Daly v Brisbane City Council [1991] QLC 26

LAND COURT BRISBANE. 16th August, 1991. Re: Claim for Compensation - Land Taken for Road Purposes. (A90-69). H.F. & M.T. Daly v. Brisbane City Council J U D G M E N T By notification of resumption published in the Queensland Government Gazette dated 26th March, 1988, pursuant to the provisions of the Acquisition of Land Act 1967-1986, land described as Lot 2 on Plan 216988, Parish of Indooroopilly, County of Stanley, containing an area of 149 square metres, being part of the land contained in Certificate of Title Volume 4364, Folio 157, was taken by the Brisbane City Council for road purposes. The property from which the land was taken is situated at No. 383 Brookfield Road, Kenmore Hills. Subsequent to the resumption the property contains an area of 1.1347 hectares. At the relevant date, the total property was zoned Rural Residential and the balance area accommodates a dwelling and residential orientated improvements. The original survey of the land provided a two chord street frontage. The effect of the resumption was to widen Brookfield Road by a maximum width of 3.9 metres into the property near the centre of the original frontage, tapering to the original frontage at a point 9.3 metres from the western boundary and to the east coinciding with the original southern extremity of the eastern boundary. The roadworks scheme of which the resumption formed part included the relocation from near adjacent to the western boundary of the property, the constructed intersection of Gap Creek Road and Brookfield Road, some 70 metres to the west. Then the previous two lane bitumen sealed carriageway of Brookfield Road, which had gravelled shoulders and no kerbing [1991] QLC 26 -- 1 of 12 -- 2 or channelling on the property frontage, was reconstructed to concrete median divided four lane kerbed and channelled carriageway from the new intersection easterly to near the central frontage of the property. From here the carriageway reduced easterly to an upgraded two lane capacity, with kerbing and channelling provided to about two-thirds of the total property frontage. The kerbside of the new road construction now approximates the southern extremity of the original angular frontage of the property. A Claim for Compensation was eventually made in the sum of $23,781. Counsel for the appellants, during the course of the hearing, sought and was granted leave to amend the claim as follows: Timber fence and gate $4,670 Painting of same $2,496 Replacement of landscaped trees, shrubs, groundcover plus soil and mulch etc. $2,850 Replace edgings $400 Electrical work re gate light $300 Valuers fees $765 Legal fees (estimated) $800 Plus considerable owner's time spent prior to claim made on 5th september, 1989, $5,000 but say $1,000 Compensation for resumed land $1,500 Diminution in value referred to as "injurious affection" $10,000 TOTAL $24,781 Plus Interest Advances against the compensation claim have been paid as follows:- 22nd December 1989 - $9,440.14, being $7,865 (including $765 valuation fees) plus $1575.14 interest. 8th November 1990 - $800 being legal fees. The valuation put in evidence by the Brisbane City Council was in the sum of $7,812, made up of the following items:- Value of land taken $1,500 Fencing and gates $3,112 Landscaping $2,500 -- 2 of 12 -- 3 Concrete mowing strips and lighting as claimed $700 Injurious affection Nil At the outset, Counsel for the Brisbane City Council advised that items of disturbance, i.e. legal and valuation fees, in the sum of $1,565 as claimed, were agreed (having already been paid) effectively increasing the Council's valuation to $9,377 excluding interest. Mr H.F. Daly, joint owner of the property with his wife, was called to give evidence in support of a tendered statement which set out the basis of the claim together with relevant annexures. He explained that while the original frontage fence had been of sawn timber, post and rail construction in a reasonable state of repair, the claim was based on a quote which had been obtained, after discussion with Council officers, for a 1800 mm high sawn timber framed, close butted CCA pine paling fence, in the sum of $4,670. A copy of that quote (from Eureka Landscapes Pty Ltd - which referred to a length of 87 metres and included one double and one single gate) and also a quote for painting such fence and gates in the sum of $2,496 was provided. Mr Daly said that in fact a substantial brick fence of recessed wall design had been constructed on that part of the frontage adjacent to the dwelling, at a total cost of in excess of $50,000, based on advice he had received from a landscape architect. The design had been produced to satisfy the criteria of safety from vehicle impact, noise abatement, visual screening and aesthetics generally. At the extreme western end of the frontage, a new timber post and rail fence 15 metres in length had been erected. Mr Daly said that the western side of the home is still subject to road noise which he believes is in excess of that suffered prior to the new road works. He believes the traffic noise to be louder because the road is now much wider and the new design physically allows the traffic to travel at speeds well in excess of the legal limit. This is evidenced by