Opalinski v Chief Executive, Department of Transport and Main Roads
[2017] QLC 42
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- Opalinski v Chief Executive, Department of Transport and Main Roads[2017] QLC 42
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Opalinski v Chief Executive, Department of Transport and Main Roads[2017] QLC 42
Opalinski v Chief Executive, Department of Transport and Main Roads[2017] QLC 42
LAND COURT OF QUEENSLAND
CITATION: | Opalinski v Department of Transport and Main Roads [2017] QLC 42 |
PARTIES: | Zdzislaw Joe Opalinski (applicant) |
| v |
| Chief Executive, Department of Transport and Main Roads (respondent) |
FILE NO/s: | AQL033-12 |
DIVISION: | General division |
PROCEEDING: | Determination of compensation under the Acquisition of Land Act 1967 |
DELIVERED ON: | 18 August 2017 |
DELIVERED AT: | Brisbane |
HEARD ON: | 6, 7, 8, 9, 10 March 2017 Submissions closed 1 June 2017 |
HEARD AT: | Brisbane |
MEMBER: | WA Isdale |
ORDER/S: |
|
CATCHWORDS: | REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – COMPENSATION – proceedings for compensation – assessment – market value – highest and best use – before and after method – potential use of the land – where part of the applicant’s land was acquired for road purposes – where the highest and best use of the land is in dispute – where level of access is in dispute – where applicant first raises the Pointe Gourde/San Sebastian principle and special value of land at hearing Acquisition of Land Act 1967 Boland v Yates Property Corporation Pty Ltd (1999) 167 ALR 575 Housing Commission of NSW v San Sebastian Pty Ltd (1978) 140 CLR 196 Mario Piraino Pty Ltd v Roads Corporation (No. 2) (1990) 76 LGRA 263 Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426 Pointe Gourde Quarrying and Transport Company Ltd v Sub-Intendent of Crown Lands [1947] AC 565 Spencer v Commonwealth (1907) 5 CLR 418 |
APPEARANCES: | JD Houston of Counsel (instructed by Bradley Munt & Co) for the applicant DP O'Brien QC (instructed by Corrs Chambers Westgarth Lawyers) for the respondent |
Background
- [1]The applicant owned land bordering the Ipswich Motorway at Riverview in Ipswich. At all relevant times it was a limited access road, such that access from the applicant’s land needed the concurrence of the respondent.
- [2]On 12 June 2009, by action under the Acquisition of Land Act 1967, some of the applicant’s land facing onto the motorway was taken by the respondent for road purposes associated with the motorway.
- [3]The parties have been unable to agree on the amount of compensation payable to the applicant, who has brought the matter to the Court for determination.
The issues for the Court to determine
- [4]When the parties made their final submissions, they provided an agreed list of issues for the Court to determine. This became Exhibit 29, which states the issues as follows:
“A The fundamental issues to be determined by the Court are as follows:
- What was the market value of the Land as at 12 June 2009 (the Date of Resumption)?
- What was the market value of the land remaining after the Resumption (the Remaining Land) as at the Date of Resumption?
- What is the compensation payable as a result for the taking of the land, including disturbance?[1]
B Points of Agreement to assist in answering those questions:
- Based on the Respondent’s Post-Resumption Development Plan 5341-7, Issue A, by McAnany Consulting dated 2 September 2015 (Appendix A) (sic),[2] the parties have agreed that the answer to Questions A2 is $538,500.
- To assist in considering costs associated with development of the land for industrial purposes, it has been agreed between the parties that:
- (a)the internal development costs for the Applicant’s Conceptual Pre-Resumption Plan is $1,471,077; and
- (b)the external access road development costs for the Applicant’s Conceptual Pre-Resumption Plan is $1,037,500.
- The parties agree that, if the highest and best use of the Land is residential, as detailed in the Respondent’s Pre-Resumption Plan, the market value of the Land as at the Date of Resumption is $682,500.[3]
C To answer Question A1, the Court will need to determine the following matters:
- As at the Date of Resumption, what was the highest and best use of the land:
- (a)industrial (e.g. those uses falling under the definition of “business use”, “general industry” and “service/trade use” under the 2006 Ipswich City Council Planning Scheme) developed in the manner illustrated on the Conceptual Layout plan which is Appendix A to this List of Issues (the Applicant’s Conceptual Pre-Resumption Plan), or in some other appropriate manner, and obtaining access in the manner, or generally in the manner as illustrated on the plan which is Appendix B to this List of Issues, as the Applicant contends; or
- (b)a boundary rearrangement of the four lots to create four more practically shaped housing lots with a combined access arrangement and appropriate infrastructure services or for detached dwellings located on each of the four individual allotments, as shown on the Indicative Layout plan which is Appendix C to this List of Issues, as the Respondent contents (the Respondent’s Pre-Resumption Plan).[4]
- To assist in answering Question C1(a), with respect to traffic and access issues:
- (a)the parties agree that Western Corridor Recycled Water Easements, in favour of the Co-Ordinator General, could be used as part of any development;
- (b)determine:-
- (i)whether as a result of the construction of the Riverview Interchange in or about 1992, the Respondent has an obligation or commitment to provide an alternative access to the Land?
