Boterhoek v Council of the Shire of Redland [1995] QLC 11

LAND COURT BRISBANE 3 March 1995 Re: Claim for Compensation - Resumption for Road Purposes. A94-53. A and HM Boterhoek v. Council of the Shire of Redland J U D G M E N T This is a claim for compensation for the taking for road purposes as from 5 March 1993 by the Council of the Shire of Redland (the Respondent) under the provisions of the Acquisition of Land Act 1967 (the Act) of an area of 75m2 being part of the land contained in Lot 3 on RP 165038 Parish of Capalaba which is held in fee simple by Mr and Mrs A Boterhoek (the claimants) and registered under Certificate of Title Volume 5858 Folio 231. The parent parcel prior to the resumption contained an area of 3,806m2 and is situated at 59 McMillan Road, Alexandra Hills on the corner with McDonald Road. The lot is zoned rural-non urban. However, under the Development Control Plan it is envisaged that the entire property has a future preferred use as "Residential A". The lot is almost square in shape with a truncated corner. The claimants have been in residence on the lot for about 13 years in a two-storey Tudor-style dwelling (in average condition) constructed of brick lower with textured a/c sheeting upper walls, plasterboard interior and tiled roof. The total living area is about 220m2 on two levels with a double garage of about 47m2 and a detached garage with a total area of about 78m2. The home is positioned diagonally on the lot pointing towards the intersection. On that aspect the residence comprises a garage with a blank windowless wall on the upper level. The family/sitting room is to the rear of the building at ground level and protruding from the main structure. The land was resumed for road purposes (by increasing the size of the truncation) being part of a scheme for the upgrading of roads in the area including the provision of a roundabout at the intersection of McMillan and McDonald Roads. Annexure A provides a ready appreciation of the resumption, the works involved and the position of the dwelling. In October 1992 permission was given the respondent by the claimants to enter the subject land for the purposes of construction of the road. The approval was given [1995] QLC 11 -- 1 of 11 -- 2 on the understanding "that these works will in no way affect our claim for compensation". Entry under such terms and conditions could not however be taken as an admission that compensation is payable. At the date of resumption the works were complete (which I will describe in more detail shortly). The area taken from the claimants has been put to footpath purposes only. In due course a claim in the sum of $16,862 was served on the respondent which was amended (by leave) to a sum of $16,112 made up of: Land $2,562 Injurious affection $11,500 Disturbance $500 Valuation fees $750 Legal fees $800 The quantum of the sums claimed for legal and valuation fees is not in dispute. The attitude of the respondent to the claim is that compensation should be assessed at nil. Briefly the reasons for this conclusion turn on the principles contained in the case of Edwards -v- Minister for Transport (1964) 2 Q.B. 134. Mr IR Crane, AVLE registered valuer, wrote the assessment of compensation on behalf of the claimants. He and Mrs Boterhoek gave evidence. Mr MLR Elliott, registered valuer in the employ of the respondent wrote the assessment on its behalf. Since taking up residence on the lot and to the date of the commencement of construction of the works, the environment in which the claimants lived could be described as somewhat peaceful and undisturbed by traffic - "it was very secluded bushland all round, no street lights or anything, we just had the dirt access to our property". (Mrs Boterhoek) McMillan Road was of gravel construction which construction terminated at the boundary of the subject lot. The claimants' access to Cleveland (east) was via McMillan Road then south along Dawson Road to Finucane Road. Their access to and from Brisbane was again via Dawson and Finucane Roads. McMillan Road west of the intersection with McDonald Road was unconstructed. So too was McDonald Road north of the intersection. McDonald Road south of the intersection to Finucane Road was unconstructed in part and part constructed with bitumen sealing. The -- 2 of 11 -- 3 scheme of works included the upgrading with full-width bitumen sealing of McMillan Road from Allenby Road in the west to the east and past the subject lot. McDonald Road was upgraded likewise south to Finucane Road and a roundabout was constructed at the intersection. The works included street lighting and the roundabout lit with central lighting. The scheme of works was brought on by growth and development in the area. (Refer for an appreciation of growth to Annexures B and C). Growth has brought with it other advantages/disadvantages in that a hotel has been placed on the area marked SF22 on Annexure C. The result is that an undeveloped, dedicated but potential road intersection has become an activity which the claimants say has affected their lifestyle for which they should be compensated. In accessing their lot from the east they are required (and I accept) to proceed through the roundabout and return - left-in, left-out. They say that lights intrude the family room and that noise factors etc. affect their standard of living. Mr Crane says that "the cumulative effects of these factors reduce the desirability and appeal of this part acreage property reducing its overall value to a prospective