Blower v Queensland Electricity Transmission Corporation [1997] QLC 183 (1997-1998) 18 QLCR 342

LAND COURT BRISBANE 21 November 1997 Re: Claim for Compensation - Resumption of Easements for Electrical Works (Transmission Line) purposes - Acquisition of Land Act 1967 - (A96-50). Stephen Paul Blower and Christine Ellen Blower v. Queensland Electricity Transmission Corporation (Hearing at Townsville) J U D G M E N T This is a claim for compensation for the resumption of easements over land under the provisions of the Acquisition of Land Act 1967. The Government Gazette of 6 October 1995, contained a Proclamation resuming easements over land at Roseneath, an outer suburb of Townsville, the registered proprietors of which are Stephen Paul Blower and Christine Ellen Blower ("the claimants") for Electrical Works (Transmission Line) purposes. The easements are described as (i) Easement M in Lot 1 on Registered Plan 742982 on Plan 881609, parish of Beor, containing an area of 1.38 hectares; and (ii) Easement N in Lot 4 on Registered Plan 742982 on Plan 881609, parish of Beor, containing an area of 4.582 hectares. The Proclamation followed a Notice of Intention to Resume dated 16 November 1994, and stated that the easements vested in the Queensland Electricity Transmission Corporation from 6 October 1995. That then becomes the date as at which compensation is to be assessed. A claim for compensation dated 2 July 1996, was served on the respondent corporation by the claimants comprising the following: Land and Severance $70,000 Improvements Nil Injurious Affection $ 7,800 Valuation fees $ 1,500 Legal Fees $ 1,000 TOTAL $80,000 The claimants were represented in these proceedings by Mr DGH Turnbull of Counsel. Evidence was given on the claimants' behalf by Mr SP Blower (one of the owners), Mr CJ Stack (a registered valuer of the valuation firm Herron Todd White) and Mr HF Urquhart (a real estate agent and auctioneer). The respondent was represented by Mr RS Jones of Counsel. Evidence [1997] QLC 183 -- 1 of 15 -- 2 was given on the respondent's behalf by Mr BJ Duncan (a registered valuer with the firm Taylor Byrne). In addition, a report by Mr PAG Dance (a town planner) was tendered by consent. The land over which the easements were resumed comprises an aggregation of two adjoining parcels with a total area of 63.5356 hectares ("the subject land"). The southern parcel, Lot 1 on Registered Plan 742982, Parish of Beor ("Lot 1"), is roughly triangular in shape and contains an area of 11.48 hectares. Adjoining it to the north is Lot 4 on Registered Plan 742982, Parish of Beor, ("Lot 4"), which is irregular in shape, containing an area of 52.0556 hectares. Prior to the resumption of Easement M, Lot 1 was not affected by other easements. However, prior to the resumption of Easement N, Lot 4 was affected by three other easements for Transmission Line purposes (Easements A, B and C), comprising 3.3998 hectares. Lot 4 was also affected by an easement of 1,756 square metres for access purposes in favour of Lot 3 on Registered Plan 742982, the land adjoining to the east. Easements A, B and C traverse high mountainous country in the north-east corner of Lot 4, while the access easement is a strip approximately 6 metres wide along approximately 290 metres of the southern boundary. The purpose of that easement was to provide access to a surveyed road extending from approximately half way along the southern boundary of Lot 4 to its northern boundary near the north-western corner. However, that road does not connect to any surveyed road and is unmade. Its effect on Lot 4 can be ignored. The Affected Land The subject land is situated on the eastern side of Stuart Creek which forms its western boundary and on the opposite side of which is a development known as Roseneath. It is approximately 15 kms south of the Townsville Central Business District. It is in an area of mixed land uses ranging from rural residential to industrial to extractive industry. The Stuart Prison Reserve is situated immediately to the north, while the Pioneer Roseneath Quarry adjoins to the east. Access to Lot 1 is by means of Bougainville Street, which is gravel surfaced, with a low- level concrete causeway crossing Stuart Creek. The bitumen-sealed Flinders Highway is within 750 metres of Lot 1. There is no legal access to Lot 4 and if it was to be sold separately to Lot 1 suitable easement access would be required. Lot 1 has an area of level creek flats rising moderately to steeply to the eastern boundary. Lot 4 comprises mainly moderately to steeply sloping forest ridges with limited broken creek flats along Stuart Creek. At the date of resumption a house site had been cleared and levelled on an elevated area of Lot 1 ("the hill site") and a road had been graded to that site. The views from the hill site were described as "fair views available to surrounding mountain ranges and urban areas" (Mr Duncan) and "views north to Castle Hill, west to Mount Stuart and south to Oak Valley ... an attractive panorama" (Mr Stack). It is clear from the -- 2 of 15 -- 3 evidence that there are panoramic views from the hill site