Armstrong v Council of the City of Caloundra [1998] QLC 123

LAND COURT, BRISBANE 13 October 1998 Re: Claim for Compensation - Resumption for sewerage purposes - Acquisition of Land Act 1967. (A97-41). GWE Armstrong as Devisee and DA and GWE Armstrong v. Council of the City of Caloundra (Hearing at Brisbane and Maroochydore) J U D G M E N T (1) Background: This is a claim for compensation for the resumption of certain lands under the provisions of the Acquisition of Land Act 1967. By Notice of Intention to Resume of 2 March 1995, the Council of the City of Caloundra (the Council) gave notice that it intended to resume the following lands for the purpose of effluent disposal of sewerage.  Lot 2 on RP 157646, Parish of Maleny, containing an area of 64.1426 hectares. The Government Gazette of 18 August 1995 contained a Proclamation of 17 August 1995 vesting the above lands in the City of Caloundra. The 17 August 1995 then becomes the date for which compensation is to be assessed. (2) The Claim: A claim for compensation dated 15 September 1995 was served on the respondent City of Caloundra Council by the claimant comprising the following: Land = $ 866,000 Improvements  main building = $ 84,000  others = $ 54,000 Disturbance  loss of farm income = $ 18,000 [1998] QLC 123 -- 1 of 28 -- 2  removal of household to Toogoolawah (insured) = $ 4,200  removal of household to Beenleigh (insured) = $ 2,850  travel and telephone expenses to identify and secure replacement property = $ 2,200  stamp duty on replacement property = $ 20,000  stamp duty on Beenleigh purchase = $ 1,200  new school uniforms, books, etc. = $ 1,000  valuer’s fees = $ 6,300  solicitor’s fees = $ 8,000  counsel’s fees = $ 2,600 $ 53,750 TOTAL $1,067,760 A supplementary amended claim was provided to the Court on 22 June 1998, withdrawing the above items of “disturbance” as follows: Land = $ 927,500 Improvements main building = $ 91,500 standing timber = $ 41,800 machinery shed = $ 8,000 tanks, water supply & landscaping = $ 5,500 $ 146,800 Sub-Total = $1,074,300 Disturbance valuer’s fees = $ 6,300 solicitor’s fees = $ 3,000 counsel’s fees = $ 2,600 $ 11,900 TOTAL CLAIM $1,086,200 Mr A Heyworth-Smith, counsel, instructed by Ebsworth & Ebsworth Solicitors appeared for the claimants. Mr R Jones, counsel, instructed by Garland Waddington appeared for the respondent. (3) The Nature of the Land: The subject land is located approximately 2.5 kms to the east, and on the immediate outskirts, of the Maleny township. The land is well elevated, with areas of creek flats from Obi Obi Creek, which forms the eastern, southern and part of the western boundaries of the subject land. Slopes are generally gentle and gradual, and the land is readily accessible and easy to work. The soils are rich red volcanic in nature, and the land has been improved to good quality kikuyu pastures for dairying purposes. The existing dwelling is located close to the Obi Lane and Porters Lane frontage on the northern boundary, and is well elevated with views across the majority of the property. -- 2 of 28 -- 3 There is a weir across Obi Obi Creek at the southern end of the land, which is used for irrigation purposes (a 12-hectare irrigation licence). Other improvements include a dam towards the northern end, a machinery shed, bales, a feed shed and fencing. Until its resumption the property operated as a working dairy farm. There is also approximately 2.7 hectares of vacant land on the eastern side of Obi Lane which also has frontage to Obi Obi Creek, and is located in the north-eastern corner of the subject land. The existing dwelling is low-set, of classic Queenslander construction, and was erected in 1905. It is in reasonably good condition, and because of the nature of its timber construction involving red cedar, hardwood and beech, it is seen as being worthy of restoration. Power, telephone and garbage collection services are available. Both parties agree that the subject land is “exceptional dairying country”, and is excellent land with good capacity for horticultural activities. The soils of the subject land tend to reflect two of the three major soil types in the Maleny area. The higher lands towards the north-western corner (about 20 hectares) are the red scrub soils, and the creek flats adjoining Obi Obi Creek are the darker, often black, prairie soils. Both of those soil types are highly prized for their agricultural capacity, and they form part of restricted remnants of a geological area extending from Springbrook in the south to the Blackall Ranges, between Maleny and Mapleton. For more than 60 years the Maleny plateau has been recognised as some of the best dairying areas in Australia. The subject land represents those characteristics which are so highly prized for their agricultural potential. The land also provides good views of the Maleny area, as noted during the field inspection with the parties. (4) Planning Requirements: Mr P Fletcher, town planning consultant, provided an analysis of the planning requirements for the subject lands under the Strategic Plan, and the Statutory Town Plan of the Caloundra City Council of 19 December 1987, effective at the date of resumption. The potential for further subdivision was analysed under Chapter 32 of the Council’s ByLaws of the same date, and as amended in March 1992, and also in respect of Council policy and the State planning policy for good quality agricultural land. Mr Fletcher concluded that the subject land had severe limited potential for subdivision into intensive residential parcels, and that it was most likely that the site would -- 3 of 28 -- 4 remain as a rural property, to be used for agricultural or other compatible rural purposes. The respondent agrees in that conclusion. In respect of the potential for some rural-type subdivision, Mr Fletcher has concluded that the land could be further subdivided into a family transfer lot, a rural use lot and a balance lot. The claimants satisfied the Council’s policy requirements for a family transfer lot in that they were long-term owners of the land, and the area of the proposed new family transfer lot (2.7 hectares) was consistent with other rural homesites in the area. There was agreement by the respondent on that matter, although Mr Carrick felt that subdivisional costs totalling $3,500 to $5,500 were likely to be required by Council. Under the Town Plan 1987 the minimum area of proposed subdivision of rural land was determined at 40 hectares (Table 6.3). However, section 6.3(3)(b)(v) and section 6.3(3)(b)(vii) of that plan allows discretion for the establishment of a single family transfer lot, and a single rural use lot where the minimum area may be less than 40 hectares but not less than 10 hectares. Council policy of 5 March 1998 clarifies further the policy of Council in respect of those new parcels. In respect of the rural use lot, Mr Fletcher has relied upon the advice of Mr Pulsford as a “suitably qualified person” to establish the impact of that new lot upon the fragmentation of good quality agricultural land (Procedure 1(b)(i)), and any potential damage to the landscape and water catchment areas (Procedure 1(b)(ii). The proposed subdivision into a rural use lot (20 hectares) and a balance lot (41.4 hectares) was seen as suitable. As-of-right uses in the “Rural” zone include, amongst others, horticulture, agriculture and animal husbandry. (5) Use for Agricultural Purposes: Evidence was provided by Mr JS Pulsford, an agronomist, in respect of the agricultural potential of the subject land. Mr Pulsford has extensive experience in the development of good horticultural land, and was involved in the development of the Queensland State Planning Policy 1/92, which establishes a regime for the “development and conservation of agricultural land”. Under that policy land which is suitable for agricultural purposes, and which is proposed for subdivision for alternative purposes, must first be subject to an agricultural -- 4 of 28 -- 5 assessment. State Planning Policy 1/92 is a document prepared jointly by the Department of Primary Industries (DPI) and the Department of Housing and Local Government and Planning (DHLG&P), and requires local government planning schemes to consider applications for re- zonings, consent uses and subdivision in the context of Policy 1/92. Mr Pulsford notes that the subject land is zoned as “Rural” under the Strategic Plan of the Caloundra City Council, and also as “Rural” under the 1987 Planning Scheme. He also notes that existing land classification mapping by DPI (Capelin, 1987) identifies the land adjoining Obi Obi Creek, where there is riparian vegetation and slopes which are too steep for cultivation, as unsuitable for horticulture. The remainder of the subject land is suitable for horticulture, while the northern section of about 45 hectares, and including the existing dwelling, is suitable for perennial trees with moderate limitations, involving erosion control on the steeper slopes and potential land slip on the plateau margins. The remaining river flats are suitable for most crops, subject to drainage being provided to minimise frosts and soil wetness. In respect of the use of the land for horticultural purposes, and in particular for the growing of avocados, Mr Pulsford argues that the subject land is very suitable for those purposes. He argues that, because of its location at 400 metres above sea level, its southern and eastern aspect, its nearness to town and access by bitumen road, and the existence of a dam which would assist in reducing water-pumping costs, the subject lands are very suitable for avocado cultivation. However he argues that its greatest asset is the depth of rich fertile soil, its easy slopes, and the good drainage which make it perfect for avocado growing. Because of this good drainage it would be possible to harvest the fruit even in wet weather, when other growers would find it difficult to deliver fruit to the markets. It would also be possible to grow several varieties which would then come into fruit at various times in the year, thus extending their market opportunities. The easy slopes reduce any impact of erosion. Because of the nature of the soils, Mr Pulsford also argues that it would be relatively easy to subdivide the subject lands into areas of predominantly similar soil types. This has the advantage of simplifying the land management practices needed to cultivate the parcels. On properties of this relatively small size he argues it is not sound practice to have a variety of land management styles, as it would be on much larger parcels. In respect of the river flats he sees that as perfect for annual crop or for hay or silage, but agrees that it could be used for the growing of macadamia trees, subject to some care with -- 5 of 28 -- 6 frosts in some years. He differentiates between horticultural use (for long term tropical trees lasting up to 50 years), and crop growing (suitable for annual crops with high yields and high harvesting costs). He believes that by keeping all the Obi Obi Creek riverfrontage in one parcel for these latter purposes, it would tend to increase the agricultural value of the parcel by up to 20 percent (20%). He claims a minimum area of 30 hectares is needed for a commercial farm operation of macadamia trees, unless they are used as part of another farm operation. On the land immediately adjoining Obi Obi Creek, Mr Pulsford notes that the Council Planning Scheme requires a minimum of 10-metres wide buffer for land retention purposes. However, he prefers a wider buffer zone, and up to 30 to 40 metres could be appropriate along the 2.9 kms of creek frontage. It would be possible to plant fruit trees in that zone to prevent erosion, but generally speaking along creeks it is preferred to retain the native vegetation. (6) Highest and Best Use of the Land: In seeking to ascertain the highest and best use of the subject land, Mr Henderson, a registered valuer for the claimants, has relied upon a hypothetical subdivision by Mr Fletcher noted previously. Mr Fletcher proposes that the land be subdivided into three parcels:  A 2.7 hectare lot in the north-eastern corner, east of Obi Lane (a rural homesite).  A 20 hectare parcel including the dwelling and a dam in the north-western corner (for horticultural/avocado purposes)  The balance of 41.4 hectares containing most of the riverflat land and extending to a frontage to Obi Lane and Porters Lane in the north (for macadamia or other fruits). An earlier design showing a 13 hectare parcel instead of the 20 hectare parcel was amended in order to include the dam in the area for avocado trees. By contrast Mr Carrick, a registered valuer for the respondent, considered three options for the potential use of the land: (1) continued as its present use as a dairy farm (2) subdivision into a small rural lot (3 hectares), with the balance (62.1 hectares) continued as a dairy farm (3) subdivision into a small rural lot (3 hectares), together with a rural lot (31 hectares) and a third rural lot (31 hectares). -- 6 of 28 -- 7 Mr Carrick valued the subject land on each of the above scenarios, and concluded that the highest and best potential use of the land was as a dairy farm (62 hectares) with one small rural lot (3 hectares). He based his alternative subdivision into two 31 hectare rural lots on the basis that it would be best to apportion frontage to Obi Obi Creek approximately equally, in order to provide equal access to water for each new parcel. (7) Methods of Valuation: (i) Mr Henderson’s Method Mr Henderson has determined his value of the three land parcels on the basis of comparable sales on a “top-down” approach as follows:  Lot 1 (2.7 ha) $ 175,000  Lot 2 (20ha with dwelling and sheds) $ 530,000  Lot 3 (41.443ha @ $15,000 per ha) $ 620,000 TOTAL $1,325,000 Less legals on sales $ 3,000 commission on sales $ 34,475 advertising $ 3,000 $ 40,475 $1,284,525 Less profit and risk (15%) $ 167,547 development costs $ 23,071 rates, land tax and interest $ 1,037 holding charges $ 20,620 legals & stamp duty $ 40,000 $ 252,275 TOTAL VALUE $1,032,250 (Say $1032,500) As part of the assessment for new Lot 2 (20 hectares) he allowed $91,500 for the dwelling, $8,000 for the shed, and $5,500 for tanks, water supply and landscaping. (ii) Mr Carrick’s Methods (i) As a dairy farm - Land 64.1426ha @ $10,000/ha = $641,000 Dwelling $85,750 Machinery Shed $ 6,840 Bails $ 