the Police surveillance of this section of Brookfield Road. He sees the siting of a new crash barrier adjacent to the curve in the road at the western end of the property as indicative of the danger of vehicle impact which has been created by the new roadworks. The road design merging from two inbound lanes to one adjacent to the property causes further noise disabilities at times of peak hour traffic. The claim for landscaping was based on the advice of a qualified nurseryman who had been asked to assess the replacement value of the -- 3 of 12 -- 4 plants, mulch and soil lost as a result of the resumption. A list of various plants and estimated values was supplied although there is no written confirmation of the total estimate of $2,850. Mr Daly recalled that the value of the plants had come to about $2,000 and the balance was made up of materials, labour, mulch and soil. The reinstatement of landscaping as an adjunct to the new fence had been carried out by sundry unrecorded purchases of plants and materials and much family labour. Mr Daly's statement described the difficulties which had been experienced as a result of the dust nuisance over the extended period of road construction works, the cost involved in cleaning the exterior of the residence and the many hours he had spent on watering the road in endeavouring to minimise the dust problem. There had also been a significant noise nuisance during construction. He had estimated that a total of 183 hours of his time had been lost in attending to matters directly related to the resumption. Prior to the making of the claim he estimated that, costed on the worth of his time $5,000 had been lost in consultations and conferences, arranging the fence construction and related matters. The claim for $1,000 was intended to represent what may be a more reasonable amount, if the value of Mr Daly's time, which he costed at $180 per hour, was to be ignored. The claim for loss of land and injurious affection had been based on a valuation carried out by Mr J.W. Burley, registered valuer in private practice, who was called to give evidence. He had inspected the property prior to the roadworks and investigated sales of acreage land in the general locality at that time. Mr Burley had formed the opinion that the resumed land possessed value of $9 per square metre, equating $1,341 but had adopted a rounded figure of $1,500. He held the opinion that the wider the road to which a property had frontage and the nearer the traffic to the residence, particularly in rural residential areas, the less attractive the property became in the market place. The residence on the subject property was about 30 years old and had been sited unusually close to the road frontage by modern standards in a rural residential area. On the information he had available to him at the time of carrying out the valuation he had calculated that the patio would be 7.5 metres from the front boundary and the traffic would be brought closer than previously. He had relied on his experience in assessing the injurious affection to the balance land in the sum of $10,000. It was his opinion that this -- 4 of 12 -- 5 deleterious effect would not be offset by any fence construction. He had seen photographs of the brick fence constructed and offered the opinion that such a fence was an appropriate response to the resumption although its cost would not be recouped if the property was to be sold. He did not think a timber fence would have been appropriate aesthetically nor as a reasonable response to the noise or safety problems. He did not see any benefits flowing from the road construction scheme to the subject property. Counsel for the Brisbane City Council called two witnesses, the first being Mr W.C. Middleton, MSc, BEd (Qld), a Member of the Australian Institute of Physics and also a Member of the Australian Acoustic Society. Through him was tendered a comprehensive report titled "Noise Implications to Residence at 383 Brookfield Road, Kenmore Hills" relating to sound levels observed before and after the road modifications. A site in the vicinity of the patio had been chosen for measurement prior to the road modifications, but the study had been complicated by the erection of the brick fence after the roadworks. Two additional sites were used for measurements subsequent to the roadworks - one on the footpath outside the fence and the second towards the western boundary. Mr Middleton identified the road modifications capable of creating change as: "(a)Widening the sealed portion of Brookfield Road, in particular, along the front of the residence...and generally decreasing the distance from the residence to the inbound traffic along Brookfield Road and increasing the distance to the outbound traffic, and (b)shifting the intersection of Brookfield Road and Gap Creek Road further from the residence." Mr Middleton's measurements and computations indicated to him that there should be no significant change in sound level at positions such as on the patio, due to the road widening. He would expect the shifting of the intersection to reduce the overall traffic sound level, but only marginally. The brick fence however, prevented the measurements being made to indicate the actual changes. Estimations had been made necessary. He