Congress Community Development and Education Unit Limited v Director-General, Department of Transport [1998] QLC 32

LAND COURT BRISBANE 13 March 1998 Re: Determination of Compensation - Resumption for future road requirement purposes - Acquisition of Land Act 1967 and Transport Infrastructure (Roads) Act 1991 - Ref. A97-09. Congress Community Development and Education Unit Limited v. Director-General, Department of Transport (now Department of Main Roads) J U D G M E N T Falling for determination is compensation consequent upon the resumption by the Director-General, Department of Transport, on 11 March 1994, for future road requirement purposes of land described as part of Lot 3 on Plan 818236, County of Elphinstone, Parish of Coonambelah, containing an area of 2.788 hectares. The resumed land is part of a 31.81 hectare parent parcel which is situated in Herveys Range Road in the City of Thuringowa and in the suburb of Condon. At the date of resumption, the zoning of the parent parcel under the provisions of the Thuringowa Town Planning Scheme was "Special Facility (Educational, Cultural, Recreational and Associated Accommodation)". The parent parcel was, at the date of resumption, subject to an access Easement A on RP 744340 in favour of Lot 1 on RP 744340 (which is an 8,496 square metre parcel located internally within the parent parcel and which is also owned by the claimant company) with an area of approximately 1.01 hectares, and Easement D on RP 840418 (which is a stormwater drainage easement traversing along and adjacent to the whole of the eastern boundary of the parent parcel) with an area of approximately 2.913 hectares. The resumed parcel is almost regularly shaped and adjoins the whole of the southern boundary of the parent parcel. The land was resumed by the respondent Director-General for the future construction of what has become known as the Townsville Bypass Road which runs westerly from the southern Townsville suburb of Annandale across the Ross River, through the suburb of Condon and then in a north-westerly direction linking up with the Bruce Highway to the north-west of Townsville in the suburb of Deeragun. At the date of resumption, the dispossessed owner company was in the process of developing an education facility on the parent parcel known as "Shalom Christian College", the stated philosophy and site environment of which is to address the special requirements of the [1998] QLC 32 -- 1 of 40 -- 2 education of Aboriginal and Islander children. Under cover of a letter dated 9 January 1997, the Acting Crown Solicitor, acting on and behalf of the respondent Director-General, Department of Transport, filed in the Land Court Registry a claim for compensation dated 27 April 1996 which had been served upon him by Congress Community Development and Education Unit Limited. The particulars of the claim which was in the sum of $3,621,340 are: Loss of Land $ 364,000 Severance Loss Road Access Extra Road Works $ 18,000 Internal Fencing $ 22,000 Screening $ 60,000 $ 100,000 Injurious Affection Allowance Air Conditioning Dormitory $636,000 Sinking Fund Maintenance & Running Costs $2,300,000 Additional Housing Construction Costs $200,000 $3,136,000 Disturbance Architect Fees to redesign scheme and building $3,500 Architect Fees in preparation of claim $3,000 Quantity Surveyors Fees in preparation of claim $2,700 Engineers Fees in preparation of claim $1,740 Consulting Acoustic Engineers Fees in preparation of claim $ 900 Legal Fees in preparation of claim $1,500 Valuation of property, research, co-ordination and preparation of Report $8,000 $21,340 TOTAL CLAIM $3,621,340 At the outset of the hearing of the matter, Counsel for the claimant sought and obtained leave to amend the claim for compensation to the sum of $1,646,295 made up as follows: Heads of Claim (i) Land 2.788 ha (approx $55,000 ha) $154,000.00 (ii) Construction of buffer wall 4m high on 1.5 mound 700,000.00 -- 2 of 40 -- 3 (iii) Loss in value to remaining land by presence of buffer wall 89,000.00 (iv)Land for buffer wall 515m x 16m x 1/2 = .412 ha @ $55,000 ha 22,700.00 (v) Disturbance to ambience/concept 20,000.00 (vi) Architects costs for design changes 4,000.00 (vii) Cost to air-condition G/F 3 dormitory units 88,240.00 (viii) Loss of profitability 449,075.00 (ix) Interest on $285,700 @ 7.4% x 3.75 yrs 79,280.00 (x) Costs 40,000.00 $1,646,295.00 At a much later stage during the hearing, virtually at the end of the claimant's case, the claim for compensation was further and finally amended to the sum of $1,387,340 based on the following particularisation: Heads of Claim 1. Value of land resumed at 11.3.94 (i) $154,000 2. Cost to construct buffer wall • 4m high on mound 1.5m - as at 3.10.95 $595,000  488m = $1220 m •cost at 11.3.94 - less 4% = $1170 m •Length of wall 515m - 150m + 10m = 375m •Cost of construction 375 m as at 11.3.94 375 x $1170 = $438,750 • 2.5m high as at 3.10.95 = $280m •Cost of 11.3.94 less 4% = $270m • Length of 2.5m high wall 75m + 150m = 225m •Cost of construction 225 m as at 11.3.94 225 x $270 = $60,750 • Total cost of wall at 11.3.94 $438,750 + $60,750 = $499.500 say (i) $500,000 • (Discount for deferred expenditure 1994 to 2010 16 years @ 5% offset by allowance for escalation @ 5 - 7.5%) 3. Loss in value to remaining land by presence of buffer wall $89,000 deferred 16 yrs @ 5% $89,000 x .458 = $40,762 say (i) $41,000 -- 3 of 40 -- 4 4. Land for buffer wall 375 m x 16 m x 1/2 = .3 ha @ $55,000 ha = $16,500 deferred 16 years x .458 = $7,557 say (i) $ 8,000 5.Disturbance to ambience/concept (i) $ 20,000 6. Architects' costs for re-design $ 4,000 7. Cost to air condition G/F 3 Dormitory units - 1994 (i) $124,000 (Discount for deferred expenditure offset by allowance for escalation) 8. Loss of profitability $498,037 deferred from 1994 to 2002 - 8 yrs $498,037 x .677 = $337,171 say (i) $337,000 9. Interest on $1,188,000 @ 5% x 3.75 yrs = $178,200 say $178,000 10. Costs $21,340 $1,387,340 Note: (i) denotes that interest has been applied to this claim. Before outlining the evidence upon which the litigants rely in the proceedings, I should perhaps now indicate the extent of the dispute as to the quantum of compensation this is sufficiently illustrated by revealing that the respondent Director-General, through practising Registered Valuer Chris Caleo, assesses compensation for the resumption of the land, exclusive of any of the claim for disturbance items (shown in the finally amended claim as costs), in the sum of $128,000. As has tended to be in cases involving the determination of compensation claims of recent years in this Court, the hearing was lengthy, occupying seven sitting days. The transcript runs to 435 pages. Evidence was called in person by the claimant from: Rev. Shayne Francis Blackman, Minister of the Uniting Church and Chairman of the claimant company; Alan Ernest Randell, the First Principal of Shalom Christian College (from early 1991 to December 1995); Jeffrey Prehn Lowe, a Registered practising Valuer; Anthony Russell Brown, a Registered Professional Engineer and Principal Consultant and Associate of Ron Rumble Pty Ltd; John Ernest Neilsen, a Quantity Surveyor; Jon Alan Kuskopf, a practising Architect; Kenneth Robert Crane, a Chartered Accountant; -- 4 of 40 -- 5 Neville Ross Marsh, Executive Officer in the employ of the claimant company; and Stephen Doran, a Building Services Engineer in the employ of Connell Wagner Pty Ltd. In addition, the claimant called telephone evidence from Sir Roland Darling Wilson, former Judge of the High Court of Australia and who has had a long association with the education and wellbeing of Aboriginal People, and from M/s Julia Glennie Koppe, who holds a Bachelor of Education Degree and is currently working on a Ph.D., a Doctorate in Aboriginal Education. The respondent Director-General called evidence from six witnesses. They are: Mr Caleo (introduced earlier in this judgment); Frederik Hendrik Kamst, an Environmental Acoustic Consultant; Raymond Charles Hall, a practising Architect; Colin Bruce Horman, a Civil Engineer and Town Planner in the employ of the respondent; Philip Alexander George Dance, a practising Town Planner; and Douglas Francis Hannah, a practising Accountant. It is profitable for me to indicate here that, in general terms, it is the case for the claimant that the resumption of the land along the southern boundary of the Shalom Christian College land for the construction of what is proposed to be ultimately a 4-lane Townsville Bypass Road has a severely deleterious effect on the operation of a college. It is said that not only does the resumption cause loss of land, thereby restricting the ultimate development of the college, but will result in the need for the college to take traffic noise amelioration measures to preserve the ambience of the college in general and in particular for the occupation by college residents of existing accommodation blocks and in accommodation buildings not yet constructed but planned at a site location in close proximity to the bypass road. To obviate, or to lessen the anticipate road noise problems, it is claimed that there is a need to construct at the claimant's expense a noise amelioration block wall on an earth mound near the whole length of the resumption boundary with return block walls to be constructed on part of both the eastern and western boundaries. In addition to the construction of this wall, it is claimed that there will be a need to install airconditioning in the ground floor of three dormitory units proposed for construction in proximity to the bypass as part of the ongoing development of the college. On the other hand, the respondent Director-General does not see the need for any noise amelioration measures to be taken by the claimant, and does not consider there to be any assessable compensation in respect of any claimed loss other than the value of the land resumed, along -- 5 of 40 -- 6 with certain agreed disturbance claim items. Now as is always the case in extended trials of this nature, it is not meaningful, or perhaps even possible if I am to restrict the text of this decision to reasonable proportions, to cover all aspects of the evidence called by the parties. I propose to restrict reference to such part of the evidence which I find helpful in assisting me in my task of the determination of compensation. EVIDENCE FOR THE CLAIMANT Reverend Blackman told us that he has been involved with the concept of Shalom Christian College from its inception and indeed was involved with the purchase of the land which was acquired for the purpose of developing an educational complex directed towards the education of persons of Aboriginal and Islander extraction. He informed us that when the land was purchased in 1989, the College Board was informed that there was a proposal that there might be a bypass road around the rear of the site, but there was nothing set in concrete at that time which indicated that it was going to be constructed. Reverend Blackman says that when the land was purchased it was virtually all chinee apple bushes with plenty of wallabies, black and white cockatoos, snakes and all kinds of animals on it and it was intended to develop the college in that type of environment by retaining the open atmosphere of the property so that when students arrived at the college they would be in a familiar environment. It was proposed to retain this environment while building a community around it. Reverend Blackman says that facilities provided at the school were not merely for school children but also for families of students and elders as well. At present there is accommodation for a preparatory class, through primary school and secondary school where students are now educated to Year 11 level. College facilities are provided for both day students and boarders. The elders accommodation was designed to cater for about 110 persons, family home accommodation is to cater for 140 people and the pre-school, primary school and secondary school requirements are for 650 students. Tertiary accommodation is to provide for 120 students in four dormitories, and staff accommodation is to be for 200 persons. Among buildings remaining to be completed are one dormitory building (known during proceedings as "Building B3" on the master plan) and the four tertiary accommodation buildings. Reverend Blackman told us that although the college has had knowledge of the position of the bypass road now for some time, it is still intended to build Building B3 and the four tertiary board buildings in the planned position shown on the Master Plan, notwithstanding that these buildings will be in relatively close proximity to the future bypass road. Reverend Blackman can see no practical alternative to their construction as planned, since to start to move the buildings around would -- 6 of 40 -- 7 result in the college having to reshape its whole direction. Also planned for construction is family housing which again is to be located as shown on the master plan, and some of these buildings will also be in close proximity to the proposed road. Reverend Blackman believes that the resumption of the land for the bypass road, which equates approximately 10% of the parent land parcel, takes away an area where students use the land to escape from the boarding and school activities and where they spend time wandering around out in the open or around the trees. He naturally expressed the view that the college preference would be that the road does not go there at all. Further, it is suggested by Reverend Blackman that it well may be that the college cannot accommodate the number of people