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Lim v Moreton Bay Regional Council[2019] QLC 2

Lim v Moreton Bay Regional Council[2019] QLC 2

LAND COURT OF QUEENSLAND

CITATION:

Lim v Moreton Bay Regional Council [2019] QLC 2

PARTIES:

Edwin Villa Abrille Lim

(applicant)

v

Moreton Bay Regional Council

(respondent)

FILE NO:

AQL177-17

DIVISION:

General Division

PROCEEDING:

Claim for compensation payable pursuant to the Acquisition of Land Act 1967 as a consequence of the taking of land

DELIVERED ON:

25 January 2019

DELIVERED AT:

Brisbane

HEARD ON:

11, 12 & 13 April 2018

Submissions closed 23 May 2018

HEARD AT:

Brisbane

MEMBER:

PA Smith

ORDERS:

  1. Compensation is determined in the amount of Two Hundred and Fifty Five Thousand, Six Hundred and Seventy Dollars ($255,670).
  2. In addition, interest is also awarded on the amount determined by the Court, the amount of such interest to be agreed as between the applicant and the respondent or, failing agreement, to be determined by the Court. In the event that the quantum of interest is not agreed between the parties by 15 February 2019, the parties are each to file and serve a statement and submissions detailing their assessment, with full calculations, as to what amount the proper award of interest should be. Any such statements and submissions are to be filed and served by no later than 4:00pm on 1 March 2019.
  3. Any party seeking costs is to file and serve their submissions as to costs by 4:00pm, 15 February 2019. Any submissions in response are to be filed and served by 4:00pm on 22 February 2019 and any submissions in reply are to be filed and served by 4:00pm on 1 March 2019.

CATCHWORDS:

REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – PROCEEDINGS FOR COMPENSATION – QUEENSLAND – JURISDICTION OF THE LAND COURT – where value in the Acquisition of Land Act 1967 is market value – where irrelevant considerations had to be removed from value – where relevant considerations were not properly taken into account – whether disturbance is a relevant consideration – where only the respondent called valuation expert evidence – where any confidential statements arising out of mediation put into evidence had to be disregarded – where party inappropriately used facts in their submissions which were not in evidence at the hearing

REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – COMPENSATION – ASSESSMENT – PART OF LAND ACQUIRED – resumption of only part of land – where land acquired for flood mitigation purposes – where Council had a scheme of resumption in place – where the land at the time of resumption was zoned rural – where land subject to flooding – where comparable sales relied upon to determine value – where town planning evidence is a relevant consideration – where the highest and best use and development potential of the resumed land are in dispute – where applicant sought to rely upon sales of properties to the resuming authority – where respondent’s valuer valued resuming authority’s purchases – whether it is appropriate to have regard to such sales – principles considered

REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – COMPENSATION – ASSESSMENT – where some aspects of the applicant’s claim must be disregarded – where valuation expert did not consider factual matters raised by the applicant – whether value is attributed for multiple access points – whether value is attributed for billboards – whether value is attributed for land used as a koala habitat – whether value is attributed for rainforest land

EVIDENCE – ADMISSIBILITY – OPINION EVIDENCE – EXPERT OPINION – BASIS OF OPINION – where expert made changes to expert report during hearing – where alterations to expert report are more than clerical errors – where changes to expert report fundamentally change the expert evidence – whether leave to make amendments should have been sought

EVIDENCE – ADMISSIBILITY – OPINION EVIDENCE – EXPERT OPINION – where applicant is experienced in valuation matters – where applicant is a self-represented litigant – whether an advocate can give expert opinion evidence in own case – application of the Meiers principle – evidence of advocate admitted as lay evidence – where lay evidence tainted by opinion evidence – where lay evidence tainted by irrelevant considerations

EVIDENCE – ADMISSIBILITY – OPINION EVIDENCE – EXPERT OPINION – GENERALLY – where expert was an employee of a litigant at date of resumption – where expert no longer an employee of the party – whether expert’s opinion is truly independent – whether expert’s evidence is biased as a result of the pre-existing relationship

Acquisition of Land Act 1967 pt 4, s 20, s 28

Land Court Act 2000 s 7

Land Court Rules 2000 r 24C, r 24D, r 24E(3), r 24H

Arkinstall & Anor v Gold Coast City Council (1997-8) 17 QLCR 90; [1997] QLC 45, applied

Bowers & Anor v Pine Rivers Shire Council (2007) 28 QLCR 196; [2007] QLAC 37, followed

Brisbane City Council v Mio Art Pty Ltd & Anor [2012] 2 Qd R 1; [2011] QCA 234, cited

Buttcroft Pty Ltd v Edgar (2011) 32 QLCR 278; [2011] QLAC 7, applied

Cupo v Chief Executive, Department of Transport and Main Roads (2014) 35 QLCR 217; [2014] QLC 19, applied

Darseef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21, cited

Jarrama Pty Ltd v Caltex Australia Petroleum Pty Ltd [2004] FCA 144, applied

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, followed

Meiers & Anor v Valuer-General [2012] QLC 19, applied

Mio Art Pty Ltd & Ors v Brisbane City Council (2009) 30 QLCR 213; [2009] QLC 177, applied

Spencer v commonwealth (1907) 5 CLR 418, followed

Chaudry v Liverpool City Council [2008] NSWLEC 251, applied 

Peterkin v Hydro-Electric Power Commission of Ontario (1958) 12 DLR (2d) 791; [1958] OWN 225, cited

Celtic Agencies v Land Commissioner (1978) 20 SASR 176, cited

APPEARANCES:

E Lim, the applicant (self-represented) 

D Whitehouse (instructed by Moreton Bay Regional Council) for the respondent

Background

  1. [1]
    This is a claim for compensation by Edwin Villa Abrille Lim (the applicant) consequent upon the compulsory acquisition of land owned by the applicant by the Moreton Bay Regional Council (the respondent) on 14 August 2015 for “flood prevention or flood mitigation purposes”.
  1. [2]
    The taking occurred pursuant to the Acquisition of Land Act 1967 (the ALA).
  1. [3]
    The applicant’s property is located at 46 O'Brien Road, Burpengary. Only part of the applicant’s land was resumed. Prior to acquisition, the land had a total area of 5.1318 ha. 2.5408 hectares were resumed (the resumed land), leaving the applicant a balance area of 2.591 ha (the retained land).

The project

  1. [4]
    The resumed land is the northern part of the applicant’s former land which was taken by the Taking of Land Notice (No 05) 2015 published in the Queensland Government Gazette No 83 on 14 August 2015, later amended by the Amendment of Taking of Land Notice (No 02) 2016 published in the Queensland Government Gazette No 60 on 15 July 2016.
  1. [5]
    Since the taking, a levee and associated drainage infrastructure has been constructed on the resumed land (the flood mitigation works).
  1. [6]
    Prior to the resumption, the respondent entered into negotiations with the property owners of 13 properties along the northern side of Dale Street, Burpengary. As a result of negotiations the respondent acquired those properties (the 13 Dale Street Properties) for the purpose of constructing the levee which now stands on the resumed land and the Dale Street Properties.
  1. [7]
    The scheme of resumption for the construction of a flood mitigation levee began on 25 March 2013 when the respondent briefed Aurecon Australia Pty Ltd to prepare a flood assessment at Burpengary which was received by the respondent on 1 July 2013.

The Court’s function

  1. [8]
    The Court’s function is determined by the ALA.[1]  As Member Isdale put it in Cupo v Chief Executive, Department of Transport and Main Roads:

“…This requires the Court to find the monetary point at which a fully informed prudent purchaser and vendor would agree on a price for the land. This will include determining how they would assess the land’s development potential but may not necessarily include all of the matters on which they might happen to disagree…”[2]

  1. [9]
    The Land Appeal Court put it this way in Bowers & Anor v Pine Rivers Shire Council:

“Although the learned Member heard from many experts, he did not seek to resolve every issue raised by them. Uncontroversially, he saw his task at para 14 of his reasons as deciding how

‘… the hypothetical purchaser and vendor, properly advised and acting reasonably and prudently would come together at a price for the land … to determine how the prudent vendor and purchaser acting on appropriate advice, would assess the development potential of the land.’ ”[3]

The concept of value

  1. [10]
    Compensation is to be assessed in accordance with s 20 of the ALA, which provides, relevantly, as follows:

Assessment of compensation

  1. (1)
    In assessing the compensation to be paid, regard shall in every case be had not only to the value of land taken but also—
  1. (a)
    to the damage, if any, caused by any of the following—
  1. (i)
    the severing of the land taken from other land of the claimant;
  1. (ii)
    the exercise of any statutory powers by the constructing authority otherwise injuriously affecting the claimant’s other land mentioned in subparagraph (i); and
  1. (b)
    to the claimant’s costs attributable to disturbance….
  1. (2)
    Compensation shall be assessed according to the value of the estate or interest of the claimant in the land taken on the date when it was taken…..
  1. (3)
    In assessing the compensation to be paid, there shall be taken into consideration, by way of set-off or abatement, any enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom by the carrying out of the works or purpose for which the land is taken.
  1. (4)
    But in no case shall subsection (3) operate so as to require any payment to be made by the claimant in consideration of such enhancement of value.
  1. (5)
    In this section—

costs attributable to disturbance, in relation to the taking of land, means all or any of the following—

  1. (a)
    legal costs and valuation or other professional fees reasonably incurred by the claimant in relation to the preparation and filing of the claimant’s claim for compensation;
  1. (b)
    the following costs relating to the purchase of land by a claimant to replace the land taken—
  1. (i)
    stamp duty reasonably incurred or that might reasonably be incurred by the claimant, but not more than the amount of stamp duty that would be incurred for the purchase of land of equivalent value to the land taken;
  1. (ii)
    financial costs reasonably incurred or that might reasonably be incurred by the claimant in relation to the discharge of a mortgage and the execution of a new mortgage, but not more than the amount that would be incurred if the new mortgage secured the repayment of the balance owing in relation to the discharged mortgage;
  1. (iii)
    legal costs reasonably incurred by the claimant;
  1. (iv)
    other financial costs, other than any taxation liability, reasonably incurred by the claimant;
  1. (c)
    removal and storage costs reasonably incurred by the claimant in relocating from the land taken;
  1. (d)
    costs reasonably incurred by the claimant to connect to any services or utilities on relocating from the land taken;
  1. (e)
    other financial costs that are reasonably incurred or that might reasonably be incurred by the claimant, relating to the use of the land taken, as a direct and natural consequence of the taking of the land;
  1. (f)
    an amount reasonably attributed to the loss of profits resulting from interruption to the claimant’s business that is a direct and natural consequence of the taking of the land;
  1. (g)
    other economic losses and costs reasonably incurred by the claimant that are a direct and natural consequence of the taking of the land.

Example of costs for paragraph (g)—

cost of school uniforms for children enrolled in a new school because of relocation from the land taken

  1. [11]
    I turn first to s 20(2). As Member Isdale succinctly put it in Cupo:

“…The ‘value’ referred to in s 20(2) is accepted to be the value to the applicants as dispossessed owners (fn repeated in full  Brisbane City Council v Mio Art Pty Ltd & Anor [2011] QCA 234 per Fryberg J at [31] where His Honour referred to O'Kane v The Commissioner of Main Roads (1976) 3 QLCR 331, 333 and Minister for Public Works v Thistlethwayte [1954] AC 475, 491.) . The word ‘value’ is not defined in the Act, its meaning has been accepted to be the market value determined in accordance with the decision of the High Court in Spencer v The Commonwealth…[4]

  1. [12]
    The relevant paragraphs of Spencer v Commonwealth[5] appear in the reasons of Griffiths CJ and Isaacs J.  Relevantly, Griffiths CJ had this to say:

“…In my judgment the test of value of land is to be determined, not by inquiring what price a man desiring to sell could actually have obtained for it on a given day, i.e., whether there was in fact on that day a willing buyer, but by inquiring ‘What would a man desiring to buy the land have had to pay for it on that day to a vendor willing to sell it for a fair price but not desirous to sell?’ It is, no doubt, very difficult to answer such a question, and any answer must be to some extent conjectural. The necessary mental process is to put yourself as far as possible in the position of persons conversant with the subject at the relevant time, and from that point of view to ascertain what, according to the then current opinion of land values, a purchaser would have had to offer for the land to induce such a willing vendor to sell it, or, in other words, to inquire at what point a desirous purchaser and a not unwilling vendor would come together.”[6]

  1. [13]
    Isaacs J put it this way:

“In the first place the ultimate question is, what was the value of the land on 1st January 1905?