recommended that it be accepted that in a position such as the patio that a fair estimate would indicate an increase in noise level but the just noticeable difference would be of marginal significance. He -- 5 of 12 -- 6 recommended that it be recognised that the brick fence reduces the level of traffic noise on the patio to less than pre road modification level. He also recommended that it be recognised that a front fence of similar height to the brick fence but of butted paling construction would have reduced the sound levels on the patio to what they were prior to the road modifications. Mr G.J. Bertenshaw, AIVLE (Val), a registered valuer employed by the Brisbane City Council was the officer responsible for the Council's valuation and gave evidence in support of his tendered valuation report. His description of the effects of the resumption includes the following passages: " Following completion of the roadworks the Gap Creek Road intersection has been relocated some 70 metres west (out-bound) from the frontage of the property, reducing the associated traffic disturbance. Centre islands have been constructed at the new intersection with a right turning bay in Brookfield Road. There are now dual 7.0 metre wide carriageways tapering back to 3.5 metre carriageways in-bound. Concrete kerb and channelling has been constructed across approximately two-thirds of the frontage of the subject property. Both the relocation of the intersection and the construction of kerb and channelling are considered to be betterment. The closest point of the dwelling to the road is the south eastern corner, which prior to the resumption was approximately 17.3 metres from the kerb-side edge of the seal. The distance to the edge of the new roadway is 13.9 metres, a reduction of 3.4 metres. The position of the centre-lines of the old and new carriageways are virtually identical. The Council's Traffic Design Section have advised that approximately 10% of the traffic volume would use the kerbside lane, therefore only this proportion of traffic has been brought closer to the dwelling. The affected area of land was landscaped with lawn, flower beds and a number of shrubs. A post and rail front fence in fair condition was situated just outside the property alignment on the original road reserve. This fence was approximately 900 mm high and was constructed with timber posts and three horizontal timber rails. There were double wrought iron vehicle gates and a matching single pedestrian gate. " Mr Bertenshaw assessed the value of the land taken at $1,500 also on the basis of a rounded pro rata value of $9 per square metre. His comments are worthy of mention in that he saw the loss of 149 square metres in comparison with the original area of 1.496 hectares as causing only nominal effect, the pro rata allowance being made because the resumed land was situated at the front of the property. Under the heading - "Value of Improvements - (a) Fencing and Gates" Mr Bertenshaw has allowed "the cost of constructing a 1.8 metre high timber paling fence ... to replace the pre-existing open timber post and rail, and also to off-set any increase in traffic noise. This type of fencing is considered to be superior to the previous fence in terms of privacy, security -- 6 of 12 -- 7 and traffic noise reduction." Mr Bertenshaw's evidence was that he had, prior to writing his formal valuation for the hearing, obtained a quote based on approximate prices as at the date of resumption, for construction of a sawn timber framed fence with butted unpainted CCA treated palings to 1800 mm in height and fitted with double and single gates, in the sum of $3,112. This was for a total length of approximately 78 metres which was the length of the frontage subsequent to the resumption. He had checked the quote with Rawlinsons Building Costs Manual which indicated a cost of $2,991 for the same construction. The higher quote had been adopted. Mr Bertenshaw's verbal evidence was that it would not be practical to paint a fence of this type of treated pine paling construction. Under the heading of landscaping he had allowed an amount of $2,500 for the loss of flower beds, lawn and shrubs situated on the resumed area. His evidence was that the basis of this value was its added value prior to resumption and not necessarily its replacement value. The other items of improvements were the concrete mowing strips and lighting and he had allowed the amount claimed - $700. Mr Bertenshaw then devoted a heading in his report to "Injurious Affection" in which he quoted from the report of the acoustics expert, Mr Middleton. Mr Bertenshaw concluded that there had been no loss in value to the remaining lands. He did agree however under cross-examination that the roadworks scheme would cause injurious affection to the balance land but only if the remedial measures he had proposed in the construction of a suitable screen and acoustic fence were not put in place. He had also seen potential for enhancement in some form flowing from the improved road standard, particularly the fully sealed carriageway to the concrete kerbing and channelling and then the relocation of the once dangerous intersection. The combination of all factors and the new fencing he envisaged would, in his opinion, offset