originally planned for it due to the lost area of land, and this means that the college will still have to provide the same resources for a lesser number of people - such as dormitories, dining rooms and classrooms. Reverend Blackman told us that the cost of capital works carried out on the college to date is close to $13 million. He can see no practical alternative to overcoming the problems which will result from the use of the bypass road by vehicular traffic other than construction of a wall for the full distance of the college's southern boundary. The Board has not been able to identify any alternative to the particular situation to this point of time. Reverend Blackman does not favour building a wall at all which he says will be forced upon the college by the resumption. Reverend Blackman also suggests there will be a need to aircondition the proposed accommodation buildings to cope with the blocking of the breezes in the event of the construction of the wall. Sir Ronald Darling Wilson informed the Court by telephone that he was the Foundation Patron of Shalom Christian College and that the college was first floated in 1989. Sir Ronald's attraction to the college was that it was quite unique as a visionary concept of aboriginal education in the holistic sense in that it involved understanding the aspirations of many indigenous people, being a school which was very much an integral part of the wider community. Sir Ronald regards Shalom College as a unique educational and community facility and one to which its land is particularly important. Although the college land might be seen to be very generously endowed in size, the prospects of community growth and development with adventurous thinking and plans, makes what land is available fairly precious and this would probably explain the particular concern that the college has about the resumption. Sir Ronald believes that the use of the future bypass road by vehicular traffic would certainly disturb the college developments in that part of the complex, especially as he has been told that the future road would be in the vicinity of boarding house facilities and that up that end of the complex there would certainly be adverse consequences from a major highway on a -- 7 of 40 -- 8 major traffic facility nearby. Sir Ronald believes that the erection of a noise amelioration wall such as proposed by the college (a 4 metre high brick wall on a 1½ metre earth mound) along the entire length of the resumption line would give the appearance of the college site being shut in. He had not heard of this proposal until it was suggested to him on the telephone during this case, but his immediate feeling was to people who have been identified with wide open spaces, the wall would immediately create an inhibitory enclosed feeling simply by being there and shutting off the site, this notwithstanding its objective to ameliorate the traffic noise. Mr Randell was involved in the establishment of the college from the outset, having been appointed its first Principal in 1991. He departed the college in December 1995 to make way for its first Aboriginal Principal, but since retiring he has continued his involvement with education issues concerning indigenous people. Mr Randell told us that there are major differences in the educational requirements for indigenous persons when compared with non-indigenous persons, particularly with indigenous persons from remote or isolated regions. For these persons, Mr Randell says for education to be fully effective it should be conducted in what he calls "a retreat atmosphere" since this is the cultural approach to indigenous education. Mr Randell says that whilst noise, congestion, fast traffic movement and exhaust pollution will be disruptive to all education, the effect upon indigenous education will be compounded many times since children and young persons coming from isolated locations do not cope with a pressurised environment. Mr Randell told us that it was with this educational requirement in mind that the layout of Shalom College was designed and the sense of space is vital. Further, he says that for children coming from dysfunctional communities the effect of traffic noise, a congested living environment, rapid traffic movement and vehicular pollution will have a greatly exaggerated effect on the capacity of these children to learn, or even to remain at the college. Mr Randell told us that all indigenous persons moving away from their familiar open environment will experience an acute sense of homesickness and to assist in its control it was necessary to create the "complete community" concept where communal support was available. Mr Randell stresses that the presence of a highway (bypass road) along the southern boundary of the college will be severely damaging to the whole concept of it, and the construction of the proposed buffer wall would also be severely damaging to its concept and will have a detrimental effect on the indigenous college occupants be they day students or boarders. M/s Koppe was asked by the claimant company to give telephonic evidence in the matter. She is the author of a paper titled "Palm Island Community and the Demand for Secondary School Boarding Facilities" which was produced by her late in 1992 and which was introduced in evidence. In her paper, M/s Koppe says she was asked by the Board of Shalom -- 8 of 40 -- 9 Christian College to provide some documentation of the demand for secondary boarding places by parents and students in the Aboriginal Community. She limited her focus to the Palm Island community which she knew very well. Her research and involvement with education on Palm Island extends over a period of 24 years. After discussing the situation with education on Palm Island, M/s Koppe offered the view that the Aboriginal and Islander group which made the original decision to found Shalom Christian College did so because of great concern over the failure of schooling to equip children adequately for life and employment in their communities and community organisations. It is also M/s Koppe's understanding that Shalom Christian College was conceptualised initially by Aboriginal and Islander People with the needs of Aboriginal and Islander students, communities and community organisation in mind. She told us that she is very familiar with the Shalom College layout and its facilities. In evidence is a report from Kennedy Consultants Pty Ltd under the hand of M/s Jacqueline Downs, who is a psychologist, who was asked to provide the college with advice about the effects of the resumption on it and its students. M/s Downs says in the report that it appeared that the college had been thoughtfully developed, being particularly sensitive to the environmental needs of Aboriginal boarding students. M/s Downs advises that the physical environment is important for the development and maintenance of self identity, and the adaptation of persons to a new setting such as a boarding school depends partly on personal environment congruence. She says that incongruence may manifest as homesickness, with severe or continuous homesickness having been associated with low self esteem, depressive symptomatology and non-productive coping. M/s Downs recommends that to minimise homesickness, professional landscaping be considered for the proposed perimeters of the college land in order to preserve the illusion of space. M/s Downs recommends that due to the resumption and the use of the proposed bypass road construction, although inconsistent with the concept of natural ventilation, it will be necessary to install airconditioning in existing and proposed dormitories in order to provide a stable environment for study and quiet time. She also suggests that double-glazing of windows would also add to the concept of spaciousness by allowing visual access to the natural environment without the distraction of noise and fumes. M/s Downs is of the opinion that, on the basis of research evidence, a view can be taken that the land resumption necessitates suitable compensation, an opinion which I feel perhaps does not come within her field of expertise. But she is qualified to make the point that without adequate provision for a quiet, acceptable environment, students' psychological wellbeing may be at risk. It is to be noted that M/s Downs was not called in evidence by the claimant. The opinions expressed by correspondence are accordingly of no probative weight. Mr Lowe described the parent Shalom parcel as being reasonably flat land with a gradual fall to the north, and situated within three kilometres of the Thuringowa City Council Chambers. A major shopping centre, private and State schools, playing fields and parklands -- 9 of 40 -- 10 are located within two kilometres and the James Cook University within 10 kilometres. Immediately to the north of the parent parcel across Herveys Range Road is the Brothers' Rugby Club and associated playing fields and further to the north is a residential estate known as "The Willows" which has been under development since the late-1970s. To the south there are two residential estates known as "Orchard Ridge" and "The Palms" which are also being developed. Mr Lowe told us that at the time of resumption, the college was in its third year of operation and the development consisted of: Yalga-Binbi Institute - existing house converted for this use (this building is not on the parent parcel but on a separately surveyed site serviced by the internal access easement. Five primary school buildings. Six secondary school buildings. Two storey buildings for 32 boarders. Dining Room. Headmaster's residence. Four buildings under construction for hostel/retirement village. Ground improvements including two ovals, an open drain, irrigation system and access roads. Mr Lowe says that since the date of resumption, further works have been carried out towards completing the college development. Mr Lowe originally assessed compensation for the resumed land in the sum of $173,000 by what he says is the process of a "before and after" valuation. But it seems to me that he originally valued the resumed land itself at the rate of $62,025 per hectare without a "before and after" valuation approach. Mr Lowe claimed originally that the resumed land had a special value to the owner and suggested that the value of $173,000 should be doubled to reflect the value to owner, but his assessment of special value was later abandoned. Indeed, his valuation of $173,000 for the resumed land was also abandoned during the case in favour of a valuation of $154,000 (at the rate of $55,000 per hectare) based on a "before and after" valuation as follows: Value before resumption 31.81ha @ $62,024 per ha - $1,973,000 Less value after resumption - 29.02ha @ $62,680 per ha - $1,819,000 Value of land resumed $ 154,000 It seems the reason Mr Lowe has applied the higher valuer per hectare in the "after" resumption situation is because in the post resumption situation there is no longer a need to make a capital allowance in the valuation for the construction of Smith Road. -- 10 of 40 -- 11 Mr Lowe cited six sales of land as a basis for his valuation, but obviously the most comparable of those are those of two parcels of en globo land in close proximity to the subject land. They are: "Willows Estate" - Lot 4 on RP 808592 and Lot 410 on RP 869267 - 105.6ha - Kern Grazing Pty Ltd (in receivership) to Defence Housing Authority on 20.05.94 for $5,570,000 - or $52,746 per hectare. Mr Lowe has analysed this sale to show a value of $73,256 per hectare after deducting an area of 0.56 area for a powerline easement and an area of 10.4 hectares for a future drainage reserve, and adding to the sale price an allowance of $800,000 for a major outfall drain and $560,000 for an access bridge which has been constructed over the drain. Mr Lowe told us that pursuant to the subdivisional scheme for residential development of "The Willows" estate by the vendor, there were some 778 lots remaining to be subdivided. He says the purchaser was aware of the Council requirements for it to provide drainage reserves and to complete the construction of the main outfall drain with sufficient capacity to service the total catchment area which extends over three kilometres south from "The Willows" land, and to provide access over the drain in order to subdivide the area west of the drain. Mr Lowe accordingly calculates that the purchaser paid in effect $6,930,000 to obtain the en globo parcel suitable for development - or $73,256 per hectare. He sees "The Willows" land to be very comparable with the subject parent parcel. It is situated close by and in his view, has similar potential for residential development. "Carlysle Gardens" - Lot 1 on RP 722670 - 29.45 ha - RG Clare to Carlysle Gardens Townsville Pty Ltd on 21 August 1996, for $1,100,000 - or $37,351 per hectare. Mr Lowe has analysed this sale to show him a land value of $56,348 per hectare after deducting an area of 3.96 hectares for a future drainage reserve and adding to the sale price $43,000 for the cost of an outfall drain and $293,300 for required external roadworks. Mr Lowe told us that this land was zoned "Residential B" at sale date and that Council approval for the development of a 266 lot subdivision had been obtained on 15 December 1993. But the subdivision did not proceed and the approval lapsed. Further, the purchaser was required to construct an open outfall drain of sufficient capacity to service the total catchment area to the south of the property and to construct Beck Road fronting the land and external to the development scheme. The land is now being developed