Bowers and Crane v Pine Rivers Shire Council [2007] QLAC 37 (2007) 28 QLCR 196

LAND APPEAL COURT OF QUEENSLAND CITATION: Bowers and Crane v Pine Rivers Shire Council [2007] QLAC 37 PARTIES: Olive Louise Bowers (as personal representative) and Lynette Anne Crane (as personal representative) Appellants And Pine Rivers Shire Council Respondent FILE NO/S: LAC2005/1767 DIVISION: Land Appeal Court of Queensland PROCEEDING: Appeal ORIGINATING COURT: Land Court of Queensland DELIVERED ON: 27 April 2007 DELIVERED AT: Brisbane JUDGE: White J MEMBERS: Mr RP Scott Mrs CAC MacDonald ORDER: The appeal is dismissed. CATCHWORDS: REAL PROPERTY – VALUATION OF LAND – METHODS OF VALUATION – BEFORE AND AFTER METHOD – where land is to be resumed – where purpose of resumption is to construct a rubbish tip – whether a general reference to the future development of the land for a rubbish tip is sufficient to sustain a relationship with the scheme of resumption REAL PROPERTY – VALUATION OF LAND – METHODS OF VALUATION – HYPOTHETICAL SUBDIVISION – FACTORS TO BE CONSIDERED – where it is contended that the land to be resumed is capable of rezoning and future development for residential properties – whether the topography of the land is a factor to be considered – whether the availability of water resources and other utilities should be considered – whether the zoning of other nearby land should be considered. Acquisition of Land Act 1967 (Qld), s 19 -- 1 of 25 -- 2 Land Court Act 2000 (Qld), s 56 Public Works Act 1912 (NSW), s 124 The Crown v Murphy [1990] 64 ALJR 593, followed Devries v Australian National Railways Commission (1993) 177 CLR 472, cited Housing Commission of New South Wales v San Sebastian (1978) 140 CLR 196, followed Hutchins v The Council of the Shire of Woongarra (1992) 14 QLCR 286, cited Pointe Gourde Quarrying and Transport Co Ltd v Sub- Intendent of Crown Lands [1947] AC 565, cited Scrivener v DPP (2001) 125A Crim R 279, cited Steven v The Commission of Water Resources (1990) 13 QLCR 75, cited Warren v Coombes (1979) 142 CLR 531, cited COUNSEL: Mr GR Allan for the appellants Mr CL Hughes SC and Mr A Skoien for the respondent SOLICITORS: John K Harris for the appellants Pine Rivers Shire Council for the respondent [1] The appellants, as personal representatives, and thereby as the registered proprietors of certain land of approximately 16 hectares lying within the boundaries of the Pine Rivers Shire have sought compensation for the resumption of that land for rubbish depot purposes pursuant to s 19 of the Acquisition of Land Act 1967. [2] The matter came on for hearing in the Land Court and on 15 September 2005 the learned Member determined compensation in the sum of $832,000 and made orders concerning interest. This figure was reached by concluding that the highest and best use to which the land could have been put but for the scheme was as Park Residential development. The applicant had contended for Residential A development and the respondent for a single rural homesite with some potential for subdivision. -- 2 of 25 -- 3 [3] The first issue for decision was the application of the principle established in Housing Commission of New South Wales v San Sebastian (1978) 140 CLR 196 and developed in The Crown v Murphy [1990] 64 ALJR 593, namely, that restrictions on land use as a consequence of a resumption of that land may not be employed to destroy the development potential of the land for the purpose of assessing compensation. It is the corollary of the Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565 principle that a project or scheme which gives rise to a resumption cannot be used to inflate the value of the land. [4] The learned Member concluded that it was not until the respondent’s 1988 Strategic Plan came into effect that the respondent could be said to be contemplating the acquisition of the subject land for rubbish depot and reserve purposes. The appellants had contended that the 1978 Arana Hills Development Plan signalled the intention of the respondent eventually to acquire the subject land for rubbish depot and, ultimately, recreational purposes, that is, there was one scheme of resumption commencing in 1978. [5] The second principal issue was the assessment of the development potential of the land. The land was initially zoned Rural in 1965 and remained with that designation until acquisition. Shortly put, the learned Member concluded that it was unlikely, in the relevant evidentiary sense, that town water would have been available or reasonably available to facilitate Residential A development on the subject land at any relevant time whether by extension of the water catchment boundary or by way of infrastructure agreement. Issues of topography and demand for residential land were considered but not held to be determinative of the issue. -- 3 of 25 -- 4 [6] The respondent contended for a large rural homesite as the highest and best use of the land, or alternatively, for the development of no more than six sites under a Park Residential designation. The learned Member concluded that sufficient water could have been provided for that level of development and adopted a figure of $45,000 per hectare for Park Residential development reaching a final figure of $729,000 as the land value and adding $83,000 for improvements and the agreed disturbance figure of $20,000. [7] The appellants’ grounds of appeal are lengthy and detailed but may be described without, it is hoped, doing them injustice as two fold: that the learned Member erred in finding that the scheme of resumption which led to the acquisition of the subject land did not commence in 1978 but rather about 10 years later in 1988 prior to the adoption of the 1988 Strategic Plan for the shire; and that whether or not the learned Member was correct in his conclusion as to the date of commencement of the scheme of resumption, he erred in finding that the land, unaffected by the scheme, was unlikely to