All circumstances subsequently arising are to be ignored. Whether the land becomes more valuable or less valuable afterwards is immaterial. Its value is fixed by Statute as on that day. Prosperity unexpected, or depression which no man would ever have anticipated, if happening after the date named, must be alike disregarded. The facts existing on 1st January 1905 are the only relevant facts, and the all important fact on that day is the opinion regarding the fair price of the land, which a hypothetical prudent purchaser would entertain, if he desired to purchase it for the most advantageous purpose for which it was adapted. The plaintiff is to be compensated; therefore he is to receive the money equivalent to the loss he sustained by deprivation of his land, and that loss, apart from special damage not here claimed, cannot exceed what such a prudent purchaser would be prepared to give him. To arrive at the value of the land at that date, we have, as I conceive, to suppose it sold then, not by means of a forced sale, but by voluntary bargaining between the plaintiff and a purchaser, willing to trade, but neither of them so anxious to do so that he would overlook any ordinary business consideration. We must further suppose both to be perfectly acquainted with the land, and cognizant of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding features, the then present demand for land, and the likelihood, as then appearing to persons best capable of forming an opinion, of a rise or fall for what reason soever in the amount which one would otherwise be willing to fix as the value of the property.”[7] (emphasis added)

  1. [14]
    An issue in this case revolves around the development potential of the resumed land. The applicant indicated that he had proposals for development. Of course, an important factor then relates to town planning/zoning issues.
  1. [15]
    Then President MacDonald had this to say in Mio Art Pty Ltd & Ors v Brisbane City Council:

“…It is not the function of this Court to decide whether the planning authority would approve a particular proposal. Rather it is the function of the Court to determine, having heard the relevant evidence, how the hypothetical prudent purchaser referred to in the judgments in Spencer would have viewed the potential financial return if a proposal were considered that included one or other of the proposed plans.”[8]

The claim for compensation

  1. [16]
    The applicant’s total claim for compensation is difficult to state with clarity. This is because of the vastly differing amounts that the applicant has claimed in these proceedings. The position was well summarised in the respondent’s submissions. The paragraphs that follow are adapted from paragraphs 5-16 of those submissions, although I note that those submissions do not identify Exhibits 4 and 13 as the separate and distinct documents which they are.
  1. [17]
    In the claim for compensation filed 14 June 2017, the applicant originally sought $2,960,032. Although leave was not formally sought by the applicant to amend the claim filed, this figure was reduced to $873,018.88 in a “revised compensation computation” contained in the statement of evidence provided by the applicant on 25 February 2018.[9] The applicant indicated that the revised compensation computation was prepared following two mediations, after which, he realised his error in how he went about computing the compensation required.[10]
  1. [18]
    The revised compensation computation was supplemented by a “(Second) Revised Compensation Computation” subtitled “(For clarification only – original computation on page 27 of valuation report still stands)” which the applicant provided to the respondent and the Court on 6 April 2018. By letter dated 6 April 2018, the applicant sought leave to rely on the computation dated 6 April 2018. Both the computation and the letter of 6 April 2018 became Exhibit 4. By the computation in exhibit 4, the applicant sought the amount of $1,259,982.
  1. [19]
    As a result of the confusion surrounding the actual amount claimed, on the first day of the hearing the amount claimed was raised by the Court and the applicant confirmed that it is the figure of $873,018.88 that he was ultimately claiming,[11] and clarified that the figure in the Second Revised Compensation Computation[12] included figures for capital gains tax, stamp duty, lawyers’ fees, valuers’ fees, and all the expenses required to buy another equivalent property.[13]
  1. [20]
    Following a request by the Court to produce a document which clearly set out his claim for compensation, on the second morning of the hearing the applicant produced to the Court a document again titled “(Second) Revised Compensation Computation” and also again subtitled “(For clarification only – original computation on page 27 of valuation report still stands)”, this document became Exhibit 13. It must be emphasised that, despite having the same titles and subtitles, Exhibits 4 and 13 are different documents.
  1. [21]
    Exhibit 13 sets out a claimed amount of $1,259,982 once more, although in response to questions asked by the Court, the applicant again confirmed that he was seeking $873,018.88 and not a higher figure. I will let the transcript speak for itself:

“HIS HONOUR:   Mr Lim……….  Now, the documents have been handed to myself and to the respondent.  Can you explain what the document’s about?   Your Honour, this document which I entitled, “Revised Compensation Computation”, is just a clarification document in relation to my valuation report pages 26 and 27.  I – I set it out more clearly because when I submitted my valuation report it was done in a little bit of a haze and I thought I’d outline it more clearly and your request, your Honour, that I provide some calculation to enlighten everybody on how I went about arriving at the figure that I have arrived at.  So this – this document is essentially the same as  what was provided yesterday only this one is a little bit more clearer, right?  And on – on page 4 – on page 4 of this document just submitted, you will see that the amount of 873,018.88 found on page 27 of Lim’s Valuation Report does not include the above mentioned items 1 to 6 which are not supposed to be part of a valuation report anyway. 

Just so I can be clear, Mr Lim.  So the amount you’re now seeking is 1,259,982?Well, your Honour, it’s – I – I don’t think I’m allowed to change my mind in that respect.  I will still go by the 873018.88 but I – I’ve provided this document to show that in the valuation figure – I have been – to show that I’ve been very conservative in my arriving at that figure because I didn’t include all this which, if I had included all this, it would have been a bigger figure.  But I am not – I don’t think I’m allowed to change my mind any more so I’ll stick back to the same old figure.”[14] 

  1. [22]
    I can perhaps best summarise my understanding of the amount claimed by the applicant this way. In his view, there are aspects of his claim, properly claimable, which make the amount of his claim $1,259,982. However, as he had previously indicated that his claim was the amount of $873,018.88, he feels compelled to stay with that amount. This of course raises the question as to whether or not he is claiming costs for those items set out on pages 3 and 4 of Exhibit 13 which are:

“1. Capital gains tax payable to ATO

  1. Stamp duty to buy an Equivalent
  2. Lawyer’s fees
  3. Valuer’s fees
  4. Stationery, transport and miscellaneous
  5. Inconvenience and expenses involved in having to search for another property as unique as this.”
  1. [23]
    Item 1 can be immediately dispensed with. In his written submissions, the applicant conceded that “capital gains tax was not an item which could be considered in compensation computation”.[15]
  1. [24]
    Although it is relatively clear enough that the applicant has, by his own actions, ultimately limited his claim to the sum of $873,018.88, I do not believe it would be appropriate to limit the parts of his claim that make up that amount, adopting the liberal approach appropriate to compulsory acquisition matters. That is, it is absolutely clear in my mind that the applicant believes, and has articulated, that his loss consequent upon the acquisition includes the five items[16] listed in [22].  I assess his claim on that basis.
  1. [25]
    I agree to a point with the respondent that Exhibit 13 narrowed the considerations which the applicant said affected the amount he was claiming. To those items listed by the respondent, the five items referred to above must be added. Accordingly, the considerations which the applicant has ultimately relied upon to support his claim are the following:

Based on 39 Dale Street

  1. (a)
    A deduction of 84% for large size and intended use;
  1. (b)
    An increase of 11% for adjoining owner premium;
  1. (c)
    An increase of 3% for billboard, solar and other potential uses;
  1. (d)
    An increase of 12% for koala colony, food source and habitat;
  1. (e)
    An increase of 18% for walking distance to Burpengary to City train station;
  1. (f)
    An increase of 10% for Council’s town planning oversight; and
  1. (g)
    A deduction of 5% for zoning difference adjustment.

Together with

  1. (h)
    Stamp duty to buy an equivalent;
  1. (i)
    Lawyer’s fees;
  1. (j)
    Valuer’s fees;
  1. (k)
    Stationery, transport and miscellaneous; and
  1. (l)
    Inconvenience and expenses involved in having to search for another    property as unique as this.
  1. [26]
    Accordingly, my understanding of Exhibit 13 and the final position adopted by the applicant is that he believes the valuation of his land should be calculated on the following basis:
  1. (a)
    by comparing the subject with the value he says the land component was worth at 39 Dale Street when it was sold to the Council;
  2. (b)
    that the land at 39 Dale Street should be valued on a rate per square metre basis instead of a per residential lot basis;
  3. (c)
    the claimant’s land should be valued on a rate per square metre basis;
  4. (d)
    the value attributable to the land should be increased by virtue of additional matters including:
    1. (i)
      a 10%–11% increase due to the Council being an adjoining owner (following the acquisition of the Dale Street properties) to the resumed part of his land;
    1. (ii)
      a 10%–15% increase due to the Council’s failure to choose another site for the flood mitigation measures;
    1. (iii)
      an increase in value of 15% for the potential for both billboard and solar panel uses as well as the native wild life habitat he said was present at the property; and
    1. (iv)
      a 10%–18% increase due to the distance from the train station.
  5. (e)
    Stamp duty to buy an equivalent;
  6. (f)
    Lawyer’s fees;
  7. (g)
    Stationery, transport and miscellaneous; and
  8. (h)
    Inconvenience and expenses involved in having to search for another property as unique as this.

The hearing

  1. [27]
    The hearing of this matter occupied three sitting days, including an inspection of the applicant’s residual property, the resumed land, and the levee/bund on both the resumed land and the Dale Street properties. The inspection assisted the Court with understanding evidence given in this matter.
  1. [28]
    The applicant self-represented. The respondent was represented by Ms Whitehouse of Counsel.
  1. [29]
    Oral evidence was provided by the applicant, Mr Lim. The evidence of Mr Lim was not received as expert evidence, in spite of his qualifications and experience. I will deal with that aspect fully later in these reasons. Mr Lim was cross-examined on the basis of him being a lay witness.
  1. [30]
    Expert valuation evidence was provided by Mr John Steven Gillespie, called by the respondent. He was subject to detailed cross-examination.
  1. [31]
    Expert town planning evidence was provided by Mr Timothy Mark Smith, called by the respondent. He was also subject to detailed cross-examination.
  1. [32]
    Written submissions and a reply were received. The matter was reserved for decision when the submissions closed on 23 May 2018.
  1. [33]
    For the purposes of my decision, I have referred to the salient points that arise from the evidence in the hearing. In reaching my conclusions, I have taken account of, and carefully considered, all of the evidence placed before me.

The resumed land

  1. [34]
    In order to understand the manner in which both the applicant and the respondent make their assessments as to compensation, it is necessary to consider in some detail the attributes of the resumed land at the date of the resumption.
  1. [35]
    As already indicated, not all of the applicant’s land was resumed by the respondent. Although a relatively large amount of land was resumed (2.5408 ha), this was taken from a pre-resumption total site area of 5.1318 ha, leaving a balance area of 2.591 ha. The applicant’s retained land includes an existing dwelling and other improvements. It is the northerly part of the applicant’s former land that was taken by the respondent. Although some parts of the taken land had been cleared, prior to the resumption, much of the land remained in a natural state. This aspect of the applicant’s claim is important as regards the wilderness/koala habitat nature of the claim for loss by the applicant.
  1. [36]
    Prior to the resumption, the applicant’s property had the real property description of Lot 3 on Survey Plan 172961.[17] After the resumption, the applicant’s retained land continued to be known as Lot 3, although its description was technically Lot 3 on SP 282675, and the resumed land was known as Lot 4, with an actual reference of Lot 4 on SP 282675.[18]
  1. [37]
    References to the retained land; the resumed land; the site; the land; Lot 3; and Lot 4 were often seemingly interchanged throughout evidence at the hearing. Apart from causing confusion, the distinction between the retained land and the resumed land is critical when the evidence of the town planner, Mr Smith, is considered. These reasons consider the critical nature of Mr Smith’s evidence in this regard later. However, the critical nature of the referencing used in this hearing is demonstrated by paragraph 18 of the applicant’s submissions where the applicant states that the “highest and best use for Lot 4 O'Brien Road is for a single dwelling with a private bushland garden”.
  1. [38]
    The respondent is critical of the applicant for the manner in which he refers to Lot 4. In particular, the respondent had this to say in its reply submissions:

“10 In his submissions Mr Lim refers repeatedly to Lot 4 O'Brien Road, which was the entirety of the land prior to resumption, and then refers to Council resuming part of Lot 4 O'Brien Road in paragraph 131 of his submissions. The Applicant is a sophisticated gentleman who owns a number of properties and he certainly appears to understand that it was in fact only part of Lot 4 which was resumed and his submissions ought to be understood in that context.” (emphasis in original)

  1. [39]
    Unfortunately for the respondent, the criticism in the above paragraph to the applicant’s reference to Lot 4 are in the main simply incorrect. As I have already set out in these reasons, the land prior to resumption was known as Lot 3. Following resumption, the applicant’s retained land has been known as Lot 3 and the resumed land as Lot 4. This position was accepted by Mr Gillespie, the expert valuer called by the respondent.[19] Indeed, it was Mr Gillespie’s own report, Exhibit 8, which detailed Lot 3 as the pre-resumption Lot and contained a copy of the relevant title deed pre-resumption.  Further, it was the respondent’s expert town planner who clearly set out the post-resumption description position in his report, Exhibit 7.
  1. [40]
    The respondent was correct in its reply submissions to refer to an inconsistency in paragraph 131 of the applicant’s submissions where he refers to the “resumed part of Lot 4”. I note that the footnote reference relied on by the applicant contains in its actual text the words “resumed part of this property”; that is, no reference at all to Lot 4. Perhaps the applicant incorrectly referred to Lot 4 instead of Lot 3 in paragraph 131 of his submissions. On the other hand, what the applicant may have been inelegantly trying to say was to refer to ‘the resumed Lot 4’. Irrespective, I am in no doubt that the applicant, by paragraph 18 of his submissions, maintains that the highest and best use for the resumed land (Lot 4) is for a single dwelling with a private bushland garden. This is consistent with what the applicant says at paragraph 21 of his submissions where he asserts that the “resumed land has the capacity for a single dwelling”.
  1. [41]
    The property address of the applicant’s land in its pre-resumption state was 46–90 O'Brien Road, Burpengary. The land is situated on the eastern side of O'Brien Road. Surrounding properties are utilised predominantly for residential purposes. The Burpengary business district is about 2 km to the east, and the Brisbane CBD is about 38 km to the south. The neighbourhood comprises low density residential developments immediately to the east and south, railway to the west and rural residential to the north and west.
  1. [42]
    At the time of the resumption, the applicant’s land was zoned rural (with a residential use). The northern part of the land, including the resumed land, was subject to flood inundation. This is not an insignificant factor as the evidence is clear that the whole of the resumed land is subject to flooding below both the 1% annual chance level and also the 5% annual chance level. That evidence is of course consistent with the reason that the land was resumed for flood mitigation works.[20]
  1. [43]
    Access to both the retained land and the resumed land is via O'Brien Road which is a two lane bitumen sealed road with open drains. It carries moderate volumes of through traffic. Services available to both the retained land and the resumed land include reticulated water, sewerage, electricity and fixed line telephone connection.
  1. [44]
    More will be said about zoning and potential uses of the land when the town planning evidence is considered.

