Chief Executive, Department of Transport and Main Roads v Pfeiffer Nominees Pty Ltd [2018] QLAC 2

LAND APPEAL COURT OF QUEENSLAND CITATION: Chief Executive, Department of Transport and Main Roads v Pfeiffer Nominees Pty Ltd [2018] QLAC 2 PARTIES: Chief Executive, Department of Transport and Main Roads (appellant) v Pfeiffer Nominees Pty Ltd (respondent) FILE NO: LAC006 -17 DIVISION: Land Appeal Court of Queensland PROCEEDING: Appeal DELIVERED ON: 28 May 2018 DELIVERED AT: Townsville/Brisbane HEARD ON: 2 February 2018 HEARD AT: Cairns THE COURT: Henry J WA Isdale, Member of the Land Court PG Stilgoe, Member of the Land Court ORDERS: 1. Appeal allowed. 2. Compensation is determined in the amount of Five Hundred and Eighty Thousand Dollars ($580,000) plus interest. 3. The parties will within two weeks of judgment file and serve written submissions not exceeding three pages per party as to such of the following as are not agreed in the meantime: (a) the quantification of interest; (b) costs in this court; (c) (if it be relevant) costs in the Land Court. CATCHWORDS: REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – QUEENSLAND – where appellant objects to valuation – where the basis of valuation -- 1 of 13 -- 2 was based on highway access – where the land was purchased after the limited road access declaration – whether a scheme for upgrading the highway exists – whether any increase or decrease in value was caused by the carrying out of the scheme for which the land was acquired – whether the Point Gourde principle applies Acquisition of Land Act 1967 (Qld) ss 12(5), 20, 20(2) Chief Executive, Department of Transport and Main Roads v Mahoney & Ors (2014) 35 QLCR 39, followed De Tournouer v Chief Executive, Department of Environment and Resource Management [2011] 1 Qd R 200, cited Haig v Minister Administering National Parks and Wildlife Act 1947 (1994) 85 LGERA 143, followed Hitchins and Cunnington v Council of the Shire of Woongarra (1993) 14 QLCR 603, cited Mahoney v Department of Transport and Main Roads [2014] QCA 356, (2014) 206 LGERA 302, cited Melwood Units Ltd v Commissioner of Main Roads [1979] AC 426, distinguished Moreton Bay Regional Council v Caseldan Pty Ltd [2017] QCA 72, cited Nelungaloo Pty Ltd v The Commonwealth (1948) 75 CLR 495, cited Opalinski v Department of Transport and Main Roads [2017] QLC 42, cited Pfeiffer Nominees Pty Ltd v Department of Transport and Main Roads [2017] QLC 43, cited Point Gourde Quarrying and Transport Co Ltd v Sub- Intendent of Crown Lands [1947] AC 565, cited Queensland v Murphy (1990) 95 ALR 493, cited Waters v Welsh Development Agency [2004] 1 WLR 1304, cited APPEARANCES: Mr JM Horton QC and Ms E Hoiberg of Counsel (Clayton Utz), for the appellant Mr CL Hughes QC and Mr MA Jonsson QC (All About Law), for the respondent [1] HENRY J: A parcel of the respondent’s land next to the Captain Cook Highway at Smithfield was resumed on 12 October 2007. The respondent was entitled to be compensated.1 1 Per s 12(5) Acquisition of Land Act 1967 (Qld). -- 2 of 13 -- 3 [2] It was common ground on the valuation evidence below that the compensation should be assessed at $580,000, if the land was valued on the premise it had no reasonable prospect of vehicular highway access, or $2,170,000, if valued on the premise that it did. The member below determined compensation on the latter basis. The appellant appeals that decision. [3] The grounds of appeal are variously connected with the learned member’s apparent reasoning that the lack of prospect of highway access and the diminution in land value caused by it should be ignored because they resulted from the very scheme of which the resumption was a part. That reasoning was premised on the so-called Pointe Gourde principle,2 which operates to prevent the compensable value of compulsorily acquired land being unjustly determined by reference to any increase or decrease in the land’s value caused by the carrying out of the very scheme for which the land is acquired. [4] That principle was not apt to the case in fact or in law. [5] It was not apt as a matter of fact because the lack of prospect of highway access was unconnected with the scheme for which the land was acquired. The reasons for that are explained by Member Stilgoe, with whose reasons and proposed orders I agree. [6] However, even there had as a matter of fact been the requisite connection, the lack of prospect of highway access resulted from a limited access road declaration made in 1983. That disadvantage long pre-existed the respondent’s purchase of the land in 2002 and there was no realistic chance of access being regained. [7] As explained by Member Isdale, with whose reasons I also agree, the Pointe Gourde principle is a valuation principle to be applied in assessing the land owner’s statutory right to compensation for the loss of compulsorily