have obtained zonings and approvals for Residential A development. The nature of the appeal [8] The Land Court Act 2000 provides in s 56 that an appeal in the Land Appeal Court must be decided on the evidence on the record of the proceeding in which the decision appealed against was made. In the exercise of its jurisdiction the Land Appeal Court is not bound by the rules of evidence and may inform itself as it considers appropriate and must act according to equity, the substantial merits of the case and without regard to legal technicalities, s 55. -- 4 of 25 -- 5 [9] This court, like any other appellate court whose jurisdiction is to hear appeals by way of “rehearing”, that is, on the record, has power to draw inferences from primary facts, including facts found and facts not disputed which is as complete as that of the primary investigator, Scrivener v DPP (2001) 125A Crim R 279 per McPherson JA referring to Warren v Coombes (1979) 142 CLR 531, particularly at 551. Where the credibility of the witness is germane to the appeal the well-known observations of Brennan, Gaudron and McHugh JJ in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 are applicable to this court. The resumption [10] By notice dated the 30 August 2001 the respondent informed the appellants of its intention to take the subject land “for waste disposal facility purposes”. By proclamation appearing in the Queensland Government Gazette for 9 May 2003 at 71 the subject land was taken “for rubbish depot purposes” and vested in the respondent as and from that date. It is common ground that that is the date at which compensation is to be assessed. The subject and surrounding land [11] The subject land comprises 16.187 hectares described as Lot 1 on RP 13591 County of Stanley Parish of Bunya. The land is of irregular shape and best described, as the respondent’s counsel have done, as a “waisted parallelogram”. It is located approximately 18 kilometres by road from the Brisbane GPO and is about 4.5 kilometres north of the major shopping and business area of Arana Hills. It lies on the eastern side of Bunya road as it travels north. To the north and to the west of the land is the Bunyaville State Forest Park. Immediately adjoining the land to the east is the original James Drysdale Recreational Reserve containing a rubbish tip and -- 5 of 25 -- 6 sporting fields with club house. It has a frontage along The Jinker Track to the east and across that road is the continuation of the Bunyaville State Forest which also lies to the north. The respondent acquired land adjacent to the subject land in 1997/1998 described as Lot 3 on RP 49298 and referred to in the proceedings and the judgement as “the Chinn land”. Adjoining these lands is another parcel described as Lot 2 on RP 156364 which was acquired by the respondent in 1989 for rubbish tip purposes. Bunya Road forms the southern boundary of this parcel of land and south of Bunya Road is a Residential A sub-division which is approximately half a kilometre from the subject land. The land and these adjoining parcels of land were referred to in the proceedings below as the “Investigation Area”. A useful and simple map may be found at Appendix D to Mr Greg Ovenden’s Report, exhibit 6. [12] The subject land has electricity and telephone connected to the modest dwelling erected on the land but has no sewerage or reticulated water. Bunya Road provides a one lane bitumen vehicular access to the property. The land is variously described in the reports and judgement as falling moderately and steeply from Bunya Road, which forms the western boundary, to a gully intersecting the land from the western section of the southern boundary to the eastern section of the northern boundary. Another gully intersects the land in the southeast corner. The land then rises sharply to the eastern boundary. The Investigation Area forms a basin of land bordered by ridges on all four sides. The slope maps in the respondent’s Planning Scheme indicate that the subject land is affected by slopes of greater than 20 per cent throughout. Although the land had been initially cleared it has, for some years, been the subject of thick regrowth vegetation. The gullies through the land run northwest from the Investigation Area through the State Forest into the South Pine -- 6 of 25 -- 7 River. The land to the south of the Investigation Area falls within the Cabbage Tree Creek catchment which flows in an easterly and then north easterly direction south of the Bunyaville State Forest. [13] The learned Member inspected the subject land as well as land sales relied upon by the valuers which assisted him to understand the evidence. The claim for compensation [14] The appellants made a claim for compensation on the 7 November 2003 for $2,600,000 excluding interest but including $100,000 for disturbance. Proceedings were commenced in the Land Court on 10 November 2004 seeking that quantum of compensation. On 28 November 2003 the respondent paid to the appellants an amount of $400,000 as an advance against compensation. The final position of the claimants below was for compensation of $2,821,000. Disturbance costs were agreed at $20,000. The respondent contended for a compensation figure of $510,000 including disturbance but excluding interest. The approaches of the parties’ experts [15] The appellants relied on a valuation prepared by Mr Kevin Walsh, a registered valuer, exhibit 5, who in turn relied upon the expertise of a number of other professionals in reaching his conclusion that the market value of the land as at 9 May 2003, the date of the resumption, was $3,185,000 exclusive of interest and disturbance. He concluded that increasing sales activity for en globo land in the residential market in 2003 meant that the land was “ripe” for subdivision in the absence of the scheme of the resumption and that compensation should be assessed for the land’s highest and best use as Residential A development. This