Blocksidge v State of Queensland [1990] QSCFC 49 [1991] 2 Qd R 1

IN THE SUPREME COURT OF QUEENSLAND FU LL COURT BEFORE: Mr. Justice Demack Mr. Justice McPherson Mr. Justice Williams BRISBANE, 20 JULY 199 0 clO( Oif^ l REVISED COPI.ES ISSUED ! Court Reporting Bureau | Date: / y / <y> 0 I to (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) Appeal No. 31 of 1989 BETWEEN: NORMAN_BRUCE BLOCKSIDGE and ROBERT MALCOLM “ BADGERY (Appellants) Respondents - and - THE STATE OF QUEENSLAND (Respondent) Appellant Appeal No. 32 of 1989 30 BETWEEN : THE STATE OF QUEENSLAND (Appellant) - and - NERAY HOLDINGS PTY , LTD. (Respondent) NERAY HOLDINGS PTY . LTD. (Appel1 ant) - and - THE STATE OF QUEENSLAND (Respondent) Appellant Respondent Respondent Appellant JUDGMENT MR JUSTICE MCPHERSON: Mr. Justice Demack considers that the appeals should be dismissed with costs. I publish his reasons. — Govt. Printer, Q!d. 40 50 1 [1990] QSCFC 49 -- 1 of 20 -- 1 10 20 30 40 50 60 I agree that the appeals should be dismissed with costs, and with the reasons of His Honour. MR JUSTICE WILLIAMS: I agree with the reasons published and with the orders proposed by my brother Demack. MR JUSTICE McPHERSON: The appeals will be dismissed with 10 1 costs . I noticed on looking at the matter again this morning that it may be that there is a reversal of the first heading of the matter in the reasons of His Honour Mr Justice Demack. I am not at all sure that that matters, but I have not checked back again with the file to see if that is so. It is, however, I think, fairly plain which matter it is and what the order is that we have made. 20 30 40 60 — * Printer, Qid. 2 -- 2 of 20 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Appeal no. 31 of 1989 BETWEEN AND: THE STATE OF QUEENSLAND ( Appellants/Respondents ) NORMAN BRUCE BLOCKSIDGE and ROBERT MALCOLM BADGERY ( Respondent/Appellant ) Appeal No. 32 of 1989 BETWEEN : THE STATE OF QUEENSLAND (Appellant/Appellant ) O ‘ TCjc^ NERAY HOLDINGS PTY . LTD. ( Respondent/ Respondent ) / ■h J AND: DEMACK J McPHERSON J WILLIAMS J Reasons for judgment delivered by Demack J on 20th July 1990; McPherson and Williams JJ concurring in the reasons for judgment and orders of Demack J. "APPEAL DISMISSED WITH COSTS" -- 3 of 20 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT BEFORE THE FULL COURT MR JUSTICE DEMACK MR JUSTICE McPHERSON MR JUSTICE WILLIAMS APPEAL No. 31 of 1989 BETWEEN : NORMAN BRUCE BLOCKSIDGE and ROBERT MALCOLM BADGERY (Appellants/Respondents) AND: THE STATE OF QUEENSLAND ( Respondent/Appellant) APPEAL No. 32 of 1989 BETWEEN: THE STATE OF QUEENSLAND ( Appellant / Appellant) AND: NERAY HOLDINGS PTY , LTD. ( Respondent/Respondent) AND: NERAY HOLDINGS PTY. LTD, ( Appellant/Respondent ) THE STATE OF QUEENSLAND (Respondent/Appellant) AND: -- 4 of 20 -- 2 JUDGMENT - DEMACK J. DELIVERED the Twentieth day of July 1990 CATCHWORDS : Compulsory accquisition of land - Whether assessment of compensation ignores impact of scheme of re r ynption Adjoining parcels owned by members of same family - P ropriety of treating parcels as one parcel for purposes of re-development - Appeal from Land Appeal Court - Question of law COUNSEL: MR J. GRIFFIN Q.C. for Appellant and MR. D. DWYER MR. R. MACK for Respondents SOLICITORS : MESSRS HENDERSON & TROUT for Appellant MESSRS. HAWTHORN CUPPAIDGE & BADGERY for Respondents HEARING DATES: 19th and 20th June, 1990 -- 5 of 20 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: AND: BETWEEN: AND: AND: AND: DELIVERED APPEAL No. 31 of 1989 NORMAN BRUCE BLOCKSIDGE and ROBERT MALCOLM BADGERY ( Appellants/Respondents ) THE STATE OF QUEENSLAND ( Respondent/Appellant) APPEAL No. 32 of 1989 THE STATE OF QUEENSLAND ( Appellant/ Appellant ) NERAY HOLDINGS PTY. LTD. (Respondent/Respondent ) NERAY HOLDINGS PTY. LTD. (Appellant/Respondent) THE STATE OF QUEENSLAND ( Respondent/Appellant ) JUDGMENT - DEMACK J, the day of 1990. Expo has come and gone. Over on the south bank of the Brisbane River, the Expo site sleeps. Plainly discernible -- 6 of 20 -- 2 between the former alignment of Grey Street and the railway line, near the Vulture Street junction, is a piece of cleared land which was once owned by the respondents to these appeals. These appeals are from a Land Appeal Court decision upon an appeal in respect of a determination of the compensation payable by the resuming authority to the respondents. The land owned by Messrs Blocksidge and Badgery was formerly at 271 Grey Street and it was resumed on 2nd June, 1984. The land owned by Neray Holdings Pty. Ltd. (Neray) was formerly 277 Grey Street and it was resumed on 19th May, 1984. The two claims were heard together in the Land Court by the President, Mr Smith. He delivered a thirty-four page judgment on 13th May, 1988. A summary of that judgment will put the appeals before this Court in perspective. Following the resumption, Neray lodged a claim for $588,000.00 plus indemnity for loss of rent at a rate of $472.19 per week from 28th November, 1983 up to the date of settlement by the resuming authority. Messrs