any injurious affection which otherwise would have resulted. He did not agree that the expenditure by the claimants of in excess of $50,000 on the brick fence construction was a reasonable response to the resumption. He agreed with Mr Burley that the practical result of such expenditure was a significant over capitalisation. While such construction reduced the pre-existing noise levels, a timber fence would have negated the -- 7 of 12 -- 8 predicted marginal increase in noise, as assessed by Mr Middleton. In reality the exercise undertaken by Mr Bertenshaw regardless of the contents of his written report, does recognise that injurious affection has resulted directly as a result of the resumption. His approach to the land value endeavours to recognise the limitation of the frontage area subsequent to the resumption. The fence as proposed in his approach would have negated the marginal increase in traffic noise as predicted and would have served as an effective visual screen. He does not agree that the resumption scheme increases the danger of accidental vehicle intrusion into the property. The basic aim in compensation matters is to place the dispossessed owner in the same position so far as money can do it, as if his land had not been taken. He is to receive a money payment not less than the loss imposed on him in the public interest but, on the other hand, no greater (Horn v. Sunderland Corporation (1941) 2.K.B. 26). Clearly the added value of the fencing and gates on the resumed land prior to the resumption would be much less than the allowance made by Mr Bertenshaw of $3,112. I accept the evidence of Mr Middleton that the noise factor would be no greater than before if the theoretical butted paling fence had been constructed. The visual impact of, and exposure to closer traffic is eliminated from within the grounds and the security of the property improved when compared to that provided by the pre-resumption fence. The theoretical fence as proposed by Mr Bertenshaw is criticised as being aesthetically unacceptable in the market place, yet the brick fence, as has been constructed, leaving aside the safety provided from accidental vehicle intrusion, is seen by both valuers as not adding value in keeping with its cost. The claimants, quite fairly, while taking the decision to ensure safety from vehicle impact and to provide an aesthetically pleasant structure, have not sought compensation for the actual fence construction. Had the question of danger from vehicle impact expressed itself in the claim, I would have found such a situation to be too remote in terms of a claim, particularly in view of the steps taken by the Brisbane City Council to provide a guard rail, the location of which presumably was a question of engineering design related to public safety. What the claimants do seek in their claim is the alternative cost of a painted CCA pine -- 8 of 12 -- 9 paling fence. It is noted that the tendered quote was supplied by the contractor who actually constructed the brick fence. There was criticism that the quote referred to a length of 87 metres when in fact the frontage is 78 metres. One explanation could be that the fence as envisaged in the quote may have been of similar staggered design as the brick fence designed to relieve the otherwise perceived "gaol" appearance. The question of painting of the timber paling fence is, as the evidence confirmed, a matter of personal preference. Except for the claim for owner's time and disturbance items I see on the totality of the evidence, that most items of claim, in reality, relate to the question of injurious affection and the perception in the market place of the effect of the road modification on the balance property as compared to the pre-existing situation. Although the reasoning behind the assessments differ, there is no argument as to the quantum which should be allowed under the loss of land heading. Mr Burley then took a broad approach, based on his experience, and assessed injurious affection in the sum of $10,000. He made no attempt to consider items of fencing, gates or landscaping. His evidence is that fencing is a separate issue and injurious affection flows purely because the road is wider and the carriageway closer than before. While Mr Burley is entitled to take the approach that he did based on his experience, I do not accept his opinion that no mitigation of effect should be considered. Counsel for the claimants also submitted that in dealing with the question of injurious affection, consideration should be given to "damage" which occurred during the carrying out of the works. Due to abnormal weather conditions, the construction of road works extended over a period much longer than was at first estimated and the claimants say the carrying out of the works (for the total project) caused severe dust and noise problems. While there was some evidence from Mr Daly on the subject, there was no specific claim under this heading. There has been no dispute in this matter that part of the road works for the project have been constructed on the resumed land and there has been no attempt to argue that the injurious affection to the balance property from permanent works external to the resumed land should be excluded from consideration. However, in