- (ii)if yes to (i) above, the nature and extent of that obligation or commitment, including the question of responsibility for cost of construction of the access;
- (iii)if no to (i) above, the prospects of traffic and access issues being satisfactorily resolved to allow access for development as contemplated by the Applicant’s Conceptual Pre-Resumption Plan or some other appropriate form of industrial development.[5]
- In the context of the matters referred to in subparagraph 2(b) above, determine the application of:-
- (a)the principle in Pointe Gourde/San Sebastian; and
- (b)whether the Land has “special value” to the Applicant.[6]
- Having regard to determinations in 2 and 3 above, are there any other town planning reasons likely to preclude obtaining a development approval in accordance with the Applicant’s Conceptual Pre-Resumption Plan or some other appropriate form of industrial development?[7]
- If the highest and best use of the Land is industrial as detailed in the Applicant’s Conceptual Pre-Resumption Plan, or some other appropriate form of industrial development, what is the market value of the Land as at the Date of Resumption?”[8]
Other points of agreement
- [5]It was agreed in oral submissions that the answer to question 4 is “no.” It was also agreed that the amount payable by the respondent for disturbance is $31,000.[9]
The remaining dispute
- [6]The applicant’s claim is for $4,161,500 compensation.[10] This figure is arrived at on the basis that the highest and best use of the land on the date of resumption was for industrial purposes. That figure would be reduced if the Court finds that the applicant would have to pay for external roadworks, a cost agreed to be $1,037,500. The compensation would then be $3,124,000.[11]
- [7]The respondent contends that the highest and best use of the land when it was taken was for residential purposes. The agreed value in that case is $682,500.[12] As the agreed value of the land after resumption is $538,500 the compensation for what was taken will be $144,000.[13] When the $31,000 agreed compensation for disturbance is added to this the total compensation due to the applicant would be $175,000.[14]
- [8]The remaining issue to be determined is the market value of the land as at the date of the taking of the land.
The issue to be decided first
- [9]The structure of the agreed issues for determination is that what is in question C3 will lead to answering the questions which precede it in the list, back to the fundamental questions. These answers will disclose the amount of compensation due to the applicant. This is agreed by the parties to be so in relation to the application of the Point Gourde/San Sebastian principle. The applicant does not accept that the second part of C3, the question of whether the land has a special value to the applicant, needs to be determined at an early stage. It must, of course, be decided at some stage.
Question C3(a)
- [10]The content of the principle in Pointe Gourde/San Sebastian is not in dispute, only its application to the facts of the present case. It is therefore possible to state it briefly. What is to be taken from the two cases of Pointe Gourde Quarrying and Transport Company Ltd v Sub-Intendent of Crown Lands[15] and Housing Commission of NSW v San Sebastian Pty Ltd[16] is that compensation must not be diminished by the effect of the project of which the taking of land forms a part. Any decrease in the value of the land due to the scheme underlying its resumption must be ignored.[17]
- [11]For convenience, the principle will hereafter be referred to as Pointe Gourde. The applicability of the principle was not a contention of the applicant which was made clear in the process of defining the issues which the Court employed before the hearing, although it was foreshadowed to the respondent. As there is no system of strict pleadings in this Court, the applicant is not restricted from raising the issue at the hearing.
- [12]The applicant owned three adjoining lots; Lots 2, 3 and 4 on RP 96409, which fronted Ipswich Road. There is no practical alternative access. Ipswich Road, in this area, had been designated a limited access road since 7 June 1952, decades before the applicant bought this land. In practice, this meant that the respondent had to approve access onto the roadway. There was some update to the road between 1992 and 1995 when the Riverview Interchange was constructed nearby. The result was that access to Ipswich Road, which became the Ipswich Motorway, was gained by going on to the east-bound on-ramp to the Riverview Interchange. In connection with these works there was a new map gazetted of the limited access area.[18] This map shows that it was approved on 18 May 1995 and that the effective date was 1 July 1995 when the Government Gazette was published. The map also shows Lot 5 on RP 178620 adjoining the applicant’s land. It shows a property access point for the motorway. It was formerly a service station and had been there since the early 1960s. After the service station closed, the applicant acquired it, gaining this access point, a matter which is not necessary to consider in relation to the present point.
- [13]The applicant says that there is a lack of disclosure which precludes it being specific.[19] The Court is bound to consider the evidence before it, and in the present case there is no evidence upon which to conclude that evidence which might favour the applicant on this point has been withheld. The fact that such evidence is not before the Court might be due to it not existing, and there is no basis shown upon which the other inference could be properly drawn. The conclusion which the applicant says should be drawn is that the 2000 upgrade works, which eventually included the taking of the applicant’s land, were part of a scheme which goes back to the construction of the interchange in 1992-1995.
- [14]The contention of the applicant is that the effects of the construction of the interchange should be ignored when assessing the value of the land at the date of it being taken on 12 June 2009.
- [15]The Court must look at the evidence in an attempt to identify a scheme of the sort required by the Pointe Gourde principle.
