Brisbane City Council v Davidson [1998] QLAC 159 (1998) 19 QLCR 268

IN THE LAND APPEAL COURT BRISBANE Re: An appeal from a decision of the Land Court Determination of Compensation A97-39 BETWEEN: Brisbane City Council and Sue Elizabeth Davidson (Appellant) (Respondent/Claimant) REASONS FOR JUDGMENT Introduction Judgment delivered this Eighth day of October 1998 Brisbane City Council has appealed from a decision of the Land Court delivered on 20 March 1998 in which the Court determined compensation at $286,330.00 for land resumed by the Council in August 1996 for environmental purposes. The resumed land, Lot 2 on Plan No 890166, Parish of Tingalpa, has an area of 13.58 hectares. At the date of resumption it was part of a parcel of land with an area of 25.37 hectares, Lot 4 on RP 209817, Parish of Tingalpa. The resumed land is an irregularly shaped block zoned Non-Urban. It is substantially timbered and has a frontage with land already owned by the Council, known as Brisbane Koala Bushlands (formerly Brisbane Koala Park). The resumed land was made part of Brisbane Koala Bushlands, which is a mosaic of about 800 hectares of bushland owned or controlled by the Council. These protected bushlands are linked by areas of privately owned land and land owned by other levels of government. The resumed land is part of a larger bushland unit in the south-east of the City of Brisbane which had a high-quality koala habitat. The respondent, Mrs Davidson, has a dwelling house on the retention area, close to its western boundary. The land is mainly cleared and pastured. Access to the retention area is from Jenyns Court, Burbank. [1998] QLAC 159 -- 1 of 8 -- 2 The amount of compensation determined by the Court was calculated as follows: Loss in value of land due to resumption $250,000.00 Compensation for injurious affection $ 35,000.00 Legal and valuation fees, sundry expenses $ 1,330.00 Total award of compensation $286,330.00 to which was added an award of interest. There were four main findings in support of that determination. First, the parent parcel was used for rural residential purposes and the land surrounding the resumed land was used in that way. Second, prior to the resumption, the parent parcel had potential to be subdivided into two allotments. Third, after resumption, the highest and best use of the retention land was as a single homesite. Fourth, the parent parcel had special value to the owner. It was the loss of amenity which flows to the retention land from use of the resumed land by the public which led the Member to make the award for injurious affection. The Council takes issue only with the sum of $35,000.00 in respect of injurious affection. The reasons for decision of the learned Member disclose the factual basis on which he determined that there should be an award for injurious affection and the evidence on which he relied to determine the amount awarded. Whether an award for injurious affection should be made: The Member accepted Mrs Davidson’s evidence about the privacy and amenity of the parent parcel before the resumption. Mrs Davidson informed the Member that she elected to build her home on the cleared land rather than the higher resumed land because she did not want to disturb the land further by clearing more trees with its consequential disruption to wildlife. She said that there was never anyone around her secluded homesite. That has apparently changed since the resumed land was acquired by the appellant. Mrs Davidson said that her house and backyard can be seen easily from the resumed land and she feels less secure because a lot of people will know where the house is and who lives there. Because people can see inside her living areas from proposed walking tracks, she was fitting curtains where none had been necessary previously. Mrs Davidson said that one of the benefits that she enjoyed from her property was the abundance of wildlife. She feared that the walking tracks that are proposed for -- 2 of 8 -- 3 the resumed land will lead to a reduction in wildlife, particularly wallabies. Mrs Davidson said that, although there were no tracks through the resumed land before it was resumed, she had observed a bulldozer making tracks through it since that date. She also expressed concern about the increased risk of fires. She understood that the appellant intends opening a barbecue area and will open the resumed land to school excursions. Of course, in determining the compensation payable for injurious affection, the Land Court, and this Court on appeal, must consider not the subjective fears of the dispossessed owner after the date of resumption, but rather what a hypothetical prudent purchaser would have been expected to take into account in determining the effect of the resumption on the value of the retention land. There was evidence which demonstrates that Mrs Davidson’s concerns, though genuine, might have been exaggerated. The resumed land and contiguous lands have been placed in the conservation zone, and any activity would have to comply with the restricted uses under that zone. The Council’s Principal Environmental Officer, Ecological Planning, Mr Graham Phegan, expressed the view that it is likely that recreational facilities and activities in the Brisbane Koala Bushlands will be focussed on existing infrastructure at Chandler and in the Open Space zone at J.C. Trotter Park, and that use of the resumed land will be very low key and consistent with open space recreation. Mr Phegan said that, although it is possible there will be walkways through the resumed land and fire access control tracks, they will probably be along Buhot Creek. He had been told by staff in the Reserve Management area that the appellant has created some fire control access on the resumed land in accordance with its obligations under the Fire and Rescue Authority Act 1990. The existing tracks have been largely enhanced with some extra vegetation minimally removed. The learned Member was “satisfied on the weight of probability that there has been a diminution in the value of the retention