Mr Lim’s valuation expertise

  1. [45]
    At the commencement of the hearing, I raised concerns that I held regarding both the manner in which the applicant, Mr Lim, had presented reports to the Court, and the manner in which he proposed to give evidence to the Court orally, effectively as an expert witness. The key document in this regard is Exhibit 3. Exhibit 3 is a document prepared and relied upon by Mr Lim in support of his claim for compensation. It is titled “Valuation Report” and lists Mr Lim’s qualifications as B. Sc Mech Engrg; Licensed Mechanical Engineer (retired); and Licensed Appraiser (retired). The title page of Exhibit 3 notes Mr Lim’s former employment as Project Manager, Asian Appraisal Co. PTE LTD covering the Philippines, Singapore, Malaysia, Indonesia, Thailand, Hong Kong, Brunei, and Vietnam. It also notes his former position as Principal, General Appraisal Associates (Singapore), in which role he was a subcontractor to Jones Lang Wootton (Singapore, Malaysia); Richard Ellis (Singapore); Ballieu Knight Frank (Australia); and Rolle and Associates (New Zealand). Although Mr Lim confirmed that he has never been registered as a valuer in any jurisdiction within Australia, his valuation work experience, though dated, is nonetheless impressive.
  1. [46]
    Page seven to eight of Exhibit 3 leaves no room for doubt as to the applicant’s intentions when he compiled Exhibit 3. He had this to say:

“It is reasonable in my view (as a professional retired valuer) for a dispossessed owner to approach the land court for a determination of compensation when the resuming authority proposes, despite the loss of a substantial area of land in this case the loss being 50% of the original area, a payment of compensation which is grossly inadequate and insignificant in comparison to compensation already paid to other resumed property owners in the same scheme whose lands adjoins the Northern portion of No. 62 O'brien Road, the property subject of this valuation report.”

  1. [47]
    I brought to Mr Lim’s attention at the hearing my Land Court decision of Meiers & Anor v Valuer-General,[21] and in particular paragraphs 10 to 17 of that decision. I allowed a short adjournment of the hearing in order to provide time for Mr Lim to read and discuss the case with his wife (who was providing him assistance in Court) and also to speak to Ms Whitehouse of Counsel.[22]
  1. [48]
    Given the importance of this issue to the overall determination of this matter, it is appropriate that I set out below my reasoning from paragraphs 10 to 17 of Meiers:

“[10] The appellants are self-represented, and Mr Meiers gave evidence at the hearing. Mr Meiers has no legal qualifications. The respondent was represented by Mrs T Johnson, Counsel for the respondent, and relied on evidence of a registered valuer, Mr A Hutchinson.

[11] It is at this point that the hearing becomes somewhat unusual. As indicated by Mrs Johnson at the commencement of the hearing, Mr Meiers is, in fact, employed in a senior role as a valuer with the respondent, although Mr Meiers is currently on long service leave and, as he indicated in his evidence, he is taking that long service leave leading into retirement.

[12] Nonetheless, Mr Meiers is himself a registered valuer employed by the respondent, and as I understand it, was the supervisor of Mr Hutchinson before undertaking his leave.

[13] Mrs Johnson indicated that the respondent had no difficulty with Mr Hutchinson giving evidence, even in these unusual circumstances. However, Mrs Johnson raised an important point regarding the manner in which Mr Meiers sought to give evidence before this Court.

[14] Mrs Johnson made reference to the important Court decision of P and R Cupo v Department of Natural Resources and Water. This was a decision in the Land Court by his Honour, Member Jones of 26 February 2009. In that case the valuer for the appellant also conducted the role of advocate on behalf of the appellant. In considering the consequences of this, his Honour, Member Jones, had this to say.

[41] The second matter is that Mr Hyne not only appeared as advocate for the applicants but also as their expert witness. This is, in my view, a situation that ought be avoided in all but exceptional circumstances. Generally speaking, subject to his/her duties to the Court, opponent, client and professional governing body, an advocate's role is to persuade the Court to adopt his clients' case and reject the case for the opposition. On the other hand the role of an expert witness is to assist the Court by giving honest and objective evidence. The failure of any expert to act otherwise would place him/her in breach of the expert witness' overriding duty to the Court. The real potential for tension arising when a person attempts to act as an advocate and expert witness is obvious.

[42] In this case no objection was taken to Mr Hyne acting in both roles. In circumstances where such an objection was taken the then President of this Court identified the difficulties confronting both the Court and the individual involved. In Pratt v The Department of Natural Resources and Water the then President said:

[12] However, although as agent and advocate Mr Whip had identified with his clients’ case, he felt that he could give his valuation evidence in an objective and impartial manner. I have no doubt that he tried. However, that placed a great deal of stress upon him throughout these hearings. In an attempt to separate the two roles, when acting as advocate he went so far as to refer to himself as the valuer in the third person. Although he consciously attempted to separate the conflicting duties when acting as a valuer, he was unable to completely divorce himself from his partisan interest in the outcome of the case. That may well have been subconscious rather than deliberate.

[13] There is a continuing debate about the independence of any expert witness retained by a party. The argument goes that a paid expert will usually adopt his client's case and skew evidence to present it in the most favourable light in order to secure a favourable outcome for the person who pays him. Such bias may not be designed to deliberately mislead, it may be more a matter of emphasis.

[14] In the present case, there is no doubt that Mr Whip was more sympathetic to his clients’ case, even though he tried to remain impartial in giving his valuation evidence. Therefore, I have no alternative than to find that his evidence is tainted to that extent. However, there is some authority for the proposition that an interest or a perceived interest in the outcome of litigation does not constitute a justification for the exclusion of expert evidence. It is simply a matter which goes to the weight of that evidence. Therefore, even though Mr Whip's evidence was tainted, it was admitted. However, any argumentative or adversarial statements were excluded from consideration. Furthermore, where there was a conflict between Mr Whip's evidence and that of the Department's valuer, little or no weight was attributed to Mr Whip's evidence unless it was corroborated from another source, or unless the Department's valuer was demonstrably wrong.

[15] Before leaving this topic, it must be pointed out that throughout these proceedings it cannot said that Departmental valuers were entirely independent and unbiased. They are employed by the Department and clearly have an interest in the outcome of the litigation. However, their evidence was afforded a higher degree of weight than that of Mr Whip, because generally there was not a blurring of the duties they owed to the Court. However, from time to time a bias was apparent, in failing to make concessions where appropriate and in advancing or endeavouring to support propositions which were clearly wrong. (Emphasis added).

[43] While in this case I was not asked to find that Mr Hyne's evidence was tainted because of his dual roles, and, in any event, did not consider it to be so, the importance of the observations made by the President cannot be overstated.

[44] The person who attempts to be both advocate and expert witness runs the grave risk of having the weight which might otherwise be accorded to his/her evidence significantly eroded and, in more extreme cases, even rejected entirely. It is a situation that should be avoided. 

[15] In addition to the above, the Australian Property Institute (API) rules of conduct also ought to be taken into account. In this regard, Mrs Johnson handed to the Court an extract from rules 1 to 7 of the API rules of conduct. Put simply, these rules make it clear that a valuer who seeks to appear as an expert witness in proceedings, has an important obligation to the Court to ensure that he or she maintains the "strictest independence and impartiality in undertaking their professional duties. To this end, no Member shall ... act as an advocate and as an expert in the same matter."

[16] Upon being made aware of these case authorities and provisions, Mr Meiers agreed that he would not attempt to give evidence as an expert witness in this matter.

[17] For completeness I should point out that the position of Mr Meiers is somewhat different to that found in the Cupo decision, in that in Cupo the independent valuer was not the appellant, where, of course, in this matter, Mr Meiers is one of the appellants in the appeal, and he can hardly be expected to separate himself and leave his expertise at the door when he comes to represent himself. To that end, Mr Meiers' evidence was received by this Court in the full knowledge that he is a registered valuer and that he has expertise in this field, but such evidence could not be received by the Court, in my view, as independent expert valuation evidence, as such evidence is classically understood.”

  1. [49]
    Like Mr Meiers, Mr Lim accepted that he was not able to give evidence in this matter as an expert witness.[23] Despite this, Mr Lim continued to conduct his case as if the material that he was relying upon had been prepared by an independent expert valuer. I am in absolutely no doubt that I am precluded from accepting any of Mr Lim’s evidence as independent expert evidence.[24] Whilst I am able to accept Mr Lim as a lay witness, his evidence is tainted throughout by his departure from referring only to facts, delving into areas of opinion evidence which are, of course, the domain of an expert witness.

Mr Smith’s expert town planning evidence

  1. [50]
    The respondent called Mr Timothy Smith to assist the Court with expert town planning evidence.
  1. [51]
    Mr Smith is currently employed as Planning Manager, DTS Group QLD Pty Ltd. He holds the degree of Bachelor Built Environment (Urban & Regional Planning) which he obtained from Queensland University of Technology (QUT) in 2002. He also holds a Graduate Diploma (Urban & Regional Planning) from QUT.
  1. [52]
    Mr Smith has set out in his report the usual declaration relating to his obligations as an expert witness before the Court.[25]
  1. [53]
    By his submissions, the applicant, in effect, challenges Mr Smith’s role as an expert. The applicant’s challenge can be boiled down to three aspects; the fact that Mr Smith was an employee of the respondent at the time of the resumption and therefore lacks true independence; Mr Smith sought to make amendments to his statement at the time that he gave his oral evidence without seeking the leave of Court; and Mr Smith’s amendments to page 26 of his report, not being mere slips as Mr Smith made them out to be, but rather being fundamental changes without making subsequent amendments to other parts of his report.

Mr Smith’s employment with the respondent as at the date of the resumption

  1. [54]
    To begin with, I should make it abundantly clear that in no way has Mr Smith sought to hide the fact that for a number of years he was a paid employee of the respondent, and that this period of employment included the date of the resumption of the applicant’s property. So much is clear not only from Mr Smith’s written report, but also his oral evidence. He is to be commended for this open account. Despite such openness, the applicant has nonetheless raised the question as to whether or not Mr Smith’s previous role as a planner within the respondent allows him to be truly independent in this matter. It is a question which, on its face, does raise some concern.
  1. [55]
    As r 24C of the Land Court Rules 2000 (LCR) make clear, an expert has a duty to assist the Court and that duty overrides any obligation the expert may have to any party to the proceeding or to any person who is liable for the expert’s fee or expenses.
  1. [56]
    This rule is consistent with what Haydon JA (as his Honour then was) had to say in Makita (Australia) Pty Ltd v Sprowles:

“In National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The ‘Ikarian Reefer’) [1993] 2 Lloyd’s Rep 68 at 81-82, Cresswell J set out a list of duties and responsibilities of expert witnesses in civil cases as follows:

‘1 Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation…

2 An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise…An expert witness in the High Court should never assume the role of an advocate.

3 An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.

4 An expert witness should make it clear when a particular question or issue falls outside his expertise.

5 If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one…In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report…

6 If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court.

7 Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports.’

While some of these matters have an ethical dimension, taken together they point to the need for the trier of fact to be fully informed of the reasoning process deployed in arriving at the expert’s opinions. Cresswell J’s list has been influential both in causing rules of court to be devised in this and other jurisdictions to control expert evidence and in later judicial pronouncements. Thus in Clough v Tameside & Glossop Health Authority [1998] 1 WLR 1478 at 1484; [1998] 2 All ER 971 at 977, Bracewell J said:

‘It is only by proper and full disclosure to all parties, that an expert’s opinion can be tested in court, in order to ascertain whether all appropriate information was supplied and how the expert dealt with it. It is not for one party to keep their cards face down on the table so that the other party does not know the full extent of information supplied.’

This implies that not only must the appropriate information be supplied, but that the expert must reveal the whole of the manner in which it was dealt with in arriving at the formation of the expert’s conclusions.”[26] (citations omitted)

  1. [57]
    Haydon JA’s observations regarding the duties and responsibilities of expert witnesses from Makita were endorsed by the High Court in Dasreef Pty Ltd v Hawchar.[27]
  1. [58]
    In the present matter, there is of course the important fact that the expert town planner, Mr Smith, was employed by the respondent at the time of the resumption. Mr Smith had left the employ of the respondent by the time that he made his expert report in this matter. This circumstances bear similarities to those faced by Member Wenck in this Court in the case of Arkinstall & Anor v Gold Coast City Council.[28]  In Arkinstall an expert town planner was called by the respondent.  That town planner, Mr Webb, was employed by the constructing authority at the time of the resumption[29] and appears to have remained employed by the respondent at all relevant times. Despite the “veiled suggestion that Mr Webb’s unshaken opinion as to the inclusion of the subject lands within the ‘Industry’ designation, might have been through some over-commitment to his employer, because of the resumption compensation ramifications”,[30] Member Wenck accepted part of Mr Webb’s evidence; it is apparent on my reading of that case that Member Wenck so found in light of other evidence which supported Mr Webb’s evidence.
  1. [59]
    While considering Arkinstall, I also note the criticism made by his Honour that the “evidence before this Court from the town planning experts is committed, without flexibility, to the polarised stance of the claimants and the respondent”.[31]  In the end, Member Wenck did not accept the town planning conclusions of either town planning expert.[32]
  1. [60]
    In Buttcroft Pty Ltd v Edgar,[33] the Land Appeal Court, constituted by McMeekin J and Members PA Smith and WL Cochrane, examined the situation where a witness had conducted some business with the respondent over a period of years.  The questions were: did the witness possess the necessary expertise to assist the Court; and was his evidence biased as a result of his business relationship.  A key point in the reasoning of the Land Appeal Court was that the issues were not squarely raised in the Court below. 
  1. [61]
    In addition, the Land Appeal Court had this to say:

“[27] The bias of a witness is not a reason, without more, to exclude his or her evidence. The presence of bias, or a risk of it, may, of course, influence the Court in its acceptance of the testimony. But that is not the same as excluding the testimony entirely. And, once admitted, it is for the Court to weigh up the evidence and determine whether it is worthy of weight and ought to be accepted.