Blocksidge and Badgery lodged a claim for $561,000.00. These claims were increased at the hearing. On 29th August, 1984, the resuming authority made an advance to Neray of $270,750.00 and to Messrs Blocksidge and Badgery of $374,000.00. Prior to the gazettal of the South Bank Development Control Plan on 5th November, 1983, both parcels were zoned "Commercial B" under the City of Brisbane Town Plan. The Neray land was improved with a two storey workshop and office at the front, and an older open workshop and skillion area at the rear. The street frontage workshop was occupied -- 7 of 20 -- 3 at the date of resumption under a monthly tenancy. The firm occupying it had been unwilling to renew a lease which had expired on 19th February, 1984. The Messrs Blocksidge and Badgery land was improved with a two storey cavity brick building. It had been progressively refurbished for the purposes of small commercial and professional offices. At the date of resumption, only two of the ten available suites wer. under lease. The directors of Neray are Mr Blocksidge's sister, Mrs Lewis, and her husband. The Neray property was acquired in 1977 and managed by Mr Blocksidge. When the adjoining land became available in 1981, Neray was not financially able to buy it, so Mr Blocksidge and Mr. Badgery joined in its purchase. As at the date of resumption no plans were formalised for joint development. The hearing of the case began on 12th August, 1985 and continued for twelve days. It was then adjourned to await the outcome of an appeal in respect of the determination of the compensation payable upon the resumption of land across Grey Street (the Merivale land). The appeal process in respect of the Merivale land was not exhausted until December 1987. The dispossessed owners' valuer was Mr Kinivan. He saw the highest and best use of the two parcels as a redevelopment proposition on a joint or combined basis. He considered the area poised for a burst of redevelopment which was frustrated by the Expo scheme. By performing an elaborate notional development exercise he arrived at a valuation of $883.00 per square metre. -- 8 of 20 -- 4 The resuming authority used the services of Mr Coonan. He considered the highest and best use of the two parcels was their respective uses at resumption as investment or rental properties. He arrived at a valuation of $365.00 per sguare metre for the Neray property and $482.00 per square metre for the other parcel. The Merivale lands are obviously comparable with the subject lands. A great deal of evidence prese i .ed in that case was common to the subject cases. The valuation found by the Land Appeal Court in respect of the Merivale lands was $555.00 per sguare metre. After the appeals in respect of the Merivale lands were concluded, Mr Smith ordered the parties to re-open their cases to present valuations which compared the subject lands and the Merivale lands. On the basis that, the subject parcels were combined, Mr Kinivan arrived at a value of $754.00 per square metre and Mr Coonan, $566.00 per square metre. In his judgment Mr Smith observed, at p. 14: " I have thus before me consequent upon the application of the notional development method of valuation, a multiplicity of values dependent on the particular philosophy of the notional development adopted. I have heard over many days interminable argument as to ; the respective merits of different designs of buildings - windows on four sides, two sides and one side capitalisation rates, the advantage of a head tenant compared to a multi tenanted proposition, plot ratios achievable, site coverage, etc., etc., etc. There is a confusion of excessive detail, repetitious evidence and too many and too varied estimates of value. Once a valuer becomes locked into a particular philosophy of notional development the end result appears to be inevitably controlled by mathematical progression rather than the exercise of his professional expertise, discretion and ability. The notional development method of valuation may be of great -- 9 of 20 -- 5 assistance to investors and developers in planning developments by indicating a level of anticipated expenditure and achievable profits but as a vehicle of proof in legal proceedings concerning the value of land it is, in my opinion, subjective rather than objective. I think the evidence of Messrs. R. L. Hancock and G. Wilson, Property Consultants, called by the claimants, supports this view. The method can be useful in ascertaining a final figure representing the maximum amount that may be paid for the land content of a project given an achievable rent/m 2 , an appropriate capitalisation rate, an appropriate or maximum building cost and holding etc. charges. However, the end result, the so called land value, may vary according to the philosophy of the development and the level of expenditure. The result may equally relate to a hypothetical parcel of land as to an actual and particular parcel. It represents the maximum amount which the preceding computations indicate may be expended on the land content