Director-General Department of Transport v Congress Community Development and Education Unit Ltd [1998] QLAC 160

':,. IN THE LAND APPEAL COURT OF QUEENSLAND TOWNSVILLE THE DIRECTOR-GENERAL, DEPARTMENT OF TRANSPORT V. CONGRESS COMMUNITY DEVELOPMENT AND EDUCATION UNIT LTD. (Hearing in Townsville) REASONS FOR JUDGMENT Judgment delivered 10th August 1998 A97-09 The appellant acquired part of the respondent's lands at Harveys Range Road, Condon, City of Thuringowa for future road purposes. The respondent uses the land and is in the process of further developing it for the purposes of an educational institution addressing the particular needs of Aboriginal and Islander children. The Land Court assessed the compensation payable in consequence of the acquisition in the amount of $471,317.50. Some four grounds of appeal were advanced by the appellant before the Land Appeal Court. The Notice of Appeal included a ground that the Member had erroneously assessed compensation on a piece meal basis rather than on a before and after basis. This ground was not pressed. It is clear that the Member assessed [1998] QLAC 160 -- 1 of 9 -- compensation on a before and after basis. Once this is accepted and the Member's reasons are properly understood, some of the grounds argued are in our view not maintainable. The first ground argued was in the following terms: 1. The Learned Member erred in fact and/or law in determining that the following items were compensable under the heading of "disturbance". * * * * Architects's fees to re-design scheme and buildings Quantity surveyor's fees purportedly incurred in preparation of the claim Engineer's fees purportedly incurred in the preparation of the claim Consulting Acoustic Engineer's fees purportedly in preparation of the claim $3,500.00 $2,700.00 $1,740.00 $ 877.50 It was common ground that these amounts were claimed in the Notice of Claim which was delivered. The claim for compensation in the first instance did not include any claim for compensation which involved the construction of a buffer wall. This was raised in an amended claim. It is contended on behalf of the appellant that, whilst the claims for disturbance were (subject to other requirements being satisfied), recoverable as things stood at the time the claim was delivered, the respondent was no longer entitled to recover compensation by way of disturbance in respect of these items once the claim was subsequently amended to include a claim for compensation upon the basis that a buffer wall would be constructed. It was 2 -- 2 of 9 -- argued that the right of the respondent to recover any sum in respect of such items thereafter was dependant upon the respondent establishing a right to the costs of litigating the claim. We cannot accept this is correct. Compensation by way of disturbance for such expenditures has for some time be~n allowed and the justification for allowing . disturbance in respect of such claims has been discussed in a number of cases. (See Merivale Hotel Investments Pfy Ltd v Brisbane Expositions Bank Redevelopment Authority (1984-85) 10 QLCR 175 and in the Land Appeal Court . (1984) 10 QLCR 268. In the present case, once it is accepted - a~ it seems to be by the appellant - that the claims having been included in the original claim may have been properly the subject of an award of compensation under the heading "disturbance" it does not seem to us that the subsequent inclusion of a claim for compensation based upon the construction of a buffer wall can affect the respondent's right to recover such sums. We have not been persuaded that the appellant has demonstrated that the Member erred in allowing compensation by way of disturbance in respect of these items. Grounds 2 and 3 respectively are as follows: "2. Having regard to the evidence and the weight of the evidence, the Learned Member ought to have found that, on the balance of probabilities, it was unlikely that the erection of an acoustic buffer wall would occur. In the premises, the Learned Member erred in awarding compensation under any of 3 -- 3 of 9 -- the following heads: (a) Present cost of buffer wall (b) Present value diminution in land adjacent or in proximity to proposed wall (c) Present value of loss in land value to be occupied by wall Total: . $229,055 $12,598 $3,779 $294,239 3. In the alternati_ve to ground 2, the Learned Member erred~ having regard to the evidence and the weight of the evidence, in failing to discount the amount determined as appropriate compensation for the construction of the proposed acoustic buffer wall to take into account the real risk that the wall might never be constructed. The manner in which the member approached the assessment of compensation is . made clear at page 45 of the record (page 34 of the reasons): 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 lb 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 established the before valuation in the sum of $1,750,000 by reference to 4 -- 4 of 9 -- sales evidence which was common to both valuers, he then turned to the question of the after valuation. Having found that the respondent had proceeded and was likely to continue to proceed with its development of th~ site as originally planned, and in accordance with approvals granted by the local authority, he found that the value of the land was deleteriously affected by the resumption and the proposed use I of it by the respondent which would not occur for some considerable number of years. In this regard he made the following findings. 