Beames v Director-General, Department of Transport [1992] QLC 49 (1992) 14 QLCR 263

LAND COURT, BRISBANE. 25th November, 1992. Re: Claim for Compensation - Resumption for Road purposes. A92-30 - Town of Cloncurry. DG and KM Beames v. Director-General, Department of Transport (Hearing at Cloncurry) J U D G M E N T Land described in the schedule below was taken by proclamation, as from 15th September, 1990 by the Commissioner of Main Roads as constructing authority, for road purposes: 1.An area of about 78 m2 being part of Lot 261 on Plan No. C1961 contained in Certificate of Title, Volume N656, Folio 136. 2.An area of about 379 m2 being part of Lot 23 on Plan No. C19622 contained in Certificate of Title, Volume 1113, Folio 86. 3.An area of about 233 m2 being part of Lot 262 on Plan No. C1961 contained in Certificate of Title, Volume N656, Folio 137. All Parish of Cloncurry, County of Beaconsfield. The land subject of the resumptions is situated on the western approach to Cloncurry about 500 metres from the Post Office. The land comprised three adjoining Residential A zoned lots, each of 2,023 m2 with dimensions of 20.12 metres frontage and 100.6 metres depth, fronting Daintree Street, as their northern boundary through to the unformed Scarr Street as the southern boundaries. The unformed Sutherland Street was surveyed as the eastern boundary of Lot 261. Services available include [1992] QLC 49 -- 1 of 16 -- - Page 2 - reticulated water, sewerage, telephone and electricity. The registered proprietors of each lot were Desmond Gordon Beames and Kerrie Michele Beames as joint tenants. The existing Flinders Highway enters Cloncurry from the east by way of McIlwraith Street then its continuation as Ramsay Street to the intersection with Sheaffe Street, where it turns northerly to follow Sheaffe Street for two town blocks to the intersection with Daintree Street then westerly along Daintree Street towards Mt Isa. A heavy vehicle by-pass presently connects with Daintree Street from Isley Street to the east of the Anabranch of the Cloncurry River and westerly of the subject land, diverting such heavy traffic away from Daintree Street and the immediate Town Centre. The roadworks scheme, for which the resumptions were effected, involves the diversion and new construction of the highway so that instead of turning northerly from Ramsay Street into Sheaffe Street then into Daintree Street, it will proceed westerly along Ramsay Street for one town block past Sheaffe Street, then in a direction north of west to link with new bridgeworks to be constructed over the Anabranch. The existing route of the Highway along Daintree Street passes the land subject of these resumptions. Daintree Street is constructed as a dual lane bitumen strip sealed carriageway with gravel shoulders and formed earth table drain. When the new roadworks are completed, Daintree Street will serve as a local traffic carriageway. The new road will be subject to limitation of access. The northern alignment of the new road reserve coincides with the original south-eastern corner of Lot 261 then runs north-westerly from the original southern alignment to a point about 8 metres northerly of that alignment on the common boundary between Lot 261 and 262, continuing to a point about 16 metres northerly of the original southern alignment on the common boundary between Lots 262 and 23 then to a point about 22 metres northerly of the original south-western corner of Lot 23 on its western boundary. The new road construction will comprise a bitumen surfaced -- 2 of 16 -- - Page 3 - formation 10 metres in width providing dual 3.5 metre wide traffic lanes then the adjacent shoulders. The road surface will be elevated above existing ground level, supported on earthworks with battered embankments varying in height depending on the natural surface levels. Mr and Mrs Beames had fairly recently constructed on their land (about 5 years prior to the date of resumption) a highset steel framed dwelling. Some relatively minor work remained to be completed at the date of resumption. The dwelling is located on Lot 262 which is the central lot of the three, and set back about 60 metres from the Daintree Street frontage. The design of the dwelling is such as to provide maximum privacy from the Daintree Street aspect with accent on the rear, southern and eastern aspects. A covered inverted L-shape patio is located in the south-eastern corner of the dwelling, screened from the direct Daintree Street aspect by the building profile. The living area on the southern wall incorporates "picture" windows of low sill height. The owners have lodged a claim for