[28] Austin J explained the law in the following terms in Australian Securities and Investments Commission v Rich and Another, a decision concerning the receipt of forensic accounting evidence:

‘[334] According to the preponderance of Australian authority, the fact that an expert is aligned to the party engaging him or her, and biased or not independent, is not a bar to the admissibility of the expert's opinion evidence, though it may go to the weight of the evidence6… The reason, as explained by Pagone J in Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454, is that the evidence of the witness can be tested in adversarial proceedings, and so the possibility that the witness may be biased does not infect the impartiality of the Court. The ability of the Court to give biased evidence little or no weight ensures that there is no inherent unfairness to the other party in admission of the evidence. Indeed, the presence of a risk of bias (unconscious or otherwise) is not of itself a reason to exclude evidence of an expert either on grounds of admissibility or in the exercise of discretion…’”[34]. (citations omitted)

  1. [62]
    In Jarrama Pty Ltd v Caltex Australia Petroleum Pty Ltd[35] the question was raised of whether a proposed expert, who had a pre-existing relationship with the applicants (described as advocate and negotiator), lacked both independence and appropriateness as a person to undertake the usual duties of an independent expert witness.  As Justice Crennan put it:

“[10]   The duties that an expert has in civil cases, especially as to independence, are well understood. During the course of the abovementioned submissions, the respondents’ counsel referred to them correctly.  There are, however occasions upon which an expert who has a preexisting relationship with a party can give expert evidence subject to the weight to be given to such evidence…

[12]   Acceptance of the proposition that an expert with a preexisting relationship with a party can give expert opinion evidence does not resolve the question of whether it is appropriate for such a person to have access to confidential information in a departure from the common practice referred to above. 

[13]   In my view, in circumstances such as the present, there needs to be proper and full disclosure of the preexisting relationship between an expert and the party retaining him, evidence of the proposed expert’s expertise and evidence of the retainer in respect of the confidential information.  Further, there should be, if possible, evidence as to why it is not practicable to have an independent person, rather than one associated with the an applicant, undertake the necessary expert inspection and analysis of confidential information.”

  1. [63]
    The above authorities make it clear that the Land Court was able to receive expert evidence from Mr Smith despite his pre-existing relationship with the respondent. I have no doubt that Mr Smith holds the required qualifications to be a town planning expert. It is also clear that Mr Smith’s relationship with the respondent was properly disclosed.
  1. [64]
    Of course, although Mr Smith’s expert evidence was able to be properly received by the Land Court, his pre-existing relationship with the respondent remains an issue to be taken into account when the weight to be attributed to his evidence is considered.
  1. [65]
    There is another element of Mr Smith’s evidence to be considered. The valuer engaged by the respondent, Mr Gillespie, in his report referred to “Town Planning Advice provided by the MBRC”.[36]  Detailed planning information is then set out over the next two pages of the report. Mr Gillespie’s report did not reveal the actual person in the employ of the respondent who was the source of his information on town planning. However, during re-examination by Ms Whitehouse, he indicated that the person who he approached at the Council was Tim Smith.[37]
  1. [66]
    Interestingly, Mr Gillespie went on to give some further details of his discussions with Mr Smith:

“He gave me the information that’s contained in my report which pertains directly to the rule – rural component of the zoning.  I did ask him whether there was a potential to look at some type of subdivision of that area to the south afterwards and he said, “Well, basically you would have to do it on its merits” but the council would look at an application.  Whether they’d approve it or not, I don’t know.  But he didn’t indicate that there was no chance at all that that land outside the Q100 land in the southern portion of portion 3 was excluded definitely from any type of subdivision.”[38]

  1. [67]
    What is of particular note is that, on the basis of Mr Gillespie’s evidence, there was at least potential from a town planning perspective for Lot 3 (pre-resumption) to be the recipient of a favourable outcome from the respondent for subdivision. Considerations of the potential for subdivision must, of course, for acquisition purposes, be taken without any reference to the scheme of resumption being in existence.
  1. [68]
    Mr Gillespie’s evidence casts further doubt on the amendments to Exhibit 7 proposed during evidence-in-chief by Mr Smith. Mr Gillespie’s evidence of what Mr Smith told him is certainly consistent with the unamended Exhibit 7, but not so much with the amended Exhibit 7.
  1. [69]
    On the basis of the evidence that Mr Gillespie gave, from a valuation perspective there appears to be little doubt that there was an opportunity for the applicant to seek a subdivision of Lot 3 pre-resumption, particularly if the part to be subdivided in the north of the old Lot 3 included an area a little to the south of the southern boundary of the resumed land which was outside of flood impact concerns. Put more simply, old Lot 3 may very well have been able to be subdivided into a block made up by the entirety of the resumed land together with a small portion in the north-westerly corner of the retained land, leaving the balance of old Lot 3 as essentially post-resumption Lot 3 with a relatively small area in the north-west removed, but with the house, shed and almost all other improvements remaining on the altered post-resumption Lot 3.
  1. [70]
    In other words, Mr Gillespie’s evidence of his discussions with Mr Smith at the time that Mr Smith was an employee of the Council gives rise to the clear conclusion that it was possible, leaving aside the scheme for the resumption, for the applicant’s land to be subdivided into two lots, one containing the existing house and improvements, and one containing predominantly the resumed land.

Mr Smith’s/the respondent’s failure to seek leave to amend Exhibit 7

  1. [71]
    The applicant has submitted that, in failing to seek leave to amend Exhibit 7, the respondent has not complied with rr 24D and 24E3(b) of the LCR.[39]
  1. [72]
    Rule 24D provides that a person must not give, and an expert must not accept, instructions to adopt or reject a particular opinion. The applicant contends that that is precisely what Mr Smith has done in making his amendments to Exhibit 7. That, however, is a bold assertion made by the applicant which is not supported by any facts. There is simply no direct evidence to support the applicant’s contention in this regard.
  1. [73]
    Rule 24E(3) relates to matters arising in a further statement of evidence, where the leave of the Court is required should the expert seek to contradict, depart from, qualify, or raise a new matter relating to a joint report. Of course, there is no joint report in relation to Mr Smith’s evidence so r 24E(3) is not directly relevant.
  1. [74]
    That is, however, not the end of the matter. Rule 24H of the LCR provides as follows:

During examination in chief, an expert must not, without the court’s leave, repeat or expand on matters contained in the expert’s statement of evidence or introduce new material.

  1. [75]
    I am in no doubt that r 24H is not meant to apply in circumstances where an expert seeks to do no more than correct mere slips or typographical errors in their report. Mr Smith and the respondent certainly gave the impression that the amendments to page 26 of Mr Smith’s report amounted to nothing more than clarification to avoid confusion. However, during the hearing I expressed my doubts and indicated that the amendments to page 26 could very fundamentally change Mr Smith’s report.
  1. [76]
    The amendment of Exhibit 7 came about this way:

“MS WHITEHOUSE:   Mr Smith, if we just go back to where we left off before the lunch break.  You were speaking of a correction or clarification on page 26, I think you said --- ? --- Yes.

---  of your statement of evidence.  Could you just explain, again, starting at the beginning, what that was you were referring to?   Sure.  At paragraph 86, which is the concluding paragraph, effectively, of the report, in the first line, I use the word “resumption area” where, in fact, as I’ve used throughout the report, I’ve referred to the site as a whole, which includes the balance parcel – sorry – the balance portion and the resumption portion of the site, on the basis that, largely, the highest and best use of the overall site is the same irrespective of the resumption [indistinct] occurring.  So the – the reference to the – the highest and best use of the land in the concluding paragraphs, it should be referencing the site rather than specifically, at that point, referring just to the resumption area where I haven’t referred to the resumption area in isolation, really, up until that point other than clarifying the background and the – the characteristics of those two parts of the site. 

And ---

HIS HONOUR:   So what are the precise words you wish to have used?To keep it consistent with the rest of the report, I’d like to use the words “for the site” as opposed to “of the resumption area”. 

MS WHITEHOUSE:   And does that carry through all of 6.3 – the whole of 6.3.  I note that you’ve referred to the words “resumption area” in 86 sub (d) and 86 sub (h).  That flow through or is   ?Yes, correct.

Okay?Yes.  No, as it would in 83, paragraph 83, where I’ve used the highest and best use of the land as a – as a quote, so that’ll be a similar – similar matter.”[40] 

  1. [77]
    Ms Whitehouse then moved on to other questions. Due to my concerns as to the scope of the amendments to Exhibit 7, before Mr Smith concluded his evidence I asked him certain questions regarding the amendment. I will let the transcript speak for itself:

“Now, there – there’s one other thing that I – I just want to raise and – and this is to be completely fair to you.  So I’ve – I’ve finished off my normal questions I’d raise but:  when I read page 26 in its unamended form, I – I was quite certain that your report in the way it had been drafted [indistinct] referring to the – the – the – the site, the larger one, the resumed area being a specific part and the – and the balance area  being a part but you were being very specific in the way 6.3 was worded from paragraphs 83 to 86 was referring to resumed area so that a dwelling house could go on the resumed area which was part of the reason why, in going through all this material, I turned my mind very specifically to the opportunity pre-resumption for a house to be developed on the resumed area.  And so the – the change from resumed area to the site area is – is – at least gives me the impression of an extremely significant factual and legal change and it concerns me when an expert comes because we quite often have changes to reports which are slips – a terminology – but this is referred to in four places and very much in my mind changes the nature of the report.  And so I – I just want to be completely fair to you if you could explain how it came about that you prepared the report in the original manner and how it came about that you prepared the report in the amended manner?   Yeah.  I guess upon reading it again and – and, you know, working through the matters of – of the – the – the hearing, I was worried that the report, you know, would – would infer that there’s a, you know, almost an [indistinct] right for a dwelling house on that resumed area had a subdivision occurred.  I haven’t spoken about subdivision throughout the report for the fact that there’s – I don’t see a – a real opportunity to do the subdivision in the form of the resumption.  Obviously what happens to the – to the southern end as I – as I, sort of, mentioned before in my pre-lodgement scenario, you know, there’s – there’s, you know, there’s quite an opportunity to potentially do something there.  But whether or not there’s a subdivision that coincided with the resumption line to create the – now the resumed area and the balance area, I didn’t want, I suppose the report to suggest that the resumed area had an opportunity for a dwelling house, you know, immediately apparent because we don’t know where, you know, those flooding constraints are in relation to some of those lines.  If – if you know what I mean?

I’m – I’m just listening to your explanation.  That’s fine?   Yep. 

Okay?   So – so yeah.  It was more or less I just wanted to, you know, avoid the – the – the confusion that may have been caused by re-reading it that – assuming that the land was subdivided in line with the resumption boundary that the resumed area automatically had a – an opportunity, I suppose, to – to do a dwelling house or to do another form of development because the area was so significantly constrained.”[41]

  1. [78]
    Nothing further was mentioned at the hearing regarding the amendments put forward by Mr Smith to Exhibit 7.
  1. [79]
    Accordingly, whether or not the respondent should have sought leave for Mr Smith to amend Exhibit 7 is fundamentally dependent upon whether or not Mr Smith’s amendments are substantive or merely for clarification/correcting typographical mistakes.

Were Mr Smith’s amendments to Exhibit 7 substantive?

  1. [80]
    The applicant strongly submits that Mr Smith’s amendments are substantive. Relevantly (leaving aside the applicant’s allegations, without evidentiary support, that Mr Smith was led by the respondent’s counsel to make the amendments) he has this to say at paragraph 112 of his submissions:

“Applicant strongly objects to the correction that Town Planner Tim Smith is making in his statement of evidence, page 26, section 63, paragraph 86. To allow this to happen he would have to correct 9 other pages as well. His correction, if allowed to proceed, will change the entire nature of his statement of evidence.

In it he clearly states that Lot 4 on SP282675 is the resumption area which is the main subject matter of this statement of evidence and of this court hearing.