2,460 -- 7 of 28 -- 8 Feed Shed $ 2,250 = $ 97,300 TOTAL $ 738,726 (Adopt $740,000) Plus Disturbance (b) Subdivision into three parcels - Mr Carrick provided the following breakdown of his estimated hypothetical subdivision of the 65.1658ha (including Road Reserve) as: Gross Realisation  3 ha small rural lot $180,000  31ha rural use lot $350,000  31ha rural balance $335,000 TOTAL $865,000 Less outgoings $ 25,975 NET REALISATION $839,025 Less Profit & Risk (15%) $109,438 Development costs $ 34,507 Interest on land $ 33,100 Acquisition Costs $ 23,048 LAND VALUE = $638,932 (Adopt $640,000) Plus Improvements Dwelling $ 85,750 Machinery Shed $ 6,840 TOTAL $732,590 (Adopt $735,000) (c) Dairy farm and small rural lot - Land (65.1658ha @ $11,500/ha (includes Road Reserve) $749,407 Dwelling $85,750 Machinery shed $ 6,840 $ 92,590 TOTAL $841,997 (Adopt $842,000) Plus Disturbance -- 8 of 28 -- 9 In adopting the highest and best use as a dairy farm with a small rural lot of 2.7 hectares, Mr Carrick sought to maximise the compensation and the amount of disturbance for the claimant. He believes the small rural lot of 2.7 hectares does not compromise the effective use of the balance as dairy farm, nor does it negate any claim for disturbance under the principles established in Commonwealth v. Milledge (1953) 90 CLR 157. As a further check on Mr Henderson’s hypothetical subdivisional approach, Mr Carrick provided the following estimate: Gross Realisation  Lot 1 (2.7ha) rural lot $180,000  Lot 2 (20ha with dwelling and shed) $377,500  Lot 3 (42.46ha @ $10,000/ha) $425,000 (All lots include trees) TOTAL $982,500 Less outgoings $228,912 NET REALISATION $953,588 Less Profit & Risk (15%) $124,381 Development costs $ 34,507 Interest on land $ 37,843 Acquisition costs $ 26,570 Value of land, dwelling & sheds $730,287 (Adopt $730,000) Mr Heyworth-Smith has now amended the claim for the appellants to exclude any claim for disturbance in respect of relocation as a dairy farm, in view of his reliance upon the highest and best use to be for subdivision into three parcels. Mr Carrick has assessed the highest and best use as a dairy farm plus one small rural site, however he has provided no estimates of the likely costs of disturbance for dairy farming purposes, except to require further details about some of the items of disturbance previously supplied by the appellants ($49,450). The amount of disturbance for valuers, solicitors and counsel fees are estimated at $11,900 (claimants), a figure not challenged by the respondent. In respect of the value of improvements there is little between Mr Henderson and Mr Carrick. Mr Henderson Mr Carrick Dwelling $ 91,500 $85,750 Machine Shed $ 8,000 $ 6,840 -- 9 of 28 -- 10 Other $ 5,500 $97,300 $105,000 $97,300 The minor difference between the valuers lies in the added value of the dwelling. Mr Carrick saw a lesser value in the historic old dwelling in view of its obsolescence in design and the inadequate bathrooms. In the matter of the additional new 2.7 hectare small rural site the valuers estimates are - Mr Henderson ($175,000) and Mr Carrick ($180,000). (8) The value of timber: In assessing the added value of the timber reserves upon the property there is a divergence between the parties. Mr Carrick sees the trees as integral to the character, and therefore the overall value of the land. In his opinion the existing trees upon the proposed 2.7 hectare small rural site are part of the aesthetic value of the parcel, and therefore have been allowed for in his estimated value of the parcel at $180,000. In respect of the existing commercial timber upon the balance area for dairy farming (65 hectares), Mr Carrick believes that they also add to the aesthetic value of that parcel, as well as providing shelter and camps for the dairying herd. For those reasons he concludes that the value of the land reflects the in situ added value of the trees, as demonstrated by the fact that there has been no attempt to harvest the timber prior to the resumption. Mr Henderson has sought to value the subject land on the basis of a subdivision into three parcels. His comparisons have made no allowance for any added value from the sale of the commercial timber, although he noted the existence of some large beech and red cedar trees upon the land. However he conceded that if any timber was sold, then it would need to be carefully selected so as not to spoil the amenity of the area. He also agreed that, while a knowledgeable prudent purchaser may fell the trees, “most people would prefer to see them there”. Mr GW Venz, an experienced forester, gave evidence for the claimants that he had assessed the standing commercial timber upon the subject lands, and had concluded that there was some special value for commercial logging purposes. He based his opinion upon his experience with the newly-emerging niche of the woodworking industry, and its demand for specialised cabinet-making purposes. He claims that this new market has been in existence for some 10 to 15 years, and utilises additional parts of the trees previously rejected for -- 10 of 28 -- 11 normal sawn log purposes. The presence of special features in the timber such as knots and limb grain, tends to add to their character for these special cabinet-making purposes. Because other parts of the trees such as stumps and smaller limbs can be used for this cabinet wood purpose, the yields from a tree are higher. Mr Venz provided a map showing the location of some 56 trees that he considers have special market potential for the above purposes. All of those trees are regrowth following the original clearing many years ago. Those trees contain an assortment of cabinet wood species, including red cedar, white beech, southern silver ash, bunya pine, camphor laurel, native tamarind, bollywood, silver quandong and slash pine. The trees are distributed across all of the land but fall generally within the hypothetical subdivisional areas as follows:  small rural lot (2.7ha) 15 trees  rural lot (20ha) 15 trees  balance rural lot (42.46ha) 29 trees In summarising his quantities of timber for the special cabinet wood purposes, Mr Venz estimates, in his opinion, a potential yield of some 155.6 cubic metres of standing timber, at a likely return to the claimants of $41,880. By comparison Mr GR Pearce, the Forest Ranger-in-Charge (Native Forests), Beerburrum, of the Department of Primary Industries (DPI) Forest Service, gave evidence for the respondent. Mr Pearce assessed the timber reserve using the Departmental Standard log measurements that apply to the timber industry. These he argues are well accepted and clear, and provide a standard approach to timber assessment. Mr Pearce acknowledges the existence of the alternative product market, but claims there are no written standards upon which to gauge reliability of the estimates. Mr Pearce conceded that if the alternative approach for the special timbers was adopted, there would be some increase in the millable timber yield, but he argues not as significant as that claimed by Mr Venz. Mr Pearce feels that damage from fracture to limbs of trees during felling, both on the downside and upside of the felled log, could vary by 5% to 20% of the