Edgarange Pty Ltd v Redland Shire Council [2007] QLC 12 (2007) 28 QLCR 109

LAND COURT OF QUEENSLAND CITATION: Edgarange Pty Ltd v Redland Shire Council [2007] QLC 12 PARTIES: Edgarange Pty Ltd (claimant) v. Redland Shire Council (respondent) FILE NO: A2006/0102, A2006/0103 DIVISION: Land Court of Queensland PROCEEDING: Claims for compensation payable consequent upon the taking of land pursuant to the Acquisition of Land Act 1967. DELIVERED ON: 7 March 2007 HEARD AT: Brisbane DELIVERED AT: Brisbane MEMBER: Mr RS Jones CATCHWORDS: Procedure – determination of preliminary issue – likely saving in time and costs at hearing – consent of parties to proposed course. Resumption – Point Gourde principle – application "in reverse" – change in planning scheme as prelude to resumption – possible claim under planning legislation for scheme change – interlink between scheme claim and resumption claim – whether resumption claim could include impact of scheme change. Town Planning – change of scheme – resumption – whether resumption related to scheme change – application of Point Gourde "in reverse" – whether landowner/resumer could "double-dip" in claim for scheme change (under planning legislation) and compensation claim. Highest and best use of resumed land in absence of scheme of resumption – intrinsic physical characteristics and environmental value of land considered. -- 1 of 27 -- 2 APPEARANCES: Mr C Hughes SC and Mr G Allan of counsel instructed by McCarthy Durie Ryan Neil Solicitors, for the claimant Mr G Gibson QC and Mr S Ure of counsel instructed by King & Company Solicitors for the respondent. [1] These proceedings concern claims for compensation by Edgarange Pty Ltd (the claimant) as the registered proprietor of land taken pursuant to the Acquisition of Land Act 1967 by the Redland Shire Council (the respondent). [2] By proclamation published in the Queensland Government Gazette on 8 October 2004 the respondent took by compulsory acquisition lots 701 and 702 on Survey Plan 160859. Lot 701, containing an area of 2.692 hectares was taken for road purposes and Lot 702, containing an area of 1.873 hectares was taken for sewerage treatment plant purposes. Lots 701 and 702 formed part of a larger land holding owned by the claimant which, in total, comprised an area of about 27.72 hectares. The resumed lots and the balance area are located in the urban area of Capalaba which lies about 18 – 20 kilometres southeast of the Brisbane Central Business District. Positions of the Parties and Conduct of the Case [3] On 12 May 2006 an Originating Application was filed in the registry of the Court on behalf of the claimant seeking compensation for lots 701 and 702 in the amount of $9,141,000. On 21 November 2006 an amended claim was filed seeking compensation in the amount of $8,040,760.56. Relevantly the amended claim sought orders and other relief in the following term: "The Applicant claims:- (a) Compensation, pursuant to Sections 12 and 20 of the Acquisition of Land Act 1967, in the amount of $9,141,000.00 $8,040,760.56, made up of: (i) the value of the whole of Lot 701 on SP160859, Parish of Capalaba, Certificate of Title Reference 50484485, and the whole of Lot 702 on SP160859, Parish of Capalaba, Certificate of Title Reference 50484486, both compulsorily acquired by Redland Shire Council on 8 October 2004, together with the severance damage occasioned by the reduction in the value of Lot 703 on SP160859, Parish of Capalaba, Certificate of Title Reference 50484486, as a result of the compulsory acquisition of Lot 701 and Lot 702, in the total sum of $8,000,000.00 $4,165,000.00; and (ii) costs and outlays incurred in relation to the compulsory acquisition of Lot 701 and Lot 702 and the making of the consequent claims for compensation under the Act, in the sum of $40,760.46, made up of: (A) legal costs of $11,162.56; (B) surveying costs of $1,240.00; (C) engineering costs of $5,858.00; and (D) valuation costs of $22,500.00. (b) …" -- 2 of 27 -- 3 [4] The case for the respondent comprised of a number of alternative arguments any of which, if accepted, would result in an assessment by this Court of compensation significantly less than that claimed. At this stage, I do not consider it necessary to deal in detail with all of those arguments other than to identify that acceptance of the primary argument would result in compensation being assessed at virtually a negligible amount. [5] On the first day of trial, Mr Gibson QC, senior counsel for the respondent sought orders which would materially affect the conduct of the hearing. The thrust of his submissions was to the effect that while the value of the balance land in the after resumption case was expected to be a relatively straightforward matter, the assessment of the before value was much more complex. In this context, Mr Gibson QC pointed out that at the close of the evidence he would be making submissions which had the potential to involve the consideration of up to seven scenarios concerning the highest and best use of the land in the before acquisition case. Mr Gibson QC went on to argue that the costs to both parties of having to investigate and report on so many scenarios would be significant and, of course, would occupy a significant amount of Court time. In conclusion it was submitted that to avoid unnecessary costs and inefficiencies it might be more appropriate to split the case in the following way. First, both parties would lead evidence and make submissions concerning the highest and best use of the land in the before acquisition case. Second, the hearing of evidence and submissions concerning the actual value of the land and the overall amount of compensation be deferred pending my decision determining the highest and best use of the land in the before case scenario. Mr Hughes SC, senior counsel for the claimant, while conceding that there was merit in the submissions made on behalf of the respondent quite understandably was initially opposed to the course of action proposed. However, following a short adjournment this preliminary matter was disposed of by way of consent directions. [6] Consistent with the above mentioned directions the parties led evidence and then made submissions limited to the highest and best use of the land in the "before" case. History Leading up to the Taking of the Land [7] The claimant is an established and successful land development company which, on 19 July 2000, entered into a contract to purchase part of a parcel of land then described as lot 3 on Registered Plan 165277. Pursuant to the contract of sale, lot 3 was to be effectively subdivided in such a way as to leave an area of 1.396 hectares fronting Redland Bay Road in the hands of the vendor. The balance land of some 27.72 hectares which ran north from the land retained by the vendor to Coolnwynpin Creek was purchased by the claimant for the express purpose of developing as much of it as possible -- 3 of 27 -- 4 for industrial purposes. According to Mr Robert Bennett, a director of the claimant, at the time the land was purchased there was a high level of demand for industrial lots in the Capalaba area. Mr Bennett's evidence about this was not challenged. [8] When the land was purchased it was zoned "Rural/Non Urban" under the 1988 town planning scheme of the respondent. Notwithstanding the zoning of the land the 1988 planning scheme identified a number of preferred dominant land uses. Generally speaking the southern two thirds of the land was identified for "Industrial" uses. To the immediate north of the land identified for industrial use a proposed arterial road was identified running in a generally east west direction through the land. For the land between Coolnwynpin Creek and the designated arterial road corridor and east of the existing wastewater treatment plant, the identified preferred dominant land use was "Public Open Space". The proposed arterial road was intended to be a limited access road. An extract from the relevant Development Control Plan can be found in Figure 8 of the report of Mr Perkins (Exhibit 27). [9] In 1998 significant amendments were made to the town-planning scheme of the respondent. Relevantly, in the 1998 Strategic Plan the preferred dominant land use of that land to the south of the arterial road corridor was changed from "Industrial" to "Major Centres". The preferred dominant land use north of the arterial road corridor and south of Coolnwynpin Creek was changed from "Public Open Space" to a combination of "Special Facilities/Special Purposes" and "Special Protection Area". The land broadly identified for arterial road use in the 1988 planning scheme was, in the 1998 Strategic Plan, changed to a "Future Transport Corridor" designation. [10] Given the town planning history associated with this land it is not surprising that the claimant recognised that there might be limitations placed on the amount of the land purchased by it being actually available for industrial development. [11] Consistent with its development plans and with the contract to purchase the land the claimant, at or about August 2000, submitted a development application to the respondent. This application effectively sought: 1. a rezoning of most of the land from the Rural/Non Urban Zone to an industrial zoning; 2. development permits for: a. material change of use (Industry Classes i, ii, iii, Bulk Store Caretakers Residence Car Repair Station, Motor Vehicle