Atkin v Redland Shire Council [2004] QLC 62 (2004) 25 QLCR 196

LAND COURT OF QUEENSLAND CITATION: Atkin v Redland Shire Council [2004] QLC 62 PARTIES: Michael Rufus Atkin (applicant) v. Redland Shire Council (respondent) FILE NO: A2002/0845 DIVISION: Land Court of Queensland PROCEEDING: Determination of compensation payable consequent upon the resumption by the Redland Shire Council under the provisions of the Acquisition of Land Act 1967 for drainage purposes of Lot 965 on RP 122553, County of Stanley, Parish of Russell containing 721 square metres. DELIVERED ON: 23 July 2004 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER Mrs CAC MacDonald ORDER: 1. Compensation is determined in the sum of $80,298.79. 2. The respondent is ordered to pay interest at the rate of 5.5% per annum to the claimant on the amount of $59,500 for the period commencing 19 July 2002 up to and including 9 January 2003, then on the amount of $49,500 from 10 January 2003 up to and including the day immediately preceding the date that amount is paid by the respondent to the claimant. 3. The respondent is also ordered to pay to the claimant interest at the rate of 5.5% per annum on each of the disturbance items for the periods commencing on the dates, to be proved by the claimant, on which the claimant paid such amounts, up to and including the day immediately preceding the -- 1 of 29 -- 2 date that the respondent pays these amounts to the claimant. CATCHWORDS: Resumption – Valuation – Highest and best use – Dwelling site or amalgamation with adjoining land or drainage reserve – Considerations in assessing use – Characteristics of land as well as restrictions – Impact of town plan, flooding, fill, drainage and environmental (water quality). Resumption – Town planning – Considerations in approval to construct dwelling on resumed land – Restrictions in town plan (transitional) – IPA would apply – Conditions likely to be imposed – Flood levels, drainage, effluent disposal. Resumption – Town planning – Interpretation of various provisions of town plan – Need to construe plan as a whole. Resumption – Compensation – Disturbance – Professional fees – Need to be reasonable – Counsels fees allowed in preparation of claim – solicitors fees, appropriate method of charging – valuers fees, charges of a supporting valuer disallowed. APPEARANCES: Mr RM Needham for the claimant Mr S Ure for the respondent SOLICITORS: McLaughlins for the claimant Pereira and Co for the respondent [1] The claimant seeks a determination of the compensation payable consequent on the resumption by the Redland Shire Council, under the provisions of the Acquisition of Land Act 1967 (the Act), of land owned by the claimant. The resumed land comprised the whole of Lot 965 on RP 122553 in the County of Stanley, Parish of Russell with an area of 721 square metres. The land was resumed for drainage purposes on 19 July 2002. The Notice of Intention to Resume the property, which was dated 6 April 2001, stated that the land was “required to provide an outlet for stormwater runoff from Highland Ridge Road and Wahine Drive when they are constructed in the future”. [2] The claim, as amended, was for Value of land $ 75,000.00 Disturbance $ 26,331.79 $101,331.79 [3] The respondent contended that the value of the resumed land was $10,000 and paid that amount as an advance on 10 January 2003. -- 2 of 29 -- 3 [4] At the hearing, the claimant was represented by Mr RM Needham of Counsel and the respondent by Mr S Ure of Counsel. [5] The following witnesses gave evidence on behalf of the claimant: Mr GL Vann, a town planner, of Buckley Vann. Mr BJ Paddison, a registered engineering Associate. Mr MI Harris, a registered valuer, of Herriots Pty Ltd, Valuers. Mr IG Herriot, a registered valuer of Herriots Pty Ltd. Mr IR Kennedy, a solicitor, of McLaughlins, Solicitors. [6] Two witnesses gave evidence on behalf of the respondent: Mr BA Hall, a certified valuer, of Brian Hall and Associates Pty Ltd . Mr WH Traves, a principal engineer of Gutteridge Haskins and Davey Pty Ltd. The Land [7] The resumed land is situated at 83 Wahine Drive, Russell Island which is located in southern Moreton Bay, to the east of the City of Brisbane. The land is on the eastern side of Russell Island with water frontage to Canaipa Passage which runs between Russell Island and North Stradbroke Island to the east. The land faces east, looking out over the Passage to North Stradbroke Island. It adjoins a small beach but has immediate access to relatively deep water mooring. The evidence was that that land along that part Wahine Drive is one of the few sections of Russell Island that provides good deep water access and allows the construction of a useable jetty. [8] The land is roughly rectangular in shape falling sharply for about 1.5 metres from the road and then sloping gently to the water frontage. At the time of resumption, the land was affected by stormwater runoff, but as stormwater drainage matters are a major issue in this matter, a more detailed discussion of this aspect is deferred until later in this decision. [9] The land is also affected by the tides in Canaipa Passage. The evidence was that approximately the lower third of the property lies below the 2.4 m AHD level. [10] The property has an 18 metre frontage to Wahine Drive which is a two lane suburban road constructed of reinforced concrete along this section. The road is kerbed and channelled on the western side, opposite the property. Wahine Drive runs parallel to the water front in this area. Most of the lots in the area are suitable for building and the surrounding land use consists of single detached residential buildings and vacant residential lots. [11] Electricity, town water and telephone services are available to be connected to the property. There are some local shopping facilities and primary schooling is available on -- 3 of 29 -- 4 the island. The island has water taxi and vehicular ferry connections to other Moreton Bay Islands and to Redland Bay, on the mainland. [12] At the time of resumption the site had largely been cleared of trees with the exception of some small trees in the south-eastern corner. It was covered with a mixture of grasses and ground cover. It was otherwise unimproved. The respondent Council had constructed a drain which ran from an inlet on the other side of Wahine Drive under the road and discharged just south of the middle of the western boundary of the site. [13] The major issue between the parties concerned the highest and best use of the land as at the date of resumption. The claimant submitted that the highest and best use was for a single residential dwelling, and on that basis the value of the land at the relevant date was $75,000. The respondent contended that the land would be subject to overland flooding in a Q100 event and, therefore, that the construction of a dwelling on the site would not have been approved by the respondent Council. On that premise, the respondent submitted that the highest and best use of the land was amalgamation with an adjoining block for use as additional yard and garden area, or ownership by the respondent Council for drainage reserve purposes, and that the land should be valued at $10,000. Legal Principles [14] Section 20 of the Acquisition of Land Act provides that: “Assessment of compensation (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. (3) In assessing the compensation to be paid, there shall be taken into consideration, by way of set-off or abatement, any enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom by the carrying out of the works or purpose for which the land is taken. (4) But in no case shall subsection (3) operate so as to require any payment to be made by the claimant in consideration of such enhancement of value.” -- 4 of 29 -- 5 [15] It is well settled that it is the market value of the estate or interest of the claimant in the land taken which is to be determined, in accordance with the principles set out in Spencer v The Commonwealth of Australia (1907) 5 CLR 418 where, for example, Griffith CJ said (at 432): “In my judgment the test of value of land is to be determined, not by inquiring what price a man desiring to sell could actually have obtained for it on a given day, i.e., whether there was in fact on that day a willing buyer, but by inquiring ‘What would a man desiring to buy the land have had to pay for it on that day to a vendor willing to sell it for a fair price but not desirous to sell?’ [16] In Stubberfield v Valuer General (1988-89) 12 QLCR 328 Carter J said at 331: “It is also a well recognised principle that land be valued for its highest and best use. What it can best be used for will be reflected in its true market value which takes account of any detriment the land possesses relevant to its use as well as any potential it has for its present or other use. Again the relationship between value and land use is immediately apparent. The hypothetical purchaser and vendor referred to by the High Court in Spencer will therefore take full account of the inherent characteristics of the land as well as the restrictions or otherwise upon its present or future use when deciding what sum of money the one will pay to the other to acquire it.” [17] The value of the land is to be determined as at the date of resumption and by reference to the state of the land as at that date but leaving aside any enhancement or depreciation in value resulting from the scheme of which the resumption forms an integral part (Melwood Units Pty Ltd v Commissioner of Main Roads [1979] 1 All ER 161 at 165). Town Planning Provisions [18] The subject land is located within a Residential A designated area in the Town Planning Scheme for the Shire of Redland. That Scheme came into operation in 1988 and is a transitional planning scheme under the relevant provisions of the Integrated Planning Act 1997 (IPA). [19] The site is situated in the Urban Residential Dominant Land Area within the Strategic Plan which forms part of the Town Planning Scheme. The Strategic Plan provides direction for the overall development of the Shire (cl.1.2). The intent for the Urban Residential Dominant Land Area is, in part, that it indicates generally the location of areas which are to accommodate the bulk of urban residential development within the Shire, principally single detached dwellings (cl.4.2.1). However, the development potential of particular parcels of land may be affected by the considerations set out in cl.4.1 which provides that the actual development capacity of designated areas is subject to the constraints imposed by the environmental features of the land as described in cl.5.0 -- 5 of 29 -- 6 of the Plan, and by other considerations including currently less-well documented physical conditions such as flooding, soil conditions and topography and the application of development requirements, policies and conditions in relation to infrastructure and services, access, open spaced drainage and like matters. [20] Clause 3 of the Strategic Plan deals with environmental matters. Clause 3.1.1 details an Environmental Protection Strategy which, inter alia, seeks to conserve the water quality and ecological functioning of Moreton Bay and coastal areas by  implementing “best practice” stormwater management techniques (including the use of natural vegetative drainage corridors and use of permeable surfaces); and  undertaking a comprehensive planning study of the southern Moreton Bay Islands to determine future development potential commensurate with maintaining appropriate water quality and ecological functioning of Moreton Bay. [21] Restrictions on development within zones are imposed in Part II, Division 3, s.3 of the Town Planning Scheme. Clause 3(2) provides that “the purposes for which any building or other structure may be erected or used or for which land may be used without the consent of the Council subject to conditions in each zone shall be the purpose set forth in Column III(b) of the Table of Zones herein opposite the name of the relevant Zone under the heading ‘Purposes for which buildings or other structures may be erected or used or for which land may be used subject to the applicant receiving notification of the approval pursuant to the administrative requirements of the planning scheme’.” [22] Column 111(a) in the table of zones for Residential A land sets out the purposes for which buildings or other structures may be erected or used or for which land may be used without the consent of the Council. The only uses available for the subject land under this Column are Home based activity or Parks. [23] The heading of Column III(b) sets out the “Purposes for which buildings or other structures may be erected or used or for which land may be used subject to the applicant receiving notification of the approval pursuant to the administrative requirements of the town planning scheme. Column III(b) provides that land on Russell Island designated Residential A [which includes the subject land] may be used for dwelling houses. [24] I consider that the heading to Column III(b) must be read in the light of the express words in cl.3(2) which make it clear that the landowner has a right to use the land for (in this case) construction of a dwelling house without the consent of Council, but subject to any conditions imposed by Council. [25] Clauses 5 and 6 of Chapter 30 of the Town Plan provide that when an application is made for development approval subject to conditions, the Council may approve the application subject to reasonable and relevant conditions relating to certain specified matters -- 6 of 29 -- 7 including compliance with the Council’s by-laws, the Town Planning Scheme including the Strategic Plan and any Development Control Plans. [26] The result of the discussion to date is that the land could be used for construction of a dwelling house subject to the imposition of conditions by Council. In addition, cl.11A of part IV of the Planning Scheme contains performance standards for development on Moreton Bay Islands including Russell Island. Clause 11A(1) provides that: “No person shall without the written approval of Council construct or commence to construct a dwelling house, extension or alteration to existing structures, domestic out building, alter surface levels (cut and fill), retaining wall or domestic effluent disposal system on any land, on any Island being one of the Moreton Bay Islands. Any application for approval to permit the construction of a dwelling house, extension or alteration to existing structures, domestic out building, alter surface levels (cut and fill), retaining wall or domestic effluent disposal system shall be determined having regard to criteria as follows: (a) Construction shall not be allowed on land which is below the 100 ARI (Average Recurrent Interval) flood level. Accordingly, the applicant shall provide information in accordance with the requirements of Council’s “Interim Design standards for Development”, prepared by a suitably qualified person, detailing the following: (i) A plan of the subject land and adjacent allotments showing:  Survey contours at 250 mm intervals to Australian Height Datum;  The location of the 100 year ARI flood level including where applicable, the mean high water spring tide level and the highest astronomical tide level. (ii) The effect of any proposed alterations to surface levels being existing levels above the 100 year ARI flood level on both the subject land and surrounding allotments. (b) For dwelling houses on allotments under 600 sqm in area, the applicant shall comply with the provisions of Council’s “Residential Code for Small Allotment Detached Housing”. (c) Where construction requires the disposal on site, of septic and/or sullage effluent, the applicant shall comply with the provisions of Council’s “Household Wastewater Treatment/Disposal Policy”. (d) Minimum floor levels are required to be identified so that no buildings shall be erected with a floor level less than 300mm above the 100 year ARI flood level provided that no building will be erected with a floor level of less than 2.7 metres A.H.D., and the ground level below such floor level shall not be less than 2.4 metres A.H.D. (e) Any proposed development shall have all weather vehicular access. All weather vehicular access means access to the subject lands by a -- 7 of 29 -- 8 road of sufficient standard (in terms of surface, gradient and structural capacity), to allow all weather access by a conventional two wheel drive vehicle and which in turns connects to an existing bitumen sealed road. (f) Notwithstanding any of the above, no filling applications shall be accepted for any Moreton Bay Island allotment unless submitted as part of a building application, notification of development approval or consent application.” [27] In my opinion the Planning Scheme is to be read as a whole so that cl.11A(1) is to be read in conjunction with cl.3(a) and Column III(b) and cl.4.1 of the Strategic Plan. The result is that the landowner’s right to construct a dwelling house pursuant to Column III(b) is further constrained by the prohibitions and limitations in cl.11A(1). [28] As noted above, the 1988 Redland Shire Town Planning Scheme is a transitional planning scheme under IPA. The result is that, if an application for development approval were assumed to have been made on the date of resumption, the application must have been made under IPA (s.6.1.28(1)), and it would have been processed as if it were a development application requiring code assessment (s.6.1.28(3)(a)). Section 6.1.30(4)(a) provides that if a development application is made for development that under a transitional planning scheme requires an application for the setting of conditions, the assessment manager may not refuse the application. However, I do not consider that s.6.1.30(4)(a) has the effect that the owner of the subject property had an unrestricted right to construct a house there as at the date of resumption. The rights of the landowner are to be determined by construing the Town Planning Scheme as a whole. If it is concluded that the owner has a right to construct then the assessment manager cannot refuse an application, but may only impose conditions. If the landowner has no right to construct, because for example, of the prohibitions in cl.11A(1)(a), then