figure was -- 7 of 25 -- 8 adjusted down to take account of reworked figures about costs at the end of the hearing. [16] Mr JD Goodwin, a surveyor, prepared a hypothetical subdivision layout which proposed that the land could be developed into 91 residential allotments averaging about 830 m2 with land set aside for parks and open spaces. Mr G Ovenden, a town planner, prepared a detailed report on behalf of the appellants. [17] The respondent relied on the report of Mr JR Gillespie, a registered valuer. He, too, relied on other experts in reaching his conclusion that the highest and best use of the land was as a large rural homesite with potential for Rural Residential subdivision up to six lots of a minimum size of two hectares. The value of the single site was said to be $400,000 or $490,000 if further divided. The principal experts for the respondent were Mr A Vanderent, a civil engineer, and Mr A Rea, a town planner, both employed in senior positions with the respondent. [18] Although the learned Member heard from many experts, he did not seek to resolve every issue raised by them. Uncontroversially, he saw his task at para 14 of his reasons as deciding how “… the hypothetical purchaser and vendor, properly advised and acting reasonably and prudently would come together at a price for the land … to determine how the prudent vendor and purchaser, acting on appropriate advice, would assess the development potential of the land”. [19] The valuers were required to disregard certain planning matters in accordance with principles derived from San Sebastian. Although that case concerned the construction of section 124 of the Public Works Act 1912 (NSW), that provision contained in statutory form a principle developed in the cases independently of express statutory provision. That is, that in assessing compensation for the -- 8 of 25 -- 9 resumption of land the assessing tribunal assesses the compensation according to what it finds to have been the value of the resumed land at the time of publication of the notification of resumption without reference to any alteration in value arising from or in anticipation of the public works for which the land was resumed. [20] As Jacobs J, with whom the other members of the court agreed, observed at pp 205-6 of that decision: “A difficulty which arises in the application of this principle is that valuation is in the ordinary case based on market value and, if the proposed public purpose and the possibility or likelihood of resumption therefore has become known prior to the date of resumption, the market value at the time of resumption will probably reflect by way of increase or decrease the possibility or likelihood of resumption for that public purpose. Therefore that value cannot be accepted. Yet it is inevitably in most cases the starting point of the process of valuation. With the actual market value at the time of resumption as the starting point it is then necessary to determine whether that value has been depressed or elevated by the market’s full knowledge of the possible or likely public purpose and consequent resumption. It is therefore inevitable in such circumstances that the public purpose has to be taken into account in the process of valuation but it can be taken into account only for that purpose” [21] His Honour recognised there are many situations where the zoning classification of the subject land and the proposed purpose for which it has been resumed is not clear cut. But it may also be that the land has been selected for resumption because of its zoning. “In those circumstances there is no relevant relationship between the zoning and the public purpose. No public purpose, existing or anticipated, intended, or urged by the zoning authority, leads to the zoning: rather, the zoning leads to the public purpose and consequent resumption.” At 207 In a sense, the respondent contended below that that was the position in respect of this land – it was zoned Rural, there had never been an application to reconsider that designation and it was apt for acquisition for rubbish tip purposes. But at the -- 9 of 25 -- 10 conclusion of the hearing the learned Member noted at para 40 of his reasons with respect to Precincts 15 and 16 of the Hills District Development Control Plan (No 1) of 1992, that the respondent’s counsel conceded that the relationship was sufficient between the subject land and the resumption scheme to offend the San Sebastian principle. There is no cross-appeal by the respondent and, accordingly, any submission below that the San Sebastian or the reverse Pointe Gourde principle did not apply remains an interesting but, for this appeal, unexamined, aside. [22] The effect of San Sebastian was refined in The Crown v Murphy (1990) 64 ALJR 593 at 595 “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. … 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 dependant upon or directed to that characteristic or attribute.” Planning history of the land [23] To ascertain if there was a “direct relationship” or, even, an indirect relationship indicative of a step in a single scheme of resumption of the subject land for rubbish depot, and, ultimately recreation purposes, required an examination and analysis of the planning documents of the respondent. This the learned Member did although he noted at para 30 that despite lengthy testimony and volumes of documents “very little evidence was specifically directed at identifying what the relevant scheme was and when it commenced”. The burden lay with the appellants and, essentially, the learned Member was not persuaded that the scheme underlying the subject -- 10 of 25 -- 11 resumption was the same, in the relevant sense, as that underlying the first resumption of the land which became the original James Drysdale Recreational Reserve adjacent to the subject land in 1979. [24] In 1965 the subject land together with the other land comprising the “Investigation Area” was