Depot, Public Utility Service Shop, Truck, Depot, Warehouse); and b. a lot reconfiguration as a part of Stage 1 development of the land. -- 4 of 27 -- 5 [12] On 31 May 2001 the respondent issued a "Development Application Decision Notice" in respect of the application submitted by the claimant. Among various conditions this notice also identified a number of requirements which the claimant had to meet prior to the issuing of any development permit by the respondent. These requirements, among others, effectively required the claimant to dedicate a 60-metre wide strip of land of about 2.8 hectares for a "Transportation – Green space – Trailway (TGT Corridor)" and to set aside an area of about 2 hectares to accommodate an extension of the existing sewerage treatment plant. [13] Following the decision notice of 31 May 2001 the claimant entered into further negotiations with the respondent. Following these negotiations, on 18 December 2001 the respondent issued a "Development Application Negotiated Decision Notice". In this notice the requirement that the claimant dedicate free of charge the TGT corridor was deleted but the other conditions remained materially unchanged. Dissatisfied with the conditions and requirements sought by the respondent in its notice of 18 December 2001 the claimant appealed to the Planning and Environment Court of Queensland. [14] It appears that sometime after proceedings in the Planning and Environment Court commenced the respondent decided to take by compulsory acquisition the land it required for road and sewerage purposes. To this end, on 11 October 2002 the respondent served two Notices of Intention to Resume on Mr D J Holzapfel who was then still the registered proprietor of the land. [15] On 25 October 2002, upon hearing counsel for the claimant and the respondent, the Planning and Environment Court ordered, subject to a number of conditions specified therein, that: "1. the appeal be allowed; 2. the application for a Development Permit for: (a) a Material Change of Use for Industry Classes I, II and III, Bulk Store, Caretaker's Residence, Car Repair Station, Motor Vehicle Depot, Public Utility, Service Station, Truck Depot and Warehouse (as defined in the Respondent's planning scheme) for that part of Lot 3 on RP165277, outlined in red on Drawing No 3409DE11 (dated 23 October 2002) contained in Exhibit A hereto; and (b) reconfiguring proposed Lots 6 to 14 and 82 to 88, park and balance area of Stage 1 be approved subject to the following conditions:" [16] As was pointed out by Mr Hughes SC, the drawing 3409DE11 referred to in the orders made by the Planning and Environment Court involved a reconfiguration or subdivision of the land under contract made in contemplation of lots 701 and 702 being resumed and the area of land described as lot 703 being, to a significant extent, severed from the balance of the land to be subdivided and developed for industrial purposes. -- 5 of 27 -- 6 [17] Consistent with the orders of the Planning and Environment Court, by proclamation in the Queensland Government Gazette dated 26 September 2003 that area of land south of lot 701 was taken from the Rural/Non Urban zoning and given a new zoning of "Industry B". The Town Plan and Pointe Gourde [18] Since (at the latest) the amendment of the respondent's town plan in 1998, industrial development of lots 701, 702 and 703 would have been in direct conflict with relevant provisions of the town plan. In this regard it was argued on behalf of the claimant in paragraph 27 of its written submissions that: "Naturally, as a matter of law, the planning provisions dealing with the transport corridor and the expansion of the sewerage treatment plan referred to in the Notices (of Intention to Resume) above form part of the 'scheme(s) of resumption' and are to be ignored for the purposes of assessing the highest and best use of the land and compensation." The "matter of law" referred to in that submission relies at least in part on the statement of principle enunciated in numerous cases and particularly in the High Court decisions of Housing Commission of NSW v San Sebastian Pty Ltd1 and The Crown v Murphy.2 In The Crown v Murphy the High Court at 595 stated the principle in the following terms: "…One purpose of this principle is to ensure that a resuming authority does not employ planning restrictions to destroy the development potential of the land and then assess compensation for its resumption on the basis that the destroyed potential had never existed: Melwood Units Ltd v Mains Roads Cmr [1979] AC 426 at 434. The principle applies in cases where there is a direct relationship between the planning restriction and the scheme of which resumption is a feature and extends to cases where there is merely an indirect relationship, provided that the planning restriction can properly be regarded as a step in the process of resumption: Housing Commission of NSW v San Sebastian Pty Ltd, at 206-207." (emphasis added) [19] In the written submissions of the respondent, the application of the principle enunciated in San Sebastian, The Crown v Murphy and other cases was referred to from time to time as the application of the "Pointe Gourde in reverse" principle3. In Pointe Gourde it was held that: "…compensation for the compulsory acquisition of land cannot include an increase in value which is entirely due to the scheme underlying the acquisition." [20] According to the claimant, if the planning provisions which prevented development of lots 701, 702 and 703 are ignored, as at the date of the taking of the land the highest and best use of those lots would have been for the development of industrial lots and parkland which, in part, would accommodate a stormwater treatment facility. The stormwater treatment facility would be of sufficient capacity to service all of the industrial lots 1 (1977-78) 140 CLR 196. 2 (1990) 64 ALJR 593 at 595. 3 Point Gourde Quarrying & Transport Co Ltd v Sub-Intendant of Crown Lands (1947) AC 565 at 572. See also Melwood Units Pty Ltd v Commissioner of Main Roads (1978) 5 QLCR 145 at 152 (PC). -- 6 of 27 -- 7 developed over the entire site. The plan showing this notional subdivision is referred to in various places as the claimants "before plan". This plan can be located in a number of documents including Exhibit 27A and the town planning report of Mr Challoner, Exhibit 15 Annexure I. In the after case no industrial lots are located north of the southern boundary of lot 701 and the stormwater treatment facility was redesigned so as to be materially contained within the boundaries of lot 703. The post acquisition subdivision layout can be found in Annexure G of Exhibit 15. In these proceedings the "after" case advanced on behalf of the claimant is not a hypothetical one as development on the site has occurred and, as I understand the evidence, has been a financially successful project for the claimant. [21] In this case the respondent does not seek to limit the amount of compensation it ought to pay as a consequence of the taking of the land on the basis that the evidence does not reveal a "scheme" for the purposes of the application of the common law principle enunciated in San Sebastian and The Crown v Murphy. Instead, it is argued on its behalf that the principle ought not apply when assessing compensation under the Acquisition of Land Act 1967 (ALA) in circumstances where the scheme underlying the resumption confers other statutory entitlements to compensation.4 The claimant's case is also challenged on a more factual basis namely that the before plan contended for by it would not have been approved by the respondent as it failed to recognise and address a number of important town planning and/or environmental constraints and impacts.5 Hereafter I will refer to the first of the respondent's arguments as the "Prior Right to Compensation Case" and the second as the "Town Planning Case". The Prior Right to Compensation Case [22] The respondent openly concedes that there was a scheme underlying the taking of the land for road purposes which originated in the respondent's 1988 planning scheme and a scheme for the taking of the land for sewerage purposes which originated in the 1998 Strategic Plan.6 [23] The respondent points out that pursuant to s.12(5) of the ALA, on and from the date of publication in the government gazette of the taking of land the estate or interest in that land previously held by a person is converted into a right to claim compensation. Section 20 of the ALA which deals specifically with the matters to be addressed in the assessment of compensation relevantly provides: 4 see at paras 75 to 79 of the Respondent's written submissions and paragraphs 1 and 2 of the "List of Issues", Exhibit 16. 5 see Exhibit 16 para 3. 