as a retirement village of in excess of 400 homes plus serviced apartments and sporting facilities. Mr Lowe considers the subject land to be superior to the "Carlysle Gardens" site mainly because of what he describes its better position and exposure from Herveys Range Road. Mr Lowe has also been involved with the Shalom Christian College since its inception, having provided advice to what was to become the Board when the property was being purchased. He attended to the application for Consent Use for the College and confirmed that -- 11 of 40 -- 12 this was approved on 30 May 1989, and told us that at that time the development plans did not show any reference to the Main Roads requirement for land adjacent to the southern boundary for the bypass road. Mr Lowe says that the subject land has in the past had some flooding problems. The existing Harveys Range Road is currently built up and this tends to pond water especially as the culverts under that road were of insufficient size. Mr Lowe's attention was specifically drawn to the construction of the closest College building to the resumption line. It is a dormitory building (shown as B2 on Plan S93). It faces north/south, with large banks of louvres for ventilation. Mr Lowe feels that any noise emitting from the future bypass road would affect occupants in the building, especially as they will be indigenous people. Mr Lowe told us that when the solicitors for the college were attending to the settlement when the land was purchased in 1989, they made the normal requests and searches at the Main Roads Department and were advised that investigation was proceeding for the future road network in the area which indicated that there was a possible requirement from the subject land for road purposes, but as he understood the position, it was then just a possibility, not even probable that land for the bypass road would be required from the college property. Mr Lowe is of the firm view that the bypass road will impact negatively upon the college land. He sees there being a loss in value of land adjacent to the proposed buffer wall on the resumption line, along with a loss in value of the land which will lie between the buffer wall and the resumption boundary. It is Mr Lowe who assesses the loss in value of this land which is included in the compensation claim (Exhibit 6A). His assessment of compensation reads: "It is evident from sales of vacant allotments that a Noise Barrier Wall when erected on or adjacent the rear boundary of a vacant allotment separating that allotment from a main road that there remains a lessening in the value of the allotment. An analysis of sales has been carried out on three Stages of the Annandale Estate Subdivisional Development located adjacent University Road which forms part of the Townsville By Pass. The Developer has constructed a noise barrier wall some 2 metres high on the rear boundary of the allotments bounding this road and a diminution in value is evident when compared to other sales occurring in the Estate at that time and the selling period for these allotments is noticeable longer. From the results of the analysis, a claim for compensation is set out herewith based on the effect such diminution in value would have on the net realisation of a hypothetical subdivision analysis should a Noise Barrier Wall be constructed along the Southern Boundary of the balance land. " -- 12 of 40 -- 13 1.Loss in Value due to reduction in prices in subdivisional lots adjacent wall. (Consider 10% Depreciation in Value per lot for average value of allotments of $42,000 i.e. $4,200 less selling costs = $4,100 loss in net realisation value) 22 LOTS @ $4,100 Loss in Realisation $90,200 Less Profit & Risk (Arguable Range 25%-33%- allow 30%) results in a Loss of Value of $69,500 2.Loss in Value due to extended selling period for these lots - (4 months) Holding Costs - Deferred Income 22 Lots @ $37,800 each $831,600 Less Selling Costs Agents Commission ($1395) Advertising ($300), Legals ($250) 22 Lots @ $1945/lot $42,800 DEFERRED INCOME $788,800 Loss of Interest Over 4 months @ 7.4% (Bond Rate 3/94) $19,500 TOTAL CLAIM $89,000 CLAIM FOR LOSS OF LAND FOR NOISE BARRIER WALL The Barrier Wall necessary to ameliorate the Traffic Noise from the Proposed By Pass Road will need to be set some eight metres from the new boundary after resumption inside the balance land. As the Rear Boundary is some 515 metres in length this will in effect reduce the balance land available to the Claimant by 0.412 hectares. At $55,000 per hectare this results in a Loss of Value of $22,660 Say $22,700 " It was Mr Brown who was asked by Mr Lowe on behalf of the claimant to provide it with a report as to the effectiveness of the proposed buffer wall as a noise barrier. He quoted "The Stated Objective of the QDOT Interim Guidelines and Technical for Road Traffic Amelioration" is to "specify the maximum noise level with which the Department of Transport shall, subject to availability of funding, endeavour to comply with the best cost technology. -- 13 of 40 -- 14 The levels specified in these Guidelines represent a balance between that which may be desirable for various land uses and that which may be achievable." Mr Brown says that with the new access controlled roads, the guidelines require that the external noise level generated by road traffic must not normally exceed 63dBA L10(18 hour) before amelioration measures will be initiated by the Queensland Department of Transport. In addition, Mr Brown says that noise level must have increased by at least 3dBA above the ambient noise level that prevailed prior to the construction of the road, and further if the increase in ambient noise level is more than 10dBA, the noise level limit is to be restrained to 60dBA. Mr Brown told us that for road traffic, internal noise level limits specified by the Commonwealth Department of Administrative Services in 1985 are, for road traffic, the following: •Classrooms - LA10,T2 50dBA •Classrooms - LA90,T3 40dBA • Bedrooms in Apartments - LA10,T 45dBA • Bedrooms in Apartments - LA90,T 40dBA • Living Rooms in Apartments -LA10,T 55dBA • Living Rooms in Apartments -LA90,T 45dBA Mr Brown advised Mr Lowe that he has assumed in his noise level calculations that the wall will be 5.5 metres high and built parallel to the line of the proposed road and located some 8 metres from the boundary of the resumption. For the purpose of his calculation, future road traffic volume was set at 16,000 vehicles per day. Mr Brown sees the existing ambient noise level at the existing and proposed dormitory buildings to be generally in the range of 35-45dBA, and because the existing ambient noise level is less than 50dBA, the corresponding L10(18Hour)noise level limit would be 60dBA as a result. Mr Brown has made calculations as to the noise effectiveness of the proposed barrier wall for the existing dormitory building (B2) and for the closest proposed dormitory building (B3), and in each case, the effectiveness of the wall has been assessed for both dormitory levels inside the building. The result of his calculations are tabulated as: Building Calculated External L 10(18hour)Noise Levels (dBA) Level 1 Level 2 No Wall With 5.5m Wall No Wall With 5.5m Wall -- 14 of 40 -- 15 B2 B3 61.2 66.9 50.1 54.5 62.2 67.9 52.4 60.0 Table 1 - L10(18hour) Road Traffic Noise Levels at the Closest Facade of Buildings B2 and B3 - With and Without Proposed Wall Building Calculated Internal Maximum Daytime LA10(1hour)Noise Levels (dBA) Level 1 Level 2 No Wall With 5.5m Wall No Wall With 5.5m Wall Windows Open Windows Closed Windows Open Windows Closed Windows Open Windows Closed Windows Open Windows Closed B2 B3 52 57 37 42 41 45 <30 <30 53 58 38 43 43 51 <30 36 Table 2 - Calculated DAYTIME L10(1hour)Road Traffic Noise Levels Inside the Rooms of Buildings B2 and B3 - With and Without Proposed Wall Building Calculated Internal Maximum Nighttime LA10(1hour)Noise Levels (dBA) Level 1 Level 2 No Wall With 5.5m Wall No Wall With 5.5m Wall Windows Open Windows Closed Windows Open Windows Closed Windows Open Windows Closed Windows Open Windows Closed B2 B3 44 49 <30 35 33 37 <30 <30 45 50 <30 35 35 43 <30 <30 Table 3 - Calculated NIGHT TIME l10(1hour)Road Traffic Noise Levels Inside the Rooms of Buildings B2 and B3 - With and Without Proposed Wall Mr Brown suggests that his calculations show that the 60dBA external noise level limit is exceeded at the facade of both levels of building B2 and the proposed building B3. Further, if the 5.5 metre high wall is constructed, the noise level limit will be met comfortably at building B2 and the lower level of building B3 when the wind is calm, but could be expected to exceed 63dBA under adverse conditions. Without the wall, the internal noise level limit is expected to be exceeded inside both levels of the proposed building B3 when the windows are open. Inside building B2, Mr Brown says the noise level will only just be met when the windows are open. If the windows are closed, the compliance with internal noise level limits will be achieved in both buildings under all wind -- 15 of 40 -- 16 conditions. Mr Brown stresses that his calculations are based on noise level limits for non-indigenous occupants. He understands that the work carried out by Kennedy Constructions Pty Ltd (M/s J Downs) indicates that Aboriginal and Islander students at the college may be more sensitive to external noise intrusion than are non-aboriginal students. Mr Brown is of the view that if compliance with the Queensland Department of Transport Noise Level Limit only is to be achieved, it may be more cost effective to construct a wall on Queensland Department of Transport land. This, he says, may be a more aesthetically appealing option. Such a wall would have to be built in accordance with QDOT specifications. Typically it would require the barrier to be constructed using timber panelling on steel posts. Mr Brown estimates the cost of such a fence, if compliance is sought at building B2, to be $55,000, or if compliance is sought at building B3, $100,000. Mr Brown is of the opinion that there seems to be scope within the Master Plan to relocate future dormitory buildings further from the road and consideration should be given to placing less acoustically sensitive buildings and activities in their place. Mr Brown told us that at the time of the preparation of his report for Mr Lowe, he was under the impression that there was projected to be 5% heavy vehicles in the 16,000 strong traffic stream. He has since learned from the Main Roads Department that its current projection is for 10% heavy vehicles, and he believes this change in traffic mix will necessitate increasing marginally the height of the barrier wall to 5.75 metres to achieve compliance with the criteria proposed in his report. Further, Mr Brown considers that the barrier should be extended and return along the eastern boundary at the same height for 10 metres and along the western boundary for 75 metres with a reduced height of 2.5 metres to minimise noise for the proposed detached housing development. Mr Brown considers there to be some potential to reduce the height of the proposed barrier wall on the resumption line on its western side by stepping down its height to meet the suggested 2.5 metre high return on the western boundary. Mr Brown believes that if the object of the exercise was to obtain the quietest environment internally in the existing building B2 and the proposed building B3, then the best way of achieving that would be to aircondition those buildings rather than building the wall. Mr Brown says that the best way of controlling the noise problem with proposed building B3 would be, if it was physically possible, to relocate the building to a position parallel to building B2 to the south of the oval and therefore put it beyond the 60dBA line. It was Mr Neilsen who costed the proposed barrier wall for the claimant. Originally, Mr Neilsen was requested by Mr Lowe to cost the construction of the wall along the southern boundary of the college land and returning for 100 metres along the western boundary. He calculated the cost of the erection of this wall at $700,000 on 3 October 1995. Mr Neilsen says that to bring this cost back to the date of resumption in this case (March 1994) then using the appropriate factors, he would reduce -- 16 of 40 -- 17 the figure of $700,000 by a factor of 3.96% - to a sum of $672,200 on my calculations. Mr Neilsen's cost calculation was made taking account of preliminary instructions received from Mr Johnstone (an engineer, in relation to the construction of the wall). Consequent upon receiving further instructions, Mr Neilsen has calculated the cost of erecting a 2.5 metre high wall to the western boundary in the sum of $28,000 again as at October 1995. Using the 3.96% discount factor, I calculate the cost in March 1994 values to be about $27,000. During the course of his evidence, Mr Neilsen told us that he had examined costings of a wall on the southern boundary only made for the respondent by Mr Hall. He suggests that Mr Hall's costing of $530,610 for the wall envisaged by him should have been $595,000 in October 1995 cost price terms. Once again Mr Neilsen suggests that this cost should be reduced by a factor of 3.96% to represent cost as at the date of resumption. Again I have calculated this sum and arrived at a figure of $571,500 - certainly not much in excess of Mr Hall's cost estimate. Mr Neilsen has placed in evidence the detailed calculations of his costings but I do not feel the need to have them particularised in this decision. Late in the case, indeed after the claimant