- [16]At the outset it needs to be remembered that this area was a limited access road area since 1952, so that the 1995 gazettal did not make any change to the existing restriction on access, at least of itself. The construction of the interchange was more significant as it made obtaining access more difficult. Interchanges are about vehicles getting up to speed to match the motorway traffic, so access to the on-ramp of an interchange is an issue. It will be considered in more detail later in these reasons.
- [17]There is unchallenged evidence concerning the road works which utilised the land taken from the applicant. Mr Paul Mengede explains them in his affidavit.[20] Mr Mengede, a district director of the respondent’s department, explained in his affidavit that the federal and state governments announced in April 1999 that planning for an upgrade of the Ipswich Motorway would begin in May 1999.[21]
- [18]A planning study was undertaken in 2000[22] and in November 2003 a report was delivered to the federal government seeking funding. The upgrade was expected to cost $1.1 billion and take four and a half years to complete.
- [19]Funding was provided in respect of parts of the motorway. The applicant’s land was in a section of the motorway in respect of which the “Origin Alliance” was established in August 2008 to deliver the upgrade works.[23]
- [20]On 26 May 2009 the Commonwealth Minister approved an allocation of $1.2 billion for the planning, design and construction of these works. Exhibit PM-4 to Mr Mengede’s affidavit[24] is a variation of the project approval to allow for planning, design and construction of these works to be funded by the Commonwealth for up to a maximum of $1.2 billion.
- [21]The facts as disclosed in this evidence describe the project. Mr Mengede also describes funding of two earlier upgrades to particular parts of the motorway. One funding decision was in 2004 for $160 million and another in 2005 for $320 million.[25] The affidavit of Mr Mengede makes it clear that the scheme which led to the taking of the applicant’s land was the one announced in April 1999, and that planning for it would begin in May 1999.[26]
- [22]This is not the scheme contended for by the applicant. It is important that Mr Mengede’s evidence was not challenged; he was not required for cross-examination. His evidence makes it clear that the scheme for construction of the Riverview Interchange is not the scheme in pursuance of which the land was taken from the applicant. They were two different schemes, each entire unto themselves, linked only by the fact that they were related to the Ipswich Motorway. There was no evidence of a common contract or common funding. They are severable and, on the evidence, in fact separate. The applicant has failed to show that the two projects were, on the evidence provided, part of one scheme. The applicant submits that it would be up to the Court to infer that there was a common scheme in the form of upgrading the Ipswich Motorway. The Court is unable to do this as the evidence shows discrete schemes which occurred in regard to the Ipswich Motorway.
- [23]This conclusion is fatal to the applicant’s Pointe Gourde submissions. As has already been noted, the limited access road restriction was not new in 1995. It had been in place since 1952, so it is not the case that a right of access for Lots 2, 3 and 4 was lost in 1995. It was a restriction which existed long before the applicant bought the land. The construction of the Riverview Interchange was attended by the gazetting again of the restriction on access which had long existed.
- [24]Exhibit 5, a map apparently dating from about 1963, shows a proposed service road for the land. That proposed road was not built. The failure to implement this proposed future service road, for reasons not explained to the Court, is not the imposition of a restriction on the applicant’s land. It is a potential benefit which did not come to pass and does not advance the Pointe Gourde submissions.
- [25]There is an additional obstacle to the success of the Pointe Gourde submissions. The applicant has not produced any evidence of what the development potential and value of the land would have been without the restriction on access said to arise from the construction of the Riverview Interchange. It would have been necessary to provide evidence of what development would have been undertaken if the Riverview Interchange had not been built. This has not been provided. The applicant’s case has been about what could be done with the interchange in place. There is no material provided by the applicant upon which the Court could quantify compensation in the event that the Pointe Gourde submission was able to be made out. This is understandable when it is recalled that this submission was first put to the Court at the commencement of the hearing.
The answer to question C3(a)
- [26]The Court determines, for the reasons given, that the principle in Pointe Gourde has no application in this case, on the evidence provided.
Question C3(b)
- [27]It is possible to determine this question at this stage and convenient to do so. The question is whether the land has “special value” to the applicant.
- [28]The applicant owned Lots 2, 3 and 4 on RP 96409 and also bought Lot 5 on RP 178620,[27] the former service station that had access to the road, in order to be able to find a way to use that access for all of his land to the roadway. The allotments were all adjoining, such that access through his other land could be provided for the benefit of each allotment. The purchase of Lot 5 was completed on 6 July 1991.[28]
- [29]The claim for special value was not disclosed to the Court until the commencement of the hearing. It is nonetheless able to be raised by the applicant.
- [30]Neither party has pointed to any provision of the legislation under which the land was taken as being relevant to this question. The applicant submits that the principles in Spencer v Commonwealth[29] apply such that a prudent purchaser, fully informed, would have known of the history between the applicant and the respondent regarding this land. It is submitted that the prudent purchaser would have known that, after initial resistance, the respondent would have approved access to the land along the lines of what the applicant sought. It is not necessary to examine the details of this proposed access for the purpose of understanding the present point.
- [31]It is noted that the valuer called on behalf of the applicant, Mr Jorgensen, has not provided the Court with a report quantifying any special value. It is not referred to in his report or his oral evidence. Were the Court to be satisfied that some special value exists, there is no evidence of what sum could be attributed to it for the purposes of compensation. This is understandable in view of the special value submission not being put before the Court until the hearing commenced.