purchaser". He approached the assessment on a piecemeal basis for reasons that it is difficult to find sales of land which may usefully assist in a before and after exercise in valuation in these circumstances. The assessment has taken this form - - land is valued on a pro rata basis at $75 per m2 -injurious affection is geared to an estimate of the cost of providing amelioration works comprising fencing, mounding and gardens etc. along a 50 metre frontage for a total cost estimated at $7,500 and provision of alternative access from McDonald Road is estimated to cost $4,000. In addition a sum of $500 is claimed for disturbance during construction. Mr Crane agrees with Mr Elliott that if the injurious effects are limited to the taking and use made of the land taken from the claimants, then no claim could be made out for injurious affection. He is aware of the principles of Edwards' case supra. This is what he said in his valuation: "The acquired area has been used for construction of the footpath adjacent to the roundabout but no part of the actual road structure was built on the resumed area. On strict application of the principles outlined in the Edwards case (which I am informed is no longer applied in the other States of Australia) to this type of resumption would result in limited compensation as the loss in value is solely attributable to the effect of the footpath ignoring the other detrimental effects of such roundabouts. However, with reference to the principles outlined firstly in Morrison and more particularly in the Treston case on a smaller scale, I am of the opinion that the test of 'separability' fails and the construction of this project -- 3 of 11 -- 4 could not have proceeded without provision of an adequate footpath. In fact the local authority insists that an adequate footpath be provided in any new development where road construction is required. That is to say that the footpath is an integral part of the road and compensation should be allowed in full loss of value due to the whole of the road construction not just the footpath. " It is the submission of the respondent that enhancement to the property from the scheme of works outweighs compensation whether compensation is limited to that done on the land taken or to the scheme of works. Mr Elliott would value the land before and after the resumption at $230,000 and $240,000 respectively. He performed an exercise on the same method in hypothetical subdivision of the land (two rear lots connecting to Stonebridge Street) and obtained a comparable result. It is agreed that the lot has a potential for subdivision. It is also agreed that such potential was not ripe at the date of resumption. Nothing was made of the exercise in the hearing of the matter and I will pursue it no further. The plus factors identified by Mr Elliott from the scheme of works included the full width bitumen sealing of the roads mentioned with concrete kerbing and channelling, improved access to the City of Brisbane which may now be taken via McDonald Road to Finucane Road which intersection is a signalised intersection, elimination of dust and the calming effect of traffic by the provision of the roundabout. Inherent in this reasoning is the attitude which a hypothetical prudent purchaser would take to the provision of such works against (a) the lack of such services before the resumption; (b) the advantages of a roundabout-constructed intersection to that of a right-angled intersection; and (c) the foreseeability that the hypothetical prudent purchaser would possess when purchasing the land before the scheme was implemented. On this last point he says that the position of the home on the subject land seems to have been determined with the likelihood of a roundabout-controlled intersection coming about some time in the future. In cross-examination he said - "At present there is far more traffic that uses this intersection than was the case before any of these works were done?-- Yes, but it was always going to be the case wasn't it? I mean it was a dedicated road. It was a main feeder road from one area to the other. It was always going to be the case that there'd be a lot of traffic pass that property whether or not we constructed the roundabout. The roundabout was constructed because of that fact that there was going to be more traffic along it. " He concedes that lights from vehicles turning right on the roundabout from McDonald Road would sweep across the property (more so the family room) but says - and it seems reasonable to conclude - that this would occur whether or not the intersection was at right angles or in a circle. He disagrees with the piecemeal approach to the -- 4 of 11 -- 5 assessment on grounds that the before and after method of valuation is the appropriate method in the circumstances of the case. The taking in his opinion of a strip of 75m2 from the frontage of a lot of this size has a negligible impact on the value of the lot as a whole. With that proposition Mr Crane says "The effect of a loss of 75 square metres from the land is limited considering the relatively large area". It appears appropriate that the law on the point should now be stated. The principles involved running through from the case of The South-East Queensland Electricity Board -v- Beaver Dredging Pty Ltd (1984-85) 10 Q.L.C.R. 166 are conveniently summed up by the former President of the Court (Mr WF Smith) in Syme -v- The Commissioner for Railways (1988-89) 12 Q.L.C.R. 98. This case involved the resumption of