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 orad 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 of 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. Similarly the measures which the Member considered should reasonably be taken were the construction of a buffer wall and the airconditioning of some buildings. The Member went on to find that with the taking of these steps there would be the loss of the land to be occupied by the wall mound and there would be some diminution in the value of the land adjacent to and in proximity to the proposed wall. At page 52, (page 41 of the reasons) he concluded in relation to the after value of the land: Summarily, I now consider the effect of the perceived need for the construction of the barrier wall, the perceived need to install airconditioning in 5 -- 5 of 9 -- ., 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 Present cost of airconditioning Present value diminution in land adjacent or in proximity to proposed wall Present value of loss in land value to be occupied by wall mound Total Value Diminution $229.055 $48,807 $12,598 $ 3.779 $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 - Less Value of land after resumption - 29.03 ha@ $45,000 per ha - say Compensation for Loss.in Land Value $1,750,000 $ 1.300.000 $ 450,000 In our view, the approach of the Member accords with well established principles and involves an appropriate application of those principles to the particular and somewhat unusual circumstances of this case. 6 -- 6 of 9 -- The value of the land in both the before and after exercise was established by reference to the market value of the land in each case with the value in the after exercise to be asses~ed by reference to the impact which the construction of the road when it occurred would have, the reasonable measures to be taken to offset this and the residual disabilities to the land after such measures were taken. Present value of future expenditures were used in carrying out this exerci~e. Once the Learned Member had made the findings that he did in relation to the after value of the land, in the way just referred to, it was nofnecessary as a step in assessing compensation to find that those steps would in fact be taken by the respondent if it remained the owner of the land at the time the road was constructed, nor in the light of such findings would there be any justification for any discount i,n the compensation assessed for any risk that the steps might not be taken. We should add that in any case, the claim that the court ought to have found that such steps would not be taken is in the light of the evidence taken as a whole, and particularly that of the Reverend Blackman, not a compelling one. In our view the finding by the Member at page 45 (page 34 of the reasons) which has already been set out, reflects a realistic assessment of the evidence. However, this is not a matter which in our view, in the light of the findings made by the Member in assessing the after value of the land, affects the question of compensation. The remaining ground is ground 5 in the following terms: 7 -- 7 of 9 -- " 5. Having made a determination to allow compensation on the basis that an acoustic buffer wall would be constructed, the Learned Member erred in allowing an additional sum for diminution in the value of land adjacent to the said wall. It is sufficient to dispose of this ground to say that the Member in this regard, acted upon evidence from an acoustics expert (Mr Kamst) and the valuation eviden_ce of Mr Lowe. The reasons for this finding and the evidence in support of it appears at page 51 (page 40 of the reasons). In our view the findings by the Member on this subject are not unreasonable. In the result we are of the view that the appeal should be dismissed. The Respondent sought, in the event that the appeal was dismissed, an order thpt the Appellant pay its costs on a solicitor and own client basis. It was common ground that the Court has power to make such an order. For a discussion of the relevant principles, see Colgate Palmolive Company v Cussons (1993) 46FCR225. We are not persuaded however, that the present case is one in which the power to make such an order should be exercised. We do not think that there is to be found in the present case sufficient justification for departing from the usual rule that the costs awarded against the unsuccessful party be paid on a party and party basis. The appeal is dismissed. The Appellant is ordered to pay the Respondent's costs of and incidental to the hearing and determinaton of the appeal to this Court. The amount of such costs shall be ascertained and fixed by the taxing officer of the Supreme Court at Townsville according to the scale of costs prescribed by law for 8 -- 8 of 9 -- the time being in respect of proceedings in the Supreme Court and in accordance with the provisions of s.44( 16) of the Land Act 1962. 9 CULLINANE J JUSTI_CE OF THE SUPREME COURT RE WENCK MEMBER OF THE LAND COURT · NG DIVETT MEMS.ER OF THE LAND COURT -- 9 of 9 --