of Castle Hill and part of the City of Townsville to the north and attractive mountain and valley views to the west and south. The Effect of the Easements The easements are in respect of a corridor approximately 82 metres wide running diagonally across the centre, but largely confined to the steeply sloping higher land of Lot 4, and to the eastern or higher side of Lot 1. The transmission lines were not constructed at the date of hearing but will comprise twin sets of high voltage power lines carried on steel towers. The whole of the hill site is within the easement corridor and it seems that two of the towers will be located on that site. The Schedule to the Proclamation of 5 October 1995, contains the standard easement terms and conditions, including authority for the respondent Corporation to construct, inspect, maintain, etc., the electrical works and preventing the erection of any buildings or structures on the easements. Therefore, in addition to any other effects which the easements have on the subject land, they prevent the construction of a dwelling house on or near the hill site. The Local Government Requirements Although both Lot 1 and Lot 4 are situated in the local government area of the City of Townsville, at all relevant times Lot 1 was subject to the planning scheme of the City of Thuringowa in which it was situated until it was included in the area of the City of Townsville following alterations to local government boundaries a few years ago. While Townsville City Council intends to prepare new planning provisions in relation to its extended area, it continues to administer the 1988 planning scheme of Thuringowa City Council for those areas which were formerly part of that city. Under the relevant planning scheme, Lot 1 is zoned "Rural B", the general intent of which is to permit rural pursuits "as of right", with Council consent being necessary for most other purposes. A dwelling house is allowed as of right. It was agreed that there was no real prospect of further subdivision. At all relevant times Lot 4 was included in the local government area of the City of Townsville and the planning scheme for that City controlled its use and development. Under that planning scheme, gazetted in September 1995, Lot 4 is included in the "Rural" preferred dominant land use category in the Strategic Plan, with small parts of the creek frontage shown as "Open Space" preferred dominant land use. The first objective of the designation "Rural" is to preserve land so designated for rural use. Lot 4 is zoned "Non-Urban". It was common ground that there was no real prospect of rezoning or subdivision of Lot 4. However, there was disagreement as to whether or not a house could be built on Lot 4. The use "dwelling house" is a Column 3 "permissible development" in the Non-Urban zone, but Mr Dance concluded that the Council would almost certainly refuse a town planning consent application for a dwelling house on Lot 4. However, he felt that a "caretaker's residence", a -- 3 of 15 -- 4 Column 2 "permitted development", could be approved provided that it was in conjunction with another lawfully established use, such as agriculture or animal husbandry. Mr Dance also expressed the opinion that as Lot 4 had no lawful access, any sale of that lot independently of Lot 1 would require, at a minimum, the creation of an access easement across Lot 1, which the Council would be likely to approve. Mr Blower's Evidence The claimants, Mr SP Blower and his sister Miss CE Blower, purchased the property in December 1992 for $125,000. At the time of purchase there were no structural improvements on the property. Mr Blower described the effect of the resumption as "the spoiling of a dream". His sister has since become so disillusioned and concerned about the health risk from the yet to be constructed power lines and their unsightliness, that she has moved away from Townsville and he is buying her interest in the subject land. Mr Blower explained that upon inspecting the property with the vendor, he and his sister "... drove up to the top of the house pad and as soon as we saw the house pad, that's it, we fell in love with it and we both were so excited that we bought it straight away". He went on to say that they had intended to build a dwelling house on the hill site because of its views towards Townsville and west to Mount Stuart. He described the night-time view of the lights of the city and Castle Hill as "excellent". He said that if they had been told at the time that they could not build on the elevated hill site, they would not have purchased the property. Mr Blower explained how a building with the appearance of a house came to be located on Lot 1. He said that prior to purchasing the land he was conducting a tree-lopping business from a residential area in Townsville, but after complaints from neighbours, an injunction had been obtained requiring him to move his business operations. After he and his sister purchased the Roseneath land, Mr Blower said that in February 1993, he made an application to the Thuringowa City Council to construct an 8 metre x 12 metre shed on Lot 