the development application will be refused. [29] Because approximately the lower third of the subject property lies below the 2.4 m AHD level any construction must comply with cl.11A(1)(d) – that is no building may be erected with a floor level of less than 2.7 m AHD and the ground level below such floor level is to be not less than 2.4 m AHD. [30] Clause 11A(1) raises three other potential difficulties for the owner seeking to gain approval for the construction of a dwelling house on the subject land. They are:  whether the property is so affected by stormwater runoff that it might be regarded as land which is below the 100 ARI level so that construction is not allowed  whether any problems with the need to fill the land may be resolved -- 8 of 29 -- 9  the disposal of effluent on site. [31] The land is also located within Development Control Plan 1 (DCP 1). The intent of the DCP 1 for the Residential A area is primarily to cater for dwelling houses. Division 3 of DCP 1 provides in para 8(2) that if, in the opinion of Council, land is found to be subject to drainage problems such area shall, at the discretion of Council, be either filled or excluded from development. Para (h) provides, in part, that an application for consent to erect a building for residential purposes will not be considered favourably if, in the opinion of Council, such building would be detrimental to the amenity or likely future amenity of an area. Mr Vann’s opinion was that the terms of DCP 1 do not change the level of assessment for a dwelling house for the subject site. [32] In May 2002 a Statement of Proposals for a Southern Moreton Bay Islands Local Area Plan was publicly notified. The subject land is located within a proposed Special Protection Zone in the Statement. The intent for the zone is that areas within the zone will be maintained for habitat conservation purposes. Much of the land within the zone is stated to be subject to drainage constraints which preclude urban development. Lots within the zone are located within the High or Very High Conservation priority areas and there is a provision that existing vacant residential lots within the zone will be acquired by Council so that they may be preserved in their natural state. [33] The site is also identified in the Conservation Acquisition Strategy for Russell Island as: - Drainage Problem Category DP1, DP3 and DP6; - Conservation Acquisition – Very High and High Conservation [34] Mr Vann said that the Statement of Proposals suggested that the land surrounding the site was to be used for residential purposes and did not identify that surrounding land as generally having drainage problems or being required for acquisition. He also said that the Statement of Proposals identified a number of strategies for the islands and suggested that areas of Very High and High conservation priority be rezoned to preclude development. This appeared to flow from a strategy related to water quality which stated that “Vegetation along drainage lines provides natural treatment of runoff, and will be protected through inclusion in the high or very high conservation priority areas or as open space corridors”. [35] Mr Vann also said that the Statement of Proposals identified the need to acquire the subject land for local stormwater drainage purposes. His understanding was that the way in which the Statement of Proposals dealt with the subject land formed part of the scheme adopted by the Council for the management of stormwater flows in that part of Russell Island, and that the resumption also formed part of that Scheme. -- 9 of 29 -- 10 [36] As stated above, a major issue in the case was whether the subject land is below the 100 year ARI (or Q100) flood level. It is necessary, therefore, to turn to the evidence concerning the 100 ARI flood level. Stormwater Flow [37] The subject land is affected by stormwater flow from time to time. The causes, extent and depth of the flow were in issue between the parties. [38] The evidence established that stormwater accumulates in a catchment area of approximately 1.9 hectares flowing from a ridge to the west of the subject land. That water flows down a gully through Lots 925 and 928 also to the west of the subject land. In a less intense event, the water is carried through a reinforced concrete pipe under Wahine Drive and discharges onto Lot 965, the subject land. In a more intense event, the water also spills over the top of Wahine Drive and runs on to the subject land. [39] In Plan No 2 of his report Mr Paddison showed the catchment area contributing to the flow onto the subject land together with the calculations for Q2, Q10 and Q100 flows. He determined that the flow at a point towards the north-east corner of the subject land in a Q100 event was 1.28 m³/sec. [40] Counsel for the claimant contended that the land in its natural state was either not affected or affected in only a minor way by the stormwater runoff from Lots 925 and 928. He submitted that two separate activities had caused the concentration of water onto the claimant’s land. [41] An affidavit sworn by Mr Thomas Daunt, a retired Earthmover and General Contractor, said that in 1984 he had been approached by the then owners of Lot 964 (which adjoins Lot 965 to the south) and Lot 963 (which adjoins Lot 964 to the south) to remedy the problem of flooding on their land caused by the watercourse overflowing during periods of heavy rainfall. The solution was that he excavated a new drainage channel down the southern boundary of Lot 965 which diverted the water flow coming from the uphill side of Wahine Drive. Mr Daunt said that he also replaced an existing log crossing across Wahine Drive with a 450 diameter concrete pipe. To the best of his recollection, the old natural stormwater path followed a line under Wahine Drive in the approximate position of the concrete pipe and then followed a line south eastwards across the south-western corner of Lot 965 onto Lot 964 and then continued in a south easterly direction across Lot 964 and Lot 963 into Moreton Bay. Mr T Daunt’s evidence was supported by an affidavit sworn by Mr John Daunt who had assisted in the relocation of the stormwater channel. [42] The second activity was the reconstruction of Wahine Drive which took place in 2000/2001. Mr Paddison said that the reconstruction of Wahine Drive had altered the -- 10 of 29 -- 11 water flow again. A contour plan drawn by a Mr P Caddey, a licensed surveyor, in 1995, indicated that the low point in Wahine Drive was somewhere in the vicinity of the northern boundary of Lot 965. Mr Paddison said that this information was confirmed by the road construction plans prepared by engineers Bornhorst and Ward which showed the low point of the road prior to the reconstruction to be approximately two metres south of the boundary between Lots 965 and Lot 966 (which adjoins Lot 965 to the north). Mr Paddison also said that he knew that prior to the road reconstruction, there was a channel on the western side of Wahine Drive which diverted the overflow from the RC pipe in a northerly direction. Mr Paddison concluded from this that in 1995 the stormwater which was in excess of the capacity of the pipe under Wahine Drive would flow over the road somewhere opposite the common boundary of Lots 965 and 966. He was unable to say with any certainty how wide the flow would have been because that depended on a number of factors including how steeply Wahine Drive rose towards the north which he did not have any information about. [43] The Bornhorst and Ward plans showed that, after the reconstruction, the new low point on the western side of Wahine Drive was moved some 8.1 metres south to approximately opposite the middle of Lot 965. The low point on the eastern side of the road lies some 9 metres to the north of the low point of the western side of the road. The road drainage is collected in a sag gully trap at that point. Minor storm runoff from the upstream catchment is collected in a field inlet, and piped to the gully pit and then piped via a new 450 diameter RC pipe under the road to an outlet in Lot 965 for overland flow across the lot. The new pipe outlet is now almost at the centre of Lot 965 whereas the previous outlet was close to the southern boundary. Photographic evidence indicated that a shallow curved channel directs the water flow exiting the pipe towards the northern boundary. A mountable kerb on the downhill side of Wahine Drive finishes at a point opposite the northern boundary of Lot 965. Mr Paddison considered that the intent of that design was to concentrate any overflow of the road onto Lot 965. [44] Prior to the reconstruction, Mr Paddison said, the 450 diameter pipe [which, according to Mr T Daunt is in the approximate position of the one he had laid] would have been capable of catering for a flow of some .35m³/sec which is somewhat less than the calculated Q2 flow. The effect of the reconstruction of Wahine Drive was that the new 450 diameter pipe would carry a flow of some .45 m³/sec, with the balance of a Q100 flow overflowing the road in a north easterly direction towards the common boundary of Lots 965 and 966. The existence of the