The multipliers result in adjustments which are reasonably close to those reflected in Mr Henderson’s evidence, and seem appropriate for the exercise.
  10. [129]
    For reasons stated earlier, a correct adjustment for additional development costs in the 66 lot subdivision was $357,221 per hectare.
  11. [130]
    For the 42 lot subdivision, the learned President found the cost of earthworks to be $4,822,420, equivalent to $1,191,397 per hectare. Thus, the difference in earthwork costs between those for the development of Sale 1, and those for the 42 lot development proposal was $322,273 per hectare.
  12. [131]
    Calculations to reflect these views are attached (See Annexure A). For the 66 lot subdivision, they result in a value for the resumed land of $3.4 million assuming the 66 lot subdivision; and $3.2 million assuming the 42 lot subdivision. It can thus be seen that Mr Carrick’s valuation should not be accepted.
  13. [132]
    The result of the calculations for the 66 lot subdivision reflects a rate of $244,307 per hectare for the developable land; and for the 42 lot subdivision, a rate of $318,493. They bear an appropriate relationship to the rate derived from Sale 1, when the difference in development costs on a per hectare basis is deducted, and adjustments for the other differences are taken into account.
  14. [133]
    Accordingly it is appropriate to determine the value of the land as $3.4 million; and award compensation accordingly.

Conclusion

  1. [134]
    Compensation is assessed at $3,428,321, being $3.4 million for the value of the land, together with $12,250 for the value of improvements, and $16,071 for disturbance.

ORDERS

  1. The appeal is allowed.
  2. Compensation is determined at Three Million, Four Hundred and Twenty-Eight Thousand, Three Hundred and Twenty-One Dollars ($3,428,321).

PETER LYONS J

WL COCHRANE

MEMBER OF THE LAND COURT

WA ISDALE

MEMBER OF THE LAND COURT

ANNEXURE A

Calculations for 66 lot subdivision

 

 

 

Rate per hectare derived from Sale 1

 

 

$      612,000.00

Restore profit and risk component (plus 25%)

 

 

$      816,000.00

Adjust rate for profit and risk (reduce from 130% to 100%)

 

 

$      571,200.00

Adjust rate for smaller area (x 1.1)

 

 

$      628,320.00

Additional development costs per hectare

$      357,221.00

 

 

Plus interest (10% for 9 months)

$        26,791.58

 

$      384,012.58

Reduce rate for additional development costs

 

 

$      244,307.43

Multiply by area (6.252 hectares)

 

 

$  1,527,410.02

Value of balance area (as per Judgment 24 June 2015)

$  1,877,133.00

 

 

Derived value of land

 

 

$  3,404,543.02

Rounded

 

 

$  3,400,000.00

Improvements

$        12,250.00

 

 

Disturbance

$        16,071.00

 

 

Compensation (rounded value plus improvements and disturbances)

 

 

$  3,428,321.00

Calculations for 42 lot subdivision

 

 

 

Rate per hectare derived from Sale 1

 

 

$      612,000.00

Restore profit and risk component (plus 25%)

 

 

$      816,000.00

Adjust rate for profit and risk (reduce from 130% to 100%)

 

 

$      571,200.00

Adjust rate for smaller area (x 1.15)

 

 

$      656,880.00

Additional development costs per hectare

$      322,273.00

 

 

Plus interest (10% for 6 months)

$        16,113.65

 

$      338,386.65

Reduce rate for additional development costs

 

 

$      318,493.35

Multiply by area (4.082 hectares)

 

 

$  1,300,089.85

Value of balance area (see RJ [255])

$  1,930,290.00

 

 

Derived value of land

 

 

$  3,230,379.85

Rounded

 

 

$  3,230,000.00

Improvements

$        12,250.00

 

 

Disturbance

$        16,071.00

 

 

Compensation (rounded value plus improvements and disturbances)

 

 

$  3,258,321.00

Footnotes

[1]  It is convenient to refer to Ms Leacy in both the capacities in which she is a party to the appeal as the respondent.

[2]  See the Order of 24 June 2015, exhibit 2 in these proceedings.

[3]    Reasons for judgment of the Land Court (RJ), [1].

[4]  RJ [15]-[16].

[5]  RJ [15], [20].

[6]  RJ [15]. The easement would appear to have burdened part of Lot 705, a balance area of Kawana Forest Estate: see AR 739, 741, 742, 744.

[7]  For the street layout see Appeal Record (AR) p 4642.

[8]  RJ [17].

[9]  RJ [17].

[10]  RJ [43].

[11]  See RJ [53].

[12]  RJ [57], [59].

[13]  RJ [7].

[14]  RJ [9].

[15]  The works covered can be seen at AR 714-716.

[16]  RJ [71]; see the evidence of Dr Johnson at AR 847.

[17]  RJ [80].

[18]  RJ [82].

[19]  RJ [115].

[20]  RJ [129].

[21]  RJ [167].

[22]  RJ [172].

[23]  RJ [184], [189].

[24]  RJ [245].

[25]  Exhibit 2 in the appeal.