- [32]The special value is submitted to be found in the relationship between the applicant and the respondent.[30] It may be expressed along the lines that the respondent had an obligation to provide access to the land.
- [33]
- [34]Having a “head start” on, for instance, having access approved due to an existing relationship or course of dealing is not something which can give rise to a special value. The situation here is like that in Boland v Yates,[33] where everything the applicant had was of value to any purchaser. If the respondent would allow the applicant certain access, there was no evidence to suggest that any purchaser would not be equally treated.
- [35]In order for there to be special value, the land would need to be shown to be suited to some unusual activity which the applicant was solely, or nearly so, able to exploit. This has not been demonstrated in this case.
- [36]The claim for special value is based on the suggestion that the applicant’s dealings with the respondent would have provided him with an advantage over everyone else in gaining access to the roadway. The traffic engineer called by the applicant, Mr Bitzios, was asked in cross-examination about those dealings.
- [37]Mr Bitzios was asked in cross-examination about a letter which become attachment 1 to the joint expert report prepared with Mr Beard.[34] The letter was dated 9 December 1992 and was written to the applicant’s solicitors by the Department of Transport. It attached a plan outlining the location and minimum requirements for left in/left out arrangement for access from the road reserve. It stated that detailed drawings would be required “for further assessment.” It could not be fairly understood as an indication of a future consent to anything at all.
- [38]In that joint report, Mr Bitzios stated that he would have advised a prudent purchaser that the Department of Transport and Main Roads would be unlikely to immediately support the access proposal he had because it did not ordinarily approve access onto on-ramps.[35] He was of the opinion that the Department “ought to” approve an access plan in the form he proposed because inter-alia, it had incorrectly “land-locked” Lots 2, 3 and 4 when it constructed the Riverview Interchange and would have an “implied obligation” to support an appropriate solution. Mr Bitzios uses the terms “intersection” and “interchange” here although they are different and different design rules apply to each. In brief, interchanges are more onerously regulated. Vehicles need to accelerate to a speed which allows smooth and safe entry onto the motorway.[36] Heavy vehicles accelerate much more slowly than is typical of cars so there needs to be adequate distance allowed for them to do this.
- [39]Mr Bitzios was directed to the lengthy period between the letters in the 1990s and the taking of the land. Mr Bitzios accepted the reasoning that the Main Roads officers would not have been influenced in 2009 by the situation, such as it was, which is reflected in the December 1992 letter.[37]
- [40]The letter dated 16 August 1991 from Queensland Transport does not provide any assistance to the applicant. It expressed that the Department was “agreeable in principle” to an access from the land to the then proposed Riverview Interchange, subject to four general requirements which it set out. These included that detailed design be subject to the Department’s approval.[38] The four requirements were:
- Details being provided of the nature of development proposed and associated traffic generation.
- The form and detailed design of the proposed access arrangements being to this Department’s approval.
- The normal Town Planning approvals of Ipswich City Council being obtained.
- All costs associated with the proposed access connection and any related works to be the sole responsibility of the developer.
- [41]The Department’s letter dated 25 February 1993 also set out that the Department’s approval was required for access type and location.[39] There is nothing which takes the matter any further to the benefit of the applicant.
- [42]Mr Beard, the respondent’s traffic engineer, was of the view from which he did not depart, that the land was “fundamentally unsuitable” in 2009 for use as a light industrial development, as there was no practical traffic access likely to be approved to serve a development likely to generate significant truck movement volumes.[40]
- [43]Mr Porter, the town planner called by the applicant, was of the opinion that the history of the early 1990s regarding access would be of some relevance in 2009 as indicating the Department’s helpfulness, as it would be expected to be helpful to any developer.[41] He was taken to the agreement of the traffic engineers that some limited form of access, up to perhaps 50 vehicles a day, would be in prospect of being approved.[42]
- [44]The Court prefers the evidence of the traffic engineers in matters of traffic engineering. Mr Porter’s opinion on the usefulness of the at least 14 year old material is not persuasive and, when looked at closely, is no more than that the Department would always be expected to act fairly towards everyone seeking access arrangements.
The answer to question C3(b)
- [45]For the reasons given, as there is no support for a conclusion that the applicant had a special advantage in relation to obtaining access and, furthermore, there being no unique or special characteristic or use of the land, it follows that there is no special value shown to exist. In any case, there is no valuation evidence of the quantum of such a value before the Court.
Question C2(b)(i)
- [46]It is useful to next consider whether, as a result of the construction of the Riverview Interchange, the respondent had an obligation or commitment to provide an alternative access to the land.
- [47]
- [48]The applicant has not identified any basis for the proposed obligation or commitment in the material put before the Court. The Court is not able to find an obligation on the basis of something such as a perceived obligation of fairness. As has been discussed, the Department would be expected to be fair to everyone. There has been no evidence of an obligation to the applicant beyond this.
- [49]Additionally, this Court’s jurisdiction goes to compensation for the taking of land and does not extend to a broad accounting for fairness and injustice. If there was any loss as a result of the construction of the Riverview Interchange, it must be something capable of being the subject of compensation in the present proceedings where the focus is on the market value of the land at the time it was taken.