of a project. This end figure cannot really be said to be market value until the figure is tested by comparison with sales that have occurred in the market place. There is little flexibility in the system enabling the special advantages or disadvantages of a particular parcel of land, such as, its locality, situation, access , etc. to be reflected in the final figure. The Land Appeal Court in the Merivale case was adversely critical of the notional development method vide pp 281/2. Whilst I cannot entirely ignore the evidence of the various valuations that have been placed before me, I consider that the Land Appeal Court's determination of the value of the Merivale parcel at $555/m 2, the sales referred to in its judgment for support, and the evidence given by the valuers, Messrs. Kinivan and Coonan, during the reconvened sittings represent the most cogent evidence of comparative value in the total record." (emphasis added) Further comparisons were done with a negotiated settlement made by the resuming authority in respect of land referred to as the Yellow Pages lands. This land is in the vicinity of the subject land. The analysis of this settlement led Mr Kinivan to find a value of $1,040.00 per -- 10 of 20 -- 6 square metre and Mr Coonan a value of $682.00 per square metre. After a discussion of the law to be applied, Mr Smith considered the question of highest and best use, and of amalgamation of the two blocks. At p. 23, he said:- " In a commercial sense I do not think that the possibility of the claimants acting in consort to sell r>\- the possibility of a purchaser desiring to buy t J j two parcels for combined development can be dismissed as unreal or impossible. At the same time I do not think that it amounts to an absolute certainty. I place it in the category of a very strong probability." "I think the way to proceed is to value the two parcels as for a combined development and to discount this figure by the order of 10% to allow for an element of uncertainty in achieving a joint development." He then discussed the evidence of Mr Coonan and Mr Kinivan in some detail. In the course of that he considered the question of the cost of obtaining vacant possession of the land. This is obviously a cost that has to be considered in a notional development exercise. Mr Coonan allowed $1 1 0,000.00 for that, but Mr Smith held that only $10,000.00 was warranted because there was only one current lease. After making that adjustment to Mr Coonan 1 s exercise, as well as some others relating to excavation and demolition costs, Mr Smith said that he viewed Mr Coonan's exercise as reflecting a raw land value of the order of $578.00 per square metre. He went on to say, at p. 34, " I have concluded that after adjustment as previously indicated, Mr Coonan's valuation of the subject parcel based on the notional development method as submitted to the resumed hearing and the Land Appeal Court's finding of the value of the Merivale parcel in that they are based on reasonably comparable material constitute the most reliable relativity between the parcels which is before me. However, in view of the doubts I hold -- 11 of 20 -- 7 as to the capacity of the notional development method to achieve a finely tuned relativity and as this case involves a compensation matter where the principle of resolving doubts in the claimant's favour applies, I find myself hesitant to accept that the relativity so established, sufficiently or appropriately reflects a true comparison with the Merivale parcel . The superior position of the subject parcels, the probability of their requiring little or no shoring and their inherent capacity to excavated laterally rather than vertically must be duly weighed- I am assuming that there would be little difference in the hardnejs/softness of the underlying rock or schist on eirher side of Grey Street in the subject locality and that the degree of ripping would be somewhat similar because the two parcels are situated in the same geophysical strata. I am not persuaded that the hypothetical prudent purchaser would give much, if any, consideration in money form at date of resumption for proximity to the Vulture Street Railway Station. I respect Mr Blocksidge's vision of a cojoint development but given conditions operating at date of resumption and assuming no EXPO, any such development would be a considerable way down the track. The locality was an emerging commercial office development proposition and not an established locality for such projects. Even Mr. Blocksidge seemed to place his development proposals up to 10 years hence . I have not included in my award any amount in respect of this factor. Placing myself in the shoes of a hypothetical prudent purchaser with full knowledge of the foregoing facts, I am persuaded that in comparison with the Merivale judgment that a rate of $590/m2 would be fair and reasonable to pay for the subject combined parcels. This figure in my view, is consistent with the sales mentioned in the Merivale judgment as being consistent with the figure or rate