a strip of land from the boundary of land adjoining existing railway land which railway had been closed and re-opened/developed to take electric suburban trains. The works of development included the lowering of the rail line along the relevant boundary. The land taken from the claimants housed no part of the workings of the railway. It was used for batter bank purposes only - the judgment continues as follows: "The claimants' case is that the embankment is being used as part of the operation of the railway line. It is being used as an integral and inseparable part of a single use to which the land taken and other land is being put and the claimants are entitled to recover the full damage to their remaining property due to the scheme. The point is one of a somewhat nice distinction. I do not propose to review the various authorities in great depth because that has already been done in the judgments to which I shall be referring. The Land Appeal Court in the Crown v. Corbould (1986-1987) 11 Q.L.C.R. 50 at p.56 said that "...the right to compensation is defined by the statute which authorises the taking of the land". This is, no doubt, a trite statement of law but none the less an appropriate commencing point for my considerations. Section 20 of the Acquisition of Land Act 1967-1986 requires the Court - '(i)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; -- 5 of 11 -- 6 (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.' The provisions of Section 20(1)(b) above which specifically deal with injurious affection are very similar to Section 63 of the Land Clauses Consolidation Act 1845 (U.K.) which provided that when awarding compensation for acquired land regard shall be had - '...to the damage, if any, to be sustained by the owner of the lands by reason of the severing of the lands taken from the other lands of such owner, or otherwise injuriously affecting such other lands by the exercise of the powers of this or the special Act, or any Act incorporated therewith.' Edwards v. the Minister for Transport - Court of Appeal - (1964)2 Q.B. 134 confirmed a line of English authorities that where damage arises partly on the claimant's resumed land and partly off it, he cannot claim injurious affection for the whole damage but only for that which he can attribute to activities on the land which was formerly his own land. A line of Australian authorities to the same effect was reviewed by this Court in Westaway v. The Council of the Shire of Landsborough (1954) 31 C.L.L.R. 1 at p.15. Edwards' case has long been recognised as an authority in this jurisdiction vide for example Bank of N.S.W. V. The Council of the Shire of Kingaroy (1972) 39 C.L.L.R. 1 at p.8. In the appeal and cross-appeal Gold Coast City Council v. Suntown Pty. Ltd. (1979) 6 Q.L.C.R. 196 - a case involving the use of the resumed land as a rubbish tip - the Land Appeal Court at p.207 said:- 'Injurious affection, in the terminology of the Act, is the type of damage to the retained land which flows from the exercise of any statutory powers by the constructing authority otherwise (i.e. than by severance) injuriously affecting the retained land. This type of damage is related to uses of, or activities on, the resumed land by the constructing authority as a result of -- 6 of 11 -- 7 the resumption and the consequent depreciation in the value of the retained land. ' The restriction on injurious affection damage as recognised by Edwards' case was revoked by statute in England by S.44 of the Land Compensation Act 1973. Since that date, compensation for injurious affection in England is assessed by reference to the effect of the whole of the works of the acquiring authority and not only the part of the work situated in the land acquired from the claimant. The Legislature of this State has not moved to alter the statutory provisions relative to injurious affection and the line of authority which Edwards' case exemplifies is still good law in this State. I cannot hold that the High Court in Morison v. The Commonwealth of Australia (1971-1972) 127 C.L.R. 32 over-ruled Edwards' case. Morison's case involved the resumption of part of a sheep station for the purpose of extending an adjoining air field to make it suitable for use by jet aircraft. The Commonwealth contended that injurious affection should be limited to an allowance for the depreciating effects exclusively traceable to the construction and use of works on the land acquired from the claimant. The Court was unanimous in rejecting the submission but the four judgments handed down contained two streams of reasoning. Section 23(1)(c) of the Land Acquisition Act 1955-1966(Cth.) requires that in assessing compensation regard shall be had to 'the enhancement or the depreciation in value of the interest of the claimant, at date of acquisition, in other land adjoining or severed from the acquired land by reason of the carrying out or the proposal to carry out the public purpose for which the land was required.' This is a much wider charge than contained in Section 20(1)(b) of the Acquisition of Land Act of this State. The Commonwealth Act would seem to embrace the whole scheme or purpose of the resumption which may be carried out or proposed to be carried out upon land resumed from the claimant or other lands as well - a measure available in the legislation of Queensland when enhancement falls for consideration - vide Section 20(3). Two Judges (Gibbs J. - as he then was - and Menzies J.) made the difference in terminology between the