The answer to question C2(b)(i)
- [50]For the reasons given, the answer to this question is “no.” The respondent does not have any obligation or commitment to provide an alternative access to the land.
Question C2(b)(ii)
- [51]In view of the answer to question C2(b)(i), it is not necessary to answer this question.
Question C2(b)(iii)
- [52]The applicant sets out the history comprehensively in his affidavits. He did not give oral evidence and his affidavit material is uncontradicted evidence.
- [53]The question before the Court is what the hypothetical prudent purchaser would have made of the prospects of access being resolved so as to allow access for the development contemplated in the concept plan, or some other suitable industrial development.
- [54]The first joint expert report of the traffic engineers shows egress from the land onto the east-bound on-ramp that connects to the motorway where, it is not disputed, the speed limit is 90 km/h.[45] The proposed five lot industrial subdivision would have required a development application to the local authority at Ipswich.[46] It would need to be an impact assessable application for a material change of use. The Department of Transport and Main Roads would be a referral agency with the power to direct the Ipswich City Council, the assessment manager, to refuse the application. Public notification would be required and objectors could appeal any decision to the Planning and Environment Court.
- [55]The traffic engineers gave a great deal of consideration to the question of access to the land from the roadway and, of course, egress from it.
- [56]Mr Beard gave evidence that the applicant had, in his opinion, “zero chance” and “no chance” of access to the through carriageway, the Ipswich Motorway. It would have to be through another parcel of land or to a service road, for instance.[47] As has already been discussed, he would have advised a prospective purchaser in 2009 that the land was: “… fundamentally unsuitable for use as a light industrial development, because there was no practical traffic access likely to be approved to serve a development expected to generate significant truck traffic volumes.”[48]
- [57]Throughout his evidence, Mr Beard did not depart from this, although he made clear that the Department would have tried to provide some access, limited to a development generating little traffic, perhaps up to 50 movements of vehicles provided they were entirely, or almost entirely, light vehicles.[49] There was, he considered, little or no chance of obtaining approval, at the date the land was taken, for two-way access to the east-bound on-ramp as proposed to serve a light or general industry development on the land.[50]
- [58]Mr Bitzios proposed access arrangements for the land on the basis that they could be designed within the framework of chapter 13 of the Department of Main Roads Road Planning and Design Manual.[51] Chapter 13 is applicable to “Intersections at Grade” and chapter 16 applies to Interchanges. It is clear that the Riverview Interchange is an interchange so that chapter 16 would apply to it. It is more onerous than chapter 13. It is provided in chapter 16.3.4 under the heading “Access control” that:
“Complete control of access must be enforced over the full length of all ramps and ramp terminals in the interchange as well as through the intersections at the ramp terminals. No entrance to or exit from a ramp is permitted except to the through roads at the ramp terminals. A special case may exist where a Service Centre requires access, an enforcement site is required (refer to Chapter 20) or restricted access for emergency services is to be provided.
Care must be taken that any permitted access point within or adjacent to the interchange is far enough from conflict points for ramps to satisfy deceleration and acceleration requirements.”
- [59]Mr Bitzios worked on an assumption that the on-ramp acceleration distance requirements could be designed to the arterial road standard within chapter 13. As the proposed design did not allow adequate length for heavy vehicles such as semi-trailers to accelerate, it would have been necessary to limit access to vehicles having the necessary acceleration capability. Essentially, Mr Bitzios was proceeding on the basis that, as the interchange did not comply with all design requirements then applicable, whether or not it did when it was built, then allowing access to its on-ramp was an imperfection in design that did not stand alone. As such, it would be tolerable to the respondent, despite it being out of conformity with the requirement in chapter 16 for access control that no entrance to or exit from a ramp is permitted except to the through roads at the ramp terminals.[52] The ramps are used for speed matching so potentially obstructing them with heavy vehicles changing their speed from within the ramp is problematic and is obviously a safety consideration.
- [60]As Mr Beard pointed out:
“34. The access proposed by Mr Bitzios relies on:
- DTMR approval of the construction of a new service road within state controlled road reserve;
- DTMR approval of the diversion of the eastbound on-ramp (reverse curves);
- DTMR approval of a new left turns intersection on the on-ramp, directly contrary to DTMR policy in respect of intersections on on-ramps;
- An assumption that the motorway on-ramp acceleration facilities would be designed to arterial road rather than motorway on-ramp design standards;
- An assumption that the 85th percentile speed (design speed) on the motorway at the merge point would be 90 km/hour (the posted speed limit); and
- An assumption that, a substantial light industrial subdivision with up to 7200 sq.m of GFA expected to generate of the order of 650 vehicle movements per day, with 20 to 25 percent of those being trucks of various sizes, would somehow be able to be effectively conditioned so as to preclude movements by heavy trucks expected to have lower power-to-weight ratios (typical design vehicles would need an acceleration lane length of 330 metres, not the 226 metres calculated by Mr Bitzios for lighter trucks).
