Brazil v The Commissioner of Main Roads [1990] QLC 31

"I • ,.. .. .. IN THE LAND COURT OF QUEENSLAND BETWEEN H.A. and A.O. B. Brazil and The Commissioner of Main Roads \ QBQER AMENDING CLERICAL ERROR IN JUDGMENT ' (Claimants) (Respondent) On the 7th September, 1990, judgment determining compensation payable to the claimants herein was handed down. The judgment inter alia reads: II Accordingly, compensation under all heads is determined at $207,550. Advances against compensation were made in the sums of $40,000 on 9th January, 1989 ,. and $36,500 on 31st January, 1989. A stay of interest was ordered by the Court during the period of an adjournment between 5th March, 1990, and 29th July, 1990. Interest is therefore ordered to be paid on the sum of $207,550 at the rate of 13 percentum per annum from and including the date of resumption up to and including 9th January, 1989; thence on the sum of $167,550 up to and including 29th January, 1989; and thereafter on the sum of $131,050 up to and including the day immediately preceding the date compensation is paid save that interest shall not be paid on the sum during the period of the adjournment. " The respondent has brought to my attention a clerical mistake in the judgment in that the date 29th January, 1989, underlined in the above extract of the judgment st10uld read "31st January, 1989". To correct the mistake I order that the judgment of the 7th September, 1990, be amended by deleting the words of the judgment set out above and substituting the following words:- II Accordingly, compensation under all heads is determined at $207,550. Advances against compensation were made in the sums of $40,000 on 9th January, 1989, and $36,500 on 31st January, 1989. A stay of interest was ordered by the Court during the period of an adjournment between 5th March, 1990, and 29th July, 1990. Interest is therefore ordered to be paid on the sum of $207,550 at the rate of 13 percentum per annum from and including the date of resumption up to and including 9th January, 1989; thence on the sum of $167,550 up to and including 31st January, 1989; and thereafter on the sum of $131,050 up to and including the day immediately preceding the date compensation is paid save that interest shall not be paid on the sum during the period of the adjournment. " Dated this thirty-first day of Qctobe>r, 1990. ./4JtL!r,4--f1o,,J _,:::;i,e a,rr:f' /f/JA-/Jt:. 74c u.w,e.r 111~r do o~~ (D.M. White) Meni5er of the Land Court -- 1 of 17 -- LAND COURT, BRISBANE 7th September, 1990 Re: Claim for Compensation - Resumption for Purposes of a Transport Corridor. A89-63. H.A. and A.O.B. Brazil v. The Commissioner of Main Roads J U D G M E N T On and from 11th July, 1987, a strip of land was taken from the claimants' fee simple parent parcel being Lot 2 on RP 205134 (original portions 40 and 41), County of Stanley, Parish of Woogaroo, for the purpose of a Transport Corridor between the Cunningham Arterial Road at Gailes and the Mount Lindesay Arterial Road at Browns Plains and vested in the Commissioner of Main Roads. The land taken has an area of about 15.07 hectares (including about 1.82 hectares from Easement A on RP 127318). The land was taken under the provisions of the Acquisition of Land Act 1967-1986 and the State Development and Public Works Organization Act 1971-1981. The parent parcel prior to the resumption had an area of 241.5 hectares. The parcel was generally of rectangular shape with frontages of - 809.31 metres to Wadeville Street on the northern boundary; 2040.15 metres to Stapylton Road on the western boundary; 1457.62 metres to Johnson Road on the southern boundary; 2634.99 metres to the rear or eastern boundary. [1990] QLC 31 -- 2 of 17 -- 2 Between the rear boundary and Oxley Creek which generally parallels this boundary is a strip of land a few hundred metres wide which was excised from the parent parcel some years ago and sold to a company which intends to use it for extractive industry purposes. This land is zoned for the purpose. Land on the east (right) bank of the creek is used for this purpose by another company. At the date of resumption the parent parcel was in an englobo state. It is situated within the area of the City of Brisbane and at the date of resumption was zoned "Non-Urban". Under the Town Plan in force at that date it is clear that land within this zone is intended to be retained in a semi-rural state, that no suburban development of any kind will be allowed and that new allotments will be required to have a minimum area of 4 hectares. The land is on the border of the City of Brisbane with the City of Logan. The suburb in which the land is situated is predominantly