canopy felled, although he has no hard research to substantiate that opinion. Both foresters argue that the value of the commercial timber could be considered on the basis of either selling the logs standing in situ, with the purchaser arranging the felling, snigging, haulage and milling, or alternatively the claimants undertaking those tasks and selling the mill logs at public auction. Mr Venz’s estimates have made some discount for the -- 11 of 28 -- 12 practical costs of achieving a marketable product, suggesting that those costs would represent about 30% to 40% of the value of the timber being sold at the mill. Both foresters also agree that the cabinet timber species extant upon the subject land are not rare, and Mr Pearce notes that he is aware of four properties where existing rainforest trees, if felled, could provide “several thousand cubic metres of this material”. It would therefore be reasonable to conclude that the marketing of any commercial timber harvested from the subject land, should be seen in the context of a reasonably available supply. In respect of the method of harvesting the timber, both foresters agree that portable sawmills are available, generally providing a daily throughput of about 5 cubic metres. However there was some doubt as to whether Caloundra City Council approval for such an operation would be forthcoming, as there is currently a matter before the courts testing the legality of such uses in the area. The Council sees the use of portable sawmills as a heavy industry purpose. Using the standard log measurement approach for commercial timber upon the subject land, Mr Pearce estimated that there were 51 trees, providing a yield of some 46.1 cubic metres at a likely return of $3,150. Mr Pearce made no reference to the 34.6 cubic metres of slash pine on the river flats near Obi Obi Creek. The values per cubic metre used are based upon the published royalty values to DPI for the Maleny area for logs delivered in-yard to the DPI depots, after felling and associated costs have been paid by the vendor. The considerable variation in the estimated volumes of timber available occurs mainly as a consequence of the different standards adopted for log measurements. Mr Venz (155.6 cubic metres) has extended beyond the main bole of the tree and includes sections which are less than the standard log measurement minimum lengths of 2.4 metres, and also includes limbs down to certain diameter. Mr Pearce (46.1 cubic metres) has rejected much of those areas in order to maintain the DPI standard which has broad industry acceptance. Mr Pearce acknowledges that there was some demand for the special cabinet wood purposes, and agrees that if milled for those purposes, there would be an increased volume of timber yield. From limited experience with a small number of trees, he felt an increase yield of perhaps 50% may be achievable. However he pointed out that in seeking to achieve this additional 50% in the volume of timber, there would be some increased cost (20%) in transport and marketing the product. There is also considerable variation in the unit rates of the timber adopted by the two foresters. Mr Pearce has used the DPI listed rates, which for red cedar is $86.64 per cubic -- 12 of 28 -- 13 metre. Mr Venz has sought guidance from industry journals and reports from the DPI Forestry Office at Amamoor. The DPI Forestry (Amamoor) revealed average prices during 1995 for: Red cedar $389.52 per cubic metre Silver ash $ 93.33 per cubic metre White beech $203.67 per cubic metre DPI noted however that the prices paid for good size red cedar logs over 1 cubic metre was up to $1,000 per cubic metre, while white beech had achieved $500 per cubic metre. Smaller woodturning red cedar achieved $150 per cubic metre, and good size logs up to $650 per cubic metre. Mr Venz also notes that special sales of red cedar in the Dorrigo area of New South Wales, and Rathdowney near Boonah in south Queensland, have been advertised at rates up to $3,600 per cubic metre. Mr Venz balances that information against prices achieved at various trade fairs, markets and auctions. However he concedes that he has limited first-hand knowledge of either the demand for such specialised timber in South-East Queensland, or the actual outcomes and sizes of public auctions for the timber. Based upon reported prices paid he estimated the rate for red cedar between $300 and $800 per cubic metre. The variations adopted per cubic metre for the different species are as follows: Species Mr Venz Mr Pearce Red cedar $300 - $800 $ 86.64 White beech $100 - $400 $ 70.96 Southern silver ash $ 80 - $150 $ 70.96 Native tamarind $ 80 - $150 $ 9.79 Camphor laurel $ 30 - $80 ----- Bunya pine $ 50 $122.41 Bollywood $ 80 - $150 ----- Silver quandong $ 80 - $400 $ 70.96 Slash pine $50 ----- Mr Pearce supplied evidence of the DPI seeking public tenders for selected parcels for a special cabinet making market varying in total from 10 to 25 cubic metres during 1996, 1997 and 1998. There was a relatively poor response to the tenders in 1996 and 1997, and the -- 13 of 28 -- 14 timber was withdrawn and milled for other higher use purposes. In 1998 there was a better response for the predominantly red cedar lots, which were seen as more suitable for the woodturners and cabinetmakers. Twenty tenders were received, and all 35 lots were sold. Based upon his experience in seeking to tender special small lots of timber as above, Mr Pearce believes that any attempt to market 120 cubic metres or more of timber for those purposes over a 12 month period would flood the local market. He concludes that it would be unrealistic to seek to harvest the entire 56 trees upon the subject as proposed. However he agrees that it is standard DPI practice to sell trees standing, with the purchaser providing the felling and transport, etc. Mr Venz argues that the prices per cubic metre by DPI are quite unrealistic for certain species, noting for example the rate of $9.79 for native tamarind and other non-compulsory species, in view of the existence now of an alternative market. Mr Venz also claims that the current unrealistic rates for cabinetwood timbers has evolved from a previous Forestry Department decision (1985) to tie those timbers to hardwoods, thus leading to a common price for those timbers. He suggests the open market prices are considerably in excess of the listed prices. Red cedar has also been restricted by small increases over a period of time. (9) Comparison of Sales: In support of his valuation Mr Henderson provided the following sales:  Sale 1 - (Landsborough Road, Maleny - Lot 3 on RP 207344) This is a 13.25 hectare vacant site, at the corner of Obi Lane and Landsborough Road. The sale falls from south to north, has frontage to Obi Creek, and is seen as inferior to the subject land. The sale sold in February 1996 for $310,000.  Sale 2 - (Alice Dixon Drive, Flaxton - Lot 15 on RP 179062) This is an 8.26 hectare battleaxed shaped vacant lot with steep slopes and good views to the rear. The soil is red volcanic, but has no subdivisional potential and is really a rural homesite. The sale is seen as inferior, and sold in March 1994, for $250,000.  