mountable kerb confined the Q100 flow initially to Lot 965 but the water flowed onto Lot 966 across approximately the middle third of the -- 11 of 29 -- 12 common boundary. Mr Paddison said that if the mountable kerb were removed the overflow would flow over the bank almost equally across Lots 965 and 966, that is in approximately the same location as before the road works. [45] Mr Paddison said that Wahine Drive could have been constructed with the low point over the existing culvert and in line with the existing inlet upstream of the road. This would have confined the flow on Lot 965 to just inside the southern boundary of the lot instead of along the northern boundary. [46] Counsel for the respondent submitted, relying principally on the evidence of Mr Traves, that the subject land would be largely inundated in a Q100 event with the result that a prudent purchaser would consider that any application to the Council for approval to construct a dwelling house as at the date of resumption would not succeed because of the provisions of cl.11A(1) of the Planning Scheme. [47] Mr Traves said that he had estimated the flow in a Q100 event to be 1.2 m²/sec using the same methodology that Mr Paddison used. This estimate assumed a Q100 rainfall intensity of 200 mm per hour and a time of concentration of 11.3 minutes, being the time that water would take to travel from the top of the catchment to Mr Atkin’s property. [48] In 1997-98 the company for which Mr Traves worked (GHD Pty Ltd) had prepared a one dimensional model using ‘HEC-RAS’ to determine the extent of flooding for a 100 year ARI flood event for the catchment that includes Lot 965. The model was based on photogrammetric contours provided by Redland Shire Council which were based on aerial photography undertaken in the mid-90s. The model assumed a 100 year ARI flow at the upstream boundary and a tailwater condition equivalent to a mean high water spring tide of 1.0 m AHD. The results indicated that the area of land above the design storm surge level and the Q100 flood level was less than that required to construct a dwelling on the allotment. [49] Mr Traves said that subsequently GHD Pty Ltd had completed another surface flood model using a two-dimensional modelling program, Delft FLS. The model was designed to simulate the dynamic behaviour of overland flow over initially dry land, as well as flooding and drying on all kinds of geometry. The model was used by GHD to simulate flood conditions in the catchment’s estimated “original” condition and in its current condition. The same flows were used for both sets of conditions. [50] In his report, Mr Traves said that the original condition represented an estimate of the catchment extent and flow paths prior to the construction of any roads or services in the area. A digital elevation model (DEM) of the study area was generated by using a ground survey provided by the Redland Shire Council and, where necessary, the Council’s digital -- 12 of 29 -- 13 contours. The “original” contours were estimated based on the general landforms in the area, and included a degree of subjective interpretation of the data. The model was run using a Mean High Water Spring (MHWS) tide level and a suitable Manning’s roughness distribution was applied based on aerial photography. [51] To model the current condition, the original condition model used a modified DEM based on a current survey. The model was also altered to vary the Manning’s roughness distribution to incorporate Wahine Drive as reconstructed. For this model, flow through the culvert was not included because the software was not capable of modelling that aspect. Mr Traves said that the impact of not including this flow was insignificant because about 75% of the flow would occur across Wahine Drive. In addition, the field inlet upstream of Wahine Drive would tend to restrict inflow to the culvert as it was likely that the grate would be blocked by debris in a Q100 event. The model also did not take into account the effect of the bund constructed by the Council on the land. [52] Mr Traves concluded that for both the original and current conditions, the whole of the subject land would be under water in a Q100 event, generally at a depth of .02 metres or more. The flow spread out at relatively shallow depth across a broad area before discharging into Canaipa Passage. Using the Delft FLS model, the affected area was larger than the area determined using one-dimensional methods because the wide sheet Q100 flow was generally two-dimensional in nature and was better indicated by the two- dimensional model. The results also indicated that the construction of Wahine Drive had not had a significant impact on the extent of flood inundation across the subject land because the grade of the constructed road was very similar to that of the natural terrain and the Q100 flow path in the vicinity of the road had not been altered significantly. [53] The information in Mr Traves’ report was explained and amplified by his oral evidence. He agreed that his “original” condition model did not model the water flow prior to any human interference. Figure 3 in his report represented the water flow prior to the construction of the existing road but after the construction of the previous gravel road. Figure 4 represented the current condition, that is after the reconstruction of the road in 2000/2001. Exhibit 9B (which replaced Figure 4) represented a recalculation to take into account extra levels taken by Mr Paddison. This new input indicated that the flow across Lot 965 was further to the north, but Mr Traves said the overall inundation on Lot 965 was unchanged. The deeper water (represented in yellow on Figures 3 and 4 and Exhibit 9B) towards the centre of the lot was caused by a very low ridge in the lot. Neither Figure 3 nor Exhibit 9B took into account the effect of the construction of the house on Lot 964 (to the south of the subject). Mr Traves considered that if that were taken into -- 13 of 29 -- 14 account there would be an increase in the depth of the flooding on Lot 965 and the flooding on Lot 966 would probably extend further to the north. It also appears that neither model made provision for the effects of the Daunts’ work. In particular the model of the “original” condition was based on the contours as they were after that work was carried out. [54] There was also a difference of opinion between the engineers as to the capacity of the concrete pipe under Wahine Drive to carry water in a Q100 event. Mr Traves’ model ignored any flow through the pipe because, Mr Traves said, the model was not designed to include such a calculation and in any event, he considered that the pipe would be completely blocked by debris in a Q100 event. Mr Paddison said that the Redland Shire Council’s design standards for developments require that the effects of a 50% blockage in culverts and catchments be considered in overland flow calculations. Mr Traves said that was appropriate for a side entry pit but not a field inlet such as that on Wahine Drive because there was no provision in the field entry pit to enable larger items to pass through the grated cover. [55] Despite these differences, there is not a great deal of disagreement between the engineers as to the depth of flow across the road in a Q100 event. Mr Paddison calculated it to be 81 mm rising to 88 mm on the eastern side of the road. Mr Traves’ model indicated a depth of 80 mm. The major difference is as to the spread of the flow, as discussed above. Conclusions as to Impact of Stormwater Flow [56] I have accepted Mr Traves’ evidence concerning the extent of the inundation of the subject land as at the date of resumption, namely that the whole of the subject land would be under water in a Q100 event, generally at a depth of .02 metres or more. Council for the claimant questioned Mr Traves as to whether an average depth of 20 mm was sufficient to cause the land to be considered to be below the 100 ARI flood level within the meaning of cl.11A(1)(a) of the Redland Shire Town Planning Scheme. Mr Traves’ opinion was that this constituted a sufficient depth, and, in the absence of any other evidence, I have accepted Mr Traves’ opinion. [57] I consider that the two dimensional modelling programme, which took into account the effects of back flow adopted by Mr Traves would more accurately reflect the extent of the inundation of the land than the calculations undertaken by Mr Paddison. Although Mr Paddison had undertaken more detailed site measurements than Mr Traves, Mr Traves undertook further calculations to take into account the detailed measurements made by Mr Paddison (Exhibit 9B). Mr Paddison used a one dimensional model with various cross sections, which did not take into account the effect of the terrain in the way that Mr -- 14 of 29 -- 15 Traves’ model did. This would affect, in particular, the calculations relating to the speed of water overflowing the road once the pipe under Wahine Drive failed to dispose of the flow effectively. I accept Mr Traves’ opinion that the build-up of water in the gutter on the western side of the road would create a significant backwater in a Q100 event