compensation for the aggregated holding, in the amount of $27,000 (together with costs). At the hearing, leave was sought and granted to amend the claim as follows: 1. Loss of land, severance and injurious affection $15,500 2. Radio mast relocation 500 3. Valuation fees 2,000 4. Legal fees 750 During the course of the hearing, the parties advised that agreement had been reached on the amount to be paid for the following items: Legal and valuation fees $2,000 Radio mast relocation $ 500 The amended claim under the heading of "Loss of land, severance and injurious affection" was based on a valuation carried out by Mr B J Duncan, a -- 3 of 16 -- - Page 4 - registered valuer in private practice in Townsville. The valuation "finally put in evidence" by the constructing authority was as carried out by Mr W B Bowen, registered valuer, employed by the Department of Lands. On the basis of the individual titles this valuation was: Lot 261 - $ 100 Lot 262 - $6,500 Lot 23 (including relocation of radio mast) - $ 750 $7,350 Mr Duncan was the one witness for the claimants while the respondent called Mr Bowen and Mr B A Ollason, Engineer and the District Manager, Department of Transport, Cloncurry. Mr Duncan had approached the assessment of compensation on the basis that the highest and best use of the property owned by the claimants was as developed - a better than local average quality dwelling on a larger than average residential site, comprising the aggregation of three separate surveys with individual titles. He described the resumed land as being a combination of level and broken contour while the balance is gently sloping to level, falling gently from the Daintree Street frontage to the rear with a gentle cross fall to the east. Areas to the rear and side of the dwelling had been filled to provide a level yard area and gravel carpark. The land possessed a northerly residential aspect to Daintree Street while the Scarr Street aspect "consists of timbered bushland utilised for grazing purposes. The house has been sited and constructed to take advantage of the rural aspect." Mr Duncan says the owners acquired the land in 1984 for development as a large rural residential type house site. Their house was then constructed to the rear about 70 - 75 metres from the centre of the Daintree Street highway carriageway to "minimise disturbance and damage arising from traffic noise, dust, fumes, vibration and lighting from motor vehicles." With the new rear boundary being 16 metres to the south; the centre line of the -- 4 of 16 -- - Page 5 - new highway 35 metres distant and the road level approximating the first floor level of the house, Mr Duncan saw the privacy associated with residential use of the property being impacted upon and the benefits associated with the selected site of the house and its design, negated. Mr Duncan is of the opinion that the proposed works, including the nuisance caused during the construction stage will have a significant effect on the value of the property. He approach the valuation first on a "before" and "after" method. His "before" resumption valuation is summarised as follows: Land - 6069 m2 Residential A site $ 3,500 Dwelling $56,600 Ground improvements $ 3,500 $63,600 Adopt $63,500 His "after" resumption valuation is in summary: Land - 5382 m2 Residential A zoned site "(includes allowance injurious affection)" $ 2,800 Dwelling - before $56,500 Diminution in value say 25% 14,125 $42,375 Ground improvements $ 3,000 $48,175 Adopt $48,000 The diminution in value is therefore assessed by him in the amount of $15,500. On a piecemeal basis his assessment was as follows: Severance: Loss of land $ 200 Trees and shrubs $ 250 Filling and earthworks $ 250 $ 700 Injurious affection: Land $ 500 Dwelling $14,125 $14,625 -- 5 of 16 -- - Page 6 - $15,325 Adopt $15,500 In his valuation considerations relevant to the perceived injurious affection resulting from the resumption scheme, Mr Duncan has looked at the practicality of relocating the dwelling towards the Daintree Street frontage. The house is of the type of construction which would allow removal and while he does not consider any resiting of the dwelling to reinstate the aesthetic appeal which exists in the current position, there was an advantage in that the existing ground floor slab could be utilised as a shed floor adjoining the existing car park in connection with the owners existing electrical contracting business. As a check, he then considered the valuation approach of relocating the house away from the new road with the result as follows: Estimated relocation costs $25,000 Less - utility value ground floor slab