Sale 3 - (Kureelpa Falls Road, Kureelpa - Lot 1 on RP 89869 and Lot 12 on RP 886252 - total area 25.448 hectares) -- 14 of 28 -- 15 These are two adjacent parcels which comprise black soil scrub country, and which slope from the road towards the rear in the south. The sale is located 3 kms north of the Nambour to Mapleton Road. The two parcels sold to the one purchaser for grazing purposes in July 1994, for Lot 1 ($275,000 - 13.448ha) and Lot 12 ($220,000 - 12ha). Lot 1 was resold in September 1997 for $260,000, and has been planted with macadamia nut trees. Because of its limited size, Lot 1 (13.448ha) there is some doubt about its commercial viability for macadamia nut production. The soils being black may also prove to have problems for avocados because of inadequate drainage. Overall the sale is seen as inferior to the subject land.  Sale 4 - (265 Kenilworth Road, Witta - Lot 2 on RP 121272) This is a 13.7391 ha vacant site located 8 kms north-west of Maleny, falling from the road to the rear at the east where there is a swamp lagoon. The land was formerly a sawmill and has subsequently been planted as an avocado orchard and the lagoon converted into a dam. The sale sold in December 1996 for $285,000.  Sale 5 - (Gardners Lane, Maleny - Lot 17 on RP 858625) This is a 12.59 ha improved lot with a 400 metre driveway to a substantial dwelling (278 square metres), dog pens, yards and a Tri-Steel shed. There is an extensive frontage to Obi Obi Creek which provides excellent secluded views of rainforest cliffs to the opposite side of the creek. The steeply sloping land was assessed at $240,000 ($19,063 per hectare). The sale was seen as grazing compared to the agricultural use of the proposed hypothetical subdivision of Lot 2 (20 hectares) of the subject land. The sale sold in July 1995 for $430,000. Mr Henderson sees the potential for the growing of avocados upon the subject land as demonstrating its superiority to Sale 5.  Sale 6 - (52 McCarthy Road, Maleny - Lot 11 on RP 202638). This is a 5.537 hectare improved lot with a brick dwelling (280 square metres), metal shed (108 square metres), and 450 existing avocado trees. There is a large lagoon at the front of the property, and the sale included machinery involving a good grading machine, cherry picker and tractor. The land value ex orchard was assessed at $250,000 ($45,150) per hectare, and was included to demonstrate the market demand for good orchard land. The sale sold in August 1996 for $550,000.  Sale 7 - (cnr Obi Land & Gardners Lane, North Maleny - Lot 8 on RP 216644) -- 15 of 28 -- 16 This is an 8.755 hectare parcel with an established avocado orchard, a cottage, 5 bay shed and dam water. The land is elevated at the Obi Lane frontage at its western end and falling towards the east. There are ocean views from the house. The sale was a forced mortgage sale, and is seen as marginal. The sale sold in June 1995 for $320,000.  Sale 8 - (North Maleny Road, North Maleny - Lot 7 on RP 221235) This is a 17.32 ha vacant parcel on undulating steep country, with a glimpse of ocean views from the site of a new dwelling being constructed in the south-eastern corner of the sale. The sale has south and western slopes and is seen as exposed to the cold westerly winds. The sale is seen as inferior to the subject lands. Mr Jones advised that the sale has subsequently obtained approval for two 8-hectare parcels for the growing of avocados. The sale sold in March 1996 for $436,000, analysing at $25,173 per hectare. The purchaser was aware that subdivisional approval would be forthcoming prior to the purchase.  Sale 9 - Obi Vale Road, North Maleny - Lot 15 on RP 192023) This is an improved lot of 2.095 hectares with a cavity brick dwelling (150 square metres) and a 3-bay shed garage (54 square metres). The sale is elevated with easterly rural views, and backs onto Obi Obi Creek. The land value was assessed at $175,000. The sale sold in August 1995 for $295,000.  Sale 10 - (Obi Vale Road, North Maleny - Lot 2 on RP 197164) This is a L-shaped parcel of 1.658 hectares below road level falling from the road to the rear where a dam is located. There are easterly rural views, and there is a highset timber dwelling and shed. The land value was assessed at $155,000. The sale sold in July 1995 for $255,000.  Sale 11 - (Murer Drive, North Maleny - Lot 6 on RP 889837) This is a vacant lot of area 8.089 hectares of cleared grass country with north rural views, which was purchased for grazing purposes. The sale sold in November 1995 for $212,000.  Sale 12 - (Burgum Road, North Maleny - Lot 2 on RP 805130) This is a narrow frontage improved lot of 8 hectares sloping to the rear eastern boundary. Improvements include a brick-veneer dwelling with difficult access. There -- 16 of 28 -- 17 is a glimpse of the ocean from the dwelling, and the land is cleared and grassed. The land value was assessed at $200,000 ($25,000/ha). The sale sold in October 1995 for $285,000.  Sale 13 - (Reesville Road, Maleny - Lot 14 on RP 851874) This is a 21.91 hectare improved lot with a basic dwelling, a near-new shed ($30,000), ringlok fencing and shelters for alpacas. There is a large dam across the boundary and the land is cleared and grassed. The land value was assessed at $430,000 ($19,625/ha). However Mr Carrick assessed the dwelling at $70,000 compared to Mr Henderson’s added value of $40,000, suggesting the land value may be something about $18,000 per hectare.  Sale 14 - (Glens Road, Balmoral Ridge - Lot 3 on RP 213593). This is an elevated house site of 8.084 hectares with panoramic views to the ocean, and a basic dwelling. Its only purpose was to demonstrate what the market would pay for good views, and Mr Henderson agrees it provides little comparison with the subject land. The sale sold in May 1995 for $462,000. Mr Carrick supported his valuation with the following sales, all of which are zoned as “Rural”:  Sale 1 - (Murer Drive, North Maleny - Lot 5 on RP 810897) This is a 1.011 hectare vacant rural residential site, of hatchet shape, cleared and elevated, with good rural views. The sale sold in January 1994 for $106,000.  Sale 2 - (Corks Pocket Road, Reesville - Lot 3 on RP 220211) This is a 61.1267 hectare partly improved site located 12 kms west of Maleny, with gravel road access at both its northern and southern frontages. The sale occurred as a consequence of a matrimonial settlement, however Mr Carrick believes that the vendors were not anxious to sell and the sale therefore represents a fair market contract. There is an area of dammed swamp in the south which provides good water for cattle. The land is cleared forest country. Improvements include an old weather-board bungalow, and buildings and yards which were assessed at an added value of $10,000. The land value was assessed at $350,000 ($5,726/ha). The sale sold in January 1994 for $360,000.  Sale 3 - (Watsons Lane, Reesville - Lot 13 on RP 856348) This is a 50.41 hectare vacant site located 8 kms west of Maleny, of steep to moderately sloping land selectively cleared, with permanent water and gullies. There -- 17 of 28 -- 18 are magnificent range and country views and the lot is a secluded rural retreat. The sale sold in January 1994 for $377,000 ($7,480/ha).  