Being such an experienced and senior personnel involved in town planning matters, it is highly inconceivable that he can make such a 'so-called mistake’…

To allow that original page 26 to be changed to the amended page 26, the respondent team would have to correct paragraph 3.3 section 21.a (page 7), figure 4 (page 9), figure 5 (page 10), figure 6 (page 14), figure 7 (page 15), figure 8 (page 16), figure 9 (page 20) and figure 10 (page 21). To correct a small slip is different from correcting a total of 9 pages of a Statement of Evidence Report. Applicant strongly objects to these corrections…” (emphasis in original)

  1. [81]
    I have considered the applicant’s submission and it certainly has some force. While it is not clearly established that the additional amendments pointed out by the applicant would necessarily follow amendments to page 26 of Exhibit 7, the point that the applicant highlights is, in my view, more fundamental.
  1. [82]
    I am absolutely certain that any fair reading of Exhibit 7 in its pre-amendment state would lead, and could only reasonably lead, to a conclusion that the report was specifically stating that the resumed area was capable, from a planning perspective, of having a dwelling in the resumption area; that is, the retained area would retain its dwelling and the resumed area could have had a dwelling constructed on it, albeit “on a limited part[42] of the resumption area. This position is reinforced by Exhibit 7 itself on page 7, which at 21(a) and (b) set out descriptors for the resumption area and the balance area, including the use of single inverted commas around the words “resumption area” and “balance area”. Both descriptors are each used two times within the next six lines of the report on page 7, and continue to be used throughout the report, and in my view, are used in a consistent way on page 26 of Exhibit 7.
  1. [83]
    This Court is primarily concerned with valuing the resumed land. Mr Smith was correct in Exhibit 7 to make the distinction between the two descriptors for the applicant’s land in order to make it clear when he was referring to the resumed land as opposed to the retained land/balance area. Given that the resumed area is of such a large size, particularly when compared to the large number of residential lots in the immediate vicinity, Exhibit 7 in its unamended form is of particular assistance to the Court, rather than a more general reference as proposed in the amendments. The unamended report is also more consistent with the evidence of Mr Gillespie as to his discussions with Mr Smith when Mr Smith was an officer of the respondent as to the possibility of the northern part of the applicant’s pre-resumption land being capable of subdivision for residential purposes.
  1. [84]
    In the circumstances, I agree with the applicant that the amendments proposed by Mr Smith were more than just clarification/typographical, making a substantive change to the way in which Exhibit 7 is read. Not only should leave to make the amendments have been sought; the applicant should have been provided with advance notice of the respondent’s intention, through Mr Smith, to have the contents of Exhibit 7, which the applicant had had for many months, amended. This would have allowed the applicant a fair opportunity to consider the proposed amendments, an opportunity which he did not properly have when the amendments were proposed.
  1. [85]
    My conclusions in this regard are consistent with the planning evidence set out in Mr Gillespie’s report, Exhibit 8, in part 3.0. The great bulk of what Mr Gillespie has said in the planning part of his valuation report is responsive to a proposed development contended for by the applicant which is far more extensive than a relatively simple subdivision for an additional housing lot. Mr Gillespie did not include details of his discussions with Mr Smith as revealed during re-examination as to the possibility of the northern part of the pre-resumption area being subdivided to allow construction of a dwelling. That was clearly important evidence relating to the resumed area which both Mr Gillespie and Mr Smith had an obligation to bring directly to the attention of the Court in their respective written reports in order to properly discharge their responsibilities to properly assist the Court with their expert opinions.

Final comments and findings on the town planning evidence

  1. [86]
    I certainly appreciate the difficulties that the respondent has experienced in responding to the applicant’s case. The applicant is clearly a highly educated, articulate person who has knowledge far exceeding the average Queenslander in both valuation matters and acquisition law. However, the applicant is neither a lawyer, let alone one conversant with acquisition law, nor a valuer who has ever been registered to practice as such within Queensland generally or in acquisition matters under the ALA specifically.
  1. [87]
    Much of the applicant’s evidence, in both documentary and oral form, is not relevant to the overall determination of this case. This has infected the claim that the applicant has sought to make out for compensation. For instance, from a planning sense, the applicant spent some time criticising the respondent for not carrying out other flood rectification work which, the applicant says, would have made the resumption of his property unnecessary. This of course is completely irrelevant to my determination in this matter. This Court is not charged with reviewing the decision to resume the applicant’s land; the Court is charged with determining the proper amount of compensation payable consequent upon the resumption.
  1. [88]
    Perhaps it could be said that there may be some relevance to much of the evidence that the applicant led had he been able to establish, on the evidence, a lack of good faith by the respondent in both the scheme of resumption generally; the acquisition of part of the applicant’s property; and the conduct of the respondent with respect to compensation properly payable to the applicant. No such lack of good faith has been established.
  1. [89]
    Furthermore, the applicant has relied upon a great deal of “evidence” in his documentary material to which either no weight or extremely limited weight (bearing in mind the obligations of the Land Court pursuant to s 7 of the Land Court Act 2000) can be given. Again, as regards for planning evidence, examples include newspaper articles and the like, both local and interstate, relating to planning approvals made/proposed for other properties.
  1. [90]
    I have no doubt that the manner in which the applicant has presented his evidence and run his case has muddied the waters for the respondent. That, however, does not remove from the experts engaged by the respondent their obligations to fully consider this matter and to assist the Court with their honestly held opinions.
  1. [91]
    Given Mr Smith’s evidence, I am satisfied that the extensive development proposal put forward by the applicant as a possibility for his land had such little chance of being accepted by the respondent (in a world where the scheme of the resumption is not taken into account) that such extensive development proposal does not assist the applicant’s claim for compensation post-resumption in any way. However, on the totality of the evidence, and in particular the evidence of Mr Gillespie as to his discussions with Mr Smith, and the evidence given by Mr Smith during re-examination, I am satisfied that, absent the resumption, there was a real opportunity for the applicant to seek to have the northern part of his land, including all of the resumed area, subdivided in order to allow the construction of a dwelling on the northern part of the pre-acquisition land.
  1. [92]
    For completeness on the town planning aspects of this case, I should add that the applicant is quite incorrect, at law, when he refers to the respondent subdividing his pre-acquisition land in order to undertake the resumption. Resumptions can occur of either the entirety of a person’s land or of part of their land. When a resuming authority resumes only part of a person’s land, what occurs as a result of the acquisition (speaking generally), is that new lots come into existence; one new lot representing the landowners retained land; and another new lot representing the acquired land. This is precisely what has occurred with respect to the acquisition of the applicant’s property. Perhaps the applicant was confused by seeing reference to the new lots as part of the resumption material prior to the actual resumption occurring, when any such reference of course was no more than an indication by the respondent of what the position would be subsequent to a resumption occurring.

Valuation evidence

  1. [93]
    As already indicated, expert valuation evidence was given by Mr Gillespie who was called by the respondent. His valuation report is Exhibit 8. Mr Gillespie is a highly experienced valuer, having been registered as an urban and rural valuer since 1977. He is a senior valuer at Opteon Property Group.
  1. [94]
    I have already explained the position of the applicant. Despite his experience, Mr Lim cannot give expert valuation evidence in support of his own case. Accordingly, the only expert valuation evidence before the Court is that of Mr Gillespie. By his own lay evidence, the applicant has brought before the Court factual matters which are relevant to the determination of compensation payable to him generally, and specifically relevant to the expert opinion evidence of Mr Gillespie. Of course, I specifically leave to one side any evidence of Mr Lim which would ordinarily be classified as expert opinion evidence.
  1. [95]
    Mr Gillespie adopted a “before and after” approach in valuing the resumed portion of the applicant’s land. His calculation of compensation (excluding disturbance items) is to be found in part 10.0 of Exhibit 8 as follows:

BEFORE

12,318m² above 5% annual chance @ $30/m² $369,540

39,000m² below 5% annual chance @ $6.00/m² $234,000

Total $603,540

After

12,318m² above 5% annual chance @ $30/m² $369,540

13,592m² below 5% annual chance @ $6.00/m² $ 81,552

Total $451,092

Difference $152,448

Recommended amount $152,500

  1. [96]
    Mr Gillespie relied on 12 sales in support of his valuation for the resumed part of the applicant’s land.  Helpfully, he provided a summary of his analysis of those sales and their comparability to the resumed land in Appendix 1 of Exhibit 8.  It is as follows:

Lim v Moreton Bay Regional Council [2019] QLC 2

Lim v Moreton Bay Regional Council [2019] QLC 2

  1. [97]
    What is immediately apparent is that the first 5 sales are said to represent flooded sales with development potential, whilst the last 7 sales are of partly flooded rural residential lots. Given my findings on the town planning possibility of subdivision of the northern part of the pre-resumption land into a separate rural residential lot, the first 5 of Mr Gillespie’s sales are most relevant.
  1. [98]
    Given that Mr Gillespie’s evidence is the only expert opinion evidence as to value, it would be easy for me to simply accept what he had to say about his first 5 sales and then make a finding as to the appropriate compensable amount. That however would not take into account certain facts established by the applicant with respect to those 5 sales in particular, and to all of Mr Gillespie’s sales in general.
  1. [99]
    Within the applicant’s Exhibit 3 there are exhibits 020A, 020B, and 020C. Those exhibits set out what the applicant says are dissimilarities between the resumed land and Mr Gillespie’s sales. It is immediately apparently that some of the contents of this document relate to opinion evidence which the applicant cannot give – such as “inferior/superior to Lim’s land”. I have disregarded all statements by the applicant which are an attempt to provide his own expert opinion evidence. Notwithstanding, there are facts clearly presented and asserted by the applicant in the documents; some of which are unchallenged; some of which are common ground; and some of which the respondent has a different view of entirely. Exhibits 020A, 020B and 020C of Exhibit 3 are as follows:

Lim v Moreton Bay Regional Council [2019] QLC 2

Lim v Moreton Bay Regional Council [2019] QLC 2

Lim v Moreton Bay Regional Council [2019] QLC 2

  1. [100]
    It should be noted that the first 2 columns of the 3 documents above are almost identical. Mr Gillespie was asked by the applicant during cross-examination as to his opinion on the tables above (together with the tables in Exhibit 3 at exhibits 019A-C). Mr Gillespie answered, in part, that “I just did not consider it was a document that I would prepare myself and I would give much relevance to in relation to a valuation”.[43] Mr Gillespie missed a fundamental point regarding these tables.  That is, they contain details of facts central to the applicant’s contention that the compensation position of the respondent is not reasonable.  In addition, the facts stated in those tables are only a summary of the facts (in document form and oral evidence) relied on by the applicant.
  1. [101]
    It should also be noted that a number of the topics listed by the applicant in fact support the comparisons made by Mr Gillespie – such as “land area (ha)”, “distance to Lim’s land (km)”, “environmentally friendly and sustainable private garden park” and others. There are however four headings used by the applicant relating to facts which, on my understanding of Mr Gillespie’s evidence, he has not directly taken into account in his analysis. These are “koala population, habitat & food source”, “billboard income”, “mature rainforest”, and “multiple entry to/exit from the property”.
  1. [102]
    One of these headings can be put to one side without the need for further analysis. There is precious little factual evidence regarding the possibility of billboards on either the subject or the sale properties, and what evidence there is does nothing to support the applicant’s claim for compensation. There is no evidence or submissions as to whether planning approval is necessary, or would, if required, be likely to be granted for any such billboard. Similarly, there is no evidence of the costs associated with having a billboard; the gross income that could be received; the net income taking into account not only known costs, but the risk of the billboard being without advertising for at least some period of time; and, taking those factors into account the likely impact on the value of the land for the potential of a billboard.
  1. [103]
    The heading “multiple entry to/exit from the property” can also be quickly dealt with. It does not appear that Mr Gillespie has specifically taken this into account in his comparisons, although it is obvious that the general characteristics of access to each property was a factor taken into account by Mr Gillespie. There is clearly an advantage to a landholder of multiple access points. As such, it would be expected that multiple entry/exit points would reflect in value, and is therefore a feature which the subject has which the sale properties, on the evidence before me, do not have. That would result in a slight increase in value of the subject compared to the sales.
  1. [104]
    That leaves the headings of “koala population, habitat & food source” and “mature rainforest”. I will deal with these headings together.
  1. [105]
    There can be no doubt that the applicant placed significant weight on these factors in his evidence. For instance, at pages 14-15 of Exhibit 3 the applicant had this to say:

“Properties with creek frontage, a ready-made mature rainforest, resident koala population, wallabies, wild ducks, kookaburras, water hens, different types of birds, reptiles, insects and plants, the occasional back-up flooding (which was one of the main considerations we intentionally bought this land for) and a naturally occurring spring fed dam this close to the Brisbane CBD are rare as hen’s teeth if not next to impossible to find attributes.”