1, in which he had intended to store his machinery and equipment. However, circumstances prevented him from building the shed before the deadline for moving his business from Townsville. Therefore, he realised that he would have to find some other means of storing his machinery and equipment. To this end, in April 1993, he purchased the shell of a house which he moved to a location on Lot 1 near the creek ("the creek site"). Mr Blower went on to explain that a Mr Paterson, a builder, had purchased a house at Ingham which he had intended to shift to Yabulu for renovation and sale. However, before Mr Paterson took possession of the house, it was vandalised to the extent that it was not economically viable to convert it into a Class 1 dwelling, so he sold what remained of the house ("the house shell") to the claimants for $12,000. Mr Blower said that at that time he desperately needed somewhere to store his equipment and the vandalised house was ideal for that purpose. On 27 April 1993, the -- 4 of 15 -- 5 claimants applied for a building permit to relocate a "house". Plans had already been prepared by Mr Paterson for relocation of the building as a house, so Mr Blower simply completed a plan as part of the building application showing the structure as a house. Mr Blower said that before the resumption it had always been the intention of the claimants to construct a house on the hill site. He insisted that at the time that it was relocated, he intended to use the house shell for storage purposes and that he had not intended to renovate it as a house. He understood that he had to go through the procedure of applying for a building permit as a house in order to get the building onto the land. Once the building was in place he would not proceed with the rest of the application and seek to reclassify it as a shed or storage facility. He claimed that he had adopted that approach after discussion with unnamed Council officers. On 8 October 1993, the Thuringowa City Council acknowledged the building application and advised the owners that a separate sewerage application was required. Mr Blower said that he then rang and advised the Council that he was not proceeding with the application. As a result no building permit was issued for the building presently on the land. The only permit issued in respect of Lot 1 was for the shed which was never erected. After the house shell was delivered to the site, Mr Blower raised it and enclosed it with besser blocks in order, he said, to park machines known as Bobcats underneath it. Mr Blower said that the creek site was chosen for security reasons to deter people from stealing his equipment. The site was well away from Bougainville Street and access to it was difficult for conventional vehicles and impossible after heavy rain. Since the resumption of the easement had deprived them the use of the hill site, Mr Blower said that he had nowhere else to live and of necessity he had been living at the house shell with a caravan beside it. He had carried out some work on the building to make it more habitable. He said that in about July 1996 he engaged an architect to submit plans to the Council to convert the building into a dwelling. However, for some unexplained reason, that had not been done. Mr Blower denied that he had chosen the creek site in preference to the hill site as the location for a dwelling house well before he knew of the resumption of the easements. The Valuation Evidence Although both valuers used the "before" and "after" valuation method to assess compensation, their approaches were quite different. Mr Stack valued the land, both before and after resumption, as one large rural homesite, while Mr Duncan considered that it had potential as two rural homesites which he valued separately both before and after resumption. Mr Stack assessed compensation at $76,000. Mr Duncan, on the other hand, assessed -- 5 of 15 -- 6 compensation at $20,000. Somewhat surprisingly, both valued the land before resumption at $140,000, Mr Stack as one parcel and Mr Duncan as two parcels, Lot 1 at $65,000 and Lot 4 at $75,000. After resumption, Mr Stack considered that the land had a value of only $70,000, having regard to the loss of the elevated hill site and the visual impact of the transmission lines across the breadth of the property. In addition, Mr Stack included $6,000 for the loss of 200 metres of road to the elevated hill site, at $30 per metre. This brought his total assessment of compensation to $76,000. It is clear that Mr Stack considered that the hill site with its views and access road was the most valuable characteristic of the land. He reported that investigation of relevant sales data showed that rural homesites with such views can attract values greater than $120,000, regardless of any hobby farm/intensive rural capabilities, compared with a range in value from $30,000 to $120,000 for level or easier sloping parcels, depending on access to water and their hobby farm/horticultural potential. He went on to state that the supply of rural housesites with elevated areas suitable for building is limited by the cost of providing