acquired land. It is not, as a matter of law, a source of that right, let alone a right to compensation for the loss of that which the owner never had. [8] This is a distinction which warrants elaboration because the parties’ joint urging of the learned member below to approach the determination by applying the Pointe Gourde principle tended to obscure the distinction. [9] Section 12(5) Acquisition of Land Act 1967 (Qld) provides that on the date of publication of the act of resumption of land by the state the owner’s interest in the land is “thereby converted into a right to claim compensation” under the Act. Pursuant to 20(2) of the Act that compensation is to 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.” The clear purpose of these provisions is to ensure a claimant owner is fairly compensated for the value of what has been lost by that claimant owner, not the value of what has been lost by some earlier owner. [10] That purpose was explained in Nelungaloo Pty Ltd v The Commonwealth,3 where Sir Owen Dixon observed: 2 The principle is named after Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565, although that case followed existing authority of the same effect (at 572). 3 (1948) 75 CLR 495, 571 (citations omitted). -- 3 of 13 -- 4 “Now “compensation” is a very well understood expression. It is true that its meaning has been developed in relation to the compulsory acquisition of land. But the purpose of compensation is the same, whether the property taken is real or personal. It is to place in the hands of the owner expropriated the full money equivalent of the thing of which he has been deprived. Compensation prima facie means recompense for loss, and when an owner is to receive compensation for being deprived of real or personal his pecuniary loss must be ascertained by determining the value to him of the property taken from him. As the object is to find the money equivalent for the loss or, in other words, the pecuniary value to the owner contained in the asset, it cannot be less than the money value into which he might have converted his property had the law not deprived him of it.” (emphasis added) [11] A corollary of the right to compensation for what the owner has been deprived of is that it is not a right to compensation for that which the owner did not have. [12] The purpose of the Pointe Gourde principle, by preventing the impact on value of the scheme under which the resumption occurs being taken into account in the assessment, is to ensure fair compensation. Lord Nicholls observed of the principle’s purpose in Waters v Welsh Development Agency4: “Its purpose … is to forward Parliament's objective of providing dispossessed owners with a fair financial equivalent for their land. They are to receive fair compensation but not more than fair compensation.” (emphasis added) [13] The principle can be of no logical application in achieving that purpose if the actual detriment to land value and the completion of the scheme’s step which caused it, both entirely preceded the claimant’s acquisition of the land. Such a claimant, having acquired the interest for its already detrimentally impacted value at a time after the formal completion of the schemal step which had that impact, will not by a subsequent resumption have been deprived of the non-detrimentally impacted value. In such a case the monetary gap between those two values forms no part of the claimant’s statutory right to “the value of the estate or interest of the claimant in the land”. [14] In arguing to the contrary in supplementary submissions to this court, the respondent highlighted the following passage in Melwood Units Ltd v Commissioner of Main Roads:5 “The Land Appeal Court purport to premise their assessment on the fact that the developer when it bought was aware that because of the commissioner’s road project there was no prospect of a drive-in shopping centre other than for the north land 25 acres. … A resuming authority cannot by its project of resumption destroy the potential of the whole 37 acres for development as a drive-in shopping centre, and then resume and sever on the basis that that destroyed potential had never existed. Moreover, in their Lordships’ opinion the principle remains applicable in a case such as the present, notwithstanding that planning permission had not been given for the whole 37 acres and would not have been given, when the lack of such permission was manifestly due to the expressway project, and it is established that, without the expressway project, such planning permission would have been given for the whole 37 acres. To hold otherwise in this case would enable the acquiring authority to inflict by its project the same injustice at one remove. Further, as to the premise of the Land Appeal Court above 4 [2004] 1 WLR 1304 [61]. 