  1. [106]
    In the same vein, the applicant at page 20 of Exhibit 3 stressed the need to “take into full consideration the resumed property’s unique characteristics” in establishing compensation. Examples he gave of these unique characteristics included the following at pages 20-21:
  • Mature rainforest which normally takes about 70 years to grow.
  • Opportunity to watch a creek meandering past your own property and located at your doorstep a feature which is very important to me in the Asian background context.
  • Koala colony habitat due to the abundance of a particular type of gum tree favoured by Koalas in the area. For about 20 years Australia Zoo has been cutting many of our gum trees to use as fodder for their Koala population. Koalas in Australia have been very much taken for granted while tourists and dignitaries the world over cuddle them instead of you and me. (Exhibit Nos. 059-065).
  • Variety of flora, fauna and insects.
  1. [107]
    Nowhere in any of its evidence does the respondent refute any of such factual evidence put forward by the applicant. Further, despite the above characteristics of the resumed land being front and centre in the applicant’s case, nowhere does Mr Gillespie appear to have considered sales of properties with the same features in his comparison sales. Nothing in the material that I have before me shows even the possibility of mature, koala bearing eucalyptus trees being located in natural bushland on any of the sale properties, let alone any of the other natural features that the applicant has provided evidence of as critical features of the resumed land. There are no photographs of the sale properties.
  1. [108]
    On the basis of the evidence before me, I find that key characteristics of the resumed land relating to koala habitat, mature rainforest vegetation, flora and fauna which exist on the resumed land are not to be found in like manner on any of the sale properties advanced by Mr Gillespie. This is a distinct omission in Mr Gillespie’s evidence.
  1. [109]
    The applicant has given evidence that properties containing the attributes of the resumed land are very difficult to find. This scarcity may be the reason why Mr Gillespie has not included sales with such attributes. It is not however my position to speculate as to what Mr Gillespie may or may not have thought. I can only go by the evidence that Mr Gillespie put before this Court, both by way of fact and opinion evidence. What Mr Gillespie has done has been to either disregard the importance of the attributes referred to by the applicant for the resumed land, or considered those attributes to be adequately covered in the attributes of the sale properties that he has referred to. Either way, I cannot agree.
  1. [110]
    It is a shame that the applicant did not assist the Court by placing evidence from an independent expert valuer before the Court who may have assisted this Court with comparable sales that properly took into account the attributes of the resumed land in the context that I am currently considering. It is equally unfortunate that Mr Gillespie did not either include sale properties that had such attributes or, if he was unable to find sales which included those attributes, indicated that there was a scarcity of sales with those attributes. As I have indicated, it is understandable that there may be a scarcity of such sales within the area of sales referred to by Mr Gillespie, given the applicant’s evidence. However, undertaking normal valuation procedures, Mr Gillespie could have searched for properties with such attributes further afield and made relevant locality adjustments to make those sales comparable to the resumed land. There is nothing to suggest that Mr Gillespie undertook any search at all in this regard.
  1. [111]
    This leaves me in a dilemma as to the way in which I am able to use the expert evidence of Mr Gillespie. Absent any proper consideration by him of the clear importance of the attributes on the resumed land relating to koalas, mature rainforest vegetation, flora and fauna, et cetera, it is difficult to draw conclusions based on Mr Gillespie’s evidence as to the true value of the resumed land from an ALA compensation perspective.
  1. [112]
    For reasons that I have already given, the applicant has not put before me any independent expert valuation evidence which could have assisted me in my task. I have specifically not taken into account opinion as to value by the applicant insofar as he claims expertise in valuation.
  1. [113]
    When met by a case involving compensation under the ALA where one side presents expert valuation evidence and the other side does not, the side that does not present independent expert valuation evidence is confronted by a vary onerous task. Leaving to one side the issue of the entry/exit points on the resumed land and the current issue relating to koalas, mature rainforest, flora and fauna, I am satisfied with the opinion evidence as to value put forward by Mr Gillespie, particularly with respect to sales 1 to 5 which include the possibility of subdivision which I have specifically found to be a positive factor to be taken into account for the resumed land.
  1. [114]
    As the respondent pointed out in its submissions,[44] when assessing his sales 1 to 5, Mr Gillespie attributed the portions of those parcels below the 5% annual chance of flooding a value of between $5 and $7 per square metre and the land above a 5% annual chance of flooding a value between $24.57 and $37.88. When using the values from those sales as a comparator for the resumed land and the retained land in order to arrive at his before and after value, Mr Gillespie attributed a value of $6 per square metre for that part of the applicant’s land which was below the 5% annual chance of flooding and $30 per square metre for the portion of the applicant’s land which was above the 5% annual chance of flooding.
  1. [115]
    Given the serious matters of comparison overlooked by Mr Gillespie in his adoption of rates for the before and after value of the applicant’s property, but with a dearth of evidence available to me by which to properly value the before and after value, I consider that those comparable items of fact overlooked/not taken account of/disregarded by Mr Gillespie, when properly taken into account, at least result in an adjustment of Mr Gillespie’s figures to the maximum amounts that he has found for the values of sales 1 to 5. That is, a value of $7 per square metre for that part of the applicant’s land which was below the 5% annual chance of flooding and $37.88 per square metre for the portion of the applicant’s land which was above the 5% annual chance of flooding.
  1. [116]
    Using Mr Gillespie’s calculations as set out in part 10.0 of Exhibit 8 amended to $7 and $37.88 accordingly, results in the following:

BEFORE

12,318m² above 5% annual chance @ $37.88/m² $466,606

39,000m² below 5% annual chance @ $7.00/m² $273,000

Total $739,606

After

12,318m² above 5% annual chance @ $37.88/m² $466,606

13,592m² below 5% annual chance @ $7.00/m² $ 95,144

Total $561,750

Difference $177,856

  1. [117]
    I consider that the sum of $177,856 must be a starting point for compensation only. This is because the particular attributes of koala habitat, mature rainforest, flora and fauna, and creek which existed on the applicant’s land in the before case have been completely removed from the applicant’s land in the after case. The simple before and after calculation does not adequately take into account the loss suffered by the applicant in losing ownership of said characteristics.
  1. [118]
    Given the state of the evidence, it would at first appear that the Court is faced with some difficulty in arriving at a value for compensation which, on the facts, truly represents the applicant’s loss. There is, however, some additional evidence which can be taken into account. This relates specifically to the Dale Street sale properties and to the evidence relating to such sales as specifically set out in Exhibit 14, a document prepared by Mr Gillespie. Mr Gillespie confirmed during his evidence that he was the valuer engaged by the respondent for the purchase of the Dale Street properties.[45] Exhibit 14 is as follows:

Lim v Moreton Bay Regional Council [2019] QLC 2

  1. [119]
    There is great dispute between the parties as to whether or not it is even appropriate to consider the Dale Street sales. I will consider that aspect further in these reasons. To begin with, though, it will be immediately apparent that the table of Dale Street sales prepared by Mr Gillespie does not contain a breakdown of the area of land for each property above the 5% annual chance of flooding and that part of each property below the 5% annual chance of flooding. Given the evidence and the before and after valuation methodology that I have just dealt with, the absence of details of land above and below the 5% annual flooding possibility is a hindrance to the use of the Dale Street sales. Fortunately, that hindrance is one which can be readily overcome.
  1. [120]
    Flooding levels on the applicant’s pre-resumption land and the relevant Dale Street sales is clearly set out in Appendix 3 to Mr Gillespie’s report.[46] O'Brien Road is clearly marked running in a virtual north to south direction just off-centre of the flood map. By crosschecking that flood map with the map contained in Exhibit 15, those properties to the north of Dale Street set out in Exhibit 14 are easily locatable. It is of great assistance that the Street address of the Dale Street sales is easily read on the flood map. The flood map at Appendix 3 of Mr Gillespie’s report is as follows:

Lim v Moreton Bay Regional Council [2019] QLC 2

  1. [121]
    A simple analysis of the above flood map clearly shows that the resumed land contains almost precisely identical colour to that of the Dale Street sales numbered 13, 15, 17, 19, 21, 23, 25, 29, 31, and 33. The property numbered 35 Dale Street also appears to closely resemble the flood attributes of the resumed land, while those properties numbered 37 and 39 appear to be somewhat less flood impacted than the resumed land, resembling the middle sector of the applicant’s pre-resumption land.
  1. [122]
    It is to be noted that Mr Gillespie’s before and after assessment had precisely the same area of land, being 12,318 m², in the before and after amount of land above the 5% annual flooding chance. The change for the resumed land in Mr Gillespie’s before and after assessment related entirely to land below the 5% annual flooding chance. In other words, land which had essentially identical flood probabilities to the Dale Street properties numbered 13, 15, 17, 19, 21, 23, 25, 29, 31, and 33, and very close to property numbered 35.
  1. [123]
    Mr Gillespie’s Exhibit 14 helpfully sets out his opinion as to the land only component of the amount paid, together with, the area addressed as square metres (m²), for each relevant Dale Street sale. What Mr Gillespie did not do in Exhibit 14 was set out a rate per m² for each of the relevant Dale Street sales. Referring for the purposes of best relativity only to properties numbered 13, 15, 17, 19, 21, 23, 25, 29, 31, 33 and 35, I have undertaken a simple mathematical exercise, based purely on Mr Gillespie’s figures in Exhibit 14, to arrive at a rate per m² for the land component of each of those Dale Street sales, which is as follows:

Street address

Area (Lim v Moreton Bay Regional Council [2019] QLC 2)

 Land cost

Rate/Lim v Moreton Bay Regional Council [2019] QLC 2 (rounded)

13 Dale Street

1,366

$125,000

$91.51

15 Dale Street

1,338

$125,000

$93.42

17 Dale Street

1,419

$130,000

$91.61

19 Dale Street

1,845

$140,000

$75.90

21 Dale Street

2,312

$145,000

$62.72

23 Dale Street

2,345

$145,000

$61.83

25 Dale Street

2,018

$150,000

$74.33

29 Dale Street

2,018

$160,000

$79.29

31 Dale Street

1,806

$160,000

$88.60

33 Dale Street

1,750

$160,000

$91.43

35 Dale Street

1,988

$160,000

$80.50

  1. [124]
    During cross-examination, Mr Gillespie explained why he did not use a rate per square metre basis to value the land component of the Dale Street sales this way:

“I didn’t analyse the sale – the sales back to per square metre values.  I looked at on the land.  I looked at the land in relation to its overall area and also the quality of the land as it progressed up Dale Street.  I took the view  that the – the worst flooding occurred in the properties towards the – the west and then you will see from that schedule how the values of the properties increase per lot from that – from the west to the – to the east.  And obviously the one at 39 Dale Street has the least flooding affecting on it.  So that’s how I approached it.  I didn’t go through on a per square metre basis.  But it was more or less as an overall basis of the sales.  So if you picked up some – what I consider are slight anomalies, I’m not going to comment on that.”[47]

…if a prudent purchaser is looking at it, he would be looking at about 2000 square metres of flooded land here and here and that’s the way I’ve approached it, on an overall basis, not on a per square metre basis.”[48]

  1. [125]
    It is important in a valuation sense to ensure that comparisons are made, as far as it is possible, of like-with-like. There are of course some clear differences between the resumed land and the Dale Street sales. The resumed land was zoned rural (with a residential use) while the Dale Street sales were residential allotments, albeit relatively large residential allotments. That distinction however is lessened somewhat by my finding that the highest and best use of the northern part of the pre-resumption property, including all of the resumed land, had the potential for subdivision to allow construction of a residence thereon.
  1. [126]
    It is also important to bear in mind that the before and after valuation of Mr Gillespie of the applicant’s land has used a methodology which relates to the land value only on the basis of above or below the 5% annual flood chance.[49]  Put another way, the improvements on the applicant’s pre-resumption land have not been valued by this methodology. There is an apparent reason for this approach by Mr Gillespie. The existing house and almost all other improvements on the pre-resumed land are retained by the applicant on the post-resumption part of his land. That would therefore appear to make it a mathematical exercise which would value the before and after improvements identically. The point that this misses, however, is that the retained land of the applicant no longer contains the koala habitat, mature rainforest, flora, fauna and creek of the pre-resumption land.
  1. [127]
    Even accepting the limitations of comparability of the Dale Street sales to the retained land, it is insightful to consider Mr Gillespie’s own comparison and figures of what he refers to as the worst Dale Street property (No.13) and the applicant’s retained land.
  1. [128]
    13 Dale Street has an area of 1,366 m². The property is severely flood affected. As Mr Gillespie put it “…13 Dale Street, not only were the properties flooded but when they did flood, they flooded from the road first.  So the floods came up into the – onto the road and then onto the property.  If you had a car in the property, well, you were flood – then flood bound because you couldn’t get onto the road and get out”.[50] The land had a permitted use of a single residence which was constructed on the property. The land did not include koala habitat, mature rainforest, flora and fauna but was immediately adjacent to land that contained those features. Mr Gillespie valued the land at $125,000 overall or at $91.51/m².
  1. [129]
    The applicant’s retained land has an area of 25,910 m². Such land is nowhere near as flood affected as 13 Dale Street, with almost half of the retained land situated above the 5% annual flooding chance. The applicant’s retained land had a permitted use of a single residence which was constructed on the property. The land did not include koala habitat, mature rainforest, flora and fauna but was immediately adjacent to the resumed land of the applicant that contained those features. Mr Gillespie valued the retained land at $451,092 overall or at $17.41/m².
  1. [130]
    In short, the applicant’s retained land, which is by far less flood impacted than 13 Dale Street, is only 3.61 times more valuable than 13 Dale Street (both on a land only component basis) even though it is 18.97 times the size.
  1. [131]
    It is also insightful to compare Mr Gillespie’s land value for 13 Dale Street to his land value for the resumed land. The resumed land has an area of 25,408 m². Such land is flood impacted in a like manner to 13 Dale Street although it does not have the same issue, as far as the evidence reveals, of road access flooding prior to the land as 13 Dale Street does, and thus causing vehicles et cetera to become flood bound. The resumed land was not zoned at the date of resumption so as to allow a residence to be built on it or on land immediately adjacent to it, but as I have already found, there was a real possibility of an application for subdivision being approved by Council, from a highest and best use perspective, and this possibility should be taken into account in valuing the resumed land. The resumed land did include koala habitat, mature rainforest, flora and fauna. Mr Gillespie valued the resumed land at $152,000 overall or at $5.98/m².
  1. [132]
    These calculations show that the applicant’s resumed land is only 1.22 times more valuable than 13 Dale Street (both on a land only component basis) even though it is 18.60 times the size.
  1. [133]
    Even taking into account the different zoning, there seems to be a misfit between Mr Gillespie’s valuations. On its face, this is troubling given that the Dale Street sales and the resumed land were all acquired by the respondent under the same scheme.
  1. [134]
    It is apparent that if the Dale Street sales in general or the 13 Dale Street sale in particular, are to be taken into account, Mr Gillespie valuation figures for the land component of 13 Dale Street and the resumed land reveal that Mr Gillespie has either not had any true regard to either the development potential of the resumed land or the particular attributes of the resumed land, or the Dale Street land component has been significantly overvalued. It is therefore critical to determine whether or not it is appropriate to use the Dale Street sales/valuations in any way.