which would tend to push the flow further south than suggested by Mr Paddison, and disperse the water more broadly across the subject land. Highest and Best Use [58] The claimant’s case was presented on the basis that the question of whether the Redland Shire Council would have approved construction of a dwelling house on the subject land was initially dependent on whether and to what extent the land in its natural state was affected by floodwater in a Q100 event. Counsel for the respondent submitted that irrespective of any human interference with the subject land, such as the work said to have been carried out by Mr Daunt, the land in its natural state would be inundated by a Q100 flow. [59] For the purposes of determining the compensation payable under the Act, the value of the land as at the date of resumption is to be determined. That value will in part be related to the state of the land as at that date. However, it appears from the evidence that in deciding whether land is below the 100 ARI flood level within the meaning of cl.11A(1)(a) of the Planning Scheme, the Redland Shire Council assumes the land to be in its natural state, rather than its state as at the time of the application for development approval. Thus in a Briefing Note by the Council’s General Manager, Planning and Policy, (Mr Hennessey), to the Chief Executive Officer dated 24 May 2002 (Exhibit 18 at p.2), Mr Hennessey said that “Council’s process assumes that it can accurately determine the original land form and that minor changes to the Q100 line cannot be made, even though the artificial “low impact” road system has obviously caused some impact to natural flows”. Similarly, in a report from the Council’s Property Services Manager to the Manager, Corporate Asset Management dated 5 November 2001 (Exhibit 34), which dealt with the resumption of another property on Wahine Drive, there is a statement on p.1 of the Executive Summary attached to the Report that “… in this particular case, it has been brought to Council’s attention that the Q100 running over this lot is not entirely natural. Detailed survey and investigation has revealed that the natural flow path before road and house construction in the area could well have been approximately 20 m to the north. In this particular case, it would be reasonable to compensate the owner on the basis that a house could be built.”. -- 15 of 29 -- 16 [60] There is nothing in the Planning Scheme to indicate whether the question of the inundation of land in a Q100 event is to be determined at the date of a development application or with regard to the natural state of the land. I consider that, as a matter of construction, either interpretation is possible. The evidence indicated that the Council determines the effects of a Q100 event by reference to land in its natural state. Since that is an interpretation which is open to the Council, I consider that it should be assumed that the Council would apply its policy consistently and that this interpretation should be applied in this matter. [61] There are difficulties in determining the natural flow of the water. Apart from the Daunts’ work, which is discussed further below, other artificial constructions contributed to the flow of water onto the subject land as at the date of resumption. For example, the road system in the general vicinity of the land has the effect, as demonstrated in Mr Paddison’s Plan No. 1, that additional water is channelled onto the subject land. Overflow from a tank on Lot 964 (to the south of the subject land) was also directed onto the subject land, thus increasing the flow of water on that land. [62] The map attached to Mr T Daunt’s affidavit indicated that the channel originally crossed the south-west corner of the subject lot and swung across Lot 964 to the south-east. That was confirmed by Mr Paddison’s evidence and, to some extent, by the contours on the survey carried out by the Redland Shire Council in March 1998, in that the gully to the west of Wahine Drive on Lots 926 and 928 is heading in a south easterly direction. However the survey did not indicate the natural contour line to the east of Wahine Drive because it represented the situation after Mr Daunt diverted the water flow. [63] There was evidence that the land in its natural state would have been inundated in a Q100 event. Mr Hennessey’s report (Exhibit 18) said that “Council staff have undertaken numerous detailed assessments of Mr Atkin’s proposed resumption and have concluded that Mr Atkin’s land is, and probably always has been severely impacted by the Q100 line, and that housing development was not possible.”. Mr Hennessey’s report does not set out in any detail his reasons for coming to that conclusion. [64] Mr Traves said that in his opinion if a Q100 event were assumed to have occurred prior to the Daunts’ earthworks a very significant overflow would have occurred from the channel in the vicinity of the boundaries of Lots 964 and 965 and that overflow would have covered most if not all of Lot 965 with the possible exception of a small area on the north-western corner. This was because general engineering practice suggested that a natural channel would rarely carry much more than a five year event without overflowing its banks. In addition, because there would be a significant change in longitudinal grade -- 16 of 29 -- 17 where the channel turned across the south-western corner of Lot 965, the principal point of overflow would be near the corner of Lot 965. [65] The evidence of the Daunts together with Mr Paddison’s evidence and the 1998 contour survey has established that the flow of the water was diverted onto the subject land as a result of the Daunts’ work. Mr Traves’ opinion was based on general engineering practice and the change in longitudinal gauge where the channel turned across the south- western corner of Lot 965. However, there was no evidence as to the capacity of the original channel, prior to the Daunts’ construction. On balance, therefore, I do not consider that the evidence established that the subject land would have been extensively inundated in a Q100 event prior to the Daunts’ work. Construction of Dwelling [66] Mr Paddison presented various plans to demonstrate that a house could have been constructed on the subject land as at the date of resumption. One plan (No. 4) assumed that all the stormwater flow was contained within Lot 965. It allowed for the construction of an open ground V Channel 6 metres wide along the northern boundary of Lot 965, with an extension of the piped flow directed to flow into this channel. It would be necessary to excavate approximately 35 cubic metres of soil to construct such a channel. The claimant submitted that the prohibition in cl.11A(1)(a) against construction below the Q100 line extended only to dwelling houses and did not apply to drainage works. Mr Paddison said that a two bedroom house of some 120 square metres on each of two levels could be constructed on the site with a part of the building platform and some of the area between the platform and the road to be used for waste treatment. [67] Alternatively, another plan (No. 6) assumed that part of the mountable kerb on the eastern side of the road was removed. The overflow would then run equally between Lots 965 and 966 giving an additional area of 50 square metres for the dwelling. [68] As a further alternative Mr Paddison said that if the road had been designed with a low point and overflow in a position over the previous pipe then the channel could have been constructed along the southern boundary of Lot 965. The dimensions and hydraulics would remain essentially the same. [69] All of these plans required the Council to take appropriate easements to deal with the water flow. Mr Paddison estimated the cost of the drainage works at $8,500. [70] Mr Traves considered that the drainage system proposed by Mr Paddison would require more detailed analysis particularly of the impact of the extension of the underground piped drainage system. If the extension of the pipeline reduced the capacity of the upstream system it might be necessary to reconstruct the drainage under the road to -- 17 of 29 -- 18 provide a flood run off consistent with Council’s standards. Mr Paddison’s opinion was that the extension of the piped system would not constrain the flow as the gradient of the extended pipe was steeper than the existing pipe and it would therefore take a larger flow. Mr Traves estimated the cost of the drainage works at $38,550. [71] Consistently with the approach that the impact of a Q100 event is to be determined by its effect on the land if it were assumed to be in its natural state as at the date of resumption, I consider that the question of whether a house could have been constructed on the land is to be determined on the same basis. Mr Paddison’s plans assume a water flow greater than that which I have found would have affected the subject land in its natural state. It follows that a house of the type envisaged in his plans could have been constructed on the subject land in its natural state. Those plans also make provision for the inclusion of a suitable waste treatment system