- In Mr Beard’s opinion, it would be unrealistic to make that series of assumptions, and that, whether advising a prudent purchaser or DTMR, his advice would have been that such an access should not be approved based on normal traffic engineering design criteria, particularly in respect of the safety of the arrangements proposed.”[53]
- [61]In re-examination, Mr Bitzios revised the necessary design speed at the terminus point of the ramp to 94 km/h, and was of the view that the implication of this was that he estimated that between zero and 30 metres of additional distance would be required, potentially changing the 226 metres to 250 metres or thereabouts, which did not concern him.[54] These corrections do not alter the situation in a significant way.
- [62]The Court accepts Mr Beard’s evidence where it differs from that of Mr Bitzios, as the assumptions underpinning Mr Bitzios’s evidence are so significant that a prudent purchaser would be unwilling to risk proceeding on the basis of them and would instead follow the advice of Mr Beard. In Mr Beard’s opinion, access for a development generating “of the order of 50 light vehicle movements per day was probably approvable”.[55] The Court notes the use of the expression “light vehicle movements” and the development that Mr Beard associated with them. His example was a detached house on each allotment.[56]
- [63]The Court notes that such a development would still breach the requirements of chapter 16.3.4, and that with houses would come vehicles used for deliveries and the removal of rubbish. The Department, in Mr Beard’s opinion, would be flexible enough to allow this.
- [64]The applicant submits that since the access to an on-ramp is not seen as an absolute prohibition then the development could proceed and be conditioned so as to allow only those vehicles of sufficient acceleration capability to use the access proposed. In this regard the Court must be careful to decide the case before it on the evidence. It is not performing the functions of the Planning and Environment Court but has a particular remit. It must look at the evidence which the parties have chosen to put before it and consider what, on the basis of that evidence, a prudent purchaser would have thought. In that regard it is useful to consider what Mr Bitzios said in cross-examination:
“Well, can I suggest to you that the Department of Main Roads would – and you would have advised a hypothetical purchaser of this. The Department of Main Roads would never have agreed to further compromise public safety by introducing more substandard design elements into a road network which was already substandard?---My evidence suggests that the Department of Main Roads would not have agreed to the proposal.”[57]
- [65]Rather than what he thought the Department “ought” to do, this was what Mr Bitzios believes it would do. His advice to the hypothetical prudent purchaser, which the Court must consider, was that the Department would not have agreed to the proposal. This evidence, given as an independent expert assisting the Court, was not that the Department would relent and do what it “ought” to. It is clearly that, in his opinion, the Department would not have agreed to the proposal. There was no evidence of what would have been agreed to apart from the single house per lot. In his evidence, Mr Bitzios has come to agree with Mr Beard so that, relevantly, the traffic engineers have told the Court the same thing. The Court accepts this evidence, it cannot do otherwise and still decide the case on the evidence. The notion of an approval “effectively conditioned” so as to exclude heavy trucks[58] has been superseded by this evidence, which is a major concession made by an expert witness and which is not able to be diminished to have a lesser meaning, which was only ever that there “ought” to be the proposed approval.
- [66]The evidence of the traffic engineers is that their advice to a hypothetical prudent purchaser would be, jointly, that the access proposed would not have been agreed to by the Department. In view of the Department’s powerful position in the approval process, a prudent purchaser would have seen the development potential as limited to a house on each lot and judged its value accordingly. That access situation would inform the purchaser what should be paid for the land.
An alternative approach
- [67]On behalf of the applicant, it was forcefully argued that access could be provided by the straightforward method of a requirement being imposed on the development approval to the effect that only certain vehicles would be allowed access to the development, thereby ensuring that they are sufficiently nimble to operate in the environment which could be provided.
- [68]The Court accepts that such a rule could be imposed and, for instance, signage placed to notify everyone of the rule. It was also made clear that it could be enforced, albeit with a lag due to the process, by the local government when it received complaints about any breaches. The respondent says that such a condition would not be allowed as it would not be realistically enforceable. The Court accepts the applicant’s contention that there is an enforcement mechanism. It is no doubt not perfectly enforceable, a weakness of most laws, and certainly not peculiar to the proposed rule. That in itself is not fatal to the concept. It is not as robust as an engineering control such as is set out in chapter 16, but it is a control method.
- [69]If this consideration is said to not be an obstacle, the prudent purchaser must still consider everything. This includes that the site is not capable of taking a class of vehicles, such as semi-trailers, that are a normal expectation of an industrial site’s capabilities. Mr Beard said:
“there is absolutely no doubt in my mind that we would be looking for semi-trailer access… So the semitrailer would- would certainly be the design vehicle [indistinct] be nominated for [indistinct] industrial development on that sort of scale.”[59]
- [70]Mr Perkins, the town planning expert called by the respondent, was of the view that there would be multiple users of the land[60] and “we don’t know anything about the end users” or the operators of those uses.[61] Although he was concerned with enforceability, if that is said not to be an obstacle, it is still relevant that this would be, to a purchaser considering it, an industrial estate with a limitation. A limitation which would relate to its possible range of uses. The prudent purchaser would look at this limitation on industrial use of the land along with the assumptions, which have already been set out, made by Mr Bitzios and, if satisfied that realistic access restrictions could be made, would still conclude that the assumptions and therefore uncertainties are still numerous and weighty, and thus would be convinced by the advice of Mr Beard rather than that of Mr Bitzios. Even if the restriction on vehicles were in place, the land is not suitable for the proposed development, but in this case the reason is the existence of the restriction imposed to deal with the problem. It serves only to emphasise the unsuitability of the land for industrial development and to point towards its residential use. The alternative approach does not change the outcome.