Are the Dale Street sales/land valuations able to be relied upon?

  1. [135]
    The applicant contends that the Dale Street sales are able to be used as an aide in determining the compensation properly payable for the resumed land under the ALA. He cites the cases of Peterkin v Hydro-Electric Power Commission of Ontario[51] and Celtic Agencies v Land Commissioner[52] as authority for his proposition. He also cites the learned work of Marcus Jacobs QC in “Law of Compulsory Land Acquisition”.[53]
  1. [136]
    It is unfortunate that, despite the applicant’s reference to the above authorities and learned textbook, the respondent chose not to engage directly with those authorities or that text. At paragraphs 62 to 64 of its written submissions, the respondent does little more than to repeat Mr Gillespie’s evidence that he does not consider the Dale Street transactions to be open market sales as there was some degree of compulsion for the parties to enter into the agreements and that, in his view, the Dale Street sales do not meet the Spencer test.
  1. [137]
    Rather than attempting to summarise what the applicant had to say regarding those authorities and the Jacobs textbook, I consider the easiest approach is to simply quote from part of the relevant area of Jacob’s work on this topic. Marcus Jacobs QC has this to say:

“Evidence of sales to the resuming authority may be admissible if a party seeking to introduce such evidence first establishes that the ‘transaction may be regarded as voluntary in character’. Evidence of sales to the resuming authority may have some probative value, and may be admissible as comparable sales data: see Cripps, Compulsory Acquisition of Land, para [4-193]. In Celtic Agencies Pty Ltd v SA Land Commission Jacobs J held:

There is ample authority, which I need not cite, for the proposition that other transactions with the acquiring authority must be viewed with great caution if they are sought to be used as a measure of market value, but they are not inadmissible as evidence. Particularly is that so where, as here, there is virtually no other evidence of value in the locality at the relevant time, since the advent of the commission seems to have driven private developers from the market. Moreover, where the acquiring authority has itself bought in the open market, or the land has been offered to the authority at a figure about which there is no query, such transactions are relevant: Beard v Director of Housing (1961) 9 LGRA 74.

It is of course entirely different situation where the resuming authority has purchased property in the area in the open market, and those facts are first established. Such evidence would clearly be admissible in order to establish comparable sales.

It is submitted that the preferred view should be that evidence of prices paid by the acquiring authority for other land is admissible, subject to weight, and with a clear requirement that the data be analysed with caution.

Pain J’s judgment in Chaudry v Liverpool City Council summarises all the relevant authorities and comes to the same conclusion, ie that evidence of those sales is admissible, subject to weight and must be treated with caution”.[54] (citations omitted)

  1. [138]
    Clearly, the 2008 decision of the New South Wales Land and Environment Court in Chaudry v Liverpool City Council,[55] as a recent Australian authority which considered the earlier authorities on this topic, is important to turn to.  Justice Pain provided an excellent summary in Chaudry as follows:
  1. “(i)
    Purchase by public authority

21 Apart from his sale 4, Mr Large has selected sales closest to the Applicant’s land. None of these sales were on the open market but were sales to the Council or the Department of Education following those authorities indicating their intention to acquire the properties. None of the sales were to developers seeking land for englobo medium density residential development, the highest and best use agreed by the valuers for the site. Mr Sorenson considered Mr Large’s sales had utility as secondary evidence only because the purchasers were public authorities.

22 The Applicant submitted that while sales to public authorities should be treated with caution, such sales can nevertheless be relied on. Caution is necessary because public authorities have an unnatural advantage in the bargaining process so that they can obtain a discounted price due to the threat of acquisition, see Meagher JA in Koutsouras v State Rail Authority of New South Wales (unreported, NSW Court of Appeal, Meagher JA, 29 November 1991), Minister of Environment v Petroccia (1982) 30 SASR 333; 55 LGRA 244 referring to Woollams v The Minister (1957) 2 LGRA 338, Jovist Pty Limited v Campbelltown City Council (1970) 19 LGRA 134 and Redeam Pty Ltd v South Australian Land Commission (1977) 40 LGRA 151. In Roulston v Roads and Traffic Authority (unreported, NSWLEC, Sheahan J, 23 June 1997) Sheahan J considered that if there was evidence that the public authority agreed to consensual business the Court should not ignore such sales.

23 The Council agreed that sales to public authorities should be approached with caution. The sales relied on by Mr Large (sales 1, 2 and 3) may include amounts for injurious affection and solatium so that they do not disclose market value only. This certainly applies to sale 2 in particular which included amounts for injurious affection. That sale was based on a before and after method of valuation which includes other factors apart from market value of the acquired land. None of the sales were conducted on the open market.

24 My conclusion on this issue is as follows. The parties relied on similar authorities to suggest that sales to public authorities should be treated with caution but that such sales are admissible; see Koutsouras v State Rail Authority per Meagher JA in obiter.

25 This point was considered in Redeam v South Australian Land Commission per Jacobs J who, citing Woollams v The Minister, determined that “there is no principle of law which requires the Court to reject completely the evidence of sales to the acquiring authority” (at 158). In this case, the only comparable sales evidence available to the valuers were previous sales to the respondent acquiring authority, and so his Honour acknowledged that he had to take account of it “with all its difficulties”.

26 In this case the public authority has not entered the open market to purchase land as referred to in E M Power v Department of Education (unreported, NSWLEC, Hemmings J, 29 August 1989).

27 In other cases in this Court such as E M Powers v Department of Education and Roulston v Roads and Traffic Authority such sales have been taken into account noting the need for caution in their application. As sales 1, 2, 3 and 5 relied on by Mr Large are close to very close to the Applicant’s land, generally similar in topography albeit less flood affected than the Applicant’s land and the purchase date was close to the date of acquisition, these sales should be considered.

28 Sales to public authorities can have both a depressive and an enhancing effect on a sale price; see Petroccia at 339; 250…”

  1. [139]
    I agree and adopt Justice Pain’s reasoning and conclusions.
  1. [140]
    Returning to the case at hand, Mr Gillespie agreed with the applicant during cross-examination that the purchase by the respondent of the Dale Street properties was as a result of voluntary negotiation between the parties.[56] It is also important to realise that Exhibit 14 does more than show Mr Gillespie’s valuation for each of the land components of the Dale Street sales. Exhibit 14 also shows Mr Gillespie’s valuation of the improvements on each Dale Street property; his valuation for each property; and the amount paid by the respondent to each Dale Street property owner.
  1. [141]
    It is recognised that the payments made to each Dale Street property owner were amounts in excess of Mr Gillespie’s valuation. The fact that the actual sales exceed the valuation is yet another reason to adopt caution when viewing the Dale Street sales. However, that caution is significantly mitigated by the fact that the amount of extra payment has been clearly identified by Mr Gillespie in his table, and the figure that I have been referring to is the lesser figure of Mr Gillespie’s valuation for the land only component of each Dale Street sale. Difficulties which may otherwise be seen to exist with respect to each sale, such as an additional payment perhaps made by the respondent to a landowner to ensure a purchase of a property without the additional time and expense of an acquisition of the property under formal ALA processes, are at least lessened, even if not entirely removed, by their separate listing in a column other than Mr Gillespie’s land only valuation.
  1. [142]
    In all of the circumstances, I find that the Dale Street sales to the respondent are able to be considered as part of the valuation evidence in this matter, although care needs to be exercised when using those sales as direct comparators to the resumed land due to the different zoning of the Dale Street properties. That said, however, there are other factors, including their very close proximity to the resumed land; the similar flood characteristics between many of the Dale Street sales and the resumed land; and my finding that the resumed land had the possibility of being included in a subdivision of the applicant’s pre-resumption land for the purposes of constructing an additional dwelling; which show good reason why the valuations made by Mr Gillespie of the land component of each Dale Street sale should be considered.
  1. [143]
    I find that Mr Gillespie’s land only valuations of the Dale Street sales are a fair reflection of the value of each land only allotment, confirmed by the willing sales of each of those Dale Street properties to the respondent. Therefore, when comparing the Dale Street sales in general, and 13 Dale Street sale in particular, to Mr Gillespie’s assessment of the value of the resumed land, my conclusion is that something is amiss. What is amiss is that Mr Gillespie has not properly taken into account the prospects of subdivision of the northern part of the pre-resumption property, including all of the resumed property. Insofar as Mr Gillespie has had some regard to the subdivision potential of the pre-resumption land of the applicant, that potential has been almost entirely swallowed up by Mr Gillespie’s valuation of the retained land in the before and after analysis.

Findings on valuation evidence

  1. [144]
    Turning now to my findings on the valuation evidence in this matter, I find myself on the horns of a dilemma. On the one hand I have the applicant’s attempts to quantify what he says the compensation for the resumed land should be, but his submissions and evidence in that regard are so intertwined with his improper attempts to give his own expert opinion evidence so as to be of very little, if any, use to me. On the other hand, I have independent expert evidence from Mr Gillespie which I have accepted in part, but which has glaring omissions relating in particular to his failure to properly, if at all, take account of the resumed land containing koala habitat, established rainforests, flora, fauna, and a creek, as well as his failure to take any account of the Dale Street sales based on his incorrect knowledge as to what the law provides, and his failure to give any real regard to the highest and best use possibility of the pre-resumption property, absent the scheme of resumption, being subdivided and with the construction of an additional residence on a separate block in the northern part of the pre-resumption property.
  1. [145]
    Certainly, there is some factual evidence provided by both the applicant and the respondent which assists in arriving at the appropriate value of the resumed land. I am however not favoured by reliable expert opinion evidence taking all relevant factors into consideration to assist me in arriving at the appropriate value for the resumed land. It is not the function of this Court to either have a guess or take a punt as to what the proper value of the resumed land is. I am required to adopt a reasoned, transparent approach based on the factual evidence on so much of the expert opinion evidence that I consider reliable.
  1. [146]
    I have earlier in these reasons, at [117], referred to the sum of $177,856 as the starting point for determining the value of the resumed land.
  1. [147]
    Taking into account the real value which I find in the koala habitat, established rainforest, flora, fauna and creek existent on the resumed land, as well as the ancillary benefit of the resumed land of having multiple entry/exit points, I am prepared to increase the sum of $177,856 by a further 15% to take those attributes into account. Fifteen per cent equates to $26,680 (rounded). When that figure is added to $177,856, the total is $204,536. Looked at another way, $204,536 is approximately a 30% increase over the compensation amount of $152,500 which was put forward by Mr Gillespie and the respondent. To remove any doubt, I find an increase of 30% over Mr Gillespie’s figures for the attributes on the resumed land, leaving aside subdivision potential, to be reasonable, particularly given the scarcity, based on the applicant’s factual evidence, of properties for sale containing koala habitat, established rainforest, flora, fauna and creek in an otherwise well-developed mostly residential area relevantly close to public transport providing easy access to the CBD.
  1. [148]
    That leaves the question of the potential for subdivision of the northern part of the pre-resumed land and the impact that such potential has on the value of the resumed land. On the evidence before me, it was clearly not a certainty that an application pre-resumption, leaving to one side the scheme, would have been approved by the respondent or, if the respondent did not initially approve such subdivision, by the Planning and Environment Court. Far from it. I could not rate the prospects of success of any such subdivision application as any more than 50%, and perhaps somewhat less.
  1. [149]
    It is apparent from the evidence of Mr Gillespie that, had he been valuing the resumed land as a separate lot with approval to have a residence constructed on or nearby to it, then the value of the resumed land would have substantially increased. I agree. How then, absent the assistance of reliable expert opinion evidence, am I to value a 50% or less possibility of a subdivision being approved?
  1. [150]
    The best that I can do is take into account Mr Gillespie’s sales 1 to 5 and the land component of the Dale Street sales in order to arrive at a figure above the sum of $204,536 which takes that possibility into account. Doing the best that I can, I consider it appropriate to increase the value of the resumed land to take into account the possibility of a favourable application for resumption by 25%, which amounts to an increase of $51,134, making a total of $255,670.
  1. [151]
    It is appropriate to reduce the sum of $255,670 for the resumed land to a rate per m² in order to conduct a check against Mr Gillespie’s sales 1 to 5 and Mr Gillespie’s land component of the Dale Street sales. $255,670 for the 25,408 m² of the resumed land equates to a rate of $10.06/m². In my view the rate of $10.06/m² sits very comfortably with Mr Gillespie’s sales 1 to 5. At first glance, it would appear that such a figure does not fit comfortably with the land component of the Dale Street sales in general, and 13 Dale Street in particular. It must be remembered though that the land component value of $125,000 was for a residential block subject to severe flooding. Looked at this way, $255,670 for a significantly larger block with the extra attributes that I have already mentioned, but also with significant flooding restrictions and a rural zoning at the date of resumption which did not allow for the construction of an additional residence on or connected to the resumed land, and with only a 50% or less possibility that any rezoning being favourably received, is a somewhat more comfortable fit with the land component value of the Dale Street sales.
  1. [152]
    The respondent only has itself to blame for not answering the factual evidence provided by the applicant as to the koala habitat, established rainforest, flora, fauna and creek existing on the resumed land; the relative scarcity of many of those items; and the value that those items bring to the resumed land. Likewise, the applicant has himself to blame for not providing the Court with independent expert opinion which could have assisted the Court in determining a value for the resumed land taking into account those components.
  1. [153]
    I find the value of the resumed land at the date of resumption to be $255,670.
  1. [154]
    It is now necessary to consider the value, if any, of disturbance items.