a rural residential suburb and is known as Heathwood. The area lies in a direct line about 19 kilometres south of the Brisbane Central Business District. Town water, electricity and telephone services are connected or are available to the property. Sewerage is not available. No public transport system exists and the nearest primary school is in Ritchie Road which can be accessed from Wadeville Street northerly. The nearest high school is about 5 kilometres away at Inala. The nearest shopping centre is about 3 kilometres away at Browns Plains. The claimants live on the property and part of it has been selectively cleared. The property before the resumption could be described as being well elevated with gentle undulating falls from RL 65 metres to RL 25 metres in a general easterly direction towards Oxley Creek. The average level is about RL 50 metres. Views of the high rise of the Central Business District can be taken from parts of the property. Easement A is used for high voltage electricity transmission lines. What the resumption did was to take a funnel shaped parcel through the central part of the property from west to east. The resumption follows and in part covers the electricity easement. Three steel towers are located on the balance property. The peculiar shape of the land taken comes about through the dual use which is to be made of it by the -- 3 of 17 -- 3 constructing authority. The land taken will house in part at the western end (the other part being on the road reserve of Stapylton Road) a tollway whilst the narrow section will house a toll road. The tollway consists of loops for entry to and exit from the toll road and the structures necessary to collect toll fees. This picture may be completed by saying that to the west of the subject land there lies an area of about 1,000 hectares or so of undeveloped land. Wadeville Street northerly through to Ritchie Road is generally in rural residential subdivision of about 1.6 hectare blocks whilst to the south-east (and south of Johnson Road) in the area of Logan City is a subdivision known as Forestdale. This estate is also of rural residential sized lots. Johnson Road is classified as a sub-arterial road whilst Stapylton Road is described as a collector road. Johnson Road is a continuation of Browns Plains Road which connects Browns Plains with Gailes in the west. Following the resumption the claimants filed a claim on the respondent in the sum of $660,000. In the hearing of the matter leave was granted to amend the claim for land, severance and injurious affection to $360,000 being an assessment of compensation made by Mr G. Jorgensen, Dip.Bus., AAIV. Another valuer called on behalf of the claimants (Mr G. de Bruyn AAIV) assessed compensation at $336,000. Both considered that the parent parcel was ripe for subdivision at the date of resumption and they made their assessments on the usual lines of a "before" and "after" valuation based on hypothetical subdivision of the parcel into lots of a minimum of 4 hectares. On the plans they followed 58 lots could have been achieved before the resumption and 54 lots after the resumption. They had the benefit of an engineering assessment on costs and they both did their final workings based on an interest factor of 13 percent (13%). On the other side the assessment was made by Mr P.D. Grennan, a registered valuer in the employ of the Department of Lands, Division of Valuations. He worked on similar lines and on the same plans. His assessment of compensation is in the sum of $110,000. However, he made his calculations (a) by providing reticulated water to all lots and (b) by providing reticulated water to hypothetical lots 1 to 12 only. The latter exercise yielded a higher value for the land in the hands of the owners and was accordingly adopted for the purpose of the assessment although it actually brought up a lesser sum as compensation. Mr Jorgensen and Mr de -- 4 of 17 -- 4 Bruyn did their exercises on the basis that reticulated water would be provided to all lots. In the pricing of the lots after the resumption, they performed two exercises - one on the assumption that injurious affection arising from the use which would be made of the resumed land was limited by law to that flowing from the toll road without regard being had to injurious affection which may result from the use of the tollway in conjunction with the toll road and the other from a combination of the total exercise. In the first exercise, injurious affection is assessed in "ball park" terms of about 20% to 30% of the value of lots adjoining the toll road; in the second, the expanse of injurious affection is taken along the frontage of