and the respondent had closed their cases, leave was sought and granted after I heard legal argument, for the claimant to re-open its case. This was in relation to what was described as the simple aspect of the escalation in the building costs (of the wall) which will take place between the date of resumption and the date upon which it will be necessary for the claimant to construct the wall. This was obviously in response to a proposition that compensation, if any, awarded for the cost of building the wall would be significantly reduced by an appropriate discount factor to allow, for example, that the wall would not be needed until say the year 2014 or the year 2020. Mr Neilsen was asked for his estimate for escalation factor in building costs from 1977 to a date some 16 years in the future. Mr Neilsen acknowledged the difficulty in forecasting building cost trends for such a long period, and he too expressed the view that it is normally not done for more than a two year forecast period. Mr Neilsen told us about past variations in building costs as reflected in a published Cost Price Index published by the Australian Institute of Quantity Surveyors going back to as far as 1963. Compounded, the Index suggests that building costs have risen over the last 16 years at a rate of 5.1% per annum, and the best Mr Neilsen can do is to use that calculation to forecast rises of a similar proportion in the future. Mr Kuskopf told us that he has been associated with the development of the Shalom College site as its architect since 1991 and before any building construction had begun. It was his task to interpret a "sand diagram" which had been conceived by the Board in a practical way as far as the layout of the buildings and planning of the site was concerned. Mr Kuskopf says that based upon population densities, and after receiving town planning advice, it was determined that the area of the college site in its former "Residential B" and "Residential C" zoning would allow about 1,200 people overall. The site was then planned so that the maximum number of persons on it during the day would not -- 17 of 40 -- 18 exceed 1200 but that during evenings and after school hours, the number would reduce to about 600. The reason for the lower after school occupancy was the perceived need for open spaces and tranquillity to accommodate the particular needs of the children coming from remote areas to board at the site, while at the same time maximising the usage of the site. Mr Kuskopf told us that in planning the location of the various college buildings, he had to take into consideration that there already was the Yalga-Binbi Institute building on the land. This was a substantial structure which the Board could not afford to remove so that the development had to be planned around it. Mr Kuskopf told us that the possibility of a land resumption did not become an issue until 30 January 1992, when he received a brochure showing a possible land resumption along the southern boundary of the college land, after which the possibility of a land resumption by the Department of Transport was taken into account in the design and to that extent no buildings were constructed on that part of the site. It was planned that the proposed resumed area would form part of the open space on the whole site. If there was no proposed resumption, Mr Kuskopf would have placed buildings on the resumed land to give more space between the buildings on the site. Mr Kuskopf has designed the college buildings using natural ventilation and taking account of the prevailing breezes. The master plan he drew in early 1992 showed the possible resumption at the southern end and a roadway between the primary and secondary schools accessing the community centre. It was considered this might be dangerous and the roadway location was changed in 1993, and this change meant the boarding accommodation had to be moved to the east and south. Mr Kuskopf does not believe that it is possible to relocate the boarding accommodation without impinging on the need for space between the buildings. After considering other designs for the boarding buildings, which he thought would not sufficiently reduce the impact from the bypass road, Mr Kuskopf then considered the construction of a barrier wall. After considering the position of building B2 accommodation, he came to the conclusion that a 5.5 metre wall was required. Mr Johnstone prepared sketch plans of two alternatives involving mounds and brick walls in a combination of heights to achieve this wall level. Mr Kuskopf then prepared a cross-section of the proposed wall and this was submitted to Mr Brown (the acoustic engineer) for his report. Mr Kuskopf considered airconditioning as an alternative solution to the anticipated traffic noise, traffic movement, light and exhaust pollution from the bypass road but this will only have an effect of reducing the internal noise level in the buildings. Mr Kuskopf told us that the original master plan for the college development was prepared in 1991, and in fact he built a model of it in June 1991. The model is in evidence. No structural work had been commenced at that time but Mr Kuskopf was in the stage of producing working drawings, with some of the buildings required to be opened for the first year of school in 1992. Mr Kuskopf says that the formal council approval for the development of the college was obtained on 17 February 1993, and as a condition of approval, council advised that the development -- 18 of 40 -- 19 should be in accordance with the master plan so it was not intended that the development should digress from the plan to any extent at all. Of course, in reality the development did eventually depart from the plan in so far as the relocation of the internal road and the siting of the accommodation building B2 further to the south is concerned. With regard to the possibility of installation of an airconditioning system in accommodation building B2, Mr Kuskopf is of the opinion that the best type of airconditioning is a "split" system such as proposed by Mr Hall whose evidence I shall deal with later in this decision. Mr Kuskopf was asked during his evidence if it would be his advice to locate the proposed boarding accommodation building B3 as indicated on the master plan in the event of it being constructed, and he responded by saying it would be his advice to so do. He was also asked to comment upon a plan shown to him which indicated a different site location from that proposed in the master plan so as to locate the buildings further from and away from the influence of the Bypass Road. Mr Kuskopf acknowledges that the buildings could be constructed in the indicated positions but the basket ball court would have to be demolished. Further, he commented that his client had shown a wish to include the conference centre as indicated on the plan with associated accommodation for the conference centre. Mr Crane was called by the claimant to make an accountancy assessment of the loss in future profitability of the college consequent upon the resumption. Mr Crane originally assessed compensation for loss of income due to the resumption in the sum of $449,075. He was provided with operational revenue and expenditure projections for the college for the years 1993 to 2000, pre-audit financial statements and reports for the year ending 31 December 1996, and management accounts for the period 1 January 1997 to 30 September 1997. Other advice provided by the claimant to Mr Crane includes that the zoning of the complex provides for an occupancy rate of 35 persons per hectare and that there are currently approximately 300 occupants in the complex. Based on the completed facilities, Mr Crane has assumed that this occupation reflects 230 students and 70 persons in the elders' village. Mr Crane has also been advised that by 1998 full occupancy of the college will be achieved. Mr Crane calculates that the full potential capacity of the college land based on 35 persons per hectare is 1113 persons (31.8 hectares x 35). He then calculates the loss of occupancy due to the resumption to be 112 persons (3.21 hectares - the resumed land and an area of land required for a future buffer wall x 35). But this number includes staffing, estimated at 200 once the complex is fully developed. As a result then, Mr Crane says the net loss of revenue contribution occupants would be approximately 91. Based on the material provided to him, Mr Crane calculates that the average net contribution per person to college revenue is $478. Accordingly, he suggests the total annual contribution loss is $43,498 (91 x $478). But Mr Crane has been advised that compensation in respect of the value of the land resumed is expected to be $285,700. Assuming an interest rate of 5 percent per annum, he then calculates that the investment of compensation monies would generate an income of $14,285 per annum, so the net annual loss would be $29,413. Mr Crane says that this annual loss will continue into the future and has applied a 5 percent interest table to the annual loss indicated for a -- 19 of 40 -- 20 period of 30 years. This produces his calculated assessment of compensation for loss of income in the sum of $449,075. As a result of some further investigations since Mr Crane has read a report made by Mr Hannah, the accountant to be called by the respondent, he has amended marginally his calculations of loss of income over 30 years to be $498,037. This is as a result of him increasing the actual contribution per head from $478 to $513. But this figure was further amended during the case by deferring the claim for loss of profitability for 8 years (1994 - the date of resumption - to the year 2002 - the period during which it is not expected that roadworks on the bypass road will commence) at an interest rate of 5 percent to $337,000. Mr Marsh informed us that he has been associated with the claimant company since its incorporation in his former role as Director of the Department of Mission and Parish Services with the Queensland Synod prior to being appointed as Executive Officer of the company, which position he has held since 11 May 1996. Mr Marsh too says that the college site was planned on completion to have during daytime approximately 35 persons per hectare across the whole site, and that after school hours the numbers will reduce to approximately half to cater for the need of the children and adults living on the site for open space. Mr Marsh says that the school currently has about 230 students in classes from preparatory to Year 11. Full occupancy of the school is expected in the Year 2001. There are currently 70 people in the elders' village but these numbers are expected to increase. There is an adult education training facility in operation as a construction arm which is responsible for undertaking building work on the site. Mr Marsh was called mainly to give us his idea of the impact of the resumption on the college. He says that to maintain similar proportions of people to the area of the site remaining after resumption, as it was intended at the commencement of planning, it is necessary to reduce the overall people numbers on the site by about 10 percent. Mr Marsh agrees with Mr Crane in that the overall number of people on the site post resumption will have to be reduced by about 91 persons. Because of this, he also suggests there will be a reduction in operating revenue while the administration costs remain the same, and any reduction in capital expenditure will be minimal given that the reduced number of persons will be shared across all facilities on the site. Mr Marsh told us that to date the capital sum of $13.5 million has been expended on the development of the college including the cost of land purchase, and that a sum of $4.7 million is required to complete the college development as planned by, he hopes, no later than 1999, including the planned accommodation building B3 and the planned four tertiary accommodation buildings. Mr Doran was called by the claimant company to provide costings for the airconditioning of existing dormitory accommodation building B2, and of the proposed dormitory accommodation B3, and of the four proposed tertiary accommodation units. Mr Doran has based his cost calculations for the installation of an AC system which involves distribution of air through a ducted system. He calculates the cost of airconditioning using this system to be $36,619 for the ground floor of building B2 and of $38,519 for the first floor which represents the total cost to aircondition the building (after allowing 20% contingency) of $90,166 including an allowance of 15 percent for sales tax. Mr Doran assumes that the proposed extra five dormitory buildings will be the same size and -- 20 of 40 -- 21 orientation as existing building B2. Using the same type of system, he accordingly calculates the cost to aircondition the five proposed buildings, inclusive of an allowance of 10 percent for contingency, to be $413,259. This makes his estimate for airconditioning all six buildings to be $503,425. Mr Doran also provided estimates of the running costs of the airconditioning plants but this evidence is not relevant to my determination of compensation since the claimant has abandoned the claim for airconditioning running costs in the amended claim for compensation. It was pointed out to Mr Doran that in the event of Shalom Christian College being not subject to sales tax, then his calculations should be amended downwards so that, for example, the cost to aircondition the ground floor of building B2 with the ducted system, should be $34,037 - or $86.35 per square metre - which cost can be applied to the total floor area of the six buildings involved in his cost estimate. Mr Doran told us that to adjust his estimated costs of airconditioning back to 1994 (the date of resumption), his costings should be divided by a factor of 1.2 to take account of the Building Price Index fluctuation. Mr Doran has also provided the Court with his estimated costs for the airconditioning of the ground floor only of the proposed building B3 and that of two of the proposed tertiary boarding accommodation units (adjusted for the need not to pay sales tax). His 1997 cost to aircondition those proposed buildings is $89,300 as at 1997, and an adjusted cost as at the date of resumption (11 March 1994) of $88,242. Mr Doran also furnished to the Court his assessment of running and maintaining an airconditioning system known as the "Split" airconditioning system proposed for the buildings by Mr Hall who was called by the respondent. His estimates of airconditioning running costs for the existing building B2 is $22,801 per annum, but again and for the same reason earlier outlined, I do not see this evidence as being relevant. EVIDENCE FOR THE RESPONDENT Mr Caleo has assessed compensation for the resumption using the traditional "before" and "after" method of valuation as follows: Land value before resumption - 31.81 ha @ $46,000/ha $ 1,463,260 Less Land value after resumption - 29.03 ha @ $46,000/ha $ 1,335,380 $ 127,880 Compensation - say, $128,000 Mr Caleo sets out in his valuation document his description of the physical site details and this is largely in accord with the same information provided by Mr Lowe as already outlined in this decision. He told us that at the date of resumption, the college land was being progressively developed with the purpose-built low density boarding college and education facility primarily in accordance with the council approved Master Plan S93. Mr Caleo has calculated that as at the date of proclamation, the building with closest proximity to the resumption boundary is the existing boarding accommodation building B2 which, he suggests, is located 90 metres from the bypass road resumption line. Mr Caleo says that the staging of the bypass scheme work as at 1994 indicated a -- 21 of 40 -- 22 projected completion date for the initial construction of two lanes from Upper Ross River to Herveys Range Road (passing the college) to be in the Year 2014. He expects the speed limit for this section to be 80 kms per hour, but it seems that it may range up to 100 kms per hour. Mr Caleo sees the operation of this first part of the road scheme as having little impact on the existing building B2 or other college buildings or facilities. Mr Caleo told us that in making his compensation assessment, the following factors are relevant: (1)Engineering studies for the Townsville By-pass Scheme were first commissioned in 1982. A General Location Plan appeared in the Townsville Bulletin in April 1985 and the Townsville City Council and Thuringowa City Council were given draft reports for comment and referral to affected developers. As was demonstrated by the proposed subdivision approval in 1985 on the subject land. (2)The subject property was acquired in March 1989. At that time, solicitors for the purchaser, Kinsey Bennet & Gill, Solicitors of Brisbane, carried out a search with the Department of Main Roads requesting details of any future requirements for road purposes. This search reveals that there is a possible requirement from the land for road purposes. (3)In May 1989 the purchasers of the college land, Congress Community Development and Education Unit, sought consent use approval from the Thuringowa City Council for an educational establishment primary and secondary school. This application was referred to Main Roads which in reply stated that `Main Roads has no objections in principle to the application providing adequate provision is made along Herveys Range Road for the traffic generated, and land is set aside to accommodate the future Townsville by-pass corridor'. Further Main Roads advised that `no direct access to the Townsville by-pass shall be allowed'. (4)Development of the college proceeded under the Consent Use Approval with building commenced in 1991. (5)In February 1993 an application for rezoning of the land from Residential B and Residential C to Special Facilities (Educational, Cultural, Recreational and Associated Accommodation as shown on Plan of Development No S93), was approved by Council. The plan clearly shows the future road requirement along the southern boundary of the subject land although the widening towards the eastern boundary has since been removed. (6)Investigations with the Building Department of Thuringowa City Council show that works commenced on Building B2 in August 1993. (7)The impact of a main road on englobo land in Townsville is considered to be neutral. Several of Townsville's main residential subdivisions including Annandale and Riverside Gardens front the by-pass corridor. Mr Caleo has, as a result of these considerations, come to the conclusion that the claimant was well informed of the Bypass Scheme and its requirements, both prior to land purchase and -- 22 of 40 -- 23 during planning and development of the college. He further says that acting prudently, the claimant should have taken reasonable action through the planning stages to minimise any loss. As a result, he does not believe there is any entitlement to compensation for injurious affection or severance, and this is why he applies the same value per hectare in both his "before" and "after" valuation exercises. Like Mr Lowe, Mr Caleo believes that the best basis for the valuation of the college land is the sales of englobo land with potential for residential subdivision. He has referred to five sales in his tendered valuation report, but clearly the two most comparable sales are those of "The Willows" Estate and "Carlysle Gardens" (two of the sales relied upon also by Mr Lowe as outlined earlier in this decision). Mr Caleo says that "The Willows" Estate land is the balance of Kern's "Willows Estate" which has enjoyed outstanding success under the control of a Receiver Body up to the date of sale, averaging sales of approximately 170 lots per annum. He told us that "The Willows" englobo parcel was severed by a drain known as the "Kern drain", which is a constructed drain requiring batter adjustments to accommodate the full residential lot yield of the balance area. Mr Caleo says this drain is to encompass an area of 5.2 hectares, which I note is half the area suggested by Mr Lowe. Mr Caleo points out that the englobo land has a frontage to "The Willows" golf course on its western boundary where about 40 potential residential lots abut the 18 hole course. Mr Caleo stresses that the Defence Housing Authority was already a driving force in "The Willows" market at time of sale, accounting for between 25% and 30% of sales activity, and that the land is currently being developed in a joint venture arrangement with the Delfin Group with the Authority continuing to be the major purchaser of lots. Mr Caleo told us that at the date of sale, two undeveloped stages had been approved for subdivision with a yield of 79 lots and completing the development to the eastern side of the drain, and that park land credits existed in respect of those approved stages. In addition, there was some 300,000 cubic metres of fill stockpiled on the site with further fill being available from drain batter variations and road construction. Mr Caleo described what he calls the main impediment to "The Willows" Estate as being the construction of the Sandstone Drive Bridge, which he says had a vendor (Receiver/Manager) cost estimate of $350,000 at date of sale, but which was subsequently built at a cost of $600,000 for what he describes as an "over-specified" structure reflective of the estate superior developmental standard. In addition, external drainage works were predicted at sale date to cost $500,000, with filling costs of land abutting "The Willows" golf course being estimated to cost $300,000. Mr Caleo has made a further allowance of $50,000 for the Martello Drive/Evergreen Drive crossing in his analysis of the sale, As a result then, he says "The Willows" Estate sale shows a value of $52,746 per hectare overall for the 105.6 hectare prime englobo parcel with a proven sales record, or $63,362 per hectare after allowing for the bridge cost (at $350,000), for the filling, for the drainage works and for the parkland advantages. Mr Caleo sees "The Willows" Estate parcel to be far superior to the subject land in location and topography, but recognises that it is much larger. He points out that in addition, "The Willows" Estate was at sale date an active subdivision with a successful marketing history. -- 23 of 40 -- 24 Mr Caleo describes the "Carlysle Gardens" site as being "Residential B" englobo land with a potential residential lot yield of 270 lots providing no parkland and allowing for Beck Road requirements. The sale reflects an englobo value "as is" of $37,351 per hectare. The contract of sale was conditional upon the purchaser obtaining a rezoning to "Special Facilities - Retirement Village". Council imposed conditions including road upgrades, drain construction, levee bank construction and contributions to the western collector road system with a combined estimated cost of $450,000. Mr Caleo says that the external infrastructure and Beck Road access costs estimate for a 1995 residential subdivision were $250,000, and that the internal designated drainage areas totalled 4.0 hectares. In his sale analysis, after making the above adjustments, Mr Caleo says the reflected englobo value with upgraded access, infrastructure and drainage is $45,840 per hectare. Mr Caleo points out that the "Carlysle Gardens" land is directly opposite the southern boundary of the resumed land and that it will have a similar frontage to the future bypass road and will also front the upgraded western collector road. Mr Caleo sees the sale land to have superior topography (slightly more elevated than is the subject land) and superior access, but it is in a slightly inferior location. He sees the sale of "Carlysle Gardens" to be the best evidence of value of the resumed land. Mr Hall has examined the engineering design plan of the proposed buffer wall designed by LC Johnstone and Associates and has, as an architect, prepared costings of it. They are: 1. (a) Earth mound $220,500 (b) Fill drain $ 37,500 $ 258,000 2. (a) Block work $ 42,061 (b) Laying $ 42,442 (c) Concrete fill $ 25,663 (d) Re-enforcing steelwork $ 21,676 $ 131,842 3. (a) Strip footing $ 17,050 (b) Pier footing $ 40,841 Preliminaries $ 9,300 TOTAL COST $ 457,033 Add Builder's Profit 7.5% $ 34,277 $ 491,310 Add Professional Fees 8% $ 39,300 TOTAL COST $ 530,610 Mr Hall told us that his cost estimate was prepared on 17 November 1997. It is for the construction of a wall only along the resumption line with no return walls. He notes that the area upon which the proposed wall is to be constructed is not restricted by buildings or other elements, and he sees no difficulties in carrying out the works. Mr Hall offered criticism of the development costs of the wall provided by Mr Neilsen. He -- 24 of 40 -- 25 says there is no need to provide landscaping (Neilsen $50,618) as the Thuringowa City conditions for rezoning the site required it to be landscaped. Further, Mr Hall suggests that as the construction of the wall is simple, then it would not require the expertise of a builder, nor is there any statutory authority requirement to engage a builder. Mr Hall says the claimant's cost of construction would be reduced by $30,000 if the builder was removed from the process. He also says that an astute developer would not pay $39,300 in professional fees for the wall. But I note that Mr Hall has also made an allowance for builder's profit and professional fees in his calculations. Mr Hall's costings are as at 1997 rates but because of the depressed state of the building industry over the last three to four years, he says that rates have not changed substantially, and concrete rates have, if anything, actually reduced. Accordingly, Mr Hall suggests his costings are relevant to the date of resumption - in March 1994. Mr Hall has also prepared cost estimates for airconditioning the ground floor of the future boarding accommodation building B3 and the ground floors of two of the proposed four tertiary boarding buildings. But before setting out his costings, Mr Hall had some criticism of the costings by the claimant (Mr Doran) based on his opinion that a better type of airconditioning plant was for a wall or ceiling "split" system rather than a "ducted" system. The "split" system is also the type preferred by Mr Kuskopf. Mr Hall's airconditioning costings are: Proposed Building B3 - $ 40,620 Proposed Building TB1 - $ 32,960 Proposed Building TB2 - $ 32,960 Total costs to aircondition all buildings - $ 106,540 Mr Hall points out that these are also 1997 costs - and feels that costs as at the date of resumption would only be marginally lower. During the course of his evidence, Mr Hall was asked for his opinion as to the likely trends in building costs in say 15 years time when the barrier wall may need to be erected. He does not believe that one could really look so far ahead because costs are governed by inflation rates, governments may change and policies may change, exchange rates may change, so that to predict so far ahead is very difficult. In fact, Mr Hall personally would not predict past two years. Mr Hall asked the Quantity Surveyor