zoned “Rural” under the initial town planning scheme for the Shire of Pine Rivers. The “Investigation Area” was zoned “Rural Land A” when the 1971 shire Planning Scheme was gazetted. [25] Lots 1 and 2 on RP 164889 which lie to the east of the subject land adjacent to The Jinker Track were resumed or acquired for rubbish tip purposes in 1978/1979. That land became the original James Drysdale Reserve after the tip’s life reached its end. [26] It was assumed below that the subject land was not originally included in the Arana Hills District Development Plan 1978 because the definition of the District set out at section 3.01 and, more particularly, at section 3.01.2 does not do so. The description is “The Arana Hills District consists of three suburbs; Ferny Hills, Arana Hills and Everton Hills. It is situated immediately to the north and west of the City of Brisbane, and its south-eastern extremity is less than 11 kilometres by road from the Brisbane G.P.O. For the purposes of this study, the Arana Hills District is defined as follows: bounded to the East by the Shire Boundary which follows Old Northern Road, Queens Road, South Pine Road and Illawarra Street; bounded to the North by the Bunya State Forest, and the northern bounds of original Portion 62 and Portion 55, Parish of Bunya; bounded to the West by the Samford State Forest and the western bounds of Portion 107, Parish of Bunya; and bounded to the South by the Shire Boundary, which follows Kedron Brook.” [27] As Mr Ovenden wrote in his report of 5 February 2005 (exhibit 6) at p.4 when discussing the area within the shire covered by this Plan -- 11 of 25 -- 12 “Its northern extent was the southern boundary of Bunyaville State Forest and the northern bounds of original Portion 62 and Portion 55, Parish of Bunya. This description would suggest that the Investigation Area (original portion 69) was excluded from the plan as it sits beyond the northern boundary of Portion 62.” [28] Mr Allan’s researches on the evening of the appeal revealed an Order in Council dated 26 May 1983 which amended the Arana Hills District Development Plan by excluding two areas of land from it. They were “ (a) S.F. 1376 State Forest, Lots 1 and 2 on R.P. 125177, subdivision 2 of portion 76, portions 31, 32, 50, 54, and 58, parish of Bunya; (b) S.F. 69 State Forest, subdivisions 1 and 3 of portion 69, Lots 1 and 2 on R.P. 164889 and Lots 1 and 2 on R.P. 156364, parish of Samford.” Reference to the Parish of Bunya in (a) and the Parish of Samford in (b) should be transposed, as Mr Allan pointed out. The learned Member was not given the assistance of this evidence. [29] The lands described in (b) are the Investigation Area – Portion 69 – they therefore must have been included in the original Plan in 1977. By the Order in Council section 3.01.2 of the Plan was omitted and the substitute description of the Arana Hills District exactly reflects the description of the District in exhibit 58 which purports to be the 1977 Draft Plan which was passed by the respondent in May 1978. A consideration of the whole exhibit rather than the pages in the appeal record reveals notations of amendments to the Arana Hills District Development Plan from its inception to 17 October 1985 at pp 4-6. The second such amendment, noted on p 4, is the amendment of 26 May 1983 which excluded the subject (and other land) from the Arana Hills District Development Plan. [30] The exhibit comprises loose pages bound with black plastic spine of a familiar kind. It may well be the case that the page in the plan originally defining the Arana Hills District was replaced by a new page reflecting the amending Order in Council. -- 12 of 25 -- 13 There is support for this supposition to be found at section 4.02.5 of exhibit 58. This is speculation and was not the subject of evidence or submissions from counsel either below or before us. The amending map 1/1 referred to in the Order in Council which very likely would have solved the problem was not, it seems, produced. But this may explain the erroneous assumption made below that the subject land and Investigation Area were never included in the Arana Hills District Development Plan. There is no evidence about why the Investigation Area was excluded. That it was originally included means that the Plan needs closer scrutiny. [31] The Arana Hills District Development Plan was the first of a series of proposed town planning policy documents. These policy documents were conceived on three levels – a shire outline plan; district development plans which would consider in greater detail the development of particular areas in the shire, for example, with respect to the provision of schools and the design of district park systems; and locality plans to consider the detailed development of key localities within districts. The purpose of the Arana Hills District Development Plan as expressed at section 2.03 was to apply in detail the Outline Plan to the particular features of the District to which the Development Plan related. To that end each Plan was to propose a pattern of land use for that District showing “shops, parks, schools, community facilities, residential areas, industrial areas, important roads and any other significant features of the area,” exhibit 58, p.3. [32] The Plan identified the District as consisting of three suburbs - Ferny Hills, Arana Hills and Everton Hills. In setting out the history of the District it was noted that the growth in the 15 years prior to 1977 had been rapid. The Plan’s purpose was to propose a framework for development which was “conceived in terms of the existing District structure, but at the same time caters for the needs and -- 13 of 25 -- 14 opportunities of the future”. Dotted throughout the Plan are references to difficulties with water supply, for example at section 3.03.3 when speaking of the hilliness of the country “some of the district is judged to be too high to be supplied, economically, with