these circumstances, to include, as at the date of resumption, some unproven and unquantified amount for alleged damage during construction, emanating from works mainly external to the resumed land, under -- 9 of 12 -- 10 the mantle of Section 20 (1)(b) of the Acquisition of Land Act (the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other land) would, in my view, be unreasonable. The evidence in this matter leads me to the conclusion that the theoretical provision of a timber fence with suitable landscaping and replacement of garden edges and the gate light will, together with the agreed amount for loss of land notionally place the owners in a position equal to that which existed before the resumption. It seems to me that matters of design and painting of the theoretical fence, reinstatement of landscaping and other items are matters of personal choice, practicality and a reasonable perception of the reduction in price which the market place would demand as a result of the resumption. Apart from the added value approach to the landscaping this is generally the approach that was taken by Mr Bertenshaw. He has taken the view that the fully sealed road, kerbing and channelling and removal of the intersection are positive features but has not attempted to offset any amount for enhancement. That accords with the desirable approach of taking a more liberal view in matters such as this where compensation is to be assessed. I have decided to determine compensation in a broader rounded sum of $8,500 under the headings of loss of land and injurious affection (which includes the need for construction of a fence superior to that previously existing and reinstatement of landscaping, concrete mowing strips and lighting). In addition there are the agreed disturbance items of valuation and legal fees which amount to $1,565. There then remains the question of the claim for owner's time together with interest on the award. Mr Hinson, for the Brisbane City Council, referred me to the decision of my learned colleague Mr D.M. White in H.A. & S.B. Shann v. The Commissioner of Water Resources 11QLCR (1986-87) 194 at pp.224-225. After reviewing various judgments and researching the matter of a claim for owner's time Mr White came to the conclusion in that matter that "there is now sufficient authority to say categorically that the claim is not compensable". As pointed out by Mr Fraser for the claimant (and a matter referred to by Mr White) there is at least one occasion when such a claim has been allowed. -- 10 of 12 -- 11 While time expended in consultations with expert advisers in these matters may be a direct result of the resumption process, it also seems to me to fall within the area of the prudent management of an owner's assets and in most cases it would be difficult to quantify the direct pecuniary cost, if any, of that specific management. It no doubt was of personal inconvenience to Mr Daly in this instance and while an attempt has been made to assess the cost in terms of equivalent time, there is no satisfactory proof of any pecuniary loss. No compensation will be awarded under this heading. With regard to interest, Mr Hinson submitted that interest should not be allowed on any items of expenditure in the claim from the date of resumption, but instead from the date of expenditure. While there is merit in this argument with regard to matters of disturbance, the compensation for land and other items of injurious affection is an assessment of loss which was occasioned at the date of resumption and I will allow interest over the full period, adjusted by the advances which have been made. I have no proof that the items of disturbance, i.e. valuation fees or legal fees were in fact outlaid prior to payment by the Council on 22nd December, 1989, and 8th November, 1990, respectively and I will not award interest on those amounts. In summary, compensation under all headings for the resumption of the land described as Lot 2 on Plan 216988, Parish of Indooroopilly, County of Stanley, containing 149 square metres, is determined in the sum of $10,065. It is ordered that interest at the rate of 12.5% per annum be paid on the sum of $8,500 from and including the date of resumption up to and including 22nd December, 1989, less the amount of $1,575.14 which was paid at that date together with an advance of $7,100 (excluding valuation fees) and thereafter, on the sum of $1,400 up to an including the day immediately preceding the date that sum is paid. Member of the Land Court. -- 11 of 12 -- Re: Application for Costs - Claim for Compensation (A90-69) An application for costs of and incidental to the hearing in this matter was made on behalf of the claimant. Section 27(2) of the Acquisition of Land Act restricts the discretion of the Court provided under Subsection (1) of that section, dependant on the amount of the award. The circumstances in this matter are such that the discretion of the Court is restricted and no award may be made for costs to the claimant. --�-·-•v"-··•'"'.,.,�•-~•---- (R.E. Wenck) Member of the Land Court . ..--..--:.--·-•--·�,,..._,;,..,., - - :--�•,-,••��-�-: v.r� ·.�-,�-- y,::� ._., • ··:-_ ::··.--:�:",, -:, "'.'°::-'.°:"".',r:--::-0�·.·.-. ��_-;:-:"7--:-:':';.":_i"":":,_ ._,/'.f �"'\.. J� ;, -- 12 of 12 --