5 [1979] AC 426, 434. -- 4 of 13 -- 5 mentioned if it is meant thereby that because the developer bought the land with knowledge he should not, on some principle, be allowed compensation except on the basis of what he knew, this would be doubly wrong: a person buying land buys with it the right to compensation for resumption and severance. In their Lordships’ opinion the only light cast upon the matter by the developer’s knowledge of the expressway project is that he considered that the north land alone could be a viable area for a drive-in shopping centre: and this in itself might be a factor in determining the value per acre of the resumed land and south land for that purpose in comparison with the value per acre of the north land.” [15] Those observations need to be understood in the light of the facts in Melwood Units, which were quite different from the present matter. There a developer acquired property rights over 37 acres of land in December 1964, intending to seek planning permission to build a drive-in shopping centre on the land. The developer was at worst likely aware of the future possibility that a central strip of the land would in the future form part of an expressway and need to be resumed for that purpose, thus separating the land to the north and south. In January 1965 the developer applied for the planning permission which was treated as an application in respect of the 25 acres north of the foreshadowed expressway project. The compulsory acquisition of the strip occurred in September 1965 and in June 1966 the developer sold the north section of land and claimed compensation for the loss of the resumed land and loss due to severance of the land to the south. But for the expressway project the sought planning approval would have been given for the whole 37 acres and there would have been a market available to develop the whole 37 acres for that purpose. [16] In light of those facts the above comments of the Privy Council are unremarkable. There the developer when acquiring the property may likely have apprehended the risk of the future taking of a step which would adversely impact the worth of its land holding. However, the completion of that step under the scheme – the act of resumption of part of that land – was yet to occur. It was that act which had a destructive impact upon the valuable potential of the whole of the land holding. That is quite different from the present case in that the step which detrimentally impacted the worth of the land holding here – the limited access road declaration – had been completed nine years before the respondent even acquired the property. [17] The effect of the assessment arrived at below was to erroneously confer compensation for the loss of a substantial component of value which the respondent had never suffered and had no statutory right of compensation to. [18] I agree with the orders proposed by Member Stilgoe. [19] MEMBER ISDALE: I agree with the reasons of Justice Henry and of Member Stilgoe. I agree with the orders proposed by Member Stilgoe. I will add some comments of my own. [20] This Court said, when considering s 20 of the Acquisition of Land Act 1967 (Qld), that it: “…should ignore any diminution in value to the land caused by planning restrictions where there is a direct relationship between the planning restriction and the scheme of resumption or, if there is merely an indirect -- 5 of 13 -- 6 relationship, where the restrictions can properly be regarded as a step in the process of resumption.”6 [21] The respondent purchased the land in 2002, long after the limited access road declaration was made in 1983, and so acquired it with this restriction. The requirement that the respondent be properly compensated for what it has lost could not extend to something which it never had, access to a road not subject to the limited access restriction. [22] Were this fundamental concept ignored, it would amount to both misinterpreting and erroneously elevating the principle quoted above to a substantive source of compensation when it is a device created by the courts to avoid injustice.7 [23] The limited access road declaration is shown on the evidence to be directly related to avoiding ribbon development. It is not directly related to the resumption from the respondent in 2007. [24] Were it able to be shown that it is indirectly related, a concept which although more broad still requires causation, the limited access declaration would need to be shown to be a step in the process of the resumption. [25] To accept that the limited access declaration was a step in the process of resuming the land would then encounter the difficulty that the respondent bought, and paid for, land on the limited access road and could be compensated as if it had lost highway access which it did not ever have. It would also be necessary to be satisfied that the limited access road declaration was a step