Sale 4 - Bernard Lane, Wootha - Lot 3 on RP 817382) This is a 58.17 hectare vacant site located 8 kms south-west of Maleny. The sale is of irregular shape and comprises coastal forest ridge and softwood scrub country, which has been selectively cleared. There are good range views and the sale is very secluded as a rural retreat. The sale sold in September 1994 for $275,000 ($4,727/ha).  Sale 5 - (Baroon Pocket Road, North Maleny - Lot 3 on RP 112927) This is a 23.78 hectare vacant site located 3 kms north of Maleny, of undulating softwood scrub and remnant rainforest which has been selectively cleared. The area is dispersed with bunya, flame, jacaranda and gum trees, and there are dammed gullies across the site. There is an overhead power easement across the rear of the property, which also has road access at its eastern end to Murer Drive. The house site at the western end is elevated with views over the whole parcel extending to glimpses of the ocean. The sale sold in October 1994 for $355,000, and was subsequently subdivided. (See Sale 10).  Sale 6 - (Murer Drive, North Maleny - Lot 13 on RP 192749) This is a 2.94 hectare rural homesite of undulating cleared scrubby forest, with some bunya trees, and good rural views. The sale included a habitable metal-clad shed (60 square metres) and a ride-on mower (total added value $12,000). The sale sold in February 1995 for $190,000, giving a land value of $178,000.  Sale 7 - (Watson Lane, Reesville - Lot 12 on RP 856348) This is a 45.43 hectare improved rural residential hobby farm, adjoining Sale 3, which is about 7 kms north-west of Maleny. The sale included a 390 square metre 2-storey masonry block dwelling, which has been renovated. The country is similar to Sale 3 but has more clearing and is more moderately sloping. There is good access to permanent water in the creeks and gullies. There are excellent views of the ranges. The sale sold in May 1994 for $480,000, which after allowing $175,000 for improvements, provided a land value of $305,000 ($10,566 per hectare).  Sale 8 - (Burnett Lane, Wootha - Lot 1 on RP 817382) This a 35.94 hectare vacant site adjoining Sales 4 and 9. The sale is cleared and well elevated softwood scrub and scrubby forest country. There is a ridge near the road frontage and the land falls moderately to steeply towards the south. There are good views from the ridge, where the purchasers have subsequently built their house. -- 18 of 28 -- 19 The sale sold in July 1995 for $220,000 ($6,121/ha).  Sale 9 - (Burnett Lane, Wootha - Lot 4 on RP 817382) This is a 42.44 hectare vacant site adjoining Sale 4. The sale is elevated along the Burnett Lane frontage, and has excellent views of the Glass House Mountains. The land is generally cleared, and has a small weatherboard bungalow, dairy bails and outbuildings which collectively have an added value of $50,000. The sale sold in August 1995 for $385,000, which provided a land value of $335,000 ($7,893/ha).  Sale 10 - Murer Drive, North Maleny - Lot 6 on RP 889837) This is an 8.09 hectare rural retreat homesite that was subdivided from Sale 5. The sale has a very private location, and the country has undulating to steep slopes, and the new dwelling subsequently constructed is well below road level. The sale sold in November 1995 for $212,000. Sales 2, 3, 4, 7, 8, 9 and 10 all have no potential for further subdivision, and Sales 1, 5, 6 and 10 are for rural homesite purposes only. (10) The Road Reservation: It is noted that the Plan of Survey of the subject land (RP 157646) shows the total area enclosed by the external boundaries of Lot 2 at 65.1658 hectares. The balance area of 64.1426 hectares, after deducting an area of 1.0232 hectares for Road Reserve purposes, is the actual title area of the land owned by the claimants. The Road Reserve of 1.0232 hectares is separate to the existing dedicated Obi Lane which passes through the north-eastern part of the subject land. The Road Reserve was originally allocated within the original property for unspecified road purposes, should they become necessary. Should any such additional land become needed for future road purposes then the State has at its disposal an area which it can define without any resumption or costly compensation. However it is also the practice of the State to dispose of such Road Reserves, should they no longer be needed, under sections 24 to 26 of the Land Act 1994. The sale price of any such land is to be at its unimproved value as determined by the Minister (section 25(1)). The quantum of the value may be appealed against by a registered owner of adjoining land under -- 19 of 28 -- 20 section 25(2). That appeal under section 25(2) is exercised under section 423 and Schedule 2, and is to this Court. Decision: Before considering the differences between the parties I note there is agreement in respect of the nature of the land, and that it is well located near to Maleny town centre, and that it has good quality soils, with gentle and gradual slopes which have a horticultural potential. It was also agreed that the subject land is exceptional dairying country. In respect of the planning constraints which would impact the future subdivision of the subject land it is also agreed that it is reasonable to conclude that a family transfer lot (2.7 hectares) could be subdivided in the north-eastern corner of the subject land, and the balance could, if needed, be further subdivided into a rural use lot (20 hectares) and a balance rural lot (41.4 hectares). Based upon those conclusions either strategy adopted by Mr Henderson or Mr Carrick for valuing the land at its highest and best use would be appropriate. (i) A Family Transfer Lot In analysing the 2.7 hectare rural residential lot it is noted that the proposed parcel contains 15 of the 56 identified commercial trees upon the subject land. Those trees include bunya pine, red cedar and silver ash with a total volume of 32 cubic metres, to which Mr Venz ascribes $12,088, and Mr Pearce 19.235 cubic metres for $2,020. In his analysis of his sales Mr Henderson has drawn comparison with Sales 2, 9, 10, 11, 12 and 13 as rural homesites, concluding an estimated value of $175,000. I agree that Sale 14 provides little assistance. Mr Carrick has analysed his Sales 1, 5, 6 and 10 concluding an analysed value of $180,000. Both valuers believe that the trees upon that parcel form part of the total amenity of the parcel for rural homesite purposes, and would be reflected in the value of the land in situ. For that reason I make no special allowance for those 15 trees, and I will adopt a figure of $177,500 for that parcel. (ii) A Rural Use Lot It is agreed that the nature of the deep rich well-drained red scrub soils make the 20 hectares in the north-western part of the subject land very suitable for horticultural purposes, particularly the growing of avocados. From the evidence provided it would be fair to note that the subject land is at least equal to any other similar horticultural lands in the Maleny area. There is no disagreement between the parties that the rural use lot of 20 hectares could be used for the growing of avocados. -- 20 of 28 -- 21 However there is disagreement between the parties in the comparison