adopted by that Court for the Merivale parcel." He then deducted 10% for the reason I have quoted and determined the value at $530.00 per square metre. This amounted to $394,320.00 for the Neray land and $375,240.00 for the Blocksidge and Badgery land. Both Neray and Messrs Blocksidge and Badgery appealed from this decision. The resuming authority appealed only in respect of the Neray decision. This is hardly surprising -- 12 of 20 -- 8 since the advance to Messrs Blocksidge and Badgery had been $374,000.00, and the judgment $375,240.00. A major issue which the former owners addressed on the appeal was the 10% reduction. Both Mr Blocksidge and Mr Badgery gave evidence designed to show that the very strong probability of amalgamation was a certainty. Mr Blocksidge said, at p . 621:- "To deal with them s i.^arately is quite unthinkable as far as I'm concerned and to explain that I would say that the overall thing in my mind is that as from the time that the second property was purchased, that's the one that Badgery and myself bought, those two sites in my mind were from then on amalgamated for all practical purposes. I was the one who engineered the purchase. I was the one who had the conduct of activity in relation to the properties and putting it very simply I was the managing agent of a property that was purchased by Neray in the first instance. In the course of my activities as managing agent of that property I was aware of what was happening in surrounding properties and putting it very simply, in due course the opportunity came for the purchase of the adjoining property. I had recommended that Neray buy the first property in the first instance because I believed it was in a very key situation particularly in relation to the railway station and the top end of Grey Street and so forth. I don't want to go over all the evidence. I've already given that evidence and I don ' t go back from that in any way whatsoever because it was an absolutely crucial site and the first leg was to acquire that site and that was acquired by Neray Holdings and I was the managing agent and I had really the conduct of all activity in relation to the leasing of it and the future destination of that property with regard to what might happen in the future. In due course the adjoining property became available and I first offered it to Neray Holdings. BY HIS HONOUR: I think we know the history don't we?--That's the history. If the Court pleases I don ' t want -- He 's only speaking of the intention --- BY MR. MACK: The intention?— The intention was at all times that those properties once the second one was acquired by Badgery and myself then we regarded that as having amalgamated the two sites. -- 13 of 20 -- 9 It was within our control and I think a phrase that I used in my evidence-in-chief was that both properties were tied up. BY MR. CARTER: You thought of them as a unit as it were? — I thought of them at all times as a unit and it would be quite unthinkable for me to think of them in any other way than having arrived at a situation where they were amalgamated and combined and that the future history of those depended on what you could do with an amalgamated site ." The judgment of the Land Appeal Court dealt with issue in these terms, at p. 784: " Now it eventuated that additional evidence was called before us on behalf of the claimants verifying and enlarging upon the attitude of the dispossessed owners if the opportunity ever arose to market the sites as an entity. Norman Bruce Blocksidge, a real estate company director, auctioneer and valuer, and one of the claimants says that to deal with the sites separately is, to use his words, "unthinkable". His sister is a Mrs Lewis who is a co-director of Neray Properties Pty. Ltd. with Mr Blocksidge's brother-in-law, Allan Ray Lewis. Mr Blocksidge, acting in his capacity as a Real Estate Agent, had already sold the Neray Property to the Lewis 1 company before he and co-claimant, Robert Malcolm Badgery, purchased their adjoining site, after which time Mr Blocksidge always regarded the sites as being amalgamated. Mr Lewis, who is an investor and company manager and managing director of Neray Holdings Pty. Ltd., has no doubt that if a sale of his company's land was to be contemplated at relevant resumption date, then his site and the adjoining Lot 1 on RP 107151 would have been sold together. Mr Badgery, who is a consultant solicitor with the firm Hawthorn, Cuppaidge and Badgery, told us that at the time he entered into the purchase agreement with claimant Blocksidge, he had an understanding that should he wish to retire from the arrangement in five (5) years, then he would have the opportunity to dispose of his interest to his partner at market value with no consequent embarrassment. He also always saw the two sites as a combined site and never at any stage did ever envisage, if they were to be redeveloped or sold off for such propose, that any proposal other than for combined re-development or sale would ever be contemplated by the Blocksidge and Lewis families. It