firm, Rider Hunt, the same question, and he says they said it is too risky to predict cost movements. Mr Horman was called by the respondent to inform us mainly as to matters of historical interest leading up to the resumption. Mr Horman has been in the employ of the resuming authority as an engineer and town planner for a little over five years. One of the reasons for his employment was to complete the planning for the Bypass Road. Mr Horman told us that in August 1982, McIntyre and Associates, Consulting Engineers, were commissioned to carry out a feasibility study -- 25 of 40 -- 26 to determine the location for a future Townsville bypass road. Mr Horman confirmed Mr Caleo's evidence that in January 1987, the McIntyre Report was forwarded to both the City of Townsville and the City of Thuringowa for official comment with a request that any developers affected by the proposed route be referred to the then Department of Main Roads. The City of Thuringowa Council passed a motion supporting the Bypass Route in February 1988. Since August 1983, Mr Horman says any effect on land was declared by Main Roads on any requisitions for information received from solicitors during conveyancing activities, and a plan of the general location of the bypass road appeared in the local newspaper as early as 1985. The brochure was prepared in July 1990 for circulation to property owners. Mr Horman confirmed that on 5 May 1989, solicitors for the claimant were informed that "investigation proceeding into the future developments of the road network in the area indicates a possible requirement from the subject land for road purposes. There is no intention to resume any part of the land at this time. The owners and/or prospective owners may see current planning at this office. Contact should be made with Mr Cook to arrange a time." Mr Horman told us that following referral by the City of Thuringowa Council in May 1989 of a consent application by the claimant company, the District Office replied that "Main Roads has no objections in principle to the application providing adequate provision is made along Herveys Range Road for traffic generated, and land is to be set aside to accommodate the future Townsville Bypass Corridor". Mr Horman informed the Court that the subsequent development of the Shalom Christian College had taken place based around access to Herveys Range Road. He submitted an internal Queensland Transport Route Selection Report for the Condon to Derragun section of the Bypass Road on 7 September 1994. The following table shows the projected staging and completion dates for the stages as set out in his report. Some modification has been made since the preparation of the report. These modified times are shown in brackets. The table reads: Section Completion Date Speed Limits 1. Douglas - Condon Two Lane 2002 (2002) 80 or 100 2. Hervey - Shaw Two Lane 2004 (2004) 80 3. Upper Ross - Hervey Two Lane 2014 (2008) 80 or 100 4. Douglas - Condon Four Lane 2015 (2011) 100 5. Hervey - Shaw Four Lane 2017 (2011) 100 -- 26 of 40 -- 27 6. Shaw - Bruce Two Lane 2020 (2015) 80 or 100 7. Four Laning the Balance 2020 100 Mr Horman also provided us with 1994 traffic flow counts and his estimated traffic flows on the Bypass Route and Herveys Range Road for the future years 2011 and 2021. The table is: Road Segment Parameter 1994 2011 2021 Herveys Range Road AADT %hv 7,200 7 11,00 0 5 12,60 0 5 Ring Road (West of Upper Ross River Road AADT %hv n/a 10,00 0 10 16,20 0 10 AADT - Average Annual Daily Traffic %hv - Percentage of heavy vehicles It is upon this statistical information and forecasts that the acoustic engineers prepared their evidence for this case. Mr Horman recalls attending a meeting with representatives of the claimant including Mr Johnstone, Mr Lowe and a Mr Hicks on 13 October 1993. In response to assertion that he made the comment at the meeting to the effect that mounding and sound barrier fencing would almost certainly be required along the perimeter of the land adjoining the resumption for noise amelioration purposes, Mr Horman told us that he could not find any diary notes of the meeting. But he did say that he would not have committed the Main Roads Department to erect any fencing or barrier since he does not have the authority to so do. But Mr Horman, in the event of the barrier wall being constructed by the claimant, can see no need for it to be built wholly within the claimant's retention area. He says the type and specifications of the wall envisaged by the claimants could be constructed on the resumption boundary with part of the earth mound on the road reserve, and he would have the authority to authorise that. Mr Dance was called by the respondent to provide town planning evidence. He confirmed that on 30 May 1989 the Thuringowa Shire Council granted town planning consent over Lot 2 on RP 744340 for the purpose of an educational establishment - primary and secondary school and that shortly after the issue of the consent permit, a rezoning application was lodged over the whole of the land to take the zoning from "Residential B" and "Residential C" to the ultimately approved "Special Facilities (Educational, Cultural, Recreational and Associated Accommodation)" zone. This application was approved on 17 February 1993, and gazetted on 20 August 1993. Mr Dance told us -- 27 of 40 -- 28 that the master plans submitted with the rezoning application indicate that the land at the southern end of the allotment was to be preserved for Future Road Reserve purposes. He accordingly concludes that there could be no doubt that the claimant company was aware of the proposal to take land for road purposes as and from that time. Mr Dance produced a copy of the plan prepared by Mr Kuskopf showing the location of all existing buildings on the site. This plan has been colour-coded to show whether the buildings were constructed prior to or after the date of resumption, and he suggests that the majority of the development on the college land was completed prior to the date of resumption. Mr Dance says that the site master plan was drawn with anticipation of the resumption of land for the Bypass Road, yet it has made provision for all the buildings in a reasonable and uncluttered manner. He is of the opinion that the resumption has not fettered or constrained progressive development towards the master plan, and there is no apparent restriction in the layout of it, although more recent plans submitted to council in connection with building work show that there has been considerable departure from the master plan. Mr Dance says these departures show there is still flexibility in site planning notwithstanding the resumption, and that the master plan was never a "fixed in concrete" plan. Mr Dance summarises his opinion to be that the resumption has had little, if any, effect on the overall plan of the college development. Mr Dance told us that with the former zoning of the land in the "Residential B" and "Residential C" zone, when the college land was acquired, population densities related to multiple dwelling use mainly to the "Residential C" zone, and that those density arrangements do not apply in any other zones. This seems particularly relevant in view of the evidence of Mr Crane. He does not agree with the proposition that as the college has lost 10% of its land due to the resumption, it would have to gear back its operations by 10%. Mr Dance says it does not necessarily follow, as the development proposal could be reduced in scope or it could be designed slightly differently so as to accommodate development more efficiently. It would, in his opinion, be necessary to cut back the development only if the original proposal occupied all of the land including the resumed area. Mr Hannah was called by the respondent as an accountant to provide his comments on Mr Crane's compensation assessment for loss of profitability. He outlined the difficulties in the adoption of Mr Crane's report, including the fact that it is based on many variables, but offers the opinion that, depending upon the interest rate used for capitalisation, the assessment of compensation for loss of profitability could vary from $120,862 to $246,236. But I do not feel the necessity to critically analyse Mr Hannah's evidence as will become apparent later in this decision. Mr Kamst provided us with acoustic engineering evidence on behalf of the respondent. The stated aim of his report is to quantify the noise impact on the retention area due to road traffic at the time of resumption as well as for a number of future scenarios. Mr Kamst is not seriously at odds with Mr Brown's findings, although he uses a slightly different noise level standard for consideration of amelioration measures. It is 63dBA (Mr Brown used 60dBA). In summary, Mr Kamst contends -- 28 of 40 -- 29 that for the four lane section of the Bypass timed for construction in the year 2021, would result in an L10(18 hour) noise levels of 59 dBA to 61 dBA at the ground floor of the existing accommodation unit. At the first storey, the L10(18 hour) noise level is predicted to be between 61dBA and 63dBA. Accordingly Mr Kamst suggests the 63dBA noise level would be met at Building B2. Further, the Bypass would result in L10(18 hour) noise levels of 66dBA to 68dBA at the ground floor of the proposed accommodation units (Building B3 and Buildings TB1 and TB2). At the first floor, the L10(18 hour) noise levels are predicted to be between 63dBA and 69dBA. Accordingly, Mr Kamst suggests that the 63dBA noise limit would not be met at these proposed accommodation units without noise amelioration measures. Consideration of Evidence and Reasons for Decision I shall now set out my consideration of the evidence. But before so doing, I might express the view, as I indicated during the hearing of the matter, that the claim for compensation as amended - (Exhibit 6A) might have been better formulated. It goes without saying that, in compensation cases, dispossessed owners are entitled to be compensated for their loss, but I cannot see that, in this case, such losses include the cost of the construction of the proposed buffer wall (Item 2 in the claim) or the cost to aircondition the ground floor of the three proposed dormitory units (Item 7 in the claim). It may well be, notwithstanding the determination of the board of the college to build the wall and aircondition the proposed buildings for noise amelioration purposes, that these structures may never be built. Now in those circumstances, and in that respect, it cannot be said that the dispossessed owner could demonstrate a loss in a monetary sense, and this decision in the fullness of time will obviously be seen to be flawed if an award for the cost of the wall and airconditioning per se is made. In my opinion, the better way to have formulated the claim would have been to consider by what amount the value of the college land would have been diminished after resumption for the perceived need, at resumption date, to construct a barrier wall on the resumption boundary and for the need to install airconditioning in the proposed accommodation buildings when they are constructed in the site locations as indicated in the Master Plan (Plan S93). Having said that, I do not propose to eliminate from my considerations the evidence and submissions made in respect of this aspect of the case, notwithstanding the deficiency, as I see it, in the claim for compensation. Now this case is somewhat unusual in that, of the total claim for compensation (excluding interest, architect's costs for redesign and costs) of $1,184,000, only $154,000 is claimed for the value of the resumed land, although it could be said that a sum of $41,000 (loss in value of land by presence of the presumed buffer wall, and value of land occupied by the proposed buffer wall) is land value related. In this respect, the dispute as to land value is relatively insignificant - as Mr -- 29 of 40 -- 30 Caleo values the resumed land at $128,000. I now examine the valuation evidence. Now there is no doubt, and it is well established that, for partial resumptions, the best basis of valuation is the use of the "before" and "after" method of valuation, and I propose to base my compensation determination for the value of the land resumed using this method. My task in finding an appropriate "before" land valuation is made easier by the adoption by the valuers of some of the same comparable sales - "The Willows" and "Carlysle Gardens". But they have approached their sales analyses on a different basis. Both valuers have analysed the sales by adding to the raw land value as disclosed by the sales the cost of remedying development constraints - such as upgrading road infrastructure, access roads and bridges, drainage requirements, etc. But Mr Lowe has excluded from the area of the sale lands the land required for future drainage requirements and in some cases for easements, and as a result obtains generally higher analysed land values with the infrastructure in place than did Mr Caleo. But I offer no serious criticism of Mr Lowe for him so doing, since he often stressed during the course of his evidence that he was only trying to compare "apples with apples", by reducing his value levels to a common denominator. The valuation evidence leaves me in no doubt that the most appropriate sale upon which to rely in my compensation determination for the value of land "before" resumption is that of "Carlysle Gardens". It is very comparable in respect of its location (directly opposite the southern boundary of the subject land prior to resumption), is almost identical in area, is appropriately