Commonwealth Act and the English Land Clauses Consolidation Act pursuant to which Edwards' case was decided a major cause for distinguishing between the two cases. Barwick C.J. whilst noting the difference in terminology between the relevant section of the Commonwealth Act and the English Act did not make same a reason for distinguishing Edwards' case. At p.39 he said, 'In a case in which it is possible to isolate the depreciatory factors to the work done upon or to the use of work done upon the acquired land, it would be proper, in my opinion, to confine the depreciation in value to the effect of those factors.' In that in a real or practical sense he was unable to so isolate the damage in Morison's case to the works constructed on the acquired land, he concluded that the whole depreciation in value due to the use of the extended aerodrome as a jet airport was referable in -- 7 of 11 -- 8 the circumstances to the works constructed on the acquired land and their use. Walsh J. could see no valid reason for not following a trend in American decisions that the land owner is entitled to recover the full amount of the damage caused to his retained land, where it is not possible separately to ascertain the damage caused to the remainder of the claimant's land by the taking and the proposed use of part of it, that use being an inseparable part of a single use to which that land and other adjoining land are put. These two streams of reasoning were incorporated by the Land Appeal Court in its judgment handed down in the Crown v. R.H. and J.M. Corbould (1986-7) 11 Q.L.C.R. 50 at p.57:- 'In considering the matter the following principles should be noted: (i)It is well settled that the words "the exercise of any statutory powers by the constructing authority" contained in paragraph (b) of subsection 1 of the section restrict damage to that flowing from the activities of the constructing authority on the land taken from the claimant (Edwards' case (supra) and see Commonwealth v. Morison (1972) 127 C.L.R. 32 (H.C.) per Gibbs J. at pp.36/57). (ii)Injurious affection is a statutory head of claim whereas disturbance is not and has always been regarded as part of the value of the estate or interest of the claimant in the land taken on the date when it was taken: S.20(2)supra. (iii)Reference to the resumption's scheme as such is relevant in an exercise dealing with enhancement - the words "the carrying out of the works or purpose for which the land is taken" - having been held to refer to the scheme Zoeller v. Brisbane City Council (1973) 40 C.L.L.R. 25 (L.C.) and 198 (L.A.C.). (iv)Where the resumption forms an integral and inseparable part of the resumptions necessary for the construction of the road the claimant may obtain compensation for damage suffered by him in respect of his balance land flowing from the use made of the land acquired in conjunction with other land acquired for the same purpose where in a practical sense a separation of damage flowing from the use of the lands taken cannot be made (The South East Queensland Electricity Board v. Beaver Dredging Pty. Ltd. (1984-5) 10 Q.L.C.R. 166 (L.A.C.).' In Corbould's case the activities allegedly injuriously affecting the retained land were found to be not on land resumed and therefore not compensable. In the Beaver Dredging case (supra) the Land Appeal Court held that, although the power line structures were mainly not on the resumed land, it could not, in a -- 8 of 11 -- 9 practical sense, having regard to the rights and obligations imposed by the resumed easement, embark upon a separation of damage flowing from the series of resumptions necessary to construct a major powerline so as to isolate the damage resulting to the retained land to activities etc. actually (or capable of being) carried out on the resumed land. Two recent cases in the Land Court should be mentioned namely: (a)T.M. and J.G. Treston v. Brisbane City Council (1984-1985) 10 Q.L.C.R. 247 - this was a resumption for road purposes of an elongated strip of land being part of a scheme providing for the construction of a connection road. The scheme had the effect of changing the nature of the claimants' retained property from that of an inside residential property in a quiet attractive residential setting to that of a corner position on a busy four lane connection road. The land taken from the claimants was used solely for footpath purposes. The respondent argued that the assessment of damage suffered by the claimants to their retained land should be limited to that which was attributable to the construction placed on or the use of the land taken from them. The Court held that the taking of the land of the claimants formed an integral and inseparable part of the resumptions necessary for the construction of the road and the compensation for injurious affection to the retained land fell to be assessed according to the damage which flowed from the construction of the whole of the new road - in effect paragraph (iv) abovementioned was applied; and (b)Ernest Glen Baillie v. The Commissioner for Railways (1986-1987) 11 Q.L.C.R. 95 at p.106. This was a resumption for Railway purposes involving duplication of an existing railway line and construction of an access road beside the railway line. The duplicated line was constructed on the Commissioner's land and the claimant's resumed land was used only for the road. Held: no compensation should be awarded for injurious affection because the activities on the claimant's resumed land were in no