of comparable sales in the area. Mr Henderson has placed considerable reliance upon the potential use of the land for agricultural/horticultural purposes. He argues that potential use impacts upon the price that people will pay for land in North Maleny. Because of the limited extent of available land for either agricultural, grazing, dairying or residential purposes in the Maleny area, Mr Carrick argues that there is only one market for land in that area, and each type of potential user must compete in that single market. The value of land is therefore determined by a combination of lifestyles as well as agricultural purposes. Mr Henderson agrees but suggests that the higher agricultural potential of certain lands are more attractive to horticultural purchasers. Mr Henderson has sought comparison with his Sales 1, 3, 4, 5, 6, 7 and 8, seeking to analyse a rate per hectare for the land. He acknowledges that his sales are generally smaller in area than the rural use lot, varying from about 5.5 hectares (Sale 6) to 25.4 hectares (Sale 3). Mr Carrick argues however that Mr Henderson’s Sale 3 was really two sales of smaller parcels each about 12-13 hectares. While he has no sales of comparable size, Mr Henderson argues that other features of the sales make them comparable to the subject land, including the quality of the lands, their contours, availability of water, and frontage to Obi Obi Creek. In analysing his sales he considered the following rates per hectare: Sale Area (hectares) Rate per hectare Comparison 1 13.25 $23,396 Inferior 3 (Lot 1) 13.44 $20.449 Inferior 3 (Lot 2) 12 $18,333 Inferior 4 13.7391 $20,744 ------ 5 12.59 $19,063 Inferior 6 5.537 $45,150 ------ 8 17.32 $25,173 Inferior Because of the mortgagee nature of Sale 7, it was not analysed to land value. Allowing for the larger area of the rural use lot (20 hectares) Mr Henderson has concluded a rate of $21,250 per hectare for that parcel. By contrast Mr Carrick has compared his Sales 2, 3, 4, 7, 8 and 9 basically on the premise that there is a single market for land parcels of this size in the general area and, while -- 21 of 28 -- 22 the nature of the soil for agricultural purposes is acknowledged as lesser on his sales than the subject land, those sales in fact do have some potential for horticultural use such as macadamia trees. In adjusting for the better quality land of the subject and its better location near Maleny, Mr Carrick has considered the following rates per hectare: Sale Area (hectares) Rate per hectare 2 61.1267 $ 5,726 3 50.41 $ 7,480 4 58.17 $ 4,727 7 45.43 $10,566 8 35.94 $ 6,121 9 42.44 $ 7,893 Allowing for the differences in area he has concluded a land value of $350,000 at a rate of $11,290 per hectare for a rural use lot of 31 hectares, and a land value of $280,200 at a rate of $14,010 per hectare for a rural use lot of 20 hectares, based upon Mr Henderson’s approach. While I concur with the valuers that there is one market for the Maleny area, I believe that the competing different end-users would exert influence upon the final price that purchasers are prepared to pay. No doubt there would be some purchasers who would be prepared to buy the subject land merely for its lifestyle characteristics. Certainly the high values placed upon rural homesites in the area indicate what buyers will pay for a pleasant living environment. I can also accept Mr Carrick’s evidence that the sales do not reveal any premium that attaches to horticultural land. (Transcript Page 97). However I have some empathy with Mr Heyworth-Smith’s conclusion that avocado growers would have to come up to meet the lifestyle price and not down to meet it, as evidenced by the sales of homesites. Although in making that comparison it is important not to confuse sales of large parcels purchased on a per hectare basis and sales of smaller sites purchased on a site basis. Both valuers agree that the subject land is superior to Mr Carrick’s sales, but they differ in the quantum of any difference on a rate per hectare basis. Mr Carrick has based his comparison of parcels of similar size with lesser land quality. Mr Henderson has compared generally with sales of comparable quality, and adjusted for the differences in area. The variation between the two valuers lies entirely within their personal judgments of those -- 22 of 28 -- 23 differences. As both valuers are very experienced in this area I am left to conclude that an appropriate rate lies between $14,010 per hectare (Mr Carrick) and $21,250 per hectare (Mr Henderson). For the purpose of this assessment I will adopt $18,000 per hectare. In the matter of the improvements upon the rural use lots (20 hectares) I have Mr Henderson’s estimate of $105,000, and Mr Carrick’s value of $97,300. I will adopt $100,000 for improvements, giving an estimated value of the rural use lot (20 hectares) at: 20ha x $18,000 per ha = $360,000 Improvements = $100,000 TOTAL = $460,000 I note that compares favourably with Mr Henderson’s Sale 5 at $430,000, which comprises lesser quality land but has a superior dwelling. (iii) A Rural Balance Lot - It is agreed that the quality of the soils are less on this 41.4 hectare parcel than on the 20 hectares of the rural use lot. Both valuers have applied lesser rates at $15,000 per hectare (Mr Henderson) and $10,000 (Mr Carrick). The analysis as discussed for the rural use lot (20 hectares) also applies except that there is a more direct relationship between the size of the parcel and Mr Carrick’s Sales 2, 3, 4, 7, 8 and 9. Correspondingly there is a greater difference in size between Mr Henderson’s Sales 1, 3, 4, 5, 6 and 8 and the rural balance lot (41.4 hectares). I note that relativity between Mr Henderson’s rate per hectare for the 40-hectare parcel ($15,000) compared to the 20 hectare parcel ($21,250) is 0.70, while Mr Carrick’s comparable relativity is 0.71. Applying that relationship to the determined rate of $18,000 per hectare for the 20 hectare parcel, I arrive at a figure of $12,600 per hectare for the 40 hectare parcel. The value of the balance rural lot would then be: 41.4 ha x $12,600/ha = $521,640 (Say $522,000) (iv) A Dairy Farm and Small Rural Lot: As a comparison of the highest and best use of the subject land, Mr Carrick has determined a value of $842,000 for a dairy farm plus a small rural lot at an overall rate of $11,500 per hectare for the total area of 65.1658 hectares, including the purchase from the State of the Road Reserve. I note that his rate per broad hectare for the total 65 hectares ($11,500) is 15% higher than his rate for the 40 hectares alone ($10,000). As Mr -- 23 of 28 -- 24 Henderson’s sales have little relationship in size to the total area of the subject, I will accept Mr Carrick’s figure for that purpose. (v) The Highest and Best Use: In order to adequately compensate the claimant for the full monetary equivalent of the value to them, it is important to determine the highest and best use of the land. (Turner v. Minister of Public Construction (1956) 95 CLR 245). In that matter Dixon CJ said at page 264: “ Afterall the purpose is to ascertain the full return which may reasonably be expected from the sale of the land, not the most conservative value. The