6 written submissions of the respondent at para 74 and in reply at para 5. -- 7 of 27 -- 8 "(1) In assessing the compensation to be paid, regard shall in every case be had not only to the value of land taken but also to the damage (if any) caused by either or both of the following, namely - (a) the severing of the land taken from other land of the claimant; (b) the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other land. (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." [24] The word "compensation" is not defined in the ALA notwithstanding that s.20 of the Act sets out the matters that have to be taken into account when assessing it. Not surprisingly, there have been a number of judicial statements made concerning the meaning of the word in the context of compulsory acquisition. In Nelungaloo Pty Ltd v Commonwealth Dixon J said:7 "Compensation prima facie means recompense for loss, and when an owner is to receive compensation for being deprived of real or personal property 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." [25] In Housing Commission of NSW v Falconer,8 Mahoney JA was concerned with, among other things, the meaning of the words "value" and "compensation" in s.124 of the Public Works Act of New South Wales. After consideration of a number of cases including Nelungaloo Pty Ltd his Honour at 569 said: "The important words in these sections are "compensation" and "value". Under the relevant English legislation, 'compensation' has been said to be 'the right to be put, so far as money can do it, in the same position as if his land had not been taken from him': Horn v Sunderland Corporation [1941] 2 KB 26, at p 42, per Scott LJ; cited by Lord Reid in Birmingham Corporation v West Midland Baptist (Trust) Association (Inc) [1970] AC 874, at pp 895, 896. See also Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495, at p 569 (full money equivalence'), p 571." [26] In Director of Buildings and Lands v Shun Fung Ironworks Ltd9 the Privy Council (per Lord Nicholls of Birkenhead) considered that the concept of fair compensation was sometimes described as the "principle of equivalence" and went on to say: "The purpose of these provisions in Hong Kong and England is to provide fair compensation for a claimant whose land has been compulsorily taken from him. This is sometimes described as the principle of equivalence. No allowance is to be made because the resumption or acquisition was compulsory; and land is to be valued at the price it might be expected to realise if sold by a willing seller, not an unwilling seller. But subject to these qualifications, a claimant is entitled to be compensated fairly and fully for his loss. Conversely, and built into the concept of fair compensation, is the corollary that a claimant is not entitled to receive more than fair compensation: a person is entitled to compensation for losses fairly attributable to the taking of his land, but not to any greater amount. It is ultimately by this touchstone, with its two facets, that all claims for compensation succeed or fail." (emphasis added). 7 (1948) 75 CLR 495 at 571. 8 (1981) 1 NSWLR 547. 9 (1995) 1 All ER 846 at 852. -- 8 of 27 -- 9 [27] It is in the context of calculating the appropriate level of compensation the claimant is entitled to pursuant s.20 of the ALA that Mr Gibson QC submits the common law principle is meant to ensure, as far as is practicable, that the owner does not receive any more or any less than fair compensation and, that in the circumstances of this case the principle ought not apply. The respondent's argument is summarised quite neatly in its written submissions at paragraphs 75, 77 and 78 where it is said: "75 At all material times Queensland legislation has included provisions conferring an entitlement to compensation on a person who has an interest in land in a planning scheme area, which interest is injuriously affected by the coming into operation of any provision contained in the planning scheme, or by any prohibition or restriction imposed by the planning scheme … 77 The facts of this case raise for consideration an important question as to the inter- relationship between the compensation provisions of the Acquisition of Land Act, the compensation provisions in the LGA and PEA, and the common law principle referred to at para. 74 above. 78 It is submitted that that inter-relationship is resolved as follows: when assessing the compensation payable in consequence of the compulsory acquisition of an interest in land, the common law principle for which Melwood Units is authority does not apply where the market value of that interest has been depreciated by a scheme of resumption in circumstances in which the existence of that scheme also confers a statutory entitlement to compensation on the owner of the interest. In such a case, compensation is to be assessed in accordance with the provisions of s.20(2) of the Acquisition of Land Act – namely, "'according to the value of the estate or interest of the claimant in the land taken on the date when it was taken' – unaffected by that common law principle which would, if applied, produce a different outcome." [28] On the evidence before me it seems likely that valid grounds existed for commencing proceedings in the Planning and Environment Court seeking compensation for injurious affection pursuant to the relevant local government legislation. In this context I note that in February 2001 the claimant and the previous owner did in fact execute a claim for compensation pursuant to the Local Government (Planning and Environment) Act 1990 and the Integrated Planning Act 1997 for injurious affection. This claim alleges that the cause of action arose on 27 February 1998, the date of proclamation of the respondents 1998 Strategic Plan. The claim seeks (in part) compensation in the sum of $2,494,800 said to arise out of "…injurious affection in respect of the market value of the subject land." As I understand the evidence, this claim has been filed in the registry of the Planning and Environment Court but has not otherwise been dealt with. [29] At the heart of the claimant's submissions in response are, in my opinion, two fundamental propositions. First, the claimant, as a consequence of the compulsory taking of its land, has a statutory right to claim and have assessed compensation pursuant to the relevant provisions of the ALA. Second, the common law principle enunciated in The Crown v Murphy etc is part of the law governing the proper assessment of compensation -- 9 of 27 -- 10 for the purposes of the ALA and, as such, could only be displaced or ignored where clear legislative justification to do so existed. [30] In Toffolutti & Anor v Townsville City Council10 the Land Appeal Court was concerned with the following facts:  From at or about 1959 the council had a policy of preventing the erection of buildings within 60 m of the banks of the Ross River and of acquiring such land when it could for park purposes.  In June 1967 pursuant to the then town planning scheme, most of the land was given a "Rural" zoning and the balance (nearer the river) a "Proposed Open Space" zoning. The depth of the Rural zoning was about 169m from Bergin Road.  In November 1980 the claimant entered into a contract to purchase the land with the intention of subdivision.  After entering into the contract, the claimant lodged a plan of subdivision proposing 12 lots within the area zoned Rural and one large lot (lot 13) made up of the balance of the land zoned Rural and the whole of the land zoned Proposed Open Space. On the same day a rezoning application was also lodged.  In August 1981 the land to a depth of about 140m from Bergin Road was zoned "Residential A".  In March 1982 a new town planning scheme came into effect showing part of the "Rural" land within the Residential A zoning and the balance within the "Public Open Space" zone. When the various plans were scaled there was a discrepancy between the dimensions of the land zoned Residential A and Public Open Space in the 1982 plan and the dimensions of the Rural and Proposed Open Space zonings in the 1967 town plan.  On 18 September 1982 an area of land containing 5207m² (lot 14) was resumed by the council for "park purposes". [31] In what were described as "the special circumstances of this case"11 the Land Appeal Court after consideration of the submissions made on behalf of the claimant12 said at 88.3 "We agree with counsel for the appellants that section 33(10) of the Local Government Acts restricts the right to compensation for injurious affection flowing from the "Proposed Open Space" zoning to the appellants' vendor so that for that part of the parent parcel zoned 'Proposed Open Space' at date of purchase, the appellants before us are entitled to receive compensation for its acquisition on the basis of its restricted value only." 10 (1984-85) 10 QLCR 81. 11 at 90.6. 