all-weather access and water. When properties have those attributes they attract premium prices. Mr Duncan did not see the easements as having such a severe impact on the value of either lot. He reported that the creek site on Lot 1 is approximately 200 to 300 metres to the west of the easement corridor, but he acknowledged that the transmission lines would be visible from that site. He thought that the easements did not remove what he referred to as a potentially acceptable house site on each parcel. He thought that the planning schemes would permit one dwelling house on each parcel and that a hill site would require additional expenditure on access and services. After weighing up the advantages and disadvantages of the hill site compared with the creek site, Mr Duncan concluded that although the transmission line easement will traverse the hill site, since a dwelling house can be legally established on the creek site in what he referred to as a "market acceptable position", the loss in value resulting from the resumption is confined to the relative merits of the hill site and the creek site. In respect of Lot 4, he felt that having regard to the steep topography of the land within the easement area, there would be no injurious affection to the balance area. Mr Duncan valued Lot 1 before resumption at $65,000 and after resumption at $50,000, thereby assessing compensation in respect of Lot 1 at $15,000. He valued Lot 4 before resumption at $75,000 and after resumption at $70,000, thereby assessing compensation in respect of Lot 4 at $5,000. His assessment of compensation in respect of both Lot 1 and Lot 4 amounted to $20,000. Mr Urquhart's Evidence Mr Urquhart was of the opinion that there were different markets for elevated sites and -- 6 of 15 -- 7 for flat sites. The elevated sites were sought after for their views, while the flat sites were sought after as hobby farms. He made the point that he had never met two purchasers with exactly the same tastes, some preferring creek sites and others elevated sites. His experience of selling rural residential properties at nearby Alligator Creek was that elevated sites sold for about $100,000 to $135,000, while those with lower sites sold from about $75,000 to $95,000. He also expressed the opinion that purchasers would not pay much more for rural residential properties that had steep unusable additional land. He considered that properties affected by powerlines were more difficult to sell and, if they did sell, did so at much reduced prices, because the presence of power lines was a very negative influence upon potential purchasers. Mr Jones submitted that Mr Urquhart's evidence was so general as to be of no real assistance. Certainly his evidence can be put no higher than expressions of opinion, but it does support the contention by Valuer Stack that properties with elevated sites which have views will generally sell for more than those with creek sites and no views. He is an experienced real estate agent and his opinions as to what influences potential purchasers must be given some weight. The Issues There are two principal but related issues between the parties. The first issue is whether the highest and best use of the land is as a single rural residential site or as two rural residential sites. In other words, whether Lot 1 and Lot 4 should be valued as one parcel or whether they should be valued as separate lots. Mr Stack was firmly of the opinion that the highest and best use of the land was as one unit, not as two sites. He reasoned that Lot 4 had no legal access and its generally steep topography reduced it to being an adjunct to the principal site, Lot 1. He conceded that there would be areas on the broken creek flats of Lot 4 where a house could be sited, but doubted the legality of erecting a principal residence on Lot 4 because of the town planning restrictions. In addition, he felt that the creation of an easement access across Lot 1 would be expensive and would diminish the value of Lot 1 because it would result in the loss of privacy and security. On the other hand, Mr Duncan saw the matter quite differently. He was of the opinion that a prudent purchaser of the two lots would regard them as separately saleable. He conceded that to sell Lot 4 separately, the owner of the subject land would be required to create an access easement across Lot 1. However, he did not consider that it would be prohibitively expensive or that such access would unduly affect the value of Lot 1. He thought the survey cost, Council fee and solicitor's costs would amount to about $3,630. However, a potential purchaser of Lot 4 would have to construct a road on that easement, which Mr Duncan felt could be achieved for between $3,000 to $6,000 for a basic gravel road, but could be as much as $16,000 for a more -- 7 of 15 -- 8 substantial road. The second issue was the importance of the hill site to the value of the property. Mr Stack was of the opinion that it was critically important to its value and that the loss of the use of it had reduced the value by 50%. He conceded that apart from the loss of the use of the hill