towards the eventual acquisition rather than simply an unrelated road improvement. [26] The Land Court’s finding, at [135] of the Court’s reasons, of the existence of a scheme from 1983 for the ongoing upgrading of the highway is not a finding that the limited access road declaration was a step in the scheme or process of the 2007 resumption. No such finding was made. [27] Were the logical difficulty to which I have referred to be ignored, this absence of the necessary finding would, by itself, be sufficient to allow the appeal. [28] I would allow the appeal. [29] MEMBER STILGOE: Pfeiffer Nominees Pty Ltd owns just over 4.5 hectares with a frontage to the Captain Cook Highway, north of Cairns (lot 4). [30] From the early 1970s, the Department of Transport and Main Roads (as it is currently known) was aware that the Captain Cook Highway north from Cairns would, eventually, carry significant traffic and require upgrading. [31] In 1983, the Department declared a limited access road for the strip of highway between Kennedy Highway and Yorkey’s Knob Road. The effect of the declaration was that direct access from lot 4 to the highway would not be granted without the prior consent of the Minister for Main Roads. Further, the local government authority 6 Chief Executive, Department of Transport and Main Roads v Mahoney & Ors (2014) 35 QLCR 39 at [43]. 7 Haig v Minister Administering National Parks and Wildlife Act 1947 (1994) 85 LGERA 143 at 149 – 150. -- 6 of 13 -- 7 could not approve any plan of subdivision for lot 4 without the Minister’s consent. At the time of the declaration, lot 4 was included in the Rural Zone. [32] Pfeiffer bought lot 4 in 2002. In the same year, Council received an application for a material change of use to allow for the creation of eleven lots for commercial purposes. Access to the proposed development was to be via the highway. The application was refused because it was incompatible with the State controlled network, created unacceptable vehicular safety and efficiency impacts and unacceptable pedestrian/cyclist safety impacts.8 [33] In 2005, the Council rezoned lot 4 from Rural to Commercial. In 2007, the Department resumed a strip of land the full length of lot 4, being an area of approximately 1.048 hectares. [34] Pfeiffer is, of course, entitled to compensation for the land lost from lot 4 and it is trite law, but worth remembering, that s 20(2) of the Acquisition of Land Act 1967 (Qld) states that compensation shall be assessed according to the value of the estate or interest in the land taken on the date when it was taken. [35] At the trial, the expert valuers agreed there were two possible calculations for the compensation: 1. If the limited access declaration was to be taken into account when assessing the value of the land, compensation should be assessed at $580,000 (plus disturbance and interest). 2. If the limited access declaration was disregarded in assessing the value of the land, compensation should be assessed at $2,170,000 (plus disturbance and interest). [36] The Land Court decided that it should disregard the limited access declaration to find that the limited access declaration and the resumption were part of a scheme. Compensation was, therefore, determined in the amount of $2,170,000 plus disturbance of $17,500 plus interest.9 [37] The Land Court relied on the Point Gourde principle: that when assessing the value of resumed land, a valuer is to disregard any decrease in value occasioned by the underlying scheme of which the resumption forms part.10 [38] The Chief Executive of the Department of Transport and Main Roads has appealed the Land Court’s decision. [39] An appeal to the Land Appeal Court is by way of rehearing, rather than a strict appeal and an appellant may only succeed on appeal by establishing that the decision below resulted from a factual, legal or discretionary error.11 8 Joint Report of Town Planning Expert Witnesses 10 December 2014. Appeal Record Book Volume 6, p 1089. 9 Pfeiffer Nominees Pty Ltd v Department of Transport and Main Roads [2017] QLC 43 (Reasons). 10 Point Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565 at 572. 