water” and at section 4.01.3-3 together with sewerage problems, as a fetter upon the development of residential areas. [33] The Plan recognised that the character of the District for the future would be predominantly residential and contain shops, schools, sporting and other community facilities. At section 3.06.2 under the heading “Prospects and Policy for Growth” the following appears: “Perhaps the Council’s most important objective in moulding the future pattern of land use in the District, is to locate non-residential uses, which are an integral part of the District as a whole, in such a way they can effectively perform their allotted function, and yet cause a minimum of disturbance to the amenity of surrounding residential areas. This ideal is a central principle of the Arana Hills District Development Plan, and the policies which are contained in the following sections of this report are all conceived in the context of this ideal”. [34] Plans for rubbish tips for the District are set out at section 4.01.3-14: “A District rubbish tip will be located somewhere to the north or west of the residential areas of the District. As land is progressively filled by tipping, most will be converted to sporting fields. A bus depot may use some of the land. Much of the area will be left in its natural state, and will be available for informal recreation use.” There was no more particular reference to the location of the rubbish tip as was apparently confirmed by Mr Rea when giving evidence below. [35] The discussion on residential development at section 4.03 made particular reference to water supply and sewerage as affecting new residential development. The Plan discussed low density residential development and at section 4.03.10 (a) stated that rural residential development with a maximum residential site density of 0.5 per hectare would be permitted on land which could not be economically provided with -- 14 of 25 -- 15 water and sewerage services but which, in other respects, was suitable for residential use. Again, a more limited development was to be permitted where reticulated water could be provided to the land but the topography was such that it was not well suited to residential development. [36] The Plan dealt extensively with the proposals for a system of open space for sporting facilities, parks and general open space. It noted the lack of large tracts of flat land suitable for playing fields and also the need to locate District level playing fields adjacent to roads of at least sub-arterial standard. The Plan identified the location of District level playing fields in a number of areas including “District Rubbish Tip (as the site is filled, suitable areas will be converted into playing fields)”, at p 35. The possible development of trail bike riding was said to require further investigation but possible future areas for this activity included part of the Bunya and Samford State Forests “and the future district rubbish tip site”, at p 36. [37] A general reference to rubbish tips and their future development for recreational purposes is insufficient to sustain any relationship with the scheme of resumption involving the subject land so as to constitute a step in the process. The learned Member was correct to find that there was no underlying scheme to resume the subject land for rubbish depot purposes in 1978. Mr Allan made a great deal in his submissions to a response by Mr Rea in cross-examination to indicate that there had been, since 1978, an underlying scheme. Mr Rea said: “Well, my understanding of the documents is that they’ve never been indicated as being a Future Urban Zoning and quite rightly since 1978, since the first tip site went in there, that really put paid to any designation of Future Urban. And as a planner assessing an application I’d always have to look at that.” t/s 598 This response was made in the wider planning context rejecting the concept of “rolling development rights” advanced by the appellants’ experts of land moving -- 15 of 25 -- 16 through the progression of zoning changes from the Rural zone to the Future Urban zone which had occurred with land to the south; and of emphasising the unavailability of water and sewerage services. Mr Rea had made it clear in his report in response, exhibit 12, that even had the tip site not been in existence or in contemplation the subject land would not have been given an Urban designation. [38] The respondent included the subject land in the Pine Rivers West Rural Policy Plan 1980. Lots 1 and 2 on RP 164889 were identified as “garbage dump”. The two lots had been recently acquired for that purpose. The remaining Investigation Area was described as extensive grazing and contained no evidence that the respondent intended, even indirectly, to expand the James Drysdale Reserve facility. [39] In 1985 town water and sewerage headworks needs were reviewed and established. [40] Growth in the shire continued and demand for recreational areas was identified in the Pine Rivers West District Guidelines 1988 as follows: “(7) James Drysdale Reserve. Council owns 23.7 hectares of land at the corner of Bunya Road and the Jinker Track and has been operating this as a land fill reclamation area which ultimately will provide district playing fields for the residents in the surrounding area. The existing area of land is not adequate to fulfil long term needs for playing fields. The steepness of the land covered by the Guidelines for Development Pine Rivers West District and Arana Hills District in the general vicinity is such that other suitable sites are not available. To obtain additional land in the immediate vicinity of the existing facilities has considerable advantages in that the various sporting bodies will utilize the land more efficiently. The land immediately to the west of James Drysdale Reserve is suitable for use as a land fill reclamation site and after filling is completed for district playing