conditionally zoned within the sale contract, and is of similar topography to the subject land, although marginally more elevated. But the obvious advantage enjoyed by the subject parent parcel in comparison with "Carlysle Gardens" is its comparatively long frontage to the well-trafficked Herveys Range Road. In analysing the sale of "The Willows", I think it is more appropriate to allow for the cost of bridging the Kern Drain as made by Mr Caleo ($350,000) than the cost used by Mr Lowe ($560,000) although I can well understand that the purchaser of the land (Defence Housing Authority) in erecting a more costly bridge, did so prudently in upgrading the standard of the development and to give the estate a high profile entrance statement. But this, of course, adds value to the land and perhaps in that respect, and as a result, Mr Lowe's analysed unimproved value is reflecting an upstaged land value. I also find that in analysing the sale of "The Willows", allowance should be made, as did Mr Caleo, for the value of the fill on site at sale date ($300,000) and for the value of the parkland credit. I am satisfied that the land value reflected by the sale of "The Willows" should be higher than is the value of the parent parcel at date of resumption, notwithstanding that it is a receiver/manager vendor sale. A factor of some influence on the value of that land is the joint venture arrangement with the Delfin Development Group, and the proven subdivisional track record with Kern Grazing Pty Ltd (the vendor). Based primarily upon the valuers' analyses of the "Carlysle Gardens" sale, I find that an appropriate "before" land valuation of the parent parcel at date of resumption is $55,000 per hectare - -- 30 of 40 -- 31 or $1,749,550. I round off this finding to $1,750,000. I now consider the value of the land after resumption. Despite the persuasive submission made by Senior Counsel for the Respondent in support of its contention that no compensation should be awarded for the perceived need to construct the buffer wall and to aircondition the ground floor of the proposed Dormitory Building B3 and two of the proposed Tertiary Boarding Buildings TB1 and TB2, I have decided to make an award of compensation for these items of claim. It is, of course, acknowledged that dispossessed owners are to act reasonably although they are not expected to mitigate their losses (vide Pejama Pty Ltd v. Commissioner of Main Roads (1988-89) 12 QLCR 278 p. 289), but they are also entitled to full and fair compensation for their losses. In this case, the claimant company has proceeded with the college development largely as originally planned and substantially in accordance with the Council approved Master Plan for the development of the site. I say substantially because there have been some departures from it e.g. the repositioning of the internal road system and the siting of the dormitory buildings further to the north. But it must be recognised that at date of resumption the college development was well progressed as illustrated by a colour plan in evidence showing the years during which the college buildings were constructed. This being the case, I cannot see it as being unreasonable that the claimant company would expect to be fairly compensated for any loss in the value of the college complex at resumption date due to the resumption. Now although no concession was made by the respondent about there being no need for the claimant company to take any noise amelioration measures for the full development of the college, I found it of assistance, if the Court was not of a similar view, that the respondent did make submissions in respect of the discounted cost of taking those measures until the Bypass construction became four lanes in the Year 2021. I am satisfied on the evidence as a whole that the value of the college land is deleteriously affected by the resumption and the proposed use of it by the respondent (a two-lane bypass road by the Year 2014 - although the projected date may be 2008), and a four-lane bypass road by the Year 2020. It seems to me inconceivable that the future use of the bypass road by a high volume of vehicular traffic, including 10 percent heavy vehicles, would not have some effect on the ambience and peaceful use of the college by its occupants. This finding flows automatically from the largely convergent evidence of the acoustic engineers. But to determine compensation for this diminished land value post resumption is not by any means a simple matter. I am satisfied that noise amelioration measures should be undertaken by the claimant in the fullness of time, notwithstanding that it was aware of the possible requirement of land for road purposes as early as its date of purchase of the parent parcel for the college, and again notwithstanding that provision was made in the approved Design Plan S93 for the road reserve. I am also satisfied on the evidence provided by many witnesses called by the claimant -- 31 of 40 -- 32 company that the weight of probability is that the college will proceed with the completion of its development and with the construction of the boarding accommodation building B3 and the four tertiary accommodation buildings within the time frame indicated. I am satisfied that, again on the weight of probability, these buildings will be constructed on the site locations indicated on Plan S93. I do not intend to try and reconcile the differing cost assessments for the proposed buffer wall. Mr Neilsen estimates this cost for a 5.5 metre wall for the entire length of the resumption line with some return fencing on both the side boundaries and the retention area as at resumption date to be $672,200 ($700,000 adjusted by me to $672,200 to represent cost as at the date of resumption). Mr Neilsen's costs of the wall based on Mr Hall's workings (along the resumption line only) is $595,000 in October 1995 cost price terms - or $571,500 adjusted to the date of resumption. Mr Hall's cost estimate is $530,610 as at both 1997 and the date of resumption. But it was conceded by the claimant during the case that it may not be necessary to construct a wall to the height of 5.5 metres along the whole of the resumption line. On the premise that there will be a need to construct the wall 5.5 metres high for 375 metres of this frontage, and that the wall for the balance of the frontage and returns will be only 2.5 metres high, then it says the cost of its construction will be $500,000. Mr Hall's cost of the same wall is $466,875. I adopt a cost of $500,000 as a basis for my compensation determination. Next I propose to deal with the component part of the claim for the cost of the proposed airconditioning (Item 7). I am satisfied if and when building B3 and buildings TB1 and TB2 are constructed, the airconditioning of them as proposed by Mr Hall will be warranted. I have come to this conclusion after careful consideration of the evidence of the acoustic engineers. I adopt Mr Hall's design for the airconditioning units (the "split" system) in preference to the "ducting" system. Mr Doran has calculated the cost of airconditioning the ground floor of the proposed building B3 and two of the proposed tertiary boarding accommodation units, using Mr Hall's "split" system, in the sum of $88,242 as at the date of resumption. Mr Hall's 1997 cost estimate for airconditioning for the same buildings is $106,540, and only marginally lower at the date of resumption. I adopt Mr Hall's estimate. But there is some dispute as to when the necessary capital may be needed for outlay on the wall and airconditioning. The claimant suggests the wall should be built and the airconditioning installed in the Year 2010. The respondent suggests that, if noise amelioration measures are to be taken, they will not be necessary till the Year 2021 (the date of the completion of the four lane section). After having examined Mr Kamst's noise level projections for the two-lane bypass (Figure 3 in Exhibit 17), I have come to the conclusion that there is sufficient likelihood of noise penetration onto the subject site to acoustically affect proposed buildings B3 and TB1 and TB2 (they are located between the 63dBA line and the 68dBA line) by the Year 2010. Further, Mr Kamst says that along the bypass road without any noise attenuation measures, noise levels are predicted at the proposed accommodation buildings to be 66dBA, and this is in excess of his adopted 63dBA standard for the -- 32 of 40 -- 33 implementation of noise amelioration measures. I find again on the balance of probabilities that noise amelioration measures should be in place by the Year 2010. This being the case, it is necessary for me, in order to determine the loss in the value of the retention area land, to calculate the present value (at resumption date) of the cost of the wall ($500,000) and of the cost of the airconditioning ($106,540) due in the Year 2010 - a period of 16 years - using an appropriate interest rate. Now the claimant has used in its claim for compensation calculations an interest rate of 5 percent. The respondent uses an interest rate of 8 percent which, it says, is consistent with the long-term Bond Rate at the time of resumption. But long-term these deferred capital sum discounts certainly are - 16 years - and recent trends in interest rates certainly provide an illustration as to just how volatile the interest rate market can become over time. Again extending any doubts I have in favour of the claimant, and for the purpose of this exercise, I propose to adopt the discount interest rate of 5 percent proposed by the claimant. But before proceeding to my relevant date cost calculations, I should comment that the evidence of the recalled Mr Neilsen does not assist the claimant with its submission that a likely escalation in building costs and airconditioning costs during the 16 year period should offset, as it were, the discount cost factor. Mr Neilsen, and Mr Hall, could not forecast movements in building costs with any conviction over a longer period than two years - and price movements over the last 16 years certainly cannot be taken as a basis for forecasting future price movements. Additionally, while I cannot find an authority which deals directly with the issue of allowances for inflation (or escalation in prices), in the Judgment of the High Court in Re: The Commonwealth v. Milledge (1953-4) 90 CLR 157 it was held that an additional sum allowed by the trial judge by reason of the fall in the purchasing power of money between the date fixed for assessment and the date of his judgment ought not to have been included. I now proceed to calculate, using the publication "Inwards Tables", the present cost (although to remove any confusion this really is the cost as at the date of resumption (11 March 1994)), of the projected capital expenditure costs of the proposed wall and airconditioning. It is: Buffer Wall Present value of $500,000 due in 16 years @ 5% interest per annum - $500,000 x 0.45811 = $229,055 Airconditioning Present value of $106,540 due in 16 years @ 5% interest per annum - $106,540 x 0.45811 = $ 48,807 I now consider other items included within the claim for compensation. With respect to the claim of $41,000 for the loss in value to the retention area by the presence of the future buffer wall (Item 3), I find the basis for Mr Lowe's assessment is untenable. Firstly, he values the land claimed to be affected (at $89,000 before discounted in the claim to $41,000 for delayed expenditure) having -- 33 of 40 -- 34 regard to the effect of the proposed wall on the value of 22 potential residential allotments adjacent to it. Now this method of compensation assessment lacks cogency since what will be affected by the presence of the wall if and when it is erected is not potentially subdivisable lots, but land with no potential for residential subdivision within the zoning as at the date of resumption - which was "Special Facility (Educational, Cultural, Recreational and Associated Accommodation)". Now the effect of the proposed wall on the value of the college retention area land has to be assessed on the basis of the value of the land to the owner - i.e. to the claimant company, and in its hands any land which is affected in value by adjacency or proximity to the proposed wall, has to be valued as part of the land used as an educational institution. Nevertheless, I am satisfied on the evidence that the proposed wall have a deleterious effect on the value of the college land due to such factors as the interruption of breezes, the confining nature of the proposed structure and the effect on the general amenity and ambience of the college. But the problem is to quantify the loss in value. Doing the best I can, I find that the proposed wall has a deleterious effect on such part of the retention area as extends from the resumption line to the approximate position of the 60dBA line as shown in Mr Kamst's report - Figure 4 in Exhibit 17. I estimate this area to extend approximately 100 metres from the resumption line - containing an area of approximately 5 hectares. I adopt the valuation diminution factor of 10 percent used by Mr Lowe in his valuation exercise, and calculate the loss in value of the retention area due to adjacency or proximity to the proposed wall-to-be, as at the date of resumption: 5 hectares @ $55,000 per hectare x 10% - or $27,500. But again this loss in value will not occur until the wall is constructed, the need for which I have already found to be the Year 2010. So that this compensation assessment has also to be made based on the present value of $27,500, due in 16 years at an interest rate of 5 percent