site, the easement did not affect the use that could be made of the balance of the land. He also admitted that the creek site was quite a pleasant site for a house, although it had an access problem. It was clear however, that Mr Stack felt that deprived of the use of the hill site with its views, the property became quite ordinary. Mr Duncan did not consider there was a great deal of difference between the value of the property whether or not it had the use of the hill site. He said it was not as if the hill site had ocean views; its views were pleasant but not magnificent. While he felt that the hill site had the advantages of elevation, existing site works (benching) and views, it suffered the disadvantages of westerly aspect, proximity to a quarry, increased building costs, potential for overcapitalisation and added cost of the extension of services. On the other hand he felt that the creek site had the advantages of what he called "quality setting", better access to services and building costs, but it suffered disadvantages with no views, dust nuisance and the visibility of the transmission lines. He also conceded that the creek site had difficult access after heavy rain. The Sales Evidence The approach taken by each of the valuers was influenced by the conclusions they drew from the available sales evidence. Mr Stack expressed the opinion that while there was a lot of elevated land in the area, there was often difficulty getting access to those elevated locations. There were few sales of elevated sites with proven access, but a greater supply of land with creek frontage. Mr Stack said that he tried to identify the premium which purchasers paid for elevated sites. He referred to four sales of properties with elevated homesites in the Nome and Woodstock areas, ranging from 13.74 hectares to 76.19 hectares, which sold between August 1994 and March 1995 for prices ranging from $85,000 to $255,000. If the vastly superior sale for $255,000 is excluded, the remaining three sales were for prices of $85,000, $120,000 and $175,000. Mr Stack contrasted those sales with sales of rural residential properties at Brook Hill and Woodstock without elevated sites, which ranged in area from 13.87 hectares to 64.75 hectares and which sold between June 1994 and November 1994 for prices ranging from $30,000 to $90,000. If the largest of those sales is excluded, sale prices for the remaining three sales were $30,000, $60,000 and $68,000. Mr Duncan referred to a wider range of sales. He provided details of ten sales in the Parish of Beor, which occurred between early 1992 and December 1995. These sales, with two larger exceptions, ranged in area from 10 to 20 hectares, with prices generally in the range of -- 8 of 15 -- 9 $45,000 to $85,000, regardless of whether the homesite was on elevated hillside or creek flats. Two larger area sales of around 130 hectares sold for prices from $150,000 to $170,000. He also referred to a number of sales in the Roseneath area which were affected by transmission lines. However, these were of such small areas that they were of little assistance. Only one, in Nadzab Street, of 14.57 hectares which sold in August 1996 for $83,500, was directly comparable with Lot 1. That property was a creek frontage site encumbered by a 1.15 hectare transmission line easement running along its southern boundary. That sale analysed to show $78,000. While Mr Duncan considered that sale supported his after valuation of $50,000 for Lot 1, Mr Stack thought that the sale supported his after value of $70,000 for both lots. That was based on his reasoning that a purchaser would pay only a nominal value for the steeper land. Mr Duncan thought that the sale was particularly relevant, as it has frontage to Stuart Creek and is affected by transmission lines. Both valuers were in substantial agreement that the market in the Roseneath area had increased from 1992 until some time in 1993 and would have been very flat after that. Mr Duncan expressed the view that early 1993 would have been the peak of the market. The following sales which were known to both valuers were of particular assistance to me: • The sale of Lot 21, Lowe Road, Nome, of 45.881 hectares, in March 1995, for $175,000, also included a road to a very elevated site from which views of the ocean, as well as the city and surrounding rural areas were available. Both agreed it was superior to the subject land. • The sale of Lot 1, Coast Road, Nome, of 13.74 hectares in January 1995, for $85,000, had a view over the rural residential area of Serene Valley, but its access was even more subject to flooding than that of the subject land. It was agreed that this property was inferior to the subject land before resumption, because the subject land had the benched hill site with its proven access. • The sale of Lot 13 Booth Road, Brookhill, of 64.75 hectares in November 1994 for $90,000, was easy sloping land with poor dirt road access and no views. Conclusions: The first question to be determined is whether the highest and best use of the land is as a single rural homesite or as two rural homesites. Certainly the evidence