12 at 87.7 to 88.1. -- 10 of 27 -- 11 [32] On its face the reasoning of the Land Appeal Court tends to support the argument advanced on behalf of the respondent. However, as the Court observed, the circumstances of the case before it were "special" and, with the greatest of the respect, I must confess I have some difficulty reconciling the above-mentioned findings of the Land Appeal Court and other findings and conclusions reached by it. For example, the Court found that since 1959 the council had a "policy" of preventing building within 60m of the banks of the Ross River.13 And, at 88, immediately following the quote set out in paragraph 31 above went on to say: "As to the balance of the parent parcel, two principles of compensation recognised by Courts of highest authority are relevant. Firstly, the purpose of the resumption (the underlying scheme) must in no way affect the estimate of compensation. It would be as equally wrong for such purpose or scheme to increase the value of the resumed land as to in any way decrease it – vide the judgment of this Court in S.M. Marshall v The Commissioner of Irrigation and Water Supply (1973) 40 C.L.L.R. at pp. 77/80 where binding authorities on this point are cited including Nelungaloo Pty Ltd v The Commonwealth – High Court of Australia – (1947-48) 75 C.L.R. 495 and Pointe Gourde Quarrying and Transport Co. Ltd v Sub-Intendant of Crown Land – Privy Council – (1947) A.C. 565. Secondly, any knowledge that the appellants may have had at date of purchase as to the policy which led to the ultimate resumption in no way affects their right to full compensation (or the amount of its quantum) for that part of the parent parcel not zoned 'Proposed Open Space' – vide Melwood Units Pty Ltd v The Commissioner of Main Roads – Privy Council (1978) 5 Q.L.C.R. 145 at pp. 151/2. In further amplification, the High Court of Australia in Housing Commission of New South Wales v San Sebastian Pty Ltd and others (1978) 52 A.L.J.R. 603 has held that zoning proposed in anticipation of resumption is a step in the resumption process – part of the underlying scheme of resumption – and on the principle of the Point Gourde rule, has found that such zoning should be ignored when assessing compensation." [33] In applying the principles set out at page 88 of its reasons the Court went on to find at 90 that: "In formulating a plan for the "before" resumption valuation, we have to envisage, on the authorities previously referred to, that the parkland scheme and its ancillary provisions did not exist but it is relevant to our consideration that the appellants have a limited right to compensation in respect of the area zoned 'Proposed Open Space' under the 1967 Town Plan because of the provisions of section 33(10) of the Local Government Acts. This area we are satisfied commenced about 169 metres back from Bergin Road. The 1982 Town Plan appears to be a plan prepared with the parkland scheme in mind. Its zonings have therefore been ignored for our purpose and the apparent conflict between the zoning boundaries thereon becomes irrelevant. The appellants retain the right to full compensation (including injurious affection) for that area of land outside the former 'Proposed Open Space' zone and now included in the 'Public Open Space' and 'Residential A' zones. But for the zoning in anticipation of resumption and the parkland scheme, we are satisfied the appellants could have obtained approval for a subdivisional plan in accordance with Mr Reynolds' plan PS 84/1242A, that is up to 160 metres from Bergin Road with the park contribution coming from the land zoned 'Public Open Space'". [34] After reading Toffolutti and the submissions made about it by the parties, I am uncertain as to exactly why it is that the Court accepted that, in the circumstances of that case, the 13 83.8, 89.5. -- 11 of 27 -- 12 right of the claimant to seek compensation under the ALA was limited by the operation of s.33(10) of the Local Government Act 1963-1983. I am uncertain as to whether that finding was a consequence of a distinction being drawn between what was a "policy" originating in 1959 and a town-planning regime in the furtherance of the "scheme" which originated in 1982 or because of some other "special" circumstance. I also accept the submission made by Mr Gibson QC to the effect that it is tolerably clear that the Land Appeal Court in Toffolutti was not required to consider the arguments concerning the inter-relationship of the ALA and the local government legislation advanced in this case. [35] On balance, I do not consider that Toffulutti establishes any relevant and binding principle of law that requires me to find one way or the other in respect of this issue. [36] In Stanfield v Brisbane City Council14 the Land Appeal Court was concerned with the following relevant facts: 1965 - Land zoned "non-urban" in town plan; 1971 - Land zoned "proposed open space" in town plan; 1978 - Land zoned "existing and proposed open space" in town plan; April 1986 - First notice of intention to resume issued by Brisbane City Council for bus depot purposes; March 1987 - First notice of intention to resume discontinued; 8 April 1987 - Second notice of intention to resume issued by Brisbane City Council for motor omnibus purposes; 13 June 1987 - Bulk of the land in question rezoned "Special uses (utility installation)" in town plan; 23 March 1988 - Land taken by Council At the commencement of the hearing of the appeal, the appellant sought to amend his grounds of appeal by inserting a new ground in the following terms: "…and in the alternative, the member erred in failing to take into account the claim for injurious affection under the City of Brisbane Town Planning Act 1964 as amended attaching to the land as a result of the re-zoning from non-urban zoning to open space zoning." Leave to amend the grounds of appeal was refused on the basis that in the circumstances of the case before it the Land Appeal Court did not have the jurisdiction to entertain such claims. [37] Among the reasons for the Court deciding in Stanfield that it did not have jurisdiction to deal with the proposed amendment was that it found that the "scheme" underlying the change of zoning from non-urban to open space was a different scheme to that 14 (1989-90) 70 LGRA 392. -- 12 of 27 -- 13 underlying the resumption15 and that the jurisdiction of the Land Court to award compensation was relevantly dependent upon a "taking of land".16 [38] The Land Appeal Court found that the scheme underlying the rezoning of the land from non-urban to open space was known as the "Bulimba Creek Scheme". However, it went on to find that the rezoning of the land in 1987 to "Special Uses (Utility Installation)" was specifically for the purposes of the bus depot scheme and therefore had to be disregarded when assessing compensation.17 Accordingly, the Court found that compensation for the land taken had to be assessed on the footing that it was zoned Open Space but any potential for a higher and better use also had to be taken into account.18 [39] After referring to s.20 of the ALA and the well known High Court authority of Spencer v The Commonwealth (1907) 5 CLR 418 the Land Appeal Court in Stanfield at pp398-399 said: "Because in the present case the land was resumed for the purposes of a particular scheme, a principle known as the "Pointe Gourde" principle will operate: Point Gourde Quarrying and Transport Company Limited v Sub-Intendant of Crown Lands [1947] AC 565; Housing Commission of New South Wales v San Sebastian Pty Ltd (1978) 140 CLR 196; 37 LGRA 214 and Melwood Units Pty Ltd v Commissioner of Main Roads (1978) 52 ALJR 593; 37 LGRA 387. In short the existence of the bus depot scheme must not be allowed to appreciate or depreciate the amount of compensation payable. The special zoning attached to the land between the giving of the notice of intention to resume and the taking of the land ("Special Uses Utility Installation") was specifically for the purposes of the scheme and will not affect the relevant valuation exercise. So far as zoning is a relevant matter in the value of the land taken, the case must be determined on the footing that the land was zoned 'open space' at the relevant time but its potential for change has to be taken into account. The assessment must not be increased by any allowance for injurious affection suffered by the appellant by reason of the earlier down- gradings in zoning of the appellant's land. The appellant's rights to compensation for those actions will fall for determination in the Local Government Court." As was noted in paragraph 13 of the respondent's written reply, the Land Appeal Court in Stanfield applied the "Pointe Gourde/Melwood Units" principle in the same way as it did in Toffolutti. I should note here that the approach of the Land Appeal Court in the abovementioned decisions appears to be largely consistent with the approach of that Court in other cases however, these two decisions somewhat laboriously referred to above, seem to be the closest to the subject in a factual context. [40] The limitation on the operation of the relevant common law principle contended for by the respondent is not to be found in any of the cases to which I have been referred. Nor is it to be found, either in express terms or by necessary implication in the applicable 15 at 396.4 and 402.2. 16 at 398.4. 17 at 398.7 – 399.1. 