of the type required by the Council. [72] Clause 11A(1)(a)(ii) of the Planning Scheme provides that the applicant for development approval shall provide information as to the effect of any proposed alterations to surface levels being existing levels above the 100 year ARI flood level on both the subject land and surrounding allotments. Counsel for the respondent submitted that the effect of this provision is that the alteration to existing surface levels is limited to the alteration of existing levels above the 100ARI level. [73] I do not consider that the requirement to provide information as to proposed alterations to surface levels above the 100ARI flood level, necessarily means that no alteration is allowed to existing levels below the 100 ARI level. The evidence has established that the Council determines the effects of a Q100 event by reference to land in its natural state. It follows that it may be necessary, in an appropriate case for the existing levels below the Q100 flood level to be altered and there is nothing in cl.11A(1)(a)(ii) to prohibit that. Water Quality [74] There remains the issue of whether the drainage system proposed by Mr Paddison fulfils the environmental objectives of the Redland Shire Town Planning Scheme. [75] Mr Traves was critical of Mr Paddison’s proposed solution to the drainage problems as indicated in his Plan 4, that is the construction of a new 450 RC pipe leading from the existing pipe to an open ground V channel with a reed bed as a silt trap towards the lower end of the property, because of the implications for water quality in the Bay. In the Revised Planning and Land Use Study (May 2002) prepared by his company the significant threats to water quality in Canaipa Passage were identified to include:  Stormwater runoff arising from urban development  Septic effluent from on-site treatment systems; and -- 18 of 29 -- 19  Increased use of the waterways. [76] Against this background, Mr Traves said that the issues with Mr Paddison’s proposal were that:  the capacity of the proposed pipe-line would be significantly less than the estimated Q100 flow, and in a Q100 event most of the floodwater would discharge across the allotment and not through the pipe;  significant earthworks would be required on the site to avoid flooding in a Q100 event; and  the grass channel would reduce the opportunity for nutrient and sediment removal to a significant extent, because of the much shorter flow path to the Passage. [77] Mr Traves compared the resultant water quality assuming four different drainage systems. He said that research suggested that an absolute minimum detention time to provide water quality treatment is two minutes with a desired detention time of five minutes. Using particular parameters (which are not set out here) he calculated that the time for stormwater to travel from the upstream to the downstream end of the subject land was .3 minute if Mr Paddison’s proposed swale were assumed, and 2.1 minutes if the whole of the block were used as a filter/buffer stop. He concluded that grassed swales have lower pollutant removal efficiencies than filter/buffer strips and are therefore not as efficient at treating stormwater. [78] Mr Traves also said that Mr Paddison’s suggestion that the 450 diameter pipe could be extended to divert the flow into the proposed open V channel would have maintenance implications for the Council which would be responsible for the maintenance of the pipeline as an extension to the road drainage system. He estimated that additional costs in the order of $1,000 per annum would be spent in cleaning the pipe about once a year. [79] Mr Paddison disagreed with Mr Traves’ analysis of the stormwater quality because the travel time of 2.1 minutes allowed the water to travel at .277 metres per second. Mr Paddison said that the Council’s design standards for low flow pipes and low flow channels are that there be a minimum velocity of 1.2 metres per second. He said that if the rate of travel of the water were too slow, silt would be deposited on the block and would eventually build up and cause the water to divert onto the neighbours’ land or convey more silt, ultimately, into the Bay. [80] I consider that Mr Traves’ evidence concerning stormwater quality assessment demonstrated that the quality of the water entering Moreton Bay would be higher if the whole of the subject lot were used as a filter/buffer, rather than the grassed channel -- 19 of 29 -- 20 proposed by Mr Paddison. However, given my earlier findings, I do not consider that this conclusion adversely affects the highest and best use of the land. I consider that Mr Paddison’s proposed solution is adequate to deal with the water quality issues. It is noted that the Minutes of a Redland Shire Council General Meeting held on 17 July 2002 (Exhibit 19) indicated that a Report from the Council’s General Manager Planning and Policy had been tabled at the meeting. That report says (at pp.15 and 16 of the Minutes) that a drain along an easement would provide a slightly better environmental solution to the drainage problem on the subject land. [81] My conclusions to this point, therefore, are that the prudent purchaser would have decided that, as at the date of resumption, it was likely that Council would have approved a development application for the construction of a house on the subject land of the type identified in Mr Paddison’s evidence. The land should, therefore, be valued on that basis. Sales evidence [82] Both valuers valued the property by direct comparison with sales of comparable properties. Mr Harris gave evidence on behalf of the claimant. He said that his valuation of $75,000 took into account the need for an easement for drainage purposes to be taken over the subject property. Mr Hall, for the respondent Council, valued the property on the basis that it could be used as a single residential allotment at $65,000, less the cost of complying with any filling and drainage work required as a condition of development approval. Mr Hall’s Sales Sale No. 1 [83] This property is located at 103 Wahine Drive, which is 9 lots south of the subject. The property sold on 3 November 2001 for $75,500. It has an area of 751 square metres and an easterly aspect. Mr Harris said that research carried out by his firm indicated that the average sale price of waterfront property on Russell Island increased by about 20% in the year ended 30 June 2002, and he considered that this should be taken into account in valuing the subject as at the date of resumption. [84] Mr Harris described the property as an elevated vacant waterfront allotment with a moderate to steep slope and a cross fall below street height. He said that the allotment has good potential for deep-water boat access. It has good unrestricted water access and views to Canaipa Passage and islands. [85] Mr Harris said Sale 1 had similar aspect, views and water access as the subject property. However he considered that the sale was superior to the subject property as there was -- 20 of 29 -- 21 more land above the 2.4 metre AHD level (approximately 75%). He therefore considered that the sale property was a superior allotment with a higher value than the subject. [86] Mr Hall said that he considered that the sale property was superior to the subject because it was more elevated than the subject, there was not as steep a drop down to the building pad as there would be on the subject, the sale property had better views and a building pad which was 3 to 4 metres higher than that which would be available on the subject. Sale No. 2 [87] This property is located at 59 Bay Drive, Russell Island. It has an area of 693 square metres and a northerly aspect. The property sold on 25 February 2002 for $83,000. [88] Mr Harris described the property as a vacant waterfront allotment that is relatively level at road height. The allotment has been cleared. There are good views to Maclay Island and Moreton Bay. There is a deep open drain on adjoining land running along the length of the eastern boundary of the sale property. The drain was in place prior to the completion of the sale, and the purchasers had confirmed that they took the drain into account in their decision to purchase. Mud flats are exposed in front of the property when the tide goes out. [89] Overall Mr Harris considered that the sale property was superior to the subject. He considered that the northerly views from the property were no more extensive than those from the subject land. He said that the water access was comparable, but there was no deep-water access comparable with the subject. Approximately 70% of the land is above the 2.4 metre AHD. A larger building site is available. [90] Mr Hall described the sale as a very attractive property. It is relatively level with direct waterfront views across a very much larger area of water than the subject. He considered it to be a “better address” than the subject and confirmed that 70% of the property was able to be used for construction. Sale No. 3 [91] This property is located at 176 Canaipa Point Drive, Russell Island. It has an area of 1,004 square metres and a south-south-easterly aspect. It sold