field facilities. The land has been included in the “Rural” designation as this designation has been given to land which is constrained or where it is considered that a more appropriate use is possible in the future.” -- 16 of 25 -- 17 [41] In the 1988 Strategic Plan when referring to District Six which included the Investigation Area the authors referred at p. 117 to the then land fill waste disposal area as having approximately 10 years life left and that “The major district playing fields are located at James Drysdale Reserve where a total area of approximately 23.7 hectares has been acquired by Council for the purpose of a land fill waste disposal site. The Council has progressively filled the area and has constructed playing fields and other facilities since 1979. … Land adjacent to the existing reserve may be suitable for future expansion. The acquisition of the properties adjacent to the James Drysdale Reserve would ensure that adequate playing fields are provided for the year 2000 and simultaneously extend the life of land fill waste disposal facilities provided by the Shire past the year 2000.” Exhibit 70 The learned Member correctly, in our view, identified these planning documents as indicating an unambiguous intention to acquire the subject land in the future – perhaps as far ahead as 10 years. And by 1992 the Hills District Development Plan made clear that the Investigation Area designated for Special Purposes was to be preserved for rubbish depot and, ultimately, recreational purposes. As has been mentioned, the Chinn land was purchased in 1998 for future refuse purposes. [42] In 1995 the respondent identified shortages in the availability of bulk water for the shire. The water and sewerage headworks areas were reviewed and extended south of the Bunya Road ridge and into the boundaries of the original James Drysdale Reserve, to service the modest needs of the users of the Reserve. [43] A consideration of these important planning documents reveals that the learned Member correctly concluded that the scheme underlying the resumption of the subject land for the expansion of the existing rubbish depot facility commenced some time before the adoption of the 1988 Strategic Plan and not earlier and was not part of an earlier scheme, that is, the resumption in 1978 of RP 164889 for what -- 17 of 25 -- 18 became the James Drysdale Recreational Reserve. The discussions in Hutchins v The Council of the Shire of Woongarra (1992) 14 QLCR 286 at 290 and ff and Steven v The Commission of Water Resources (1990) 13 QLCR 75 at 82, support the learned Member’s analysis. The potential use to which the land could have been put but for the scheme of resumption [44] It is the appellants’ contention that irrespective of when the scheme of resumption was commenced the learned Member erred in concluding that there was no realistic prospect of obtaining the requisite approvals for Residential A development on the subject land. Broad issues of topography, which exercised the experts, required an estimate of the delivery of the vital urban services of water and sewerage if there was to be any prospect of approvals for residential development. So although there was extensive evidence about the development of residential allotments joining State forests and the difficulties of close settlement in terrain with steep slopes these issues do not need to be canvassed on appeal because they were not seen by the learned Member as fetters, in a planning sense, on the subject land. [45] As the learned Member noted at para 42 of his reasons, when the Integrated Planning Act 1997 came into effect the actual zoning of a parcel of land was less critical than hitherto when assessing the development potential of the land. Nonetheless, he accepted Mr Rea’s opinion that a person intent on obtaining approval for intensive residential development would not succeed unless “(a) It could be demonstrated that essential services could be made available without compromising the entire water supply network or the rights of other property owners within the existing headworks area (and that other similarly placed Rural zoned properties could also be developed) without compromising the provision of essential services. (b) It could be demonstrated that the development of the subject property and the other properties within the “enclave”, could occur -- 18 of 25 -- 19 without creating an unacceptable burden on surrounding land use or the future residents by way of traffic and general amenity issues, and (c) The development of the property could occur in an acceptable manner with due regard to issues related to slope, orientation, vegetation retention, bushfire management etc.” Exhibit 11, p.4. [46] Mr Rea quoted the 1988 Strategic Plan in his Response Report discussing service availability at section 4.07(a) of Part B “Council has planned to fully service the urban and industrial area with a reticulated water supply and sewerage system. The extent of the current water supply and sewerage system and planned expansion of the system is a constraint on some of the land depicted as Urban Area and Industrial Area shown on the Strategic Plan Map ………….. The area indicated as “priority urban area” has a considerable amount of the infrastructure required to service it already. Council will continue to expand the infrastructure required to service the “priority urban area” by use of loan, revenue and headworks funds. New developers will also construct some of the infrastructure required to service their own land and other land in the immediate vicinity. Areas outside the “priority urban area” are considered to be constrained as they will experience difficulties in the next five years or so in providing the water supply and sewerage infrastructure required because of the high costs involved in extending the services, that have to be designed to accommodate urban densities.” Exhibit 12, p.4 [47] Mr Rea noted that the subject