18 at 399.2. -- 13 of 27 -- 14 local government legislation or the ALA. In this context in Marshall v Director General, Department of Transport19 Gaurdron J at 623, paragraph 38 said: "Although the rule that legislative provisions are to be construed according to their natural and ordinary meaning is a rule of general application, it is particularly important that it be given its full effect when, to do otherwise, would limit or impair individual rights, particularly property rights. The right to compensation for injurious affection following upon the resumption of land is an important right of that kind and statutory provisions conferring such a right should be construed with all the generality that their words permit. Certainly, such provisions should not be construed on the basis that the right to compensation is subject to limitations or qualifications which are not found in terms of the statute." In my opinion, a similar approach to the construction of s.20 of the ALA to that of Gaudron J was adopted by Gleeson CJ, Gummow, Kirby and Callinan JJ. [41] The respondent contends that the decisions of the Land Appeal Court in Toffolutti and Stanfield are no impediment to me accepting its submissions as it is clear that the arguments advanced in this case were not put to the court and therefore not considered in those cases. While I generally agree with this submission I nonetheless have formed the opinion that I must reject the respondent's position on this issue primarily because; first, the relevant common law principle to be found in the various cases referred to above and as applied in Toffolutti and Stanfield is stated in an unequivocal way. It does not require an exception or limitation of the kind contended for by the respondent to be implied for it to make sense or operate in a relevant and sensible way. The second reason is that to accept the arguments of the respondent would, in my opinion, require the introduction of a limitation or qualification to the operation of s.20 of the ALA which is not found in the terms of the statute. This would be contrary to the reasoning of the High Court in Marshall. [42] Another cause of concern to me about the acceptance of the arguments advanced by Mr Gibson QC is the prospect of there being two pieces of litigation in two separate courts arising out of the one resumption. That is, in some compulsory acquisition cases involving town planning schemes introduced in the furtherance of the resumption, the landowner might be required to recover compensation for injurious affection arising out of the changes in zoning or other land use designations from the Planning and Environment Court and compensation under the various heads identified in s.20 of the ALA from the Land Court. This could include, depending of course on the facts of the case, claims under the headings of severance and disturbance. Claims for injurious affection not sufficiently associated with changes to the planning scheme and the consideration of any enhancement in circumstances where the whole of the land was not taken would also have to be dealt with by the Land Court. In the absence of clear 19 (2001) 205 CLR 603. -- 14 of 27 -- 15 authority or statutory direction I am reluctant to interpret the ALA in a way that could have such consequences. [43] I acknowledge that rejection of the arguments advanced on behalf of the respondent might, in certain circumstances, raise the potential for duplication in the assessment of compensation under the ALA and the local government legislation in force from time to time. However, in my opinion, such circumstances should be rare and this Court and the Planning and Environment Court would be vigilant to avoid such duplication. I also acknowledge the potential for a windfall in some cases. For example, in negotiations concerning the purchase of a particular parcel of land, a prudent purchaser would allow for any limitations to the development of the land resulting from the relevant town- planning scheme in deciding on the price to be paid. However, were that land to be resumed after its sale from the new and more knowledgeable (prudent?) owner compensation might, by virtue of the operation of the principle under consideration, materially exceed the price paid. I should point out that there is no evidence to suggest that that is what has occurred in this case. And, as was stated by the Privy Council in Melwood Units at 152 and applied by the Land Appeal Court in Toffolutti it would be wrong to assess or limit compensation on the basis of the purchaser's extent of knowledge of the scheme at the time he/she purchased the land. [44] For the reasons stated above I have reached the conclusion and so find that the claimant's right to compensation is not limited because the relevant scheme of resumption also gave rise to a statutory entitlement to compensation under local government legislation. To put it another way I find that the so-called "Pointe Gourde in reverse" principle does apply. The Town Planning Case [45] It is the claimant's case that but for the scheme underlying the taking of its land there would have been no impediment to the development of lots 701, 702 and 703 for industrial purposes. The before plan contended for on behalf of the claimant shows 43 industrial lots and an area of parkland incorporating a stormwater treatment facility between Coolnwynpin Creek and the northern boundary of the section of road connecting Smith Street and Neumann Road. A comparison of the before and after plans relevantly reveals a loss of 25 industrial lots and a different park configuration. The stormwater treatment facility in the after case is also of a different design and layout. The case for the respondent is that for sound town planning and/or environmental considerations no industrial development would have been approved over the land taken (lots 701 and 702) or the severed land (lot 703). The respondent's alternate case is that if any industrial -- 15 of 27 -- 16 development would have been permitted it would have been limited to a significant extent. [46] Both sides have called and relied on the evidence of qualified and experienced town planners, environmental scientists and engineers. In deciding this case I do not consider it necessary to make a final determination in respect of each and every issue raised by the experts. Ultimately my role is to determine how the hypothetical purchaser and vendor, properly advised and acting reasonably and prudently, would come together at a price for the subject land. This, necessarily in my opinion, requires me to determine how the prudent vendor and purchaser, acting on proper advice, would assess the potentiality of the land for development as at the date of its taking.20 [47] As referred to above, the land was zoned Rural/Non Urban under the 1988 planning scheme of the respondent. Generally speaking, that part of the parent parcel directly affected by the taking had been identified in the planning documents for Public Open Space and arterial road uses (1988) and Special Protection Area, Special Facilities/Special Purposes and Future Transport Corridor (1998). The preferred land use identified for that land south of the proposed road/transport corridor was Industry (1988) and Major Centres in 1998. The evidence is that under the Major Centres designation the respondent envisaged a wide range of industrial type uses occurring. [48] Incorporated into the 1998 Strategic Plan were a number of documents concerned with what could be broadly described as environmental matters. While I do not consider it necessary to go into these documents exhaustively it is useful I think to refer to some of them. The first of the documents are what I will call the "Greenspace" documents. As I understand it, these documents relied to a significant extent on an environmental inventory the respondent had carried out within the boundaries of its local government area. Relevantly, in the "Redland Shire Environmental Inventory" map (Exhibit 41A) that part of the claimant's land between Coolnwynpin Creek and, broadly speaking, the northern boundaries of lots 27 to 35 as depicted on the claimant's before plan lay within an area identified as having environmental significance. That area is broken up into two categories namely an area of "Major Significance" and an area of "Enhancement Significance". These areas are also referred to as "Major Corridors" and "Enhancement Corridors" respectively and I will use those descriptions when referring to these land areas hereafter. The extent of these designated areas are shown in various documents (eg Ex 27A). The land designated Major Corridor coincides with the naturally vegetated area mainly within the top of the southern bank of Coolnwynpin Creek. The 20 De Ieso v Commissioner of Highways (1981) 47 LGRA 412 at 416. Sydney Harbour Foreshore Authority v Walker Corp Pty Ltd (2005) 141 LGERA 243 at [77] – [81]. -- 16 of 27 -- 17 Enhancement Corridor to the south comprises of cleared land and effectively the whole of the stormwater treatment plant proposed in the claimant's before case lies within it. No part of the area designated Major Corridor was to be directly affected by any development in the proposed before case. The areas designated as Major Corridors and Enhancement Corridors in the environmental inventory are also identified in the Greenspace documents incorporated into the Strategic Plan as "Greenspace Habitat" areas. [49] The second document incorporated into the 1998 Strategic Plan is titled "State Planning Policy 1/97 – Conservation of Koalas in the Koala Coast" (Exhibit 25A). The State Planning Policy map (Exhibit 25) identifies two areas being "Koala Conservation Area" and "Other Major Habitat". The area designated Other Major Habitat in the State Planning Policy by and large coincides with the area designated Major Corridor in the environmental inventory documents. There is no Koala Conservation Area on or immediately proximate to any of the land owned by the claimant. The area of land designated Enhancement Corridor in the environmental inventory seems to have a "Balance Area" designation in the State Planning Policy documents. [50] All of the variously designated areas fall within that part of the claimants land designated as Public Open Space in the 1988 planning scheme and Special Facilities/Public Purposes and Special Protection Area in the 1998 Strategic Plan. [51] The respondent contends that the highest and best use of all of the land taken as at the date of resumption was limited to uses consistent with the land use designations of Public Open Space in 1988 and Special Protection Area in 1998(The