The answer to question C2(b)(iii)
- [71]The answer to this question is that the prudent purchaser would conclude that there are no realistic prospects of traffic and access issues being satisfactorily resolved to allow access for development, as contemplated by the applicant’s conceptual pre-resumption plan or some other appropriate form of industrial development.
Question C4
- [72]The answer to this question, both parties agree, is “no.”
Question C1
- [73]In view of the answers to the preceding questions, the highest and best use of the land is for a detached dwelling house on each allotment or a version of this such as a boundary rearrangement to optimise lot shape and size and the access of each lot to the external roadway.
Question A1
- [74]The market value of the land on the date of taking, 12 June 2009, has been agreed by the parties where the highest and best use is residential, as $682,500.[62]
Conclusion on compensation
- [75]The parties have agreed that the market value of the land remaining after the taking was, at that date, $538,500.[63] The loss for which the applicant must be compensated is, therefore:
$682,500 |
-$538,500 |
$144,000 |
- [76]
$144,000 |
+ $31,000 |
$175,000 |
Additional consideration: Question C5
- [77]In view of the answers which have been given to the questions asked it is unnecessary to answer question C5. It will be briefly considered, however, for completeness in the event that it might become relevant.
- [78]The valuers, Mr Jorgensen for the applicant and Mr Varitimos for the respondent, produced their own reports and two joint reports.
- [79]Mr Jorgensen in the end relied on four sales:
J.1. 2990 Ipswich Road, Darra.
J.2. 267 and 267B, Wacol Station Road, Wacol.
J.3. 26-42 Brisbane Road, Ebbw Vale/Bundamba.
J.4. 175-189 Briggs Road, Raceview.
The Court inspected sales J2, J3 and J4 in order to better understand the evidence. The sites visited were those chosen and agreed by the parties.
- [80]Mr Varitimos relied on three sales:
V.1. Lot 1, Junction Road, Karalee.
V.2. 99-115 Holdsworth Road, Tivoli.
V.3. 59 Robert Smith Street, Redbank Motorway Estate.
The Court inspected sales V2 and V3. The subject land was also visited and inspected on foot.
- [81]On the subject land there was a small table with what looked to be a freshly handwritten message. The Court disregarded it and it has had no effect at all on this decision, which is made on the basis of the evidence.
- [82]It is noted that Mr Jorgensen allowed a 10% profit and risk factor in his hypothetical subdivision valuation. This is a low allowance and does not, in the Court’s view, reflect the risk which the Court has found to exist in the analysis which it has carried out. The actual risk is at least very real,[65] as Mr Bitzios said, but the allowance is one typically provided in cases that come before this Court where there is a rather low risk of failure and the circumstances are quite ordinary.[66]
- [83]Mr Jorgensen’s comparable sales analysis adopted a rate of $150 per m2 for the developable area of 31,348 m2 to arrive at a land value of $4.7 million.[67] His rates per m2 were:
- 2990 Ipswich Road, Darra, $109 m2
- 267 and 267B Wacol Station Road, Wacol, $164 m2
- 26-42 Brisbane Road, Ebbw Vale/Bundamba, $62 m2 and
- 175-189 Briggs Road, Raceview, $69 m2
- [84]None of these sales were located on a limited access road. The inspection made it glaringly obvious that the access to these properties for semitrailer vehicles was very good indeed.
- [85]The Court was not convinced that there was a proper basis to value the subject land close to the value per m2 of the highest value sale, when the two sales with the lowest rates per m2 had a superior access to the subject land.
- [86]The two sales with the highest rates per m2 , closest to that attributed to the subject land, are in the Brisbane market[68] and the two with the lowest rates are in the different Ipswich market.[69] All are zoned for industry, which the subject is not.[70] It is in the Ipswich Market where Mr Jorgensen’s sales show a much lower rate per m2 .
- [87]Mr Jorgensen agreed that Brisbane, in broad terms, is a superior market to Ipswich for an industrial property.[71]
- [88]Mr Jorgensen’s analysis, based on sales which are not comparable, is not of value to the Court and is not accepted for the reasons which have been given.
- [89]Mr Varitimos’s valuation evidence focused on sales at 99-115 Holdsworth Road, Tivoli and 59 Robert Smith Street, Redbank. The value at Lot 1 Junction Road, Karalee had retail potential and could only serve to provide a figure higher than that achievable by industrial land.
- [90]The sale at Tivoli was old, almost three years prior to the date of taking, and was considered to be inferior to the subject land.
- [91]The sale at Redbank was relatively close in time, at 30 December 2008, to the date of the taking, and was closest to the subject. It was in an industrial precinct being developed at the time. When sold, its access was to an unsealed road, and services would have to be provided, but these matters could be confidently expected to be soon resolved as the industrial estate was in the course of being developed. The sale was for $1,398,000 with an area of 18,639 m2 which could all be developed. This is almost identical to the net developable area of the subject.