and existing carpark ponding area $ 5,000 $20,000 ==== Being of the opinion that the "before" and "after" valuation approach was the appropriate one, his assessment with the exclusion of items of disturbance was adopted as $15,500. Mr Duncan had investigated the available evidence of sales of residential property in Cloncurry but was unable to find any evidence which indicated an acceptable basis for establishing injurious affection caused by factors such as proximity to the main road or alternatively, a disability such as the railway line. He felt that the limited local market was an influencing factor impacting on the degree of effect of any disability. When it was put to him under cross-examination, that the result of allowing 25% diminution in the value of the dwelling was to reduce the valuation of the property to an unrealistically low level in comparison with the sales evidence, Mr -- 6 of 16 -- - Page 7 - Duncan pointed out that the 25% diminution was intended to reflect not only the effect of the scheme, but the injurious affection, (or disturbance, depending on definition) which he saw emanating from the construction phase. He indicated that if he had needed to apportion the total diminution as assessed, he would see the effect of the "works on completion" representing 15% to 18% with the balance of the 25% made up from the construction phase. From the enquiries he had made, Mr Duncan had formed the opinion that "disturbance resulting from road construction will be spread over a three (3) year period." Mr Ollason had been involved with the project since he first came to Cloncurry in 1989. He explained that the purpose of the scheme was "to link the road through the town with new bridges over the Cloncurry River." He said that once the route had been selected, the detailed design had been completed and he was confident that the information provided to the Court, as to the design of the works to be constructed, would not be varied other than within strict tolerances. There had been only relatively minor amendments to the preliminary design plan which had been available to Mr Duncan, as it related to the subject property. Mr Ollason explained that the road would comprise part of the National Highway network and was designed to standards set by the Federal Government. Although the width of the corridor under those standards would have been 50 metres, the resumed corridor here was 40 metres "with the view of minimising the amount of resumption required." He said "It was decided during design to depart slightly from the standards of the Commonwealth, the Federal Government, and narrow the corridor to 40 metres and to change the type of final 4-lane design that might be necessary sometime in the future." With regard to the usage of the new road, he saw no reason for any upsurge in the number of vehicles using it as opposed to the vehicles using the existing Daintree Street section. He suggested that if there was to be any minor increase it would result from the usage pattern of local traffic. The heavy traffic by-pass would remain but with a redesigned intersection to connect with the new road. It would be an infringement of existing -- 7 of 16 -- - Page 8 - traffic rules regulating the local road-train route for such vehicles to use the new road, just as it was for them to use the section of Daintree Street in front of the subject property. Mr Ollason confirmed that there was no road work construction planned on the area of 78 m2 resumed from Lot 261; part of the supporting earthwork embankment will be located on 233 m2 resumed from Lot 262 (the lot on which the dwelling is sited) where the actual road shoulder is, at is closest point, about 300 mm distant; the northern embankment and some of the road surface, including part of the carriageways will be constructed on the 379 m2 resumed from Lot 23. He said the total project extended 3.5 kms on the other side of the Cloncurry River bridge and he envisaged the construction period would be no longer than two years (early 1993 to December, 1994). While he was unable to estimate the period of time that would be involved in the actual construction works "in front of the Beames' house", his experience indicated to him that such work would be likely to occur for relatively short periods during the total construction phase. The actual timing of the works would be decided by the contractor. Mr Ollason confirmed that the road carriageway level would be elevated 2.4 metres above the ground floor slab level of the Beames' dwelling and the toe of the supporting embankment would be approximately 26.5 metres distant. He also confirmed