Respondent's First Argument). Alternatively, if it is found that the prudent purchaser could have reasonably expected to achieve some industrial development over the land taken, such use would be limited for two reasons. First, the proposed before layout would have to be amended so that the stormwater treatment facility was clear (or almost clear) of the Enhancement Corridor area and second, lots 15, 16, 35, 36, 37 and 38 would have to be deleted because of what were referred to as "odour impacts" (The Respondent's Alternate Argument). Acceptance of the respondent's alternate argument would result in the loss of up to 14 lots being lots 27 to 36 and 15, 16, 37 and 38. [52] Notwithstanding the operation of the common law principle referred to in this case as "Point Gourde in reverse" it is well established that the principle does not prevent the Court from having regard to the physical characteristics and attributes of the land taken. -- 17 of 27 -- 18 [53] In this context, in San Sebastian while it was held that the proposed residential zoning in the draft planning instrument was a step in the process which was to be ignored, Jacobs J at page 211 went on to say: "…If independently of the proposed resumption for the purpose of public housing the land was found likely in the varied scheme to have been zoned residential in terms of the interim development order that would have been a most important finding affecting the value of the land for purposes of a private hospital." And to a similar effect at pages 211-212: "…The fact that the land would probably have been zoned in a manner similar to its proposed zoning under the draft interim development order would only be of significance if, contrary to the facts, that zoning would have been regarded as likely to occur independently of the proposed purpose of public housing and consequent resumption. Nevertheless it must be made clear that in so far as there was a possibility or likelihood of such a zoning independently of the purpose of public housing that was a matter properly to be taken into account in accordance with the principle enunciated in the Stocks & Parkes Case …" [54] In The Crown v Murphy, the claimant intended to carry out residential development at Mon Repos Beach near Bundaberg. Mon Repos Beach is a turtle rookery of international repute. The application to rezone the land from rural to residential was refused by the local authority and the land was later resumed by the government for environmental park purposes. In considering whether or not the local authority could have properly refused the rezoning application the Court at 595, after referring to the principle as enunciated in San Sebastian and Melwood Units said: "Of course, a characteristic or attribute of the land which affects its value must be taken into account in the assessment of compensation even if the planning restriction which is a step in the process of resumption is dependent upon or directed to that characteristic or attribute…" [55] If one ignores the scheme underlying the resumption in this case the physical characteristics of the land resumed are that it is relatively flat and cleared to about the top of the banks of the creek but thereafter the land to Coolnwynpin Creek is in its naturally vegetated state. That is, a large part of the land designated Special Facilities/Public Purpose and Special Protection Area and as Enhancement Corridor in the 1998 strategic planning documents is flat and cleared. This is consistent with its long term use as a turf farm and before that as a strawberry farm. The Future Transport Corridor Land (Lot 701) [56] The town planner and the environmental scientist called on behalf of the claimant were quite adamant that there were no sound reasons (if the resumption scheme is ignored) for not including lot 701 within the Major Centre designation in the 1998 Strategic Plan. Or, to put it another way, any prudent purchaser of the land could be confident that (but for the scheme) the area of land described as lot 701 would be rezoned to accommodate industrial development. -- 18 of 27 -- 19 [57] The evidence of Mr McNeilage, the environmental scientist called on behalf of the respondent was also to the effect that there was no justification for a special protection designation for all of the land south of the creek as far as the transport corridor. (Transcript, p. 234 L.35) My impression of Mr McNeilage's evidence is that his real concern was with that land falling within the Enhancement Corridor area as identified within the 1998 Strategic Plan. The evidence of Mr McNeilage is largely consistent with that of Mr Perkins, the town planner called by the respondent. At page 19 of his report Mr Perkins concluded that, if the scheme of resumption was ignored, the highest and best use of lot 701 would have been for industrial purposes. The only qualification to the conclusions as expressed in his report was in respect of those proposed lots which he said should be excluded because of odour issues. Odour Issues [58] As referred to above, the respondent contends that regardless of my findings concerning the other town planning and environmental issues, lots 15, 16, 35, 36, 37 and 38 had no prospect of being approved because of odours from the respondents existing sewerage treatment plant. This facility lies to the immediate north of proposed lots 37 and 38 and to the north west of proposed lots 15 and 16. [59] On balance I have reached the conclusion that the prudent purchaser would be reasonably confident that the development of these lots would not be refused because of odour. In reaching this conclusion I have had particular regard to the following facts. First, bearing in mind that the proposed land use is for industrial purposes the odour impact is not likely to be as intrusive as it might be for other uses such as residential, entertainment or shopping. Second, the prevailing winds and movement patterns of the odours would be such that they would tend to be at their least offensive during usual business or trading hours. Third, the building materials and methodology typical of what is and has been occurring on the balance land would tend to mitigate against the intrusion of odours. Lastly, I consider that if necessary appropriate conditions could be imposed by the respondent to deal with this matter. [60] Concerning the imposition of conditions, the environmental engineers in their joint statement (exhibit 20 at paragraphs 14 and 15), agreed that while odour levels ought not prevent industrial use of any part of the land, it would be appropriate to restrict the use of some lots in close proximity to the sewerage plant. They agreed that the use of proposed lots 37 to 43, lots 12 to 16 and lots 35 and 36 "…should be restricted to industry that is not sensitive to odours." In the after case it appears that in fact no conditions concerning odours were imposed over those lots in the general location of proposed lots 12, 13, 14, -- 19 of 27 -- 20 40, 41, 42 and 43. Notwithstanding this, it seems to me that as at the date of resumption, the expert advice the prudent purchaser would have received about this issue would have been in accord with that summarised in exhibit 20, paragraphs 14 to 18. [61] While I accept that local authorities including the respondent might have some reservations about the ability to fully enforce such conditions, overall I am of the opinion that in the circumstances of this case the council would opt for the imposition of conditions rather than refusal. The reasons for reaching this conclusion include the first three matters addressed in paragraph 59 above and also the evidence that as at the date of acquisition there was a high level of demand for industrial lots in the Capalaba area. [62] Bringing all of these matters together it is my opinion, and I so find, that at the relevant date the prudent purchaser would have been confident of having that area of land identified as lot 701 approved for industrial development. I also find that no lots would be lost as a consequence of odours emanating from the respondent's existing sewerage treatment plant. However, I also find that the prudent purchaser would recognise and allow for, in assessing the price he would pay for the land, the fact that the respondent would be likely to insist on land use conditions over proposed lots 37 to 43, 12 to 16 and 35 and 36. The type of conditions might be in terms of that proposed by Mr Hughes SC (exhibit 47). Just how, if at all, the value of the land might be affected by this contingency is a matter for another day. The Enhancement Corridor Area [63] There is no doubt that the northern most section of the land adjacent to the creek and designated Major Corridor or Major Habitat should be left as it is. [64] In respect of the cleared land between lot 701 and the banks of Coolnwynpin Creek the environmental scientists, in part, agreed as follows:21 "5. It is agreed that the cleared part of the resumed land have the following designations that are of relevance to this assessment: a. in part, an Enhancement Corridor designation pursuant to the Redland Shire Environmental Inventory; b. in part, a Greenspace Habitat designation pursuant to the Redland Shire Planning Scheme's Greenspace Map; c. in part, a Special Protection Area designation pursuant to the Redland Shire Planning Scheme's Preferred Dominant Land Use Map; and d. in total, a Balance Area designation pursuant to SPP 1/97. 