- [92]This sale is the best guide, in the evidence provided to the Court, to the value of the subject. This land was already suitably zoned and did not have access difficulties so it would seem somewhat superior to the subject in these respects.
- [93]At a rate of $75 per m2 , Mr Varitimos saw this land as superior to the subject for the reasons just examined and valued the subject at $65 per m2 for the net developable area. This is $38 per m2 if considered and applied over the gross developable area.
- [94]This valuation of $1,190,000, at a rate of $65 per m2 over the net developable area, sits comfortably with Mr Jorgensen’s rates of $69 per m2 and $62 per m2 for his Ipswich area sales.
- [95]On the evidence presented, the Court would accept the valuation of Mr Varitimos. If the land’s highest and best use was for industrial purposes, it would have been valued at $1,190,000 at the date of resumption. The compensation in such a case would have been:
| $1,190,000 |
|
- | $538,500 | – the agreed “after” value |
| $651,500 |
|
+ | $31,000 | – the agreed disturbance |
| $682,500 |
|
Orders:
- Compensation is assessed in the sum of One Hundred and Forty-Four Thousand Dollars ($144,000) in respect of the value of the land taken and an additional Thirty-One Thousand Dollars ($31,000) in respect of disturbance making a total of One Hundred and Seventy-Five Thousand Dollars ($175,000).
- The parties will be heard in relation to any application for costs. A request for such a hearing must be made no later than 15 business days after the delivery of these reasons.
WA ISDALE
MEMBER OF THE LAND COURT
Footnotes
[1] Ex 29, page 1.
[2] Ex 1, vol 1, tab 15.
[3] Ex 29, page 1, paragraph B.
[4] Ex 29.
[5] Ibid.
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] T 6-48, line 26.
[10] Applicant’s written submissions, para 4.
[11] Ibid, para 5.
[12] Outline of submissions of the respondent, page 1, para 3.
[13] Ibid.
[14] Ibid.
[15] [1947] AC 565.
[16] (1978) 140 CLR 196.
[17] Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426.
[18] Ex 1, vol 4, tab 97, page 1335.
[19] Applicant’s written submissions, para 200.
[20] Ex 1, vol 3, tab 34.
[21] Ibid, para 7.
[22] Ibid, para 8.
[23] Ibid, paras 15 to 16.
[24] Ex 1, vol 3, tab 34.
[25] Ibid, paras 13 to 14.
[26] Ibid, para 7.
[27] Applicant’s written submissions, para 9.
[28] Applicant’s written submissions, attachment B, page 67.
[29] (1907) 5 CLR 418.
[30] Applicant’s written submissions, para 195.
[31] Mario Piraino Pty Ltd v Roads Corporation (No. 2) (1990) 76 LGRA 263 [273].
[32] Boland v Yates Property Corporation Pty Ltd (1999) 167 ALR 575 [292].
[33] Ibid [336].
[34] Ex 1, vol 1, tab 17, attachment 1.
[35] Ex 1, vol 1, tab 17, page 64, para 28.
[36] Ex 1, vol 1, tab 17, page 64, para 29.
[37] T 2-52, line 15 to T 2-53, line 7.
[38] Ex 1, vol 4, tab 70, page 1233.
[39] Ex 1, vol 4, tab 76, page 1244.
[40] Ex 1, vol 1, tab 17, page 64, para 32.
[41] T 4-21, lines 4 to 15.
[42] T 4-22, lines 14 to 18.
[43] Ex 2, attachment C, chronology of events relevant to resumption.
[44] Ex 1, vol 4, tab 97, page 1326.
[45] Ex 1, vol 1, tab 17, page 63, para 21.
[46] Ex 1, vol 1, tab 17.
[47] T 3-59, lines 11 to 19.
[48] Ex 1, vol 1, tab 17, page 64, para 32.
[49] Ex 1, vol 1, tab 17, page 65, para 37.
[50] Ibid, para 38.
[51] Ex 8, chapter 13, page ii.
[52] Ex 1, vol 1, tab 17, page 64, para 32.
[53] Ex 1, vol 1, tab 17, page 65, paras 34 to 35.
[54] T 3-46, line 14 to T 3-47, line 3.
[55] Ex 1, vol 1, tab 17, page 65, para 38.
[56] Ibid.
[57] T 3-24, lines 41 to 46.
[58] Ex 1, vol 1, tab 17, page 65, para 34.
[59] T 3-55, lines 5 to 11.
[60] T 4-37, line 20.
[61] T 4-37, lines 16 to 18.
[62] Ex 29, page 1, para B.
[63] Ibid.
[64] T 6-48, line 26.
[65] T 2-69, line 42 to T 2-70, line 17.
[66] T 5-57, line 40 to T 5-58, line 14.
[67] Ex 1, vol 1, tab 20, page 281.
[68] Ibid, page 276(iii) and (v).
[69] Ibid, page 274, para 8.3.3.
[70] Ibid, page 274, para 8.3.2.
[71] T 5-13, lines 37 to 38.