on 20 July 2001 for $75,000. [92] Mr Harris described the property as a larger elevated vacant waterfront allotment that slopes steeply to below road height to a level area before sloping steeply to the waterfront. He said that the allotment has good potential for deep water boat access. It faces into the prevailing wind and weather and has good views to the water and the islands. -- 21 of 29 -- 22 [93] Mr Harris regarded the sale property as being, overall, superior to the subject because nearly all of the land is above the 2.4 metre AHD level. [94] Mr Hall said that he considered this allotment to be superior, overall, to the subject. It was elevated, enjoyed very good views across the Passage, it was larger and nearly all of the land was above the 2.4 metre AHD level. It was also in an area where better houses had been constructed than on Wahine Drive. Sale No. 4 [95] This property at 71 Canaipa Point Drive has an area of 1,270 square metres and a north- westerly aspect. It sold on the 7 March 2002 for $80,000. [96] Mr Harris described the property as an elevated vacant waterfront allotment that is level at street height before sloping moderately to the water. He said that it enjoyed fair views to the water and islands. [97] Mr Harris considered that the sale property was superior, overall, to the subject. The sale is a significantly larger allotment but it has an inferior westerly aspect. The views are partly restricted by vegetation to the rear of the land and are inferior to the subject. However, approximately two-thirds of the land is above the 2.4 metre AHD level. It is superior because of its size and the available building site. [98] Mr Hall said that the sale property enjoyed extensive views which were impeded only to a slight degree by the vegetation. It was considerably larger than the subject and in his opinion was overall superior to the subject. Sale No. 5 [99] This property is located at 10 Oasis Drive, Russell Island. It has an area of 1,012 square metres and a south-easterly aspect. It sold on 5 February 2002 for $62,100. [100] Mr Harris described the property as an elevated vacant waterfront allotment that is level at street height before sloping moderately to the water. The allotment is lightly vegetated with remnant native vegetation. There are fairly poor views to the water and island but the property has potential for deep water boat access. [101] Mr Harris regarded the property as inferior to the subject because the views are impeded by rear vegetation on the sale property. Approximately 95% of the land is above the 2.4 metre AHD level. [102] Mr Harris was unclear whether the vegetation could be cleared on this property. Mr Hall said that he thought that most vegetation could be removed. There are also mangroves which cannot be cleared He described the property as elevated with most of it lying above the 2.4 metre AHD line. He said good views are available. He considered that the -- 22 of 29 -- 23 property was perhaps a little inferior to the subject because of the vegetation. He was doubtful whether deep water access was available. Sale No. 6 [103] This property is located at 16 Emerson Street. It has an area of 898 square metres and a southerly aspect. It sold on 4 February 2002 for $50,000. [104] Mr Harris described the property as a vacant waterfront allotment that sloped gently to the water from the road which is unsealed. The land is cleared and enjoys fair water views. He considered that the property was inferior to the subject. It is a slightly larger allotment with views of a similar extent. Approximately 45% of the land is above the 2.4 metre AHD level. It has an inferior southerly aspect and road surface. When questioned as to whether the sale was out of line, Mr Harris said that it had not occurred to him that it might be. [105] Mr Hall said that he considered that this property was quite similar to the subject property and that the sale might be out of line. The sale had good water and island views and approximately 45% of the land was above the 2.4 metre AHD level. Sale No. 7 [106] This property is located at 42 Canaipa Point Drive. It has an area of 1,171 square metres and a south-easterly aspect. It sold on 12 June 2002 for $60,000. Mr Harris described the property as a vacant waterfront allotment that slopes gently to the water from the road. There are mangroves at the waterfront. He considered that overall the property was inferior to the subject because, although it was a larger allotment, it had inferior views partly impeded by mangroves. Approximately 80% of the land is above the 2.4 metre AHD level. [107] Mr Hall said that he considered that the property was overall similar to the subject although perhaps it was a little inferior. It had a superior building platform available over 80% of the land. It had vegetation on the waterfront. Sale No. 8 [108] This property is located at 70 Oasis Drive. It has an area of 880 square metres and a south-easterly aspect. It sold on 24 May 2002 for $50,000. [109] Mr Harris described the property as a vacant waterfront allotment with an elevated top bench section at the roadside and then a steep slope at the rear of the property to the waterfront. He said that the views are impeded by vegetation at the rear. Mr Harris considered that the property was inferior to the subject. It had no practical waterfront available for use. Approximately 95% of the land is above the 2.4 metre AHD level. It -- 23 of 29 -- 24 has an inferior aspect. He agreed the property would enjoy fair views if some of the vegetation were removed. [110] Mr Hall described the property as a very good elevated block with about 95% of the land above the 2.4 metre line. It was a good building block, although it fell steeply at the rear. He agreed that the waterfront use was inferior because of the mangroves and the fact that the land is stony when the tide goes out. Conclusions re Sales Evidence [111] I consider the sale of the property at 103 Wahine Drive (Sale No. 1) to be the most useful for the purposes of determining the value of the subject land as at the date of resumption because of its location and general comparability with the subject land. The valuers agreed that property prices on Russell Island had risen since 103 Wahine Drive sold in November 2001 for $75,500, and that as at the date of resumption its market value would have been $85,000. They also agreed that the decrease in value resulting from the need to impose a drainage easement on the subject would be in the order of $10,000. It was also agreed that the sale was superior to the subject because it has more land above the 2.4 metre AHD level. I have accepted Mr Hall’s evidence that 103 Wahine Drive is a superior block in that it is more elevated, and does not have a relatively steep drop down to the building pad. Further the sale is not adversely affected by a Q100 stormwater flow. [112] Mr Hall valued the subject at $65,000. He said that he considered that if it were assumed that the subject and 103 Wahine Drive had the same uses, the superior features of 103 Wahine Drive would command an additional $10,000 in the marketplace as compared with the subject. Because the subject was limited to construction of a two-bedroom house he considered that lessened its value by a further $10,000. Mr Paddison’s plans show that a two bedroom house could be constructed on the subject. However there is no evidence to support the assumption that only a two bedroom house could have been constructed. [113] Mr Hall said that he considered that the value of the subject would be further diminished because, in his opinion, the Council would, as part of any development approval for construction of a house, impose a condition requiring the owner to carry out extensive drainage works on the land. Mr Traves estimated the cost of the drainage works to be $38,550. Mr Paddison’s estimate was $8,500. The effect of my findings is that the extensive flooding on the land was caused largely by a third party (Mr Daunt) but contributed to by the construction of roads in the area. In those circumstances, I consider that the prudent purchaser would believe that it was likely that he or she would be responsible for the costs of the remedial drainage works. There is a considerable difference between the estimates of Mr Paddison and Mr Traves of the costs of this work. -- 24 of 29 -- 25 I have accepted Mr Paddison’s costings because they were based on a quote from a drainage contractor, prices he obtained from contractors on the Island and his own calculations of the costs of material and estimates of labour costs. However, Mr Paddison’s estimates do not include the costs of the reed beds, which he agreed were in the order of $2,000. I consider therefore that the prudent purchaser would make an allowance of $10,500 for the costs of the drainage work. [114] Sale No. 3 has deep water access and appears to be generally comparable to Sale No. 1 and superior to the subject. Sale No. 2 is superior to the subject in terms of the views available. It also has a much larger building platform and better topography. Sale No. 4 is comparable with Sale No. 2 and superior to the subject. Sale