of Mr Blower indicates that he and his sister purchased the property as one unit, never considering for one moment the potential for sale as two sites. They regarded it as a place to live and from which Mr Blower could conduct his tree-lopping business. They were particularly attracted to the hill site on which they could construct a residence and take advantage of the views. Then there is the evidence of Valuer Stack. He regarded the property as one unit because of the cost creating an easement access to Lot 4 and the effect on the value of Lot 1. He -- 9 of 15 -- 10 regarded Lot 4 as an adjunct and an enhancement to the value of Lot 1, rather than having a value as a separate lot. Against this is the evidence of Valuer Duncan who valued the land as two rural residential sites, allowing for the creation of an easement which he considered to be not prohibitively expensive and which would have little effect on the value of Lot 1. Regard must also be had to the town planning evidence. Under its "Rural B" zoning, a dwelling house can be constructed on Lot 1 as of right. However, the evidence is that under the "Non-Urban" zoning of Lot 4, only a caretaker's residence can be constructed in conjunction with some other lawful use and that requires Council consent. Mr Dance's report made it quite clear that that is the only basis upon which a house could be constructed on Lot 4. However, he thought there would be no difficulty in obtaining the consent of the Council on that basis. Mr Duncan seemed to regard the right to construct a caretaker's residence on Lot 4 as being equally valuable to the right to construct a dwelling house on Lot 1. There was no evidence as to what standard of construction the Council would tolerate for a caretaker's residence. In my opinion, it could not be said that the right to construct a caretaker's residence with the consent of the Council could be considered to be equivalent to the right to construct a dwelling house as of right. The proposition that a purchaser of Lot 4 could apply for Council consent to construct a caretaker's residence, but with the intention of constructing a principal dwelling house, has an element of deceit about it that is against the spirit and intent of the planning scheme. That should raise an element of doubt, something that I feel would influence the price that a potential prudent purchaser would pay. In addition, there is the cost of creating the easement to Lot 4 which might be something less than $4,000. However, while the cost of constructing a simple gravel access may be as little as $4,000 to $5,000, it may well be more. These are considerations which in my view would also affect the price which a potential purchaser would pay for Lot 4. Quite apart from these considerations, there is the effect on the value of Lot 1. While Mr Duncan felt that there would be little adverse effect of such easement access upon Lot 1, in my view it would certainly affect the privacy and security of that property. Although Mr Jones argued that there would be few vehicle movements to what would be a single dwelling house on Lot 4, once an access easement was created, the owner of Lot 1 would lose the legal right to control who used that access and when. That loss of privacy and security would, in my opinion, significantly affect the price that a prudent purchaser would pay for Lot 1. Having regard to these factors, I have come to the conclusion that the highest and best use of Lot 1 and Lot 4 is as a single rural residential property. I now turn to the value of that property before resumption. Both valuers agree that the "before" valuation of the property is $140,000. Mr Stack valued the property as one unit, but Mr Duncan considered the property as two separately saleable lots. However, it is clear that Mr Duncan would not have valued the property at -- 10 of 15 -- 11 $140,000 if he thought that it did not have the potential for sale as two parcels. Therefore, it cannot be said that the valuers agreed to the "before" valuation. Mr Duncan valued Lot 1 at $65,000 and Lot 4 at $75,000, before resumption. When asked for his apportionment of his "before" valuation of $140,000, Mr Stack somewhat hesitantly and reluctantly suggested $80,000 to $90,000 for Lot 1 and $50,000 to $60,000 for Lot 4. It was obvious that he did not approach the valuation in that manner and was much more confident when dealing with the valuation as one unit. I feel that in attempting to apportion his valuation, Mr Stack was simply trying to be responsive rather than giving a considered answer. Therefore, I place little weight on his separate values for the two lots. I have come to the conclusion that if a prudent purchaser did consider that there was potential for separate sale of the two lots, then Mr Duncan's valuation of Lot 4 is too optimistic, while his valuation of Lot 1 is too conservative. However, for the reasons given earlier, I feel that the subject land should be valued as one large rural homesite and I will adopt that approach. The sales evidence demonstrated that the valuation before resumption must be in the range above $85,000 yet below $175,000. The sale for $175,000 is clearly much superior to the subject land. It has a superior view, including an ocean view, and does not suffer from many of the drawbacks suffered by the subject land. On the other hand, the sale for $85,000 is smaller and does not enjoy the views available from the hill site. Having regard to the evidence of these and other sales, I feel that they support the conclusion that the "before" valuation of the subject land should be $140,000. Then there is the claimants' own purchase of the subject land for $125,000 almost three years prior to the resumption. There is evidence that there was some upward movement in the market in 1992/1993, although it was flat thereafter. That is not inconsistent with a "before" valuation of $140,000. The "after" valuation will depend almost entirely on the importance to be attributed to the hill site. Mr Stack regarded it as critically important, the loss of the use of it reducing the value of the land by 50%. Mr Duncan felt that there was little difference whether or not the land had the hill site, as it had the "market acceptable" creek site. Mr Jones argued that the claimants could not have placed great significance on the hill site, because before they knew about the resumption, they had relocated a house onto the creek site. It was an important aspect of the respondent's case that before they knew of the resumption, the claimants had chosen to build on the creek site, rather than the hill site. Whether there is any substance in the respondent's arguments depends largely upon the credibility of Mr Blower's evidence. Whatever doubt was raised about the credibility of Mr Blower's intention when the shell of the house was moved onto the land, it is clear from the Council file that he consistently maintained that the structure was to be used for storage and not for accommodation. In my opinion the Council file generally supports Mr Blower's evidence. He applied for the building permit, with the necessary plans and drawings showing a house, in order to get the structure onto the land. The fact that he did not proceed with any of the other requirements so -- 11 of 15 -- 12 that a building permit could issue, would seem to lend support his story. Certainly the photographs tendered in this case show that the structure has the appearance of a dwelling house. However, Mr Blower explained the later photographs by saying that events have forced him to commence converting the structure as he has nowhere else to live. In addition, there is evidence that the access from the boundary to the structure is impassable in wet weather. Whenever there is heavy rain Mr Blower leaves his car at Bougainville Street and walks to the structure. While it seems to me to be most inconvenient to have even a storage structure located with such poor access, it does lend support to his explanation that it was sited in that position to ensure the security of his tools and equipment. In the circumstances, I do not accept the respondent's submission that the claimants had elected to build a house on the creek flats. On the balance of probabilities, I find that the claimants always intended to use the structure for storage. There is, in my opinion, sufficient evidence to support Mr Blower's version of events. However, even if my conclusion is incorrect, I agree with Mr Turnbull that before the resumption a prudent purchaser of the property could simply convert the structure into storage, or even demolish it and build on the hill site. In my opinion a prudent purchaser would, like the claimants, have paid a premium to purchase the land with its hill site, made access to that site and the right to build a dwelling house upon it. Therefore, I find that the hill site was the most attractive feature of the subject land before resumption. With the resumption of the easement, the claimants are deprived of the use of the hill site. There was no suggestion of the possibility of building on any other elevated land. The claimants are therefore reduced to building on the creek flats, although there is evidence that the creek site is quite a pleasant setting for a house and, with landscaping, could be even more attractive. However, its access would need to be substantially improved, perhaps the dam relocated. In fact, without the hill site, it seems to me that the land is only a little more valuable than the sale of Lot 13 of 64 hectares for $90,000. There is also the visual impact to consider. It is agreed that before resumption the existing transmission lines on Easement A, B and C were not conspicuous. However, after the resumption of Easements M and N, and with the construction of the twin transmission lines on the 82 metre wide easements across the high ground of Lot 4 and Lot 1, those lines will be visible from the entrance to the subject land and from the creek site. The valuers agree that the easements are blots on the titles. In my opinion, after the transmission lines are constructed, they will also be a significant blot on the landscape. Therefore, I have come to the conclusion that an appropriate "after" valuation of the subject