area and of its dwelling house due to the resumption”. He continued: “What has to be considered in cases of this nature is the ‘value of the resumed land to the dispossessed owner’, and Mrs Davidson left the Court in no doubt that it had a special value to her due to its timbered nature and the presence of the wildlife. Now it well may be that Council will not construct walking tracks on the resumed land, but fire control tracks could surely be used by bushwalkers, and the evidence satisfies me that the dispossessed owner has lost a -- 3 of 8 -- 4 degree of control over the quiet and peaceful use of her home and the retention area. As Counsel for the [Council] suggests, in the end the resolution of the conflict on the issue of injurious affection is left to my good sense.” The amount to be allowed for injurious affection: Having reached that conclusion, it was necessary for the Member to determine what amount should be allowed for injurious affection. The Member considered evidence from two registered valuers. Mr Philip Peterson, who was called by Mrs Davidson, considered that, because public access to the resumed land was proposed, the access would injuriously affect the value of the retention land. In particular, use by the public of walking tracks and barbecues on the resumed land would upset the quiet enjoyment by Mrs Davidson of the retained homesite. By contrast, some measure of control could be exercised over that land when it was privately owned. He assessed compensation for injurious affection at the rate of 5 per cent of his valuation of the retention area including the value of the dwelling house ($700,000.00). Although he had considered using a 10 per cent diminution factor, on balance he thought that 5 per cent would be more reflective of the loss in value. The valuer called by the appellant, Mr John Wood, did not consider that there was a valid claim for injurious affection. In his opinion there is no negative impact on the retention area from the possible use of the resumed land by the public. He pointed out that the parent parcel was previously located next to parkland and that is unchanged. In any case, Mr Wood said that he had never seen evidence of any depreciation in land value as a result of being adjacent to a reserve. Consequently, the only evidence available to the Member about the quantum of compensation to be awarded for injurious affection was that provided by Mr Peterson. The Member considered that his assessment of $35,000.00 seemed “rather nominal when weighed against his valuation of the retention area property”. Nonetheless, the Member awarded $35,000.00 for injurious affection. The calculations of the amount for compensation for the resumed land were made on the subdivisional potential of the parent parcel. The Member concluded that each valuer’s assessment should be adjusted, but he found that Mr Wood’s valuation of the “sell-off site” and of the retention area was closer to fair market value than was Mr Peterson’s. The Member determined the compensation for loss of land as follows: -- 4 of 8 -- 5 Value of retained homesite Value of potential “sell-off” homesite after (allowances for selling costs, profit and risk, interest, etc) $325,000.00 $250,000.00 Total $575,000.00 Less value of retention area homesite $325,000.00 Compensation for loss of land $250,000.00 To that sum was added the amounts for injurious affection ($35,000.00) and other expenses ($1,330.00.) The issue on appeal The issue in this appeal is a narrow one. The Council submitted that the Member’s reasoning was flawed because, in making a separate award for injurious affection, he ignored (or failed to properly apply) the “before and after” method of assessing compensation which both valuers and ultimately the Member adopted. It was submitted that the “special value” of the land to Mrs Davidson and her family would have been included in any calculation based on the value of the parent parcel as a single dwelling site in the “before” situation and the value of the retention land in the “after” situation. In this case, however, to maximise the “before” value of the parent parcel, both valuers had valued it as having a highest and best use for subdivision into two large residential blocks. If the parent parcel had been sub-divided in the way suggested by Mrs Davidson (which reflected the division of the land effected by the resumption) then she would have lost control over the sold block. Consequently she would have lost a degree of control over the quiet and peaceful use of her home and the retention area. The Council submitted that the Member was required to assess any injurious affection in the “after” situation by reference to the notional “before” situation. Had he done so, it followed that the effect in the before and after situations was the same. Accordingly, no amount should be allowed as compensation for injurious affection. In assessing that submission we note that there were some inferences of fact which were not disputed by the parties. It seems that the most logical and ideal house site on the resumed land is on the edge of a knoll in the centre of the eastern part of the resumed land. Because of the size and number of trees on the resumed land it is likely that a building on that site would not be visible from the retention land. The route of access from Jenyns Court to the house site would follow the south-eastern boundary of -- 5 of 8 -- 6 the land, then go to a suitable point on the gully and follow a contour line to keep it at an easy track before gradually rising to the house site on the edge of the knoll. Part of the route would be through an area of bushland directly across the gully from Mrs Davidson’s house and the cleared land around it. Although the access route would be masked, in part at least, by trees, it is likely that people using the route would see, and would sometimes be visible from, the retention land. Vehicles would be heard on that land. In his oral submissions, Mr Needham for the Council, stated that the effect on the retention land of people