11 De Tournouer v Chief Executive, Department of Environment and Resource Management [2011] 1 Qd R 200; Mahoney v Department of Transport and Main Roads [2014] QCA 356; (2014) 206 LGERA 302 at [24]; Moreton Bay Regional Council v Caseldan Pty Ltd [2017] QCA 72 at [22]. -- 7 of 13 -- 8 [40] The Chief Executive asserts there were four errors in the decision below: 1. The Court failed to take account of the fact that Pfeiffer would not have obtained direct access to the Captain Cook Highway even if the limited access declaration was not in place; 2. The previous owners had been compensated for the making of the land access declaration and/or, by acquiring the land with the limited access declaration in place, Pfeiffer suffered no loss through its existence; 3. The Court erred in finding the existence of a ‘scheme’ since at least 1983 for the ongoing upgrading of the Captain Cook Highway; 4. The limited access declaration and the 2007 resumption were for different purposes and not part of the same scheme. Pfeiffer would not have obtained direct access to the Captain Cook Highway even if the limited access declaration was not in place [41] According to the Chief Executive, the value of the land on the date it was taken was always limited to the lower figure of $580,000, because the enhanced value of lot 4 depended on direct access. The Chief Executive submitted it was for Pfeiffer to show that it had some prospect of obtaining direct access to the Captain Cook Highway, and the Court could not speculate at large on whether Pfeiffer could obtain access,12 and Pfeiffer did not discharge its onus. The Chief Executive submitted that Pfeiffer could not have obtained direct access to the Captain Cook Highway, even in the absence of a limited access declaration. [42] Counsel for Pfeiffer submitted that the Court must consider the possibilities for the land, not its realised possibilities or potential, when assessing compensation for resumption. I agree. Counsel further submitted that the potential must be assessed by reference to planning considerations, viewed objectively. Again, I agree. [43] Counsel for Pfeiffer then submitted that the commercial zoning of lot 4 confers a premium which must be acknowledged in any decision on compensation. Counsel submitted that the premium is unrelated to the limited access declaration and the resumption. [44] I agree that land in the Commercial Zone has a premium over land in the Rural Zone. I do not agree that the mere fact of a commercial zoning gives lot 4 a premium, which should be the subject of compensation, without considering other factors which can be objectively ascertained. [45] Pfeiffer submitted that there was sufficient evidence to show that it had some prospect of obtaining direct access. It also submitted that the Court below did not make the necessary findings to support the threshold point. [46] Pfeiffer is not correct in its second proposition. The Court preferred the evidence of the traffic engineers and, in particular, the evidence of Mr Beard who said: “Taking all of these design considerations into account, a DTMR decision to refuse such development access in 2007 would have been entirely 12 Queensland v Murphy (1990) 95 ALR 493 at 500. -- 8 of 13 -- 9 reasonable, and justified based on the inability of the development proposal to comply with its normal design standards. … That is, even if the Captain Cook Highway was not a declared limited access road, access for the commercial development proposal would not have been consistent with the requirements of the Road Planning and Design Manual, and therefore, should have been refused.”13 [47] Although the Court’s finding was qualified by reference to the limited access declaration, the only logical conclusion is the Court accepted the proposition that, in practical terms, direct access to and from lot 4 would not be possible. [48] That conclusion is supported by the evidence. In his report dated 12 August 2015, Mr Beard stated: “…a DTMR decision to refuse such development access in 2007 would have been entirely reasonable, and justified based on the inability of the development proposal to comply with its normal design standards. The reasons for refusal would have been based on safety considerations. … That is, even if the Captain Cook Highway was not a declared limited access road, access to the commercial development proposal would not have been consistent with the requirements of the Road Planning and Design Manual, and therefore, should have been refused.”14 [49] That conclusion is consistent with the Council’s refusal, in 2002, to grant a material change of use application dependent upon highway access. [50] Counsel for Pfeiffer suggested that Mr Beard’s evidence was ‘challenged heavily’ at trial and that he was not speaking on behalf of the Department. Mr Beard was cross examined at length but, as Counsel for the Chief Executive pointed out at the time,15 his evidence was not challenged. He was not speaking on behalf of the Department, but his evidence was consistent with the Department’s view as early as 2002.16 [51] Counsel for Pfeiffer may suggest many different alternatives, including a lowering of the speed limit in the immediate area, but none of these is logically supported by the evidence. Although it is theoretically possible that the speed limit could be reduced at that point on the highway to allow left in, left out access to lot 4, the evidence does not support a finding that such an accommodation was likely.17 As Mr Beard put it, and he was not contradicted: “Just long experience that the Department reduces speed limits very reluctantly and they certainly wouldn’t do it just to provide access to a specific development site.”18 [52] The geometry of fitting access lanes into a short section of road, and the Department’s safety concerns about that, were independent of the direct access declaration. Even if the direct access declaration did not apply to lot 4, the evidence shows that Pfeiffer would not have been able to obtain direct access to the highway. 