land is $90,000. Injurious Affection It remains to consider the argument advanced by Mr Stack that the claimants should also -- 12 of 15 -- 13 be compensated for what I understand to be the loss of the access road to the hill site. In my opinion that argument is without foundation. To be entitled to their claim under this head of compensation, the claimants must bring it within the provisions of section 20 of the Acquisition of Land Act 1967, which states - " Assessment of Compensation (1) in assessing the compensation to be paid, regard shall in every case be had not only to the value of land taken but also to the damage, if any, caused by either or both of the following, namely - (a) the severing of the land taken from other land of the claimant; (b) the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other land. (2) Compensation shall be assessed according to the value of the estate or interest of the claimant in the land taken on the date when it was taken. (3) In assessing the compensation to be paid, there shall be taken into consideration, by way of set-off or abatement, any enhancement of the value of the interest of the claimant in any land adjoining the land taken or severed therefrom by the carrying out of the works or purpose for which the land is taken. But in no case shall this subsection operate so as to require any payment to be made by the claimant in consideration of such enhancement of value. " Thus the claimants are entitled to the value of the land taken, plus diminution in value of their remaining land caused by severance and injurious affection, set off by the enhancement in the value of that remaining land as a result of the resumption. It is well established that the principles to be applied in the compulsory taking of an easement are no different from those applying when the full fee-simple is taken. The Land Appeal Court held in Joyce v. The Northern Electricity Authority of Queensland (1974) 1 Q.L.C.R. 171 at p.177, that the test is the attitude of a hypothetical prudent purchaser and the extent to which in the opinion of such a person the claimants have suffered diminution in the value of their property. Both valuers have assessed compensation payable by means of the "before and after" method of valuation. This method of valuation was considered by the Land Appeal Court in Brisbane City Council v. R.D. and D.E. Landsbury (1977) 4 QLCR 502, when after reviewing the authorities on the matter, the Court concluded at p. 509. " We are satisfied that the "before and after" method is not contrary to statute and is an appropriate one to apply in determining compensation where cases involve severance, injurious affection and/or enhancement. " Also at page 509 the Court said, " The difference between the first mentioned valuation and the total of the last mentioned values must represent the total loss -- 13 of 15 -- 14 suffered by the claimants in that such difference must include the value of the land taken and injurious affection to the residues reduced by any enhancing factor that may arise as a consequence of the resumption and which is automatically reflected in the values of the residue areas. In our view this approach is a lucid and commonsense one. " The authorities discussed in Landsburys case demonstrate that the great advantage of the "before and after" method is that it assesses compensation as provided for in section 20 of the Acquisition of Land Act 1967, including the value of the land taken, severance and injurious affection, offset by any enhancement to the remaining lands. That has been the approach adopted in this case and therefore any injurious affection is included in the difference between the valuation before resumption and the valuation after resumption. The claimants are therefore not entitled to a separate head of claim for injurious affection as that would amount to a doubling up of compensation already assessed. Disturbance The parties have reached agreement as to compensation for disturbance in the amount of $2,500, comprising valuation fees of $1,500 and legal fees of $1,000. Compensation will be awarded accordingly. Determination of Compensation Value of the subject land before resumption $140,000 Value of subject land after resumption $ 90,000 $ 50,000 Disturbance $ 2,500 TOTAL COMPENSATION PAYABLE $ 52,500 Interest I was advised that an advance of $15,000 was paid by the respondent to the claimant on 8 November 1996. I was also advised that the valuation fees of $1,500 were paid on 27 December 1996, but that legal fees have not been paid. I order the respondent to pay to the claimants' interest at the rate of 8.25 per cent per -- 14 of 15 -- 15 annum on the sum of $50,000 (being $52,500 less the agreed valuation and legal fees of $2,500) from 6 October 1995 up to and including 8 November 1996 (the date of payment of the advance), then on the amount of $36,500 (being $50,000 less advance of $15,000, plus valuation fees of $1,500 paid on 27 December 1996) up to and including the day immediately preceding the date on which final payment of compensation is made. President of the Land Court -- 15 of 15 --