[26]  Outline of Argument of the Appellant dated 4 August 2015 (AOA) paras 20-21.

[27]  See AOA paras 22-29.

[28]  AOA paras 30-32.

[29]  AOA para 33.

[30]  AOA para 34.

[31]   AOA para [40].

[32]  AOA paras [45]-[46].

[33]  AOA paras [48]-[49].

[34]  See AR p 610.

[35]  AOA para [50].

[36]  AOA paras 52-54.

[37]  AOA paras 55-62.

[38]  AOA paras 63-72.

[39]  AOA paras 73-80.

[40]  AOA paras 82-86.

[41]  AOA para 87(g).

[42]  AOA para 87(h).

[43]  Outline of Submission on behalf of Respondent dated 18 November 2015 (ROS) para 18.

[44]  ROS para 19.

[45]  ROS para 20.

[46]  RJ [40].

[47]  ROS para 21.

[48]  ROS paras 23-26.

[49]  ROS paras 27-30.

[50]  ROS para 30.

[51]  ROS para 31.

[52]  ROS para 32.

[53]  ROS paras 33-36.

[54]  ROS para 37.

[55]  ROS para 38.

[56]  ROS paras 39-40.

[57]  ROS paras 42-43.

[58]  ROS paras 45-48.

[59]  ROS paras 49-51.

[60]  ROS paras 52-53.

[61]  ROS para 54.

[62]  (1972) 46 ALJR 377; see ROS para 55.

[63]  ROS para 57.

[64]  ROS para 60.

[65]  ROS para 62.

[66]  ROS paras 64-70.

[67]  ROS paras 71-73.

[68]  Reply of the Appellant dated 31 August 2015 (CSR) paras 2-7.

[69]  CSR para 8.

[70]  CSR para 9.

[71]  CSR para 18.

[72]  CSR para 19.

[73]  CSR para 24.

[74]  CSR para 25.

[75]  CSR paras 29-30.

[76]  RJ [237].

[77]  RJ [244]-[245].

[78]  AR 1408, 1415, 1461.

[79]  AR 1408, 1420, 1456, 1461.

[80]  AR 1889.

[81]  Written submissions on behalf of the Respondent dated 20 November 2015 (RSS).

[82]  Appellant’s reply to the respondent’s written submissions of 20.11.2015, dated 25 November 2015 (CSS).

[83]  AR 339.

[84]  AR 1416.

[85]  AR 1462; AR 1415.

[86]  AR 1415.

[87]  AR 1458.

[88]  AR 1450.

[89]  AR 339.

[90]  AR 1853.

[91]  AR 394.

[92]  AR 1415.

[93]  CSS para 10(i) and (ii).

[94]  AR 1450.

[95]  AR 1853-1854.

[96]  Compare RJ [184], [187].

[97]  $10,275,000 divided by 11.96 hectares.

[98]  $7,604,535 divided by 6.252 hectares

[99]  AR 1415.

[100]  RJ [184].

[101]  RJ [172].

[102]  RJ [43].

[103]  RJ [237]

[104]  AR 1408

[105]  RJ [245]; see AR 1420.

[106]  AR 1456; see AR 15-16.

[107]  AR 1890.

[108]  $4,822,420 (see RJ [71]) divided by 4.082 hectares.

[109]  AOA para 28.

[110] AOA para 45.

[111]  AOA para 46.

[112]  AOA para 47.

[113]  AOA para 48.

[114]  AR 610; AOA para 50.

[115] AOA para 52.

[116]  Compare De Ieso v Commissioner of Highways (1981) 27 SASR 248, 253-254.

[117]  AOA para 34.

[118]  RJ [172].

[119]  RJ [35], [36], [38], [41], [43], [57], [70], [80], [83], [110], [115], [118], [122], [125], 130], [167] and [171].

[120]  AOA para 48.

[121]  RJ [157].

[122]  RJ [160].

[123]  RJ [167].

[124]  RJ [168].

[125]  RJ [153].

[126]  RJ [171].

[127]  RJ [130].

[128]  RJ [172].

[129]  RJ [151], [158], [160], [162], [166].

[130]  AOA para 46.

[131]  RJ [171].

[132]  RJ [171].

[133]  AR 450.

[134]  AR 450-451.

[135]  AR 445.

[136]  AOA paras 46-47; AR 463.

[137]  RJ [172].

[138]  AR 125; AOA para 47.

[139]  AR 429 – 430; AOA para 47.

[140]  RJ [52].

[141]  RJ [54].

[142]  RJ [139].

[143]  AR 689.

[144]  AOA, para 50.

[145]  AOA para 72.

[146]  AOA para 66; the provision was referred to in the submission of s 4.16.2(k); and in the report of Mr Vann at AR 1743 as s 4.16(k).

[147]  RJ [20].

[148]  AR 708.

[149]  AR 707.

[150]  See RJ [33].

[151]  AOA para 66.

[152]  AR 1744.

[153]  AR 1879; see also AR 1875-1878.

[154]  See AR 1240-1243; 1261 (from Master Plans approved 13 July 2000).