ultimate purpose of the inquiry is to find a figure which represents adequate compensation to the landowner for the loss of his land. Compensation should be the full monetary equivalent of the value to him of the land. All else is subsidiary to this end. ” The Acquisition of Land Act 1967 directs that the compensation shall be assessed according to the value of the estate or interest of the claimant in the land (section 20(2)). The highest and best use of the land is a factor in determining its market value for a likely legal purpose to a prudent purchaser (Cieslinski v. Minister of Works (1978) 20 SASR 55). In the current matter there are two likely methods for assessing the highest and best use: (1) hypothetical subdivision -  family transfer lot (2.7ha) $ 177,500  rural use lot (20ha) including dwelling improvements $ 460,000  rural balance area (41.4ha) $ 522,000 GROSS REALISATION - TOTAL $1,159,500 Less Outgoings Legal fees $ 2,000 Commission $30,147 Advertising $ 2,000 $34,147.00 NET REALISATION - $1,125,353.00 Less Profit & Risk (15%) ($1,125,353 x 15%) $146,785.17 115% TOTAL OUTLAY $ 978,567.90 -- 24 of 28 -- 25 Development costs, holding charges, and acquisition costs - Mr Henderson’s estimate $82,920 Mr Carrick’s estimate $84,728 Adopt $84,000 Plus Road Reserve purchase (1.0232ha @ $11,500/ha) = $14,168 Sub-Total $98,168 Land, dwelling & shed value $ 880,399.90 (Say, $880,500) (2) Dairy farm and small rural lot - Land $ 749,407 Improvements $ 100,000 TOTAL = $ 849,407 (Say $849,400) (vi) The Commercial Value of Timber: As noted previously I believe the 15 trees upon the family transfer lot have a commercial value for removal at something less than the added value they bring to the land in situ as a rural homesite. If I then consider the remaining 41 trees, I note that 26 are located on the 41.4 hectare parcel and 15 are on the 20 hectare parcel. Only four of those trees (5, 11, 19 and 20) on the 40 hectare parcel possibly fall within the 30-40 metre buffer area along the frontage to Obi Obi Creek, and should perhaps be maintained for environmental purposes. If I consider first the possible use of the remaining trees upon the land as a dairy farm, I note that over many years the trees were seen as providing camps and shelter for the dairy herd, and there was no attempt to harvest the timber. As both valuers have made no allowance for the removal of timber, I see no case for now providing an additional amount for their harvesting for a use as a continuing dairy. It would be fair to conclude that the added value in situ for that purpose would exceed the value for commercial harvesting. If I now consider Mr Venz’s trees for the purposes of the 20 hectare and the 41.4 hectare parcels, I see that four trees (38 to 41) are close by the dwelling and are likely to -- 25 of 28 -- 26 retain some aesthetic value associated with the residence. That leaves a likely 33 trees for which there is likely to be some residual additional value for harvesting purposes, particularly as those trees may well need to be removed as part of the planting of the avocado trees on the 20 hectares, and possibly macadamia trees on the 41.4 hectares. For the purpose of this exercise I will constrain my estimate of value to those 33 trees. An analysis of the total commercial timber reserve is as follows: Mr Venz Mr Pearce (1) Number of trees 56 51 (2) Volume of timber 155.6 cubic metres 46.1 cubic metres (3) Value of timber $41,880.00 $ 3,150.00 (4) Number of trees on 2.7ha 15 15 (5) Volume of timber on 2.7ha 32.0 cubic metres 19.235 cubic metres (6) Value of timber on 2.7ha $12,088.00 $ 2,020.00 (7) Number of trees near dwelling and creek 8 8 (8) Volume in (7) 21.968 cubic metres 8.371 cubic metres (9) Value of timber in (7) $ 9,640.36 $ 617.37 (10) Volume of balance of trees 101.632 cubic metres 18,494 cubic metres (11) Value of balance of trees $20,151.64 $ 512.43 In considering the difference between the estimates of Mr Venz and Mr Pearce, I find Mr Venz’s estimate is over-optimistic and based more upon hearsay than documented actual sales. However, it is also fair to say that Mr Pearce acknowledges the existence of the alternative market for special timbers, although his experience with that market is also limited to a few sales by his Department. Mr Pearce’s estimate of an increase of 50% beyond the standard log measurement volume would also appear to be very conservative. In considering the price per cubic metre, I note there is a wide disparity between the figures adopted by the two Foresters. Clearly the actual value per cubic metre achieved will tend to be more market-driven than merely the Forestry listed figures. However, for quantities of significant size the optimism of the industry journals should not be assumed. As Mr Heyworth-Smith noted in his address: “ The result is somewhere between the two, and I can only commend the Member that we take a broad look at the matter and strike a fair balance between the two. Obviously the proper result is somewhere between the two.” (T.120). -- 26 of 28 -- 27 Mr Jones saw the quantum at something significantly less than $7,500. In view of the vagaries of the two estimating processes, I will allow a figure of $10,000 for any commercial timber recovered. That figure follows the principle of resolving obscurities in favour of the claimant (Robinson & Co Ltd v. Collector of Land Revenue, Singapore [1980] 1 WLR 1614, at 1621); and also to provide a liberal estimate in accordance with Commissioner of Succession Duties (SA) v. Executor Trustee and Agency Co of SA Ltd (1947) 74 CLR 358 at 374. (vii) Disturbance: In the matter of disturbance for the resumption I have the claimants’ estimate of $11,900 (valuers’, solicitors’ and counsel fees), a figure not disputed by the respondent. I therefore find that an amount of $11,900 for that purpose is appropriate. (viii) Determination of Compensation: In arriving at the final quantum of the compensation, I summarise as follows: Value of land, dwelling & improvements $ 880,500.00 Value of commercial timber $ 10,000.00 Disturbance (professional fees) $ 11,900.00 TOTAL COMPENSATION $ 902,400.00 Less Part-payment by the Caloundra City Council $ 840,000.00 BALANCE OWING $ 62,400.00 (ix) Interest: In accordance with section 28 of the Acquisition of Land Act, the Court may order that interest be paid upon the amount of compensation determined. I am advised that an advance of $740,000 was paid by the respondent on 6 October 1995, and a further amount of $100,000 on 16 July 1998. I ORDER that the respondent pay to the claimant interest at the rate of 7.75% per annum on the sum of $890,500 (being $902,400 less the professional fees of $11,900) from 17 August 1995 up to and including 6 October 1995 (the date of payment of the first advance). Then on $150,500 (being $890,500 less advance of $740,000 paid on 6 October 1995) up to and including 16 July 1998 (the date of payment of the second advance). -- 27 of 28 -- 28 Then on $50,500 (being $150,500 less the advance of $100,000 paid on 16 July 1998) up to and including the day immediately preceding the date on which the final payment of compensation is made. (NG Divett) Member of the Land Court -- 28 of 28 --