travelling along the access route would be exactly the same as that complained of from members of the public using the resumed land. For example, the presence of neighbours and their guests on the adjoining land might have prompted Mrs Davidson to put curtains over the windows of the house and may have frightened the wildlife. Consequently, he submitted, in the notional subdivided “before” situation, Mrs Davidson would have lost exactly the same degree of control over the quiet and peaceful use of her home and the retention area. Because there would have been no difference between the loss of control in the “before” and “after” situations, no allowance should have been made for injurious affection. Mr Needham also stressed that Mrs Davidson’s fears about the nature and extent of public usage of the resumed land were not supported by the evidence. He referred to the limited use which is likely to be made of the resumed land. For example, the strip of Council owned land between Buhot Creek and the resumed land was the likely area for walking tracks because it has a much easier terrain than the hillier resumed land. Although there were no plans for walking tracks, barbecue facilities, or school excursions on the resumed land, Mr Needham conceded that members of the public would not be restricted from roaming over the park. If people want to diverge from tracks and wander through the forest, the appellant would not have the staff to stop them. Indeed, Mr Peterson suggested that some people might look for koalas in the bush, and might use the cleared fire tracks on the resumed land. In reply, Mr Diehm who appeared for Mrs Davidson submitted that the Member had not erred. The works done by the Council on, and the facilitation of public access to, the resumed land would not be expected if the land had become privately owned for residential purposes. The Member was entitled to find that the retained land would suffer from injurious affection because it adjoined a bushland park to which the public -- 6 of 8 -- 7 had unfettered access, rather than a large residential allotment. The effects of public access which the evidence identified and on which the Member relied were effects that would not apply if the land was subdivided into two residential home sites. Mr Diehm referred to the evidence of Mr Phegan that showed that pedestrian, vehicular and trail bike access would be possible, particularly along internal tracks such as the cleared fire trails. He conceded that, if the parent parcel had been subdivided, Mrs Davidson would not have had control over the portion that was sold. In his submission, however, one would expect that the sold land would have been used by a quiet family whose activities would differ from those likely to be undertaken by members of the public. People who are interested in purchasing parcels of land of that size for residential purposes do so because they want privacy and seclusion. They would not intrude on their neighbours and would not want neighbours to intrude on them. Mr Diehm also referred to that part of Mr Peterson’s evidence to the effect that the purchasers of land such as the retention area would take into account the sorts of activities that one might expect to find occurring on adjoining publicly owned lands, and would discount the price they would be prepared to pay for the area. Conclusion We are satisfied that Mrs Davidson would suffer damage caused by the exercise of the Council’s statutory powers on the resumed land which would injuriously affect the retained land and that she should be compensated accordingly. Although some factual matters were agreed, the resolution of the appeal involves an element of speculation. We do not accept that the interference to the amenity of the retained land from the regular use of the resumed land by the owner of that land is likely to equate with the intermittent use by more people of the resumed land. Although no prediction can be made with certainty, it is apparent that Mrs Davidson could expect to suffer less interference, and would have more control over the nature and extent of the interference, if the resumed land was privately owned than in the present circumstances. A private owner would be expected to seek to experience on the resumed land the sort of seclusion and privacy enjoyed by Mrs Davidson on the retention land. Consequently, the neighbouring owner would be unlikely to interfere with Mrs Davidson and her use of the retention land, and any interference might arise from the use of the access route to the house site. If the neighbouring owner did disturb Mrs Davidson, she would know -- 7 of 8 -- 8 whom to contact and, if necessary, against whom to take action. Further, if users of the resumed land created the level of interference or disturbance which Mrs Davidson feared, she would have little if any remedy. It would be difficult to identify who caused the disturbance and even more difficult to take any formal action to prevent further disturbance. Finally, whatever are the current limits on the proposed use of the resumed land, there is no guarantee against policy or other changes which might result in the land becoming more accessible to the public. The quantum of the award to be made for injurious affection was not in issue in the appeal. It was implicit in the arguments put that the Member was either in error for awarding any amount or was correct in awarding $35,000.00. As noted earlier, the only evidence available to the Member was that provided by Mr Peterson. Although the Member considered the amount to be “rather nominal” when weighed against Mr Peterson’s valuation of the retention area property, he awarded that sum. There is no suggestion of any evidence on which we could vary that figure and we have no reason to do so. There was evidence to support the Member’s decision to make an award for injurious affection and the amount awarded. Accordingly, the appeal is dismissed. MUIR J JUSTICE OF THE SUPREME COURT JJ TRICKETT PRESIDENT OF THE LAND COURT GJ NEATE MEMBER OF THE LAND COURT -- 8 of 8 --