13 Pfeiffer Nominees Pty Ltd v Department of Transport and Main Roads [2017] QLC 43 at [100] – [101]. 14 Appeal Record Book Volume 6, p 1118 at 1121. 15 Appeal Record Book Volume 1, p 179 at 44 ff. 16 Appeal Record Book Volume 3, p 633. 17 Appeal Record Book Volume 1, p 111 at 25 – 33; p 141 at 31 – 33 and 41 – 42. 18 Appeal Record Book Volume 1, p 145 at 9 – 11. -- 9 of 13 -- 10 [53] Having found that direct access to and from lot 4 was unlikely, the Court erred in deciding compensation as if direct access could have been obtained. The previous owners had been compensated for the making of the land access declaration [54] In 1982, the Department of Main Roads made a compensation agreement with the previous owners of lot 4.19 The genesis of the offer was the Department’s resumption of land. The offer was made ‘under all heads in full and final settlement of all claims whatsoever, arising out of the resumption …’ The offer noted that the land was taken to form part of the limited access highway and there would be no direct access to the highway except via a service road. [55] Counsel for the Chief Executive submitted that this agreement included compensation for the access restriction and, therefore, the owner of the land (whoever it was) had been compensated for the loss of access. Counsel for Pfeiffer argued that the offer was limited to the resumed land, and that the owner could not be compensated for something that had not yet happened. He submitted there was no evidence of compensation for the imposition of the limited access declaration. [56] I incline to the view that the previous owner had been compensated for the access restriction. The offer was in full and final settlement of all claims. The limited access declaration was referred to specifically in the offer. The purpose of the resumption was to give effect to the limited access highway. However, for the reasons that follow, the question is moot. Pfeiffer suffered no loss through the making of the land access declaration [57] Counsel for the Chief Executive pointed out that the access restriction was imposed in 1983 and the restriction already affected the value of lot 4 when Pfeiffer bought it. It was submitted, therefore, that Pfeiffer was not deprived of any access rights by or in connection with the resumption. [58] Pfeiffer submitted that Point Gourde is a complete answer to this submission, referring us to Lord Russell’s observations in Melwood Units Ltd v Commissioner of Main Roads.20 That argument involves a discussion about whether there was a scheme, to which I will come shortly. [59] Even so, Pfeiffer’s position is entirely different from that of Melwood. In Melwood, the Court discounted evidence that showed the value of the land was not affected by the resumption. But Pfeiffer purchased lot 4 when the effect of the direct access declaration had crystallised. It bought lot 4 knowing that direct access to the highway was unlikely, because its representatives had a meeting with the Department of Main Roads about that very topic.21 It was told that, due to the close distance between two roundabouts, adequate acceleration and deceleration lanes might not fit and that the Department did not want direct access due to safety concerns.22 As I have already pointed out, Pfeiffer’s difficulty in developing its land was not solely because of the 19 Appeal Record Book Volume 2, p 336. 20 [1979] AC 426 at 434. 21 Appeal Record Book Volume 3, p 633. 22 Ibid at p 634. -- 10 of 13 -- 11 limited access declaration; the main reason was that direct access could not be achieved safely. The Court erred in finding the existence of a scheme [60] Counsel for the Chief Executive assured us that the resolution of this appeal did not require a root and branch review of the Point Gourde principle. Happily, that assurance proves to be correct, but we are required to address whether or not there was a scheme of which the resumption was a part. [61] Counsel for Pfeiffer diligently took the Court through the history of the Captain Cook Highway to demonstrate the existence of a scheme. He described the scheme as an ongoing one, to protect and enhance the operation of the highway. Essential elements of that scheme were to: upgrade intersections; take necessary land; declare limited access; monitor and control speed; deal with the Council; and oppose development access. According to