or - $27,500 x 0.45811 - or $12,598. I now consider the claim for the loss in value of land for the proposed buffer wall in the sum of $8,000 (Item 4). I find there is no need for the buffer wall to be set 8 metres from the resumption line, post resumption. I adopt the evidence of Mr Horman that the wall could be built on the resumption line with one earth mound extending 4 metres into the retention area. This earth mound will be required, in accordance with the claim for compensation, for a distance of 375 metres along the resumption boundary. Accordingly, the area to be rendered unavailable for use by the college, although it must be said it would be available for landscaping, is adjusted from the area used by Mr Lowe (0.412 hectares) to 0.15 hectares. The loss in land value as at the date of resumption is therefore calculated as: 0.15 hectares x $55,000 - or $8,250. This loss, too, has to be deferred as follows: $8,250 x 0.45811 - or $3,779. -- 34 of 40 -- 35 Summarily, I now consider the effect of the perceived need for the construction of the barrier wall, the perceived need to install airconditioning in the proposed accommodation buildings, the diminution in value of the retention area due to proximity to the proposed wall and the loss in land value of the land to be occupied by the wall mound has on the value of the retention area land. In so doing, and adopting the foregoing calculations of present value (or cost at date of resumption) I find the value of the claimant's land after resumption should be reduced as follows: Present cost of buffer wall $229,055 Present cost of airconditioning $ 48,807 Present value diminution in land adjacent or in proximity to proposed wall $ 12,598 Present value of loss in land value to be occupied by wall mound $ 3,779 Total Value Diminution $294,239 This value diminution equates $10,135 per hectare over the area of the retention area land (29.03 hectares). I round this calculation off to $10,000 per hectare. It follows then, to compensate the claimant for its loss for the value of the land resumed (Item 1 in the Claim for Compensation), the perceived need to erect the proposed buffer wall (Item 2 in the Claim for Compensation), the loss in the value of land by presence of the proposed buffer wall (Item 3 in the Claim for Compensation), the loss of land for the buffer wall (Item 4 in the Claim for Compensation) and the cost to aircondition the ground floor of three of the proposed dormitory buildings (Item 7 in the Claim for Compensation), the following calculation is made: Value of Land before resumption - 31.8 ha @ $55,000 per ha - $ 1,750,000 Less Value of land after resumption - 29.03 ha @ $45,000 per ha - say $ 1,300,000 Compensation for Loss in Land Value $ 450,000 -- 35 of 40 -- 36 I now consider other items in the claim for compensation. Item 5 - Disturbance to Ambience/Concept This claim is in the sum of $20,000. I agree with Senior Counsel for the Respondent that there is no justification that such a claim exists. While I have some sympathy for the reason the college makes such a claim, an award of compensation cannot be made based on sentiment. There is simply no objective evidence to support the claim. No compensation is awarded under this head of claim. Item 6 - Architect's Costs for Redesign I propose to deal with this item under the heading "Item 10 - Costs". Item 8 - Loss of Profitability A claim is made in the sum of $337,000 for this item. I am again indebted to Senior Counsel for the Respondent for his remark, with which I agree, that "this claim must be the most opportunistic the Court has seen for a long time". It is opportunistic because the very foundation for Mr Crane's calculations is unsoundly based. Mr Crane told us that he was given information that the zoning of the college complex provides for an occupancy rate of 35 persons per hectare, and it is upon this occupancy rate he calculates loss of revenue contribution occupants due to the resumption would be 91. Now this assumption is fundamentally flawed for two reasons. The evidence of Mr Dance, which I accept, is that the declared population densities within the relevant Town Planning Scheme relate to multiple dwelling use mainly in the "Residential C" zone, and that population density arrangements are not applicable in any other zone. Clearly it is not open then to use population densities as a basis for calculating future loss in the number of contribution occupants since the zoning of the college land as at the date of resumption was "Special Facility - (Educational, Cultural, Recreational and Associated Accommodation)". The second reason is that Mr Crane's assumptions include that the population density is spread evenly over the whole of the parent parcel, and this is simply not the case since the evidence is that there was never any intention to construct buildings on the resumed land. Further, the Council imposed no such restrictions in respect of the approved development. Again, there has been no reduction in the number or scale of any building works proposed for the land, this notwithstanding that the claimant had knowledge of the respondent's requirements for road purposes for the Bypass Road since the beginning of 1992. The claim for loss of profitability fails, and no compensation is awarded under this head of claim. Item 9 - Interest -- 36 of 40 -- 37 This claim will be dealt with at the end of this decision. Item 10 - Costs Amount of claim $21,340 (this item is more commonly called "Disturbance") I propose to deal with each item of the costs claim individually, but before so doing, I should say that there is authority for the proposition that, in compensation matters, dispossessed owners are entitled to recover from resuming authorities compensation for costs reasonably incurred in the preparation and lodgment with this Court of a claim for compensation. It is submitted by the respondent in this case that, for the purpose of determining compensation under the heading of Costs (Disturbance), it is the costs involved in the preparation of the original claim for compensation which are to be considered for compensation assessment purposes. The original claim for compensation is set out on page 2 of this judgment. As discussed earlier, this original claim was amended twice during the hearing of the matter. The final claim details (Exhibit 6A) are set out on pages 3 and 4 of this judgment. The Costs (Disturbance) claim items which are pursued by the claimant are set out in the original claim for compensation - vide page 2 of this judgment. I propose to deal with each item in turn, but in a slightly different order than that used in the original claim. But before considering each item on merit, I might say that it is necessary to decide just which of the claims is "the claim for compensation". It is urged by the respondent that the Court should not award compensation in respect of the Quantity Surveyor's fees in the preparation of the claim, the Engineer's fees and the Acoustic Engineer's fees in the preparation of the claim as there was no mention in the claim about an award of compensation for the cost of the erection of a buffer wall until the opening day of the case when the first amended claim was lodged with the Court. I have decided that, for the purpose of a compensation award under the heading of "Disturbance" for fees involved in the preparation of a claim for compensation, the "claim for compensation" is the claim finally lodged with the Court. I now consider each individual item of claim. Re: Legal Fees - Claim $1,500. By consent, this claim is allowed and in the agreed sum of $1,500. Re: Valuation Fees - Claim $8,000. By consent, this claim is allowed and in the agreed sum of $8,000. Re: Architect's Fees to Redesign Scheme and Buildings - -- 37 of 40 -- 38 Claim $3,500 and Re: Architect's fees in the Preparation of the Claim - Claim $3,000. It is submitted by the respondent that this claim is not compensable as there was insufficient evidence led to its proof, and that the changes in the Master Plan were the result of other factors unrelated to the resumption. Now the only available evidence on this matter was that provided by Mr Kuskopf, who told us that the claimed fees were rendered to the claimant on the basis that they were purely and simply incurred because of the assessment of compensation and for no other matter. Mr Kuskopf also told us as a result of the resumption, more additional work is anticipated in the future which will involve extra fees of in the order of $3,500 to $4,000 - but understandably no provision is made in the claim for possible future fees. Mr Kuskopf told us that his fees were based on time which was spent preparing particular documents to enable the claimant company to look at the matter. He prepared sketch plans, and had meetings with other consultants. The work involved himself and other staff members. There were meetings on the site, meetings with officers of the Department of Transport, telephone calls and the like. All activities are entered in an office diary. One of the plans prepared by Mr Kuskopf is in evidence (Exhibit 10) and it clearly relates to the buffer wall design. I am satisfied the architect's fees were reasonably incurred for the purpose of the preparation of the claim for compensation and on the re-design scheme, and the amounts claimed are verified by a copy of an invoice rendered to the claimant on 28 March 1996 (Exhibit 44). I award $6,500 for these items of claim. Re: Quantity Surveyor's Fees in Preparation of the Claim - Claim $2,700. It is submitted by the respondent that these fees are not compensable as a disturbance item as the work carried out by Mr Neilsen was directed to the issue of the construction of the proposed buffer wall, and that no such claim was pursued by the claimant until the commencement of the hearing. But I have already held that for disturbance claims, the claim for compensation is the finally amended claim, and there is an obvious reference to the cost of the wall construction therein. I find this item of claim allowable. In evidence is a copy of Mr Neilsen's (Townsville Cost Consultants) invoice/statement dated 29 March 1996 (Exhibit 41) which verifies the quantum. Compensation for Quantity Surveyor's fees in the preparation of the claim for compensation is awarded in the sum of $2,700. Re: Engineer's Fees in Preparation of the Claim - Claim $1,740. It is again submitted by the respondent that these fees are not compensable for the same -- 38 of 40 -- 39 reasons as in Re: Quantity Surveyor's Fees. As with the Quantity Surveyor's fees, and also for the same reason I find that compensation for this item is payable. Also in evidence is a copy of a memorandum of fees served upon the claimant (Exhibit 70) dated 28 March 1997 verifying the sum claimed. Compensation for Engineer's Fees in preparation of the claim for compensation is awarded in the sum of $1,740. Re: Consulting Acoustic Engineer's Fees in Preparation of the Claim - Claim $900. Again for the same reason, it is submitted by the respondent that these fees are not compensable. But as with the earlier claims, and also for the same reason, I find this claim is compensable. In evidence is a copy of an account served on the claimant by Ron Rumble Pty Ltd dated 29 February 1996 (Exhibit 69) in the sum of $877.50. I award $877.50 compensation for this item of the claim. In summary, then, my award of compensation under the heading of "Costs (Disturbance)" is: Legal fees in preparation of the claim $ 1,500.00 Valuation fees in preparation of the claim $ 8,000.00 Architect's fees to redesign scheme and buildings $ 3,500.00 Architect's fees in preparation of the claim $ 3,000.00 Quantity Surveyor's fees in preparation of the claim $ 2,700.00 Engineer's fees in preparation of the claim $ 1,740.00 Consulting Acoustic Engineer's fees in preparation of the claim $ 877.50 Total award of Costs (Disturbance) $ 21,317.50 In making compensation orders, it is usual to round off the quantum of compensation awards but to do so for this award of costs would have implication for a pending interest rate award, so I decline to so do. My determination of compensation in the matter is - COMPENSATION FOR LOSS IN LAND VALUE - (See page 42) $ 450,000.00 COMPENSATION FOR DISTURBANCE $ 21,317.50 TOTAL AWARD OF COMPENSATION $ 471,317.50 Section 28 of the Acquisition of Land Act 1967 provides that the Court may order that interest be paid upon the amount of compensation determined by it, that such interest shall be at such -- 39 of 40 -- 40 rate percentum per annum as the Court deems reasonable, and that interest shall not be payable in respect of any compensation advanced under Section 23 of the Act. The Court has been informed that no compensation has been advanced in respect of this resumption. Accordingly, I ORDER that, in addition to compensation payable, interest be paid by the respondent Department of Transport to the claimant Congress Community Development and Education Unit Limited at the rate of 8.5 percent per annum on the following sums and for the following periods: (a)On the sum of $450,000 for the period commencing on the date of resumption (11 March 1994) and ending on the day immediately preceding the date upon which payment of compensation is made; and (b)On the compensation award for disturbance items commencing upon the dates the respective award items fees were paid by Congress Community Development and Education Unit Limited (if they were paid) and ending upon the day immediately preceding the date upon which payment of compensation for disturbance is made. Member of the Land Court -- 40 of 40 --