is urged by Counsel for the claimants that this additional evidence cements, complements and strengthens that given in the court below and that in these circumstances, this -- 14 of 20 -- 10 stressing that the Authorities establish that the principle is that it is the value to the dispossessed owners which is to be determined, there is no, or so little doubt, that they would act in concert to market the subject sites at resumption date, that no discount on the determined value of $590.00 per square metre for each resumed lot should be made." "Any doubts we have must be weighed in favour of dispossessed owners in cases of this nature and such owners should receive the benefit of more liberal assessments of compensation - vide Commission ir of Succession Duties v. Executor Trustee a-rC. Agency Company of S . A . Ltd . and Others (1947) 74* C.L.R. 358 p. 374. This being so, and being satisfied that there is such a strong probability that the claimants here would have acted in concert to obtain the best possible price, then we see no need to discount the value of $590 per square metre for the resumed sites for any element of uncertainty in achieving a joint development ." The Land Appeal Court accepted the value of the resumed land at $590.00 per square metre, and accordingly increased the award of compensation. The resuming authority appealed to this Court in respect of the judgment in both cases. Section 45 of the Land Act allows an appeal from a decision of the Land Appeal Court to this Court "on the ground of error or mistake in law" or excess of jurisdiction. The two errors of law which are said to arise concern the 10% reduction and the allowance of $10,000.00 to evict tenants. The latter of these is said to offend against the principle enunciated in Pointe Gourde Quarrying and Transport Co. Ltd, v. Sub-Intendent of Crown Lands (1947) A . C . 565. In Melwood Units Pty. Ltd, -v- The Commissioner of Main Roads (1979) A.C. 426, it was said, at p. 432; "If it should appear that the Land Appeal Court ignored a principle of assessment of compensation for compulsory acquisition (resumption), such as for example that commonly known as the Point (sic) -- 15 of 20 -- 11 Gourde principle, that in their Lordships' opinion would be an error of law." The Pointe Gourde principle can be stated in the words of judgment, at p. 572, "that compensation for the compulsory acquisition of land cannot include an increase in value which is entirely due to the scheme underlying the acquisition" . Here it is argued that the fact that the ruildings were not let at the date of resumption increased the value of the amalgamated site to the hypothetical developer because the net value must take account of the costs of obtaining possession. In other words, the figure of $10,000.00, to which I have referred, was based on the effect of the Expo Scheme. In the absence of the Expo Scheme the buildings would have been fully or substantially let, and the cost of eviction much higher. I have already referred at some length to Mr Smith's reasons for judgment. It is clear that he found limited assistance in much of the evidence, and that in the final analysis he tried to make a comparison of the subject lands and the Merivale lands . What led him to that point may be described as ranging shots, and the deduction of $10,000.00 was made in the course of those ranging shots. That is made clear in the words I have emphasised in the first passage I have quoted. Consequently, I am not satisfied that the deduction was of any significance in reaching the final figure . In the Land Appeal Court judgment, the following appears at p. 786: " We can find no fault with the determination -- 16 of 20 -- 12 of a value of $590 per square metre for the subject sites when looked at in the light of the Merivale Judgment for the reasons outlined by the learned President. He has taken into account, among other factors, the building demolition costs and an allowance of $10,000 to obtain vacant possession of the two sites. We find both allowances sit comfortably with the evidence. We cannot adopt Mr Coonan ' s estimate of $110,000 for gaining vacant possession of the sites. We agree with Counsel for the Resuming Authority that the law is well settled in' that compensation for land resumption cannot be appreciated or depreciated by the Constructing Authority's project or resumption - vide T c xnte Gourde Quarrying and Transport Co. Ltd, v. Sub-Intendent of Crown Lands (1947) A.C. 565 and Melwood Units Pty. Ltd. v. The Commissioner of Main Roads (1979) A.C. 426; (1978) 52 A.L.J.R. 593; (1978) 5 Q.L.C.R. 145. However, in the circumstances of this case, notwithstanding that the evidence from Mr Blocksidge is that, but for the pending EXPO resumption, his hopes were that the resumed properties would have been fully tenanted by resumption date, this was a hope or expectation that was not in reality achieved. Mr Blocksidge said further that progress in letting the resumed premises was not as fast as he would have liked. Whatever the reason, it i