6. It is agreed that the development potential of the resumed land would be constrained by the ecological values and functions of Coolnwynpin Creek and associated adjacent land and the need for development proposals to be responsive to the requirements of relevant planning policies having an ecological focus, including a. SPP 1/97 – Conservation of Koala in the Koala Coast; b. the Redland Shire Strategic Plan; and c. Local Planning Policy ENPE – 014 – Waterways, Wetlands and Coastal Zone. 21 Exhibit 24. -- 20 of 27 -- 21 7. It is agreed that the effect of these policies would be to constrain the use of the environmentally sensitive sectors of the subject land, which correspond to that part of the resumed land that has an Enhancement Corridor designation pursuant to the Redland Shire Environmental Inventory and a Greenspace Habitat designation pursuant to the Redland Shire Planning Scheme's Greenspace Map. 8. It is agreed that any development would need to be responsive to the requirements of Local Planning Policy ENPE 014 – Waterways, Wetlands and Coastal Zone." [65] Notwithstanding the level of agreement as expressed above, the views of the environmental scientists differed when it came to whether or not it was appropriate to locate the proposed stormwater treatment plant within the Enhancement Corridor area. The town planners were also in disagreement about this however, on this particular topic, I consider the opinions of the scientists would hold most sway with the respondent in any approval process. [66] The evidence concerning the role or function of the Enhancement Corridors leads me to conclude that they play an important role in the conservation strategy of the respondent for three reasons. They act as a form of buffer between development and the more important Major Habitat or Major Corridor areas. Second, they provide an opportunity for natural flora planting and/or rehabilitation. Lastly, they provide additional public land available for the movement of local fauna and, in particular koalas. I also accept that the importance of these corridors tends to increase in locations where environmentally important land tends to be more constrained and restricted. [67] There is no doubt that Coolnwynpin Creek and its surrounding vegetation form a very important part of the respondents' environmental objectives and planning for the shire. There is also little doubt that in the location of the subject land the opportunity for a meaningful flora and fauna corridor is relatively restrained or constricted. In this context I find that all of the three functions referred to above in paragraph 65 are relevant to any consideration of development within the Enhancement Corridor area over the subject land. In reaching this conclusion I am mindful that this land has been cleared for decades and that since lot 703 has been under the control of the respondent no meaningful planting has taken place. [68] It was Mr McNeilage's opinion that to locate the stormwater treatment works wholly within the Enhancement Corridor would be incompatible with the main objectives of such corridors. On the other hand Mr Delaney could see no good reason to prevent the whole of the works being located within the corridor area. Both recognised that there are no absolutes in cases such as this and that sometimes it was necessary for local authorities and developers to accept compromise. This evidence was consistent with that of the town planners to the effect that good town planning often required a balancing of -- 21 of 27 -- 22 competing interests and, in this context, the demand for industrial land was a relevant consideration. [69] The stormwater treatment plant as finally proposed in the claimants before case is shown in plan form in Exhibit 22B. In total, the works would be about 300m in length and about 50m in width at the widest point. As I understood the evidence, a sediment basin or trap of about 640 m² was to be located at the western end and then a series of filter and storage areas would be located eastward of the sediment trap. In heavy rainfall periods the maximum depth of water in any area would not exceed 1.3m and that depth would only be present for a short period of time after rainfall stopped. Ordinarily, the only area which would have permanent water in it would be the sediment trap. To function properly this trap requires a permanent stand of water of about 0.5m depth. For the most part the filter and storage areas would tend to be dry in the winter months but damp and boggy in the summer months consistent with historical rainfall patterns. [70] On behalf of the claimant it was contended that the impact of the works could be materially reduced by planting within the storage areas. Mr McNeilage did not really dispute that some suitable plant life could be located in those areas but had reservations about its effectiveness. In this context he observed that koalas tend to avoid wet and boggy areas when on the move and problems might occur in maintaining effective plant life in conjunction with ongoing maintenance. [71] There was considerable debate about whether or not the works ought to be fenced and, if so, to what extent. On behalf of the respondent it was pointed out that the "as built" works are in fact fenced in a way which would restrict the movement of some fauna and particularly koalas. This evidence is far from conclusive as the "as built" works differ significantly in design and operation from that proposed in the claimant's before case. [72] The respondent also contended that prudence if not necessity would dictate that the works would have to be fenced to protect against the trespass of and injury to children. It was also submitted that the use of "fauna friendly" fencing would not be realistic as it would be unlikely to constitute a deterrent to adventurous children. On this point I agree. If fencing is required at all it is likely to have to be fencing that would deter children and, as such, unlikely to be conducive to the movement of fauna and particularly koalas. [73] On behalf of the claimant it was contended that fencing would not be required. In support of this my attention was particularly drawn to the existence of the nearby creek which is not fenced and that it would be relatively rare for there to be deep water anywhere within the works and, in any event, being at the rear of an industrial estate it is not likely to be a great attractor to children. The claimant went on to argue that if it was -- 22 of 27 -- 23 found that fencing was necessary it could be limited to only the sediment trap as that was the only area with permanent water. [74] After considering the evidence concerning the design of the proposed stormwater works I have concluded that the prudent purchaser would proceed on the basis that the respondent would be likely to require child proof fencing of the whole of the works. The prudent purchaser would also be mindful that even in the no fencing or "fauna friendly" fencing scenarios the wet and boggy nature of the works might be perceived by the respondent to be inconsistent with at least some of the objectives intended for the Enhancement Corridor areas and thereby cause it to adopt a more cautious approach. [75] Also of importance to the location of the stormwater works is the park contribution policy of the respondent. As I understand the evidence about this the usual park contribution requirement is about 10% of the overall area intended to be developed. Such land to be fairly representative of the quality of the whole of the land to be developed. As is the case with policies generally it does not represent an absolute requirement. [76] In the claimant's case the total park contribution is about 9%. More importantly than this though is that the land identified for park incorporates the whole of the land designated as Enhancement Corridor and about 50% of it would be covered by the stormwater works. On the evidence before me such a result would be an unjustifiably optimistic one. Circumstances might be different if the evidence showed that a net gain to the environment might be achieved or at worst the treatment works would be environmentally neutral but, on the evidence before me, that is not the case here. [77] The prudent purchaser would of course endeavour to extract every possible industrial lot from his/her development. However, in deciding what price to pay for the land the price would not be assessed on the basis of every possible controversy being resolved in the purchasers favour. Conversely, the prudent vendor striving to achieve the highest price for the land would be reluctant to agree to a price arrived at on the basis of every possible controversy being resolved against the interests of the purchaser. The prudent vendor of land being purchased for intensive development would of course have to be realistic and recognise that the level of risk involved in the development proposed will have a material affect on the price the prudent purchaser will be prepared to pay. In this context the Land Appeal Court in Stanfield at 412 cited with approval the observations made by Wells J in De Ieso v Commissioner of Highways where at 418 his Honour said: "Finally, it is impossible to overlook the very human tendency for a developer – like an entrepreneur in any field of commerce – to cut his business risks as far as reasonably practicable; and because