land was outside the natural catchment area servicing the area south of Bunya Road and “… designating it as part of the Urban Area would have involved a water and sewerage reticulation system less economic and more technically problematic than that provided south of Bunya Road.” Exhibit 12, p. 4 He also noted that since there were other areas designated Urban Area available for development elsewhere in the shire, it was unlikely that an Urban designation would have been given to the subject land even had the tip not been in existence or contemplation. This evidence was accepted by the learned Member and the appellants have failed to show that he fell into error in doing so. [48] Both Mr Rea and Mr Vanderent considered the problems associated with the provision of bulk water recognised from 1995 as determinative of any application -- 19 of 25 -- 20 outcome and that it would have been negative. The appellants contend that this opinion was contradicted by the hydraulic engineers’ evidence that the topography of the land and its location as a separate catchment did not impede the provision of water and sewerage to the subject land. This body of evidence was not challenged and the learned Member concluded at para 50 of his reasons. “Leaving the question of commercial viability aside … there were no sound engineering or town planning reasons for refusing Residential A development of the land solely because it lay outside the sewerage catchment area.” [49] The learned Member observed that the cost of installing a pumping station and associated works and entering into appropriate infrastructure agreements with the shire was possible. It was not the infrastructure issue which caused the learned Member to conclude that relevant development approvals would not have been granted but the quite fundamental problem of the availability of bulk water to such an intensive development. Mr Rea’s and Mr Vanderent’s evidence about the availability of bulk water particularly from 1995 was not contested by the appellants’ witnesses and the cross-examination of Mr Vanderent, if anything, strengthened that evidence as reflected in his answer to Mr Allan: “We don’t have access to endless water just because we’re prepared to pay for it.” t/s656. [50] The learned Member said at para 53 of his reasons “The availability of town water is no doubt complicated by the events of 1995. The evidence of Messrs Rea and Vanderent, which I accept, points quite clearly to the respondent having to rethink its water strategies and policies, after learning in 1995 of the constraints on development within the shire imposed by the bulk water allocation to which the respondent was subject. As I understand it, the respondent and other local authorities have a bulk water allocation sourced from various dams including those at North Pine and Wivenhoe. According to Mr Vanderent the respondent is required to ensure that the future planning demands for the shire would not exceed the bulk water supply allocated to it by the relevant authority.” -- 20 of 25 -- 21 [51] Mr Allan contended that the issue of bulk water was merely an arbitrary requirement, not imposed legislatively and should have been largely ignored, or at least ignored for the purposes of compensation. As Mr Hughes SC pointed out, under the planning legislation then applicable, the provision of water and other essential services was a matter for consideration on an application to amend a planning scheme. And irrespective of any exact legislative basis, it would be astonishing if a planning authority could not have regard to the availability of water when considering an application for an intensive residential development which would require significant bulk water. [52] Mr Allan contended that the respondent had not discharged its evidentiary onus of proving to the requisite standard that there were limits on the availability of bulk water which applied to the subject land. The respondent raised the problem of bulk water allocation before the hearing in Mr Vanderent’s Response Report. It was for the appellants to demonstrate that it was unfounded. This the appellants did not do either by way of original evidence or as a result of the cross-examination of Mr Rea and/or Mr Vanderent. The assertion by the appellants that the limited bulk water concerns related only to the north of the shire and not to the south where the subject land was situated was never developed in the evidence. [53] The appellants particularly complain that but for the scheme (including one commencing in 1988) the subject and other land in the Investigation Area would have been zoned with a Future Urban or Urban designation. As a consequence, so the argument goes, it would be a priority infrastructure area and headworks would have been extended to accommodate the water supply and sewerage needs of anticipated Residential A development. The learned Member did not accept this argument which, in effect, contended for a “roll-on” effect from the designation of -- 21 of 25 -- 22 the Residential A development to the south of Bunya Road and other developed areas relatively near the Investigation Area. He accepted the evidence of Mr Rea and Mr Vanderent that irrespective of the scheme the respondent would not have been prepared to extend the water headworks to include the subject land which lay in a different and unserviced catchment. [54] In his report, Mr Vanderent responding to the hypothetical subdivision proposed by the appellants, described the respondent’s practice about the provision of water and sewerage supply. He noted that in its 1988 water supply and sewerage headworks plan the respondent included only the land south of Bunya Road opposite the Investigation Area in the provision of those services. The question of headworks was reviewed in 1995 and the plan was expanded to include the provision of services to the James Drysdale Recreational Reserve. That, of course, consumed very few