way linked with the factor of noise from the trains allegedly causing the nuisance - in effect paragraph (i) above was applied. Each case must be considered on the basis of its individual facts and circumstances. The rationale of the approach is, I think, discernible from the above cited cases. The principle exemplified by Edwards' case still applies and is binding on me. The first question that should be asked is what are the activities carried out on the resumed land. In the subject case it was the construction of an embankment as a result of which the claimant's land suffered no injurious affection. In the event, therefore the case falls within the ambit of paragraph (i) aforementioned rather than paragraph (iv). -- 9 of 11 -- 1 0 If the resumption is to be regarded as forming an integral and inseparable part of the resumptions necessary for the construction of the railway because the embankment was a prerequisite to the construction and operation of the railway, it could not be said in a practical sense that the separation of damage flowing from the use of the claimants' land for such purpose and the use of other lands for the operation of trains was not possible. There is in fact a separation of damage - neither party alleges any injurious affection damage arising from activities on the resumed land. The damage clearly arises as the result of the use of the reserve land. Therefore, I do not see that the case falls within the ambit of paragraph (iv) above. I find that the provisions of Section 20(1) of the Acquisition of Land Act (Qld.) and the dicta exemplified by Edwards' case (supra) are binding upon me. It follows, as a matter of law, that I am unable to make any award in the subject case for injurious affection. My decision would have been otherwise if one of the rails of the railway line had been built on the resumed land, travelling rolling stock encroached thereon or if the resumed land was intended for future duplication of the railway line. None of these fall for consideration - the plan part of Exhibit 2 shows the proposed duplication to be west of th present track and in the Railway Reserve. My decision in regards to injurious affection has of necessity been based on legal interpretation. If present day community thinking regards it as too artificially restrictive and as placing the Commissioner in an unduly favourable position, the remedy, subject of course to any testing on appeal, lies as in the Edwards' case with the Legislature. " I may now add to the above a passage from Corbould found on pages 57/58 - "It might also be noted the principle of Edwards' case (supra) is applicable equally to severance, injurious affection and in ascertaining damage due to disturbance for it is implicit in the exercise that, except where circumstances warrant an application of the principle of the Beaver Dredging case(supra) which is not relevant on the facts of this case, compensation is allowed under the heading of disturbance only for the taking of the subject land and the use made of it. " It is apparent that the subject case differs from Treston and Beaver Dredging is that the scheme of works involved in the subject case occurred on land long since dedicated for road purposes and under the control of the respondent - in the nature of lawful user. In that context I may cite a paragraph from Beaver Dredging found on page 172: "We have no doubt that the resumption of the subject easement is an integral -- 10 of 11 -- 1 1 and inseparable part of the resumptions necessary for the construction of the power line and we cannot appreciate in a practical sense and in having regard to the rights and obligations conferred and imposed by the easement how a separation of damage flowing from the resumptions could be made in view of the uses to which such lands have been put or are capable of being put. " Further there is no argument that an apportionment can be made and that when made no injurious affection can be found to arise from the use made of the land taken from the claimants. There is also no suggestion that the severing of the strip of land taken would affect the potential in the land for the identified higher and better use (subdivision in part). In applying the above principles to the facts of the case the only conclusion open to me coincides with the finding made by the Court in Syme. When I come then to consider the question whether something should be paid for the land taken (nominal though it may be) I am once again bound by the law and must give effect to the provisions of the Act dealing with enhancement from the scheme of works - see Zoeller. On this question I agree with Mr Elliott that the determining factor is the attitude which prudent people would take to the upgrading of roads and their consequential effects including travel times and so forth. It is conceded by Mr Crane that "the whole scheme has enhanced the area to some degree" but fails to appreciate why the enhancement should be used as a "set off" against any claim possessed by the claimants when other land owners with no land resumed for the purpose reap the benefit at no cost. Though the argument identifies a degree of inequality in these circumstances, which is not new, the law requires the Court to proceed on the principles stated. I find the enhancement from the scheme of works outweighs the value of the land taken together with the remaining heads of claim. In the circumstances I determine compensation at nil. (D M White) President of the Land Court -- 11 of 11 --