the court must consider what the decision of a hypothetical developer would have been before the purchase took place, and not after it – when he -- 23 of 27 -- 24 could, within limits, feel his way – it must give real weight to the possibility that the hypothetical developer would be guided more by a plan from which there were absent, than by a plan in which there were present, elements of controversy." [78] After considering all of the evidence led and the submissions made on behalf of the parties concerning the location of the stormwater works in the before case scenario I have concluded that the prudent purchaser and prudent vendor of the subject land would agree on a price which recognised that it was unlikely that the respondent would approve the stormwater works in the location proposed. It is my opinion based on the evidence that it is unlikely that the respondent would accept as a park contribution only some 9% of the total of the land to be developed in circumstances where about 50% of the park area and a greater proportion of the land designated as Enhancement Corridor is to be occupied by works of the type identified in exhibit 22B. [79] Mr Delaney, during the course of his evidence, referred to a number of examples of where the respondent had allowed development within areas identified as being of environmental importance. I accept that a prudent purchaser of the land would draw some comfort from those examples and no doubt refer to them during the course of his/her negotiations with the council along with pointing out the level of demand for industrial land in the area. However, each of the examples referred to by Mr Delaney and, to a lesser extent, by Mr Challoner involved facts and circumstances quite different to those involved in this case. As such, the advantage the prudent purchaser would be likely to derive from these examples would be, in my opinion, relatively limited. [80] However, I do accept that the respondent would not be likely to prohibit any development within either the proposed park or the Enhancement Corridor areas provided that sufficient land was left between such development and Coolnwynpin Creek to allow the Enhancement Corridor to largely achieve its intended purpose. [81] The environmental scientists agreed that regardless of any resumption scheme the effect of the relevant policies of the respondent would be to constrain development within the Enhancement Corridor Area.22 In this context, I am of the view that in reaching his conclusions concerning the location of the stormwater works in the before case Mr Delaney was influenced by the fact that the works, at worst, would only require fencing of the sediment trap area or be able to be fenced with "fauna friendly" fencing and not otherwise be seen by the respondent as an impediment or intrusion of significance on the Enhancement Corridor. As I have already indicated I do not think that the prudent purchaser would be at all confident of the respondent sharing Mr Delaney's views about those matters. 22 Ex 24, paras 5 to 7. -- 24 of 27 -- 25 [82] On balance, I have reached the conclusion that the prudent purchaser would proceed on the basis that while the respondent would probably be prepared to accept that all of the proposed stormwater works could be wholly accommodated within any park or other public open space land it would only be prepared to approve a partial intrusion into the land designated Enhancement Corridor. It is also my opinion that the extent of any such intrusion would be limited to a significant extent and confined to the southern most part of the corridor. The purpose of this being to preserve, as far as is reasonable in the circumstances, the widest possible undisturbed space between the works and the creek bank, particularly at the westernmost end of the corridor. [83] For the reasons expressed above I have concluded that any intrusion of the works into the Enhancement Corridor would be limited so that no part of the westernmost section of the works (i.e. the sediment trap area) was located within the narrowest parts of the corridor. At the eastern end, where the Enhancement Corridor widens, I consider it unlikely that the respondent would allow any undisturbed part of the corridor to be narrower than it already is at or about the area north of lots 34 and 35. [84] By reference to exhibit 22B and the claimant's before plan, the result I have tried to explain above would seem to be achieved by rotating the layout of the proposed works so that the sediment trap at the western end was located within the area now accommodating lots 34 and 35 and, otherwise, no part of the works would be any closer than 40 m from the top of the southern creek bank in the area immediately to the north of proposed lots 29 and 30. This would place the latter extremity of the proposed works within the area designated "PARK" but no closer to the "Top of Bank" boundary than below the words "2.50 ha to Title Boundary…" as marked on the plan annexure I of exhibit 15. [85] Figure 1, which I incorporate as part of these reasons, shows the stormwater works in the approximate location I have attempted to describe above. The location of the works as identified is not meant to be entirely definitive. I recognise that with input from the engineers and environmental scientists the objectives referred to above might be able to be achieved differently. However, on the evidence now before me, I am of the opinion that the prudent purchaser as prescribed in Spencer v The Commonwealth23 would expect that a significant number of the lots presently described as lots 28 to 35 would be lost in order to accommodate the necessary stormwater treatment works. Just how many and which lots might be lost would no doubt depend on final design. However, all things considered, I have reached the conclusion that the prudent purchaser would plan and 23 (1907) 5 CLR 418. -- 25 of 27 -- 26 proceed on the basis that it was likely that up to 6 of the proposed northern most lots would be lost. [86] During the course of these proceedings my attention was drawn on a number of occasions to what has actually occurred in respect of the stormwater treatment works in the after resumption case. The location of those works was determined prior to the date of acquisition of the subject land. However, it seems clear that their location and design was influenced by the knowledge that the subject land was to be resumed in the near future. Accordingly, I do not consider it appropriate to place much weight on the "as built" works. That said, I do draw some limited comfort from the location of those works as it seems to be reasonably consistent with an intention to ensure that any compromise of the Enhancement Corridor would not be extensive. [87] I also realise that my discussion of the stormwater treatment works in the before case has proceeded on the basis that the land between the northern boundary of lot 701 and the southern boundary of the Enhancement Corridor would be available for industrial development in some form. It is my opinion that the prudent purchaser properly advised would be confident that the respondent would approve that land for industrial development. In reaching this conclusion I consider the following evidence to be of particular importance. First, overall there is nothing to physically distinguish this land from that in lot 701 in any meaningful way. Second, the evidence of Mr McNeilage was to the effect that there was no justification for a Special Protection designation of all of the land south of the Creek to lot 701. Third, in the "before" case layout as found by me a significant part of that land would be likely to become park or other form of open space albeit largely covered by the stormwater treatment works. Conclusions as to the Highest and Best Use [88] By reference to the before plans advanced by the claimant and for the reasons set out above my conclusions concerning the highest and best use for lots 701, 702 and 703 are: (i) the land contained within lot 701 would be available for industrial development. (ii) the land between the northern boundary of lot 701 and the southern boundary of the Enhancement Corridor would be available for development in conjunction with the balance of the industrial estate but a significant part of that land would be required for park or other similar public open space use and to accommodate the proposed stormwater treatment works or part thereof. (iii) the proposed stormwater treatment works would generally be situated within the location described in paragraphs 82 to 84 above and Figure 1. -- 26 of 27 -- 27 (iv) the prudent purchaser would plan and proceed on the basis that it was likely that up to 6 of the northern most lots between lots 28 to 35 would be lost to accommodate the stormwater treatment works. (v) no industrial lots as presently shown in the claimant's before plan would be lost as a consequence of odours from the existing sewerage treatment plant. (vi) notwithstanding (v) above the prudent purchaser would proceed on the basis that it was likely that the respondent might impose conditions in respect of odours generally of the type articulated in exhibit 47 over lots 12 to 16, 37 to 43 and 35 and 36. [89] I publish my reasons but shall hear from the parties about the final form of the orders to be made and as to the future conduct of the case. R S JONES MEMBER OF THE LAND COURT -- 27 of 27 --