that it was intended not to remove a number of trees (in the resumed area to the rear of the house) which had fairly recently been planted by the claimants. As it turned out, the approach of the respondent's valuer, Mr Bowen, who felt that the assessment of compensation should be made in accordance with the proclamations, ie. the effect on each individual title, found a "before" resumption value of the total aggregation, higher than did Mr Duncan. The following comparison is extrapolated from Mr Bowen's reports: Value of total aggregation (in separate lots) before resumption: -- 8 of 16 -- - Page 9 - Lot 261 Land 2024 m2 Residential A site $1,500 Improvements - Fencing $ 250 $1,750 Lot 262 Land 2024 m2 Residential A site $1,500 Improvements - Dwelling $60,000 Fencing 56 Lawns etc 1,000 Adopt $61,000 $62,500 Lot 23 Land 2024 m2 Residential A site $ 1,500 Improvements (excluding radio mast) Fencing $ 210 Adopt$ 1,700 Total Value Land and Improvements (ex radio mast) $65,950 (Mr Duncan's valuation (ex radio mast) was $63,500) As extrapolated from his report, Mr Bowen's "after" resumption total valuation (in separate lots) becomes: Lot 261 Land 1946 m2 Residential A site $1,450 Improvements - Fencing $ 250 $1,700 (On a single title basis, Mr Bowen allowed $100 compensation effectively reducing the "after" value to) $1,650 Lot 262 Land 1791 m2 Residential A site $1,350 Improvements - Dwelling (10% Diminution) $54,000 Fencing 56 Lawns etc 600 $54,656 Adopt $54,650 $56,000 -- 9 of 16 -- - Page 10 - Lot 23 Land 1645 m2 Residential A site $ 1,250 Improvements (excluding radio mast) Fencing $ 210 Adopt$ 1,450 $59,100 Mr Bowen's approach in dealing with the effect of the resumption on each individual title leads to a higher "before" resumption value for the land component ($4,500) than might have occurred had the land been treated as a large rural-residential site. Mr Bowen has also been somewhat more generous as to the total value of the improvements, "before" resumption. He has, on his separate title approach, found that the dwelling suffers deleterious effect in value as a result of the injurious affection resulting from the resumption. His report contained the following statement under the heading of "Injurious Affection": "The dispossessed owner has located the dwelling as far as possible away from Daintree Street, (supposedly to avoid road traffic noise). As the land to the immediate south of the dwelling is broken, site development could only be accomplished at the existing site, so that the dwelling would be furtherest from Daintree Street. The effect of the resumption will mean that the dwelling is located about 34.0 metres from the highway centre line, instead of about 75.0 metres (Daintree Street). Some diminution in the value of the house will occur, however slight. As the dwelling was already located adjoining an existing arterial road, the difference as caused by the resumption is negligible, however must be considered." The references to "slight" and "negligible" diminution, not surprisingly, drew criticism from Mr Fellows, the claimants' solicitor, during cross-examination. Mr Bowen agreed that the words used in his written description as to the degree of effect were poorly chosen and felt that "noticeable" may have been a more apt description. He did not agree that "noticeable" should be intensified to "substantial". The facts are that he allowed 10% diminution in value to the dwelling which amounted to $6,000. Under the heading of "Disturbance", Mr Bowen's report -- 10 of 16 -- - Page 11 - contained the following: " A minor allowance should be made for disturbance during the construction phase of the road immediately fronting the subject." He did not quantify this "minor allowance" as a separate heading and as I understood his evidence, it was intended to be included in the 10% diminution he had allowed in the value of the dwelling. His verbal evidence was that it was now his understanding of Section 20 (2) of the Acquisition of Land Act, that there was no statutory provision for compensation to be assessed under the heading of disturbance. No attempt was made by Mr Bowen or Mr Smith, Counsel for the respondent, to reduce the assessed diminution in value. As inevitably occurs in resumptions where part only of the land is taken, the question of the works to be effected on the resumed land, as they affect the claim for compensation, became relevant to the respondent's case, or at least, the respondents' final submission. It might have been interpreted from Mr Bowen's written report that the assessed diminution in the value of the dwelling resulted from the works of the