Disturbance

  1. [155]
    As indicated earlier in these reasons, I accept that the applicant is making a claim for the following disturbance items:
  1. (a)
    Stamp duty to buy an equivalent;
  1. (b)
    Lawyer’s fees;
  1. (c)
    Valuer’s fees;
  1. (d)
    Stationery, transport and miscellaneous; and
  1. (e)
    Inconvenience and expenses involved in having to search for another property as unique as this.
  1. [156]
    As to disturbance, s 20(5) of the ALA provides as follows:
  1. (1)
    In this section—

costs attributable to disturbance, in relation to the taking of land, means all or any of the following—

  1. (a)
    legal costs and valuation or other professional fees reasonably incurred by the claimant in relation to the preparation and filing of the claimant’s claim for compensation;
  1. (b)
    the following costs relating to the purchase of land by a claimant to replace the land taken—
  1. (i)
    stamp duty reasonably incurred or that might reasonably be incurred by the claimant, but not more than the amount of stamp duty that would be incurred for the purchase of land of equivalent value to the land taken;
  1. (ii)
    financial costs reasonably incurred or that might reasonably be incurred by the claimant in relation to the discharge of a mortgage and the execution of a new mortgage, but not more than the amount that would be incurred if the new mortgage secured the repayment of the balance owing in relation to the discharged mortgage;
  1. (iii)
    legal costs reasonably incurred by the claimant;
  1. (iv)
    other financial costs, other than any taxation liability, reasonably incurred by the claimant;
  1. (c)
    removal and storage costs reasonably incurred by the claimant in relocating from the land taken;
  1. (d)
    costs reasonably incurred by the claimant to connect to any services or utilities on relocating from the land taken;
  1. (e)
    other financial costs that are reasonably incurred or that might reasonably be incurred by the claimant, relating to the use of the land taken, as a direct and natural consequence of the taking of the land;
  1. (f)
    an amount reasonably attributed to the loss of profits resulting from interruption to the claimant’s business that is a direct and natural consequence of the taking of the land;
  1. (g)
    other economic losses and costs reasonably incurred by the claimant that are a direct and natural consequence of the taking of the land.

Example of costs for paragraph (g)

cost of school uniforms for children enrolled in a new school because of relocation from the land taken

  1. [157]
    Put simply, it is necessary for the disturbance costs to have been either reasonably incurred, reasonably attributed to the loss, or, in certain respects, costs which might be reasonably incurred by a claimant. In this case, the applicant has not been able to establish that he has reasonably incurred any disturbance costs. For instance, the applicant has acknowledged that he did not engage the assistance of a lawyer or a valuer. These were disturbance costs that he could have claimed but he chose not to do so. In like manner, the claimant has not quantified any costs which might be reasonably incurred by way of disturbance costs. It is not enough just to make a general claim for disturbance costs. The applicant is required to put some meat on the bones. In this case, there is simply nothing presented by the applicant which can enable the Court to make an award for disturbance costs.
  1. [158]
    The respondent in its assessment as to the compensation payable has not made any allowance for disturbance costs. Given the lack of quantification of disturbance costs by the applicant, I agree with the respondent.
  1. [159]
    I decline to make any award for disturbance costs in favour of the applicant for any disturbance item.

Interest

  1. [160]
    I have received no submissions from the parties with respect to interest. Interest is awarded in acquisition matters pursuant to s 28 of the ALA. Determinations of the payment of interest are a normal part of any compensation decision under the ALA. In this matter, I consider it appropriate to make an award of interest in favour of the applicant applying all usual factors to such an award of interest, including the relevant interest tables as set out by the Land Court.
  1. [161]
    The computation of the correct amount for an award of interest is a matter that I believe should be able to be easily resolved between the applicant and the respondent without further involvement by the Court. Accordingly, I consider it appropriate to firstly order the parties to see if they can come to an agreed position as to the amount of interest properly payable to the applicant. In the event that the parties are unable to reach common ground as to the amount of interest properly payable, then the question of determination of interest is to come back to the Court for my final determination of the interest component.

Costs

  1. [162]
    Due to the lengthy nature of this decision, it is appropriate that I allow the parties time to properly reflect on the issue of costs. Accordingly, I propose to order a timetable for the making of any submissions as to any costs orders that should be made in this matter.

Procedural matters

  1. [163]
    Before closing these reasons, it is appropriate that I make comment on complaints against the applicant made by the respondent in its reply submissions. In a nutshell, the complaints are that the applicant, in his written submissions, made reference to new facts of which evidence had not been led at trial, and also commented on matters raised in mediation when any such discussions in mediation are confidential and not admissible.
  1. [164]
    I absolutely agree with the respondent as regards its complaint about the applicant referring to confidential matters raised as part of the mediation process. In order for confidence in the mediation process to be retained, it is essential that the confidentiality of mediation processes are respected by all parties. I have no doubt whatsoever, as submitted by the respondent, that the mediator stressed to the applicant and the respondent the confidentiality of the mediation process. I have disregarded, entirely for the purposes of making this decision, any submission or statement made by the applicant that related to anything said or done in the mediation process.
  1. [165]
    As to the respondent’s complaint about the applicant attempting to insert facts into his submissions which were not led as evidence at trial, it is of course a fundamental proposition that evidence to be relied upon in a determination must be evidence properly placed before the Court during the hearing process. Without leave of the Court, additional evidence cannot be forthcoming from either party once the respective parties have closed their cases. Accordingly, as a proposition of law, I certainly agree with the respondent. However, in the complexities of this case, more has to be said in that regard.
  1. [166]
    In paragraph two, of its reply submissions the respondent details a number of instances where the respondent says that the applicant raised new evidence in his submissions. Due to the nature of the way the applicant’s evidence, particularly in Exhibit 3, was set out, I have not checked every assertion made by the respondent to confirm that the applicant was in each instance referred to attempting to place new evidence before the court. I was concerned though when I saw that one of the respondent’s complaints related to “the importance of a creek to the applicant’s culture”.[57]
  1. [167]
    At page 21 of Exhibit 3, the applicant listed as part of his claim for compensation the “opportunity to watch a creek meandering past your own property and located at your doorstep a feature which is very important to me in the Asian background context”. In my view, what the applicant has said in Exhibit 3 about his Asian background is a factual statement relating to the applicant’s culture which supports his submission.
  1. [168]
    Another area where the respondent says that the applicant raised matters in his submissions about which there was no evidence led at trial related to “solar power”.[58] Curiously, in his submissions on page 7, in addressing this topic, the applicant said “applicant did not lead evidence in this regard”. In the very next sentences, though, the applicant had this to say “However in court Exhibit 3, exhibit Nos. 053-058, daily newspaper articles’ emphasis on the extent of the inroads that solar power has made into our everyday life…The occasional inundated land has no adverse effect on its potential or efficiency…”.
  1. [169]
    When one turns to Exhibit 3, at page 22, the applicant stated the following fact as a basis for the determination of compensation “Room for own self-sufficient solar power generation and storage. (Exhibit Nos. 053-058)”.  Further, the applicant included hand written notes on his exhibits 053-058 relating to the building of a solar plant on flooded land and installing free standing solar panels above ground level rather than on building rooftops et cetera.
  1. [170]
    Accordingly, despite the confusion caused by the applicant acknowledging in a somewhat strange way that he did not lead evidence relating to solar power, a close examination of Exhibit 3 shows that evidence was led.
  1. [171]
    It is regularly the case in my experience in hearing matters where one or more party is self-represented that those parties have some difficulty in distinguishing between their obligation to provide evidence to the Court and the making of submissions based on the evidence properly placed before the Court. This case is certainly one where the applicant has had such difficulty. In light of the complexities I have highlighted with respect to the applicant’s culture and solar energy, let alone checking all of the applicant’s material to cross-check the allegations made by the respondent as to other areas where the applicant has attempted to use submissions to place further evidence before the Court, I wish to assure the parties that in making my determination, I have not relied upon any fact referred to by either party in any part of their written submissions. What I have done is refer back to the actual tendered exhibits and oral evidence provided at the hearing of this matter.

Determination

  1. [172]
    I determine with respect to the applicant’s claim for compensation in this matter for the resumed land (known as Lot 4 on SP 282675 post-resumption land) as at the date of resumption to be $255,670 plus interest.

Orders

1. Compensation is determined in the amount of Two Hundred and Fifty Five Thousand, Six Hundred and Seventy Dollars ($255,670).

2. In addition, interest is also awarded on the amount determined by the Court, the amount of such interest to be agreed as between the applicant and the respondent or, failing agreement, to be determined by the Court. In the event that the quantum of interest is not agreed between the parties by 15 February 2019, the parties are each to file and serve a statement and submissions detailing their assessment, with full calculations, as to what amount the proper award of interest should be. Any such statements and submissions are to be filed and served by no later than 4:00pm on 1 March 2019.

3. Any party seeking costs is to file and serve their submissions as to costs by 4:00pm, 15 February 2019. Any submissions in response are to be filed and served by 4:00pm on 22 February 2019 and any submissions in reply are to be filed and served by 4:00pm on 1 March 2019.

PA SMITH

MEMBER OF THE LAND COURT

Footnotes

[1]  Part 4.

[2]  (2014) 35 QLCR 217 [6]; [2014] QLC 19.

[3]  (2007) 28 QLCR 196 [18]; [2007] QLAC 37.

[4]  (2014) 35 QLCR 217 [13].

[5]  (1907) 5 CLR 418.

[6]  (1907) 5 CLR 418, 432.

[7]  (1907) 5 CLR 418, 440-1.

[8]  (2009) 30 QLCR 213; [2009] QLC 177 [12] citing De Ieso v Commissioner of Highways (1981) 27 SASR 248; (1981) 47 LGRA 412, 417. This passage was quoted by Fryberg J in Brisbane City Council v Mio Art Pty Ltd & Anor [2011] QCA 234 [9].

[9]  Exhibit 3, page 27.

[10]  T 1-8, lines 1 to 5.

[11]  T 1-8, line 22.

[12]  Exhibit 4.

[13]  T 1-8, lines 19 to 20.

[14]  T 2-3, line 35 to T2-4 line 14.

[15]  Applicant’s written submissions, page 2 [7].

[16]  Excluding Capital Gains Tax.

[17]  Exhibit 8, page 3 and appendix 4 Certificate of Title.

[18]  Exhibit 7, page 7 [3.2].

[19]  T 2-53, lines 36 to 38.

[20]  Exhibit 8, page 8–9. 

[21]  [2012] QLC 19.

[22]  T 1-5, lines 24 to 29.

[23]  T 1-6, lines 16 to 20.

[24]Meiers & Anor v Valuer-General [2012] QLC 19 [14].

[25]  Exhibit 7, page 27.

[26]  (2001) 52 NSWLR 705; [2001] NSWCA 305 [79].

[27]  (2011) 243 CLR 588; [2011] HCA 21 [31].

[28]  (1997-98) 17 QLCR 90; [1997] QLC 45.

[29]  Ibid 94-5.

[30]  Ibid 107.

[31]  Ibid 109.

[32]  Ibid 111.

[33]  (2011) 32 QLCR 278; [2011] QLAC 7.

[34]Buttcroft Pty Ltd v Edgar (2011) 32 QLCR 278; [2011] QLAC 7.

[35]  [2004] FCA 144.

[36]  Exhibit 8, Part 3.0.

[37]  T 3-21, lines 32 to 34.

[38]  T 3-21, lines 34 to 41.

[39]  Applicant’s written submissions, page 26 [112].

[40]  T 2-13, line 28 to T 2-14, line 10.

[41]  T 2-39, line 42 to T 3-40 line 34.

[42]  Exhibit 7, page 26 [86].

[43]  T 3-14, lines 35 to 36.

[44]  Respondent’s outline of submissions [72].

[45]  T 2-50, lines 34 to 39.

[46]  Exhibit 8.

[47]  T 3-8, line 45 to T3-9, line 7.

[48]  T 3-9, lines 42 to 45.

[49]  Exhibit 8, page 18.

[50]  T 3-10, lines 10 to 14.

[51]  (1958) 12 DLR (2d) 791.

[52]  (1978) 20 SASR 176.

[53]  (Thomson Reuters, 2nd ed, 2015).

[54]  Marcus Jacobs QC, Law of Compulsory Land Acquisition (Thomson Reuters, 2nd ed, 2015) 394-5.

[55]  [2008] NSWLEC 251.

[56]  T 3-11, line 33 to T 3-13 lines 8 to 4.

[57]  Respondents reply submissions 2(c)(ii).

[58]  Ibid 2(c)(i).

Close

Editorial Notes

  • Published Case Name:

    Edwin Villa Abrille Lim v Moreton Bay Regional Council

  • Shortened Case Name:

    Lim v Moreton Bay Regional Council

  • MNC:

    [2019] QLC 2

  • Court:

    QLC

  • Judge(s):

    Member Smith

  • Date:

    25 Jan 2019

Appeal Status

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

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