No. 5 is comparable with the subject in that it has potential for deep water boat access. It has an inferior aspect and views and it is unclear whether the vegetation can be removed. It is superior to the subject in that 95% of land is above the 2.4 m AHD level. The remaining sales are located on the southern side of Canaipa Point and are inferior to the subject. I consider that Sale No. 5 establishes the lowest parameter for the subject and Sale No. 1 the highest. [115] Leaving aside the costs of the drainage works, I have concluded that the value of the subject as at the date of resumption was $70,000. This value is consistent with the sales evidence generally and particularly with Sale No.1. By comparison with 103 Wahine Drive the subject land would be burdened by a drainage easement. In addition it is inferior to the sale in respect of the matters set out in paragraph [111] above. An amount of $10,500 should be deducted to cover the anticipated costs of drainage work, because the sum of $70,000 reflects the market price of the property unaffected by the need to carry out the drainage works. The value of the land as at the date of resumption was, therefore, $59,500. Disturbance [116] The claimant has sought compensation of $26,331.79 in respect of various expenses incurred in connection with the preparation of the claim for filing in this Court. The claim is made up as follows: -- 25 of 29 -- 26 Date Item Total 04.08.02 Brian Paddison – Initial engineering $ 1,000.00 report 08.08.02 Wade Consulting Group – Initial $ 1,650.00 engineering report 22.10.02 Grant Allan – Barrister’s fees $ 1,718.75 30.10.02 Wade Consulting Group – Account $ 429.00 for advice 06.11.02 Grant Allan – Barrister’s fees $ 1,663.75 02.12.02 Herriots Valuers’ fees (to 02.12.02) $ 6,355.00 16.12.02 Grant Allan – Barrister’s fees $ 858.00 (to 02.12.02) 30.12.02 Paul Caddey Survey Pty Ltd $ 275.00 - Account of fees 01.04.03 McLaughlins Solicitors fees $12,382.29 (to 02.12.02) $26,331.79 [117] In Heavey Lex No 64 Pty Ltd & Anor v Chief Executive, Department of Transport (unreported, Land Appeal Court, 22 February 2001), at [74] the Land Appeal Court said: “In our view, the authorities support the proposition that outgoings in respect of the preparation of a compensation claim to be recoverable must be reasonable. What is reasonable needs to be determined, not by reference to some principle … but by application of an objective standard or standards. That conclusion is supported by the authorities already discussed in the related areas of damages and compensation for compulsory acquisition and by the decision of the Court of Appeal in London County Council v Tobin [[1959] 1 WLR 354]. In that case the Court proceeded on the assumption that, to be recoverable, the costs of preparing a claim needed to be both properly incurred and reasonable. In our view a claimant can recover for work of a nature and within the scope of that which a reasonable person in the position of the claimant would have done or caused to be done. The fees and charges for the work must also be reasonable. [118] The claims for Mr Paddison’s fees and the fees of Paul Caddey Survey Pty Ltd have been agreed. Other Engineering Fees [119] A total of $2,079 was claimed as fees paid to the Wade Consulting Group for an engineering report and advice. Mr Paddison’s fees are $1,000 for an initial engineering -- 26 of 29 -- 27 report. It appears that the work carried out by the Wade Group was independent of that done by Mr Paddison who said that he had not relied on it to prepare his report. Counsel for the claimant conceded that the respondent should not be expected to pay for both reports but, he submitted, the claimant was entitled to elect which of the two claims he would pursue. In this case he wished to claim the $2,079 paid to the Wade Group. [120] There was no evidence before the Court as to the nature or extent of the work done by the Wade Group, nor as to the reasonableness of this part of the claim. Mr Paddison appears to have carried out similar work for $1,000. In those circumstances, I am not prepared to allow the claims for the Wade Consulting Group fees. Barrister’s Fees [121] The amounts claimed for barrister’s fees total $4,240.50. Counsel for the respondent submitted that this was a claim where it was not necessary to obtain the advice of Counsel for the purpose of lodging the claim for compensation. The solicitor for the claimants gave evidence that he considered that this was an appropriate case for experienced Counsel to be involved. [122] The complexities in this case arose from conflicting engineering evidence and the construction of the Redland Shire Council Town Planning Scheme. In my opinion it was reasonable for Counsel to be engaged to advise on the preparation of the claim. In the absence of any evidence that the fees are unreasonable, I am prepared to allow the amount of $4,240.50 as claimed. Valuation Fees Senior Valuer: 15 hours @ $150 $2,250.00 Valuer (Assistant): 161 hours @ $20 $3,220.00 Total 176 hours $5,470.00 GST $ 547.00 $6,017.00 Travel expenses: Water Taxi $ 70.00 Taxi/Car Hire $ 18.00 Photocopying, Printing and Ancillary Costs $ 338.00 $6,335.00 [123] The respondent submitted that the claim for valuation fees was excessive, because of the number of hours claimed. Evidence was given by Mr Hall on behalf of the respondent that he considered that a reasonable costing for this valuation would be a senior valuer’s time for 7 hours at $150 an hour, travel time of 4 hours at $75 an hour (both excluding GST) plus expenses. Mr Herriot said that the hours claimed covered research time spent -- 27 of 29 -- 28 by himself and his assistant in identifying, locating and visiting numerous sales properties, from which he ultimately selected the eight which were most comparable with the subject property. He considered that it would not have been possible to complete a competent valuation in the seven hours suggested by Mr Hall. [124] The subject land is a vacant residential property. I do not consider that it was reasonable for two people to be involved in the valuation for the length of time claimed. That valuation should have been able to be completed by a senior valuer in the fifteen hours claimed, which also allows for travel time. I will, therefore, allow the claim for the senior valuer’s time only plus GST and expenses: Senior valuer: 15 hours @ $150/hour $2,250.00 GST $ 225.00 $2,475.00 Travel expenses: Water taxi $ 70.00 Taxi/Car Hire $ 18.00 Photocopying, Printing and Ancillary Costs $ 338.00 $2,901.00 [125] Solicitors Fees The fees claimed are $12,382.29 made up as follows: Professional Fees $10,875.00 GST $ 1,087.50 $11,962.50 Disbursements $ 419.79 $12,382.29 [126] The claim for disbursements has been agreed. The claim for professional fees was supported by an itemised account, calculated using the time costing method. The claim is for 43.5 hours at $250 per hour. Mr Kennedy, the solicitor for the claimant, is an Associate in his firm and he said that $250 per hour is his normal charge out rate. He considered that the fees claimed were fair and reasonable. He had taken over the matter from another firm of solicitors and there was a great deal of material for him to peruse in order to determine what was relevant for the purpose of the claim for compensation. Given that there is no claim for the relevant work carried out by the previous solicitors, I am prepared to allow the costs of perusal. [127] Counsel for the respondent submitted that the solicitors’ costs were unreasonable and challenged a number of items specifically. I consider that Mr Kennedy’s responses to the challenges indicated that the work claimed for was reasonably undertaken. There was no -- 28 of 29 -- 29 challenge to the amount charged per hour, nor to the fact that the bill had been calculated on a time costing basis. In those circumstances, I am prepared to allow the total claimed as solicitor’s fees, $12,382.29. [128] In summary, the amounts allowed for disturbance are: Brian Paddison – Initial engineering report $1,000.00 Grant Allan – Barrister $4,240.50 Herriots Valuers $2,901.00 Paul Caddey Survey Pty Ltd $ 275.00 McLaughlins Solicitors $12,382.29 $20,798.79 Orders [129] Compensation is determined at $80,298.79 made up as follows: Value of land $59,500.00 Disturbance $20,798.79 $80,298.79 [130] The respondent paid an advance of $10,000 on 10 January 2003. The respondent is ordered to pay interest at the rate of 5.5% per annum to the claimant on the amount of $59,500 for the period commencing 19 July 2002 up to and including 9 January 2003, then on the amount of $49,500 from 10 January 2003 up to and including the day immediately preceding the date that amount is paid by the respondent to the claimant. [131] The respondent is also ordered to pay to the claimant interest at the rate of 5.5% per annum on each of the disturbance items for the periods commencing on the dates, to be proved by the claimant, on which the claimant paid such amounts, up to and including the day immediately preceding the date that the respondent pays these amounts to the claimant. CAC MACDONALD MEMBER OF THE LAND COURT -- 29 of 29 --