fortuitous for the dispossessed owners' that the premises were not fully leased at resumption date since we have found that the highest and best use of the resumed properties was for joint re-development. Although we have considered Mr Kinivan 1 s evidence on the point we agree with the Land Court finding that $10,000.00 is a reasonable allowance for obtaining vacant possession, given that some expense would undoubtedly be involved." At the hearing in this court attention was directed at the word "fortuitous" in the penultimate sentence. It was also argued that merely to mention the Pointe Gourde principle is not enough. The principle must be applied. In my opinion, the passage I have just quoted shows no more than that the Land Appeal Court was trying to address the detailed submissions made to it. In a sense those submissions did not address the real issue, namely the comparison of the subject lands with the Merivale lands. Earlier the Land Appeal Court had said, at p. 786: -- 17 of 20 -- 13 " Our research of the voluminous record in the Court below and our consideration of the additional evidence and submissions here reveals nothing which convinces us that the learned President erred in assessing compensation on the basis that the highest and best use of both subject sites at the respective resumption dates was for commercial development, nor that compensation should be assessed on any other basis than the value of the lots as a combined site. We are also convinced that the best basis for the assessment of compensation is the determination of compensation by this Court for the Merivale land, especially since we are satisfied that the dispossessed owners would have acted in concert to achieve the best price available to them in the marketplace. We cite here authorities supporting the value to owner concept as including Pastoral Finance Association Ltd. v. Minister (1914) A.C. 1083, Minister of Public Works v. Thistlethwayte (1954) A.C. 475 at p. 491 and The Minister of State for Home Affairs v. Rostron and Others * I (1914) 18 C.L.R. 634 at p. 637." This was precisely what Mr Smith had done, and from that comparison he arrived at a figure of $590.00 per square metre, because the subject lands had advantages over the Merivale lands . I am not satisfied that there has been any error of law in the application of the Pointe Gourde principle. The other matter raised does not seem to me to involve any error of law. If it were so, there would need to be some rule of law to the effect that, in assessing a probability, a tribunal of fact can never treat that probability .as a reality. We were not referred to any case which established such a proposition. In Re Lucas and Chesterfield Gas and Water Board (1909) 1 K.B. 16, at p. 28, Vaughan Williams L.J. criticised an umpire's decision which treated a probability and a realised probability as identical. That observation has to be read in context. Re Lucas and Chesterfield Gas and Water Board concerned -- 18 of 20 -- 14 the resumption of land owned by Lucas for the purpose of making a reservoir. The umpire who assessed compensation took into account the natural and peculiar adaptability of the land for the construction of a reservoir. However, the land could not be used for that purpose, while owned by Lucas, without the consent of the Chesterfield Gas and Water Board or pursuant to special statutory powers. Also an adjoii ing owner, the Duke of Devonshire, would have join in the project. The umpire stated that he assumed "the value of the reservoir site on the basis of powers already in existence either by virtue of an existing Act of Parliament or of an order obtainable from the Local Government Board, which would enable the various authorities interested to acquire the site compulsorily," (p. 21). In those circumstances the criticism made by Vaughan Williams L.J. was clearly correct. The assumption made by the umpire ignored a number of obstacles to the use of the land as a reservoir. However, Vaughan Williams L.J. also observed, at p . 28:~ "It may be that the adaptability of the land for the purpose of enlarging the reservoir was so unique that (the umpire) will give a valuer little less than that which he would give if dealing with the realised possibility." In other words, the compensation must be determined according to the facts of the case. Clearly, it is possible to estimate possibilities and probabilities in percentage terms. It is also possible for a possibility to be a "foregone conclusion". The possibility of such a conclusive set of facts arising in a particular case may be slender indeed, but it is a matter for the tribunal of fact to make -- 19 of 20 -- 15 the assessment. Here, the Land Appeal Court had the advantage • of hearing the witnesses, and it made an assessment which departed from the assessment made by the learned President. I am not persuaded that in doing this it committed any error of law. It simply made its decision upon the facts before it . In my opinio - , the appeals should be dismissed with costs. -- 20 of 20 --