Counsel for Pfeiffer, the scheme started in 1970, when the District Engineer for the Department wrote to a real estate agent in Cairns advising the Department’s ultimate proposal to declare the Captain Cook Highway between Buchan’s Point and Cairns a limited access road to stop ribbon development.23 [62] In 1972, the Department thought that the highway would have to be duplicated in 10 to 15 years’ time24 and that the land required for future development should be ‘safeguarded’ by the Council rather than be subject to a declaration of limited access.25 That sentence, of itself, might be sufficient to break any nexus in a ‘scheme’ to develop the Captain Cook Highway and the subject resumption. [63] The next reference to the need for a limited access declaration arose in 1980.26 Counsel for Pfeiffer maintains that this is part of the same scheme as that envisaged in 1970 but has placed a bet each way in asserting that there was a separate scheme, commencing in 1980, to create the limited access regime. [64] I am not persuaded that the Court erred in finding that a scheme existed. But that leads me to a consideration of the last ground of appeal. The limited access declaration and the 2007 resumption were for different purposes and not part of the same scheme [65] Counsel for Pfeiffer submitted that, whether there was one scheme or two, they were both part of a long term plan for the Captain Cook Highway and, therefore, comprised a scheme for the purposes of Point Gourde. He drew our attention to Hitchins and Cunnington v Council of the Shire of Woongarra27 to demonstrate that a long time between resumptions was irrelevant in deciding whether they were part of a scheme. [66] As the Land Court has observed,28 the upgrade and maintenance of a major highway may be the subject of a number of schemes, each focussing on a different problem, and each having a separate funding regime or separate contract. These separate projects do not become a scheme simply because they relate to the same section of 23 Appeal Record Book Volume 2, p 208. 24 Ibid at p 213. 25 Ibid at p 214. 26 Appeal Record Book Volume 2, p 328. 27 (1993) 14 QLCR 2863. 28 Opalinski v Department of Transport and Main Roads [2017] QLC 42. -- 11 of 13 -- 12 road, or because they fall within a broad commitment to provide adequate roads for the people of Queensland through a continuous assessment of needs and upgrades. That point was well made in Hitchins and Cunnington.29 To find otherwise would make any work on major roads which required resumption prohibitive. The Point Gourde principle necessarily incorporates the concept of proximity; the act which destroys the value of the land must have a relationship with the act of resumption. [67] The evidence demonstrates that the ‘1970s scheme’, to the extent that there was one, specifically contemplated resumptions for road improvements. The purpose of the ‘limited access declaration scheme’ was to restrict ribbon development and multiple access points onto the highway. The resumption was to facilitate road widening and the construction of roundabouts.30 The resumption could be part of the 1970s scheme but it could not be part of the limited access scheme. [68] The Court may have been correct in finding that there was a scheme as from 198331 but it failed to consider whether the resumption was truly part of that scheme. In that respect, the Court was in error. Conclusion [69] The Court erred in a number of its conclusions: 1. Although it acknowledged that direct access was unlikely, even without a direct access declaration, it failed to consider the impact of that finding on the claim for compensation. 2. It erred in finding that Pfeiffer’s loss included the loss of direct access. 3. Although the Court was correct in finding that a scheme existed, it failed to consider whether the resumption was properly part of that scheme. [70] The appeal should be allowed and the decision of 21 August 2017 set aside. Disposition [71] Because the evidence as to an alternative basis for compensation is available and uncontested, this Court is able to substitute its own decision, rather than remit it to the Land Court for fresh consideration. The substituted order is: 1. Appeal allowed. 2. Compensation is determined in the amount of Five Hundred and Eighty Thousand Dollars $580,000 plus interest. 3. The parties will within two weeks of judgment file and serve written submissions not exceeding three pages per party as to such of the following as are not agreed in the meantime: (a) the quantification of interest; (b) costs in this court; (c) (if it be relevant) costs in the Land Court. 29 (1993) 14 QLCR 286 at 291. 30 Appeal Record Book Volume 2, p 404. 31 Pfeiffer Nominees Pty Ltd v Department of Transport and Main Roads [2017] QLC 43 at [154]. -- 12 of 13 -- 13 HENRY J MEMBER ISDALE MEMBER STILGOE -- 13 of 13 --