[155]  AOA para 66.

[156]  RJ [41].

[157]  AOA para 69(a).

[158]  The first relates to a meeting on 28 September 2005: AR 5135. There are then two letters, each dated 5 October 2005 (AR 673 and AR 4509) which appear to be two copies of the same letter. The third is dated 8 May 2006: AR 4542.

[159]  AR 5135.

[160]  AR 452.

[161]  RJ [41]; and see RJ [37].

[162]  AOA para 66(a).

[163]  RJ [43].

[164]  AOA para 66(b).

[165]  See in particular AR 1875-1880.

[166]  AOA para 69(b); RJ [40].

[167]  RJ [43].

[168]  Compare Intrapac Parkridge Pty Ltd v Logan City Council & Anor [2014] QPEC 48.

[169]  AOA para 66(c).

[170]  (1998) 195 CLR 566, 585-592 (Bathurst).

[171]  [1972] Qd R 203. See AOA para 66(d) (Mareen Development).

[172]  AOA 70; RJ [42].

[173]Bathurst [44].

[174]  AR 4490.

[175] AOA [70].

[176]  AR para 1027.

[177]  ROS para 59.

[178]  AOA para 66(e) – (h).

[179]  AOA para 66.

[180]  AOA para 69(a).

[181]  RJ [40].

[182]  AR 111/30; and see RJ [28].

[183]  RJ [43].

[184]  RJ [43].

[185]  AOA paras 82-86.

[186]  AOA paras 23, 24, 85(a).

[187]  AOA paras 26 & 85(a).

[188]  AOA paras 33 & 85(a).

[189]  AOA paras 34, 35 & 85(b).

[190]  AOA paras 47 & 85(b).

[191]  AOA paras 48 and 85(b).

[192]  AOA paras 49 & 85 (b).

[193]  AOA paras 50, 51 & 85(b).

[194]  AOA paras 66, 67 & 85(c).

[195]  AOA paras 81 & 85(b).

[196]  See Brisbane City Council v Bortoli [2012] QLAC 8 [54].

[197]  RJ [43].

[198]  RJ [172].

[199]  RJ [237].

[200]  Filed 17 June 2015.

[201]  ROS para 65.

[202]  ROS paras 67 & 68.

[203]  CSS paras 29 & 30.

[204]  AR 44-45.

[205]  Written submissions on behalf of the respondent filed 20 November 2015 (RFS) paras 29-36.

[206]  RFS para 29.

[207]  RFS paras 32-35.

[208]  Appellant’s reply to the respondent’s written submissions of 20.11.15, dated 25 November 2015 (CFS), para 3.

[209]  CFS paras 6-8.

[210]  CFS para 9.

[211]  (1991) 173 CLR 33, 39.

[212]  Mason CJ, Deane, Toohey and McHugh JJ.

[213] (1964) 11 CLR 234, 252.

[214] See s 55 of the LC Act.

[215]  RJ [177].

[216]  RJ [254].

[217]  AOA paras 31, 60.

[218]  RJ [265].

[219]  AOA paras 30, 31.

[220]  RJ [237].

[221]  AOA paras 31, 60.

[222]  RJ [261].

Close

Editorial Notes

  • Published Case Name:

    Sunshine Coast Regional Council v Leacy

  • Shortened Case Name:

    Sunshine Coast Regional Council v Leacy

  • MNC:

    [2016] QLAC 2

  • Court:

    QLAC

  • Judge(s):

    Lyons J, Member Cochrane, Member Isdale

  • Date:

    24 Jun 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566
3 citations
Jump To
Cite 1 - (1998) 195 CLR 566
Cite 2 - (1998) 195 CLR 566
Cite 3 - (1998) 195 CLR 566
Brisbane City Council v Bortoli [2012] QLAC 8
2 citations
Jump To
Cite 1 - [2012] QLAC 8
Cite 2 - [2012] QLAC 8
Brisbane City Council v Mareen Development Pty Ltd (1972) 46 ALJR 377
2 citations
Jump To
Cite 1 - (1972) 46 ALJR 377
Cite 2 - (1972) 46 ALJR 377
Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33
2 citations
Jump To
Cite 1 - (1991) 173 CLR 33
Cite 2 - (1991) 173 CLR 33
De Ieso v Commissioner of Highways (1981) 27 SASR 248
2 citations
Jump To
Cite 1 - (1981) 27 SASR 248
Cite 2 - (1981) 27 SASR 248
General Motors-Holden's Pty Ltd v Moularas (1964) 11 CLR 234
2 citations
Jump To
Cite 1 - (1964) 11 CLR 234
Cite 2 - (1964) 11 CLR 234
Intrapac Parkridge Pty Ltd v Logan City Council [2014] QPEC 48
2 citations
Jump To
Cite 1 - [2014] QPEC 48
Cite 2 - [2014] QPEC 48
Mareen Development Pty Ltd v Brisbane City Council [1972] Qd R 203
1 citation
Jump To
Cite 1 - [1972] Qd R 203

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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