resources. Mr Vanderent noted that in recent years the respondent had consistently refused all requests for expansion of the headworks area, exhibit 13. In his oral evidence, he explained that any relaxation from that position had occurred after the relevant date for the assessing of compensation - 9 May 2003. [55] In his Response Report, exhibit 14, Mr Vanderent discussed in closer detail the respondent’s approach to development applications outside the shire’s headworks area over Future Urban zoned land. From his analysis he concluded “From the above [particularly the analysis of the developments discussed by the learned Member at paras 57-60 of his reasons] it is clear that Council was not at the Relevant Date and is not presently considering any expansion of its water supply and sewerage system in the southern areas of the Shire. It is also clear that there are restrictions on considering development outside Council’s current Headworks Area. Those restrictions would, in this case, have removed any potential for use of the subject land for Residential A development.” Exhibit 14, p.6 -- 22 of 25 -- 23 Mr Vanderent further observed that among other considerations it was the bulk water concerns that precluded the subject land being included in the headworks boundary. [56] That there was no shortage of developable land in the shire without the difficulties of terrain of the subject land was a factor of some importance for Mr Vanderent in reaching his conclusion about the residential development designation of the subject land. The appellants at the hearing did not greatly challenge the respondent’s expert witnesses on this issue but sought to develop it on this appeal with little that was compelling to support it. That evidence related to particular developments including the Collins Road development discussed at para 57 by the learned Member. The evidence adduced at the hearing amply supported the learned Member’s conclusion that a prudent purchaser would not draw much comfort from what occurred on that land. [57] Another development advanced by Mr Ovenden for the appellants to demonstrate that the respondent would have been likely to grant development approval was what was described as the Fernlands Estate. That was a development which required the developer to install another water supply reservoir which allowed for the expansion of the water supply beyond the then limit of 120m AHD and up to the natural elevation of the Cabbage Tree Creek catchment in which that development land lay. The learned Member considered this development carefully but concluded, correctly, that its history and resolution were quite different from what was possible on the subject land. [58] The provision of town water to the James Drysdale Recreational Reserve was mentioned but was not thought to be in any way comparable to a Residential A development by Mr Ovenden. Other big residential developments at Mango -- 23 of 25 -- 24 Hill/North Lakes outside the headworks boundaries were considered but they had their own development control plan and could not be compared to the subject land. The development at Ira Buckby Road was also analysed but found to be so different, ultimately yielding only 1.2 lots per hectare, as to be no guide to a Residential A designation as sought by the appellants. [59] The net result was the conclusion by the learned Member that there was no reasonable likelihood that town water would have been available to facilitate Residential A development on the subject land any time prior to 1995 whether by way of infrastructure agreements or the extension of the water catchment boundary ignoring the scheme underlying the resumption. The appellants have not demonstrated that the learned Member’s conclusion drawn from an analysis of those developments where that occurred was wrong. [60] Mr Allan strenuously criticised in his submissions on appeal the acceptance by the learned Member of Mr Vanderent’s testimony on the basis that he was a partial witness advocate for the respondent. He based this on a failure to make specific reference to examples where relaxations of a policy requiring a 100 metre buffer to new sewerage pump stations in development layout had occurred. Mr Vanderent accepted that this occurred from time to time in cross-examination. There was nothing in any other aspect of his evidence or indeed in his position at the time as the Acting Manager of the Development Services of the respondent which should have caused the learned Member “to approach with circumspection the whole of the evidence of Mr Vanderent in respect of its probative value” as contended for by Mr Allan at para 230 of his submissions. -- 24 of 25 -- 25 [61] Because there is no challenge to the compensation figure based on a Park Residential development of the subject land arrived at by the learned Member it is unnecessary to consider how he reached it. [62] Both parties note that the learned Member did not deal with the issue of the “commerciality” of the proposed subdivision. In light of the learned Member’s analysis and conclusions it was unnecessary for him to do so. Had this appeal been successful then both parties sought the return of that question to the learned Member for his determination. However the appeal is not successful and it is unnecessary to consider that matter further. [63] There is no error to be discerned in the judgment below; no compelling evidence that the learned Member misused his advantage in seeing and hearing from the witnesses; and the analysis of the evidence otherwise reveals no error on the part of the learned Member. In other words, no error of fact or law has been identified such as would cause this court to reach a different conclusion from that reached by the learned Member. [64] The appeal is dismissed. Order The appeal is dismissed. WHITE J JUSTICE OF THE SUPREME COURT RP SCOTT MEMBER OF THE LAND COURT CAC MacDONALD MEMBER OF THE LAND COURT -- 25 of 25 --