scheme, rather than the specific works on the resumed land - with regard to Lot 262 which accommodated the dwelling. The designed works will be limited to an embankment on that lot. The actual road surface is external to the original boundary - albeit very close, being 300 mm distant at the closest point. Mr Bowen's verbal evidence indicated that he saw the embankment as an integral part of the road. The submission by Mr Smith is however specific - the diminution in value to the dwelling, assessed as 10% of its "before" resumption value, is restricted to the works on Lot 262 - the embankment. The references to "works on the resumed land" and "integral part" stem from the decision of the Land Appeal Court in The Crown v. RH and JM Corbould (1986-87) 11 QLCR 50 where at p 57 principles relevant to section 20 of the Acquisition of Land Act (Assessment of Compensation) were set out as follows: -- 11 of 16 -- - Page 12 - "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 (Edward's case (supra) and see Commonwealth v. Morrison (1972) 127 C.L.R. 32 (H.C.) per Gibbs J. at pp. 56/57). (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 Judgment 14 June, 1985 - not yet reported (L.A.C.))." (Now reported 10 QLCR 166) Of course, in the subject matter the resumption is not restricted to Lot 262 as the claimants own the adjoining land. It seems to me that the existing use of the Beames' property represents its highest and best use - as an aggregated homesite supporting an above local average quality dwelling. That improvement is least likely to be seen as an over-capitalisation on the larger area of land provided by the three titles. The submission by the respondent that it is incorrect for the property to be so valued, because the titles have not been amalgamated, is not accepted as being reasonable. The assessment of compensation in three exercises might well have been seen as an attempt to introduce the artificial restrictions based on a proper interpretation of Section 20(1) of the Acquisition of Land Act. The ability does exist for the land to be disposed of in three separate parcels, although the added value of the dwelling might well be affected if it was to remain on a narrow, deep lot as provided by the single survey. Even if it had been found that separate valuations should be carried out for each title, the claimant was entitled to receive compensation for the -- 12 of 16 -- - Page 13 - injurious affection to the dwelling on Lot 262, flowing from the resumption on Lot 23, which was held in common ownership. It seems to me then that, if single lots were worth $1,500 as assessed by Mr Bowen, Mr Duncan's valuation of the land as one large site of 6,069 m2 in the sum of $3,500, is reasonable. With Mr Bowen finding a higher pre-resumption value for the structural improvements than did Mr Duncan I will adopt a value of $65,000 for the aggregated improved property before resumption. As an aggregated parcel, there is then no good purpose served in attempting to apportion the elements of damage caused by injurious affection. It is clearly impossible to see the total resumption other than as an integral and inseparable part of the resumptions necessary for the construction of the road. On the resumed land there will be not only the embankments and buffer area but the two lane carriageway carrying the traffic causing the various nuisances. Potential for widening of the road to bring the carriageways closer to the dwelling exists, but that potential seems to be so remote as to have little, if any, effect on a well informed market at the date of resumption. Mr Duncan provided evidence of six sales of dwellings in Cloncurry which he had investigated. Mr Bowen provided a schedule of 11 sales of dwellings, five of which were common to Mr Duncan's evidence. Three of Mr Bowen's sales and one of Mr Duncan's were after the relevant date, the latest being in February, 1991, about five months after the date of resumption. Mr Bowen was of the opinion that there had been no change in market conditions during that period, although there had been improvement later. Mr Bowen also provided a schedule of vacant or lightly improved land sales, to support his basis of valuation of the individual lots. Brief details of all dwelling sales provided by the valuers are as follows: (1)24.11.89, 90 Ham Street - $37,000 (2)8.2.90, 97 Gregory Street - $35,000 (3) 24.2.90, 21 Ramsay Street - $49,000 (4) 6.3.90, 15 Sheaffe Street - $36,500 (5) 24.5.90, 80 Alice Street - $52,000 -- 13 of 16 -- - Page 14 - (6) 19.6.90, 55 Uhr Street - $32,000 (7) 25.6.90, 80 Ham Street - $32,500 (8) 7.8.90, 61 Scarr Street - $38,000 (9) 13.9.90, 12 Doris Street - $40,000 (10) 23.10.90, 109 Uhr Street - $40,000 (11) 31.1.91, 24 Short Street - $45,000 (12) 27.2.91, 5 Station Street - $55,000 The Court agreed to a request to view the subject property and another subject of resumptions, the road corridor in the locality and the sales evidence. It is fair to say from the valuers' evidence that none of the sale properties is directly comparable to the Beames' property which is clearly superior before the resumption. The real dispute is concerned with the value of the property after resumption. On the evidence before me I have formed the opinion that the respondent's criticism of Mr Duncan's "after" valuation being too low in comparison with the sales is justified. It is acknowledged that Mr Duncan has endeavoured to include in his assessment an element of damage for the potential, but temporary nuisance which he anticipates will occur during the actual construction stage. Compensation is required to be assessed as at the date of resumption. I accept that a prudent well-informed purchaser of the property as at that date, would be aware that at some time in the future, there would be periods of intense construction activity in the vicinity of the property and partially on the resumed land in close proximity to the dwelling. Regardless of the best endeavours and abatement measures taken by the contractors, that purchaser would expect a degree of nuisance from sources such as noise and dust. The engineering evidence is that, while the construction phase for the project is over an extended period, the works on the land resumed and adjacent areas will be of relatively short duration and in intermittent periods. While such nuisance may not be too remote to be considered, the quantum of compensation assessed by Mr Duncan for all items of injurious affection is seen to be unrealistic. In light of the sales evidence as a whole, the February, 1991 sale of the -- 14 of 16 -- - Page 15 - dwelling at 5 Station Street, would tend to indicate that the after resumption value of the subject property should be at least no less than that sale price. Mr Bowen is confident that there had been no increase in value in the period between September, 1990 and February, 1991, yet the sale does represent the highest level of value of all dwelling sales in the relevant period. Mr Bowen holds the opinion that the sale of the 80 Alice Street dwelling for $52,000 in May, 1990 was a "high" sale. It was revealed also that subsequent to that sale, an allotment was excised from the site to allow construction of a new dwelling. For the reasons given earlier, if, as is submitted, the respondent's valuation allows a 10% diminution in the value of the dwelling structure as a result of the embankment alone, then the compounding effect of the road carriageway construction on part of the aggregated resumed land, must logically result in diminution greater than 10%. The deleterious effect is intensified on the aggregated property by the specific design and siting of the dwelling. Doing the best I can with the sales evidence before me, the conclusions I have reached with regard to the approach of each valuer and resolving doubts in favour of the claimants I will find the "after" resumption value of the aggregated property to be $56,000. I agree with Mr Duncan's conclusion that the effect of the resumption is not so great as to warrant relocation of the dwelling. Compensation is then calculated as follows: Value of residential property before resumption - $65,000 Value of residential property after resumption - $56,000 Compensation for severance and injurious affection $ 9,000 Disturbance items - as agreed - Relocation of radio mast $ 500 Legal and valuation fees $ 2,000 TOTAL COMPENSATION $11,500 ==== -- 15 of 16 -- - Page 16 - I am informed that no advance against compensation has been paid by the respondent. At the date of the hearing the radio mast had not been relocated. I am also informed that an account for valuation fees in the sum of $1,200 was paid by the claimants on 1st February, 1991. In summary, compensation under all headings for the taking of the land as described is awarded in the sum of $11,500. It is ordered that interest at the rate of 11% per annum be paid on the amount of $9,000 from and including the date of resumption up to and including 1st February, 1991, on which date the amount of $1,200 was paid by the claimants for valuation fees, then on the sum of $10,200 from 1st February, 1991 up to and including the day immediately preceding the date the award of compensation is paid. (R.E. Wenck) Member of the Land Court. -- 16 of 16 --