Stapylton Road into Wadeville Street on the north and southerly along Stapylton Road and into and along the Johnson Road frontage - it being their opinion that traffic on these roads which will become collector roads for the toll road will increase, will congest at the intersections and consequently downgrade the value of frontage land after the resumption. The range of depreciation in value to lots along these frontages is of the order of 4% to 6%. There is a point of law here which needs to be addressed at this time. Counsel for the respondent submits that the Court by law cannot address the matter to the extent it was addressed by Mr Jorgensen and Mr de Bruyn on grounds that to do so would be offending the principle of Edwards v. The Minister (1964) 2 QB 134 and would in effect be borrowing from the scheme which is not permitted in law. Of recent years, Edwards case has received a lot of consideration in this Court. The relevant cases are summarised succinctly in M.A. and D.P. Syme v. The Commissioner for Railways (1988/89) 12 Q.L.C.R. 98. I see no point in repeating them; save to say that the principle of Edwards case is applicable in the assessment of compensation under s. 20 of the Acquisition of Land Act and secondly, that the words "the exercise of any statutory powers by the constructing authority otherwise injuriously affecting such other land" are not wide enough to embrace injurious affection flowing from the scheme behind the resumption, except where and as discussed in the cases contained in the Syme case a practical separation of damage cannot be made between the use which will be made of land taken from the claimant and the use which will be made of the adjoining land. In this case, counsel for the claimants submits that the question can be answered by going no further than -- 5 of 17 -- 5 considering the charter as laid down in s. 20. He says (and which was not sought to be contested by counsel for the respondent) that the resumed land contains a toll way (in part and the parts not separated) and a toll road and that it is therefore open to the Court as a matter of law to consider the question of injurious affection arising directly from the operation of these works as a whole. The only factual evidence I have is that part of the toll way is upon the resumed land and the balance on the Stapylton Road reserve. In a plan attached to the valuation of Mr de Bruyn, it appears that two leaves of the "four leaf clover" are upon the resumed land and part of the toll "plaza" area. No attempt has been made to separate the parts nor could they appear to be separated. I accordingly agree with the submission of counsel for the claimant. However, as with the effects of the toll road, it must be shown that the frontage land is damaged and that the damage is a direct and natural consequence of such usage and that it be not too remote. See Harvey v. Crawley Development Corporation (1957) 1 All. E.R. 504 C.A. and The Crown v. R.H. and J.M. Corbould (1986/87) 11 Q.L.C.R. 50 L.A.C. There is not a great deal of difference between the plan of the land before resumption and the plan after the resumption. In the plan before the resumption there are nine rectangular-shaped lots (Lots 1 to 9) fronting Wadeville Street. Coming into Stapylton Road, there are then three lots (Lots 10 to 12) of similar shape and dimensions. Lot 12 will border an internal cul-de-sac road which would run directly east and then swing to the south-east towards the centre of the block. Opposite the southern (side) boundary of Lot 12, there would be some five lots (Lots 22 - 26) fronting the internal road with the same dimensions as Lot 12. There are then nine lots (Lots 13 - 21) which fan the internal road with four lots sharing 180 degree frontage to the cul-de-sac. Of these lots, Lots 18, 19 and 20 would have the electricity easement well within the frontage area of the lots. The balance of the Stapylton Road frontage would be taken up with ten lots (Lots 27 - 36) all of the same shape and dimensions as Lot 12 except for Lots 34, 35 and 36 where they angle away slightly. Lot 36 takes up the corner of Stapylton Road and Johnson Road. In Johnson Road, the subdivision would comprise five lots (Lots 37 - 41) of near rectangular shape allowing for a -- 6 of 17 -- 6 slight curve in Johnson Road, then two square-type lots (Lots 42 and 43) which take up the corner of Johnson Road and the internal road coming in in a north-easterly direction, then northerly, ending in a cul-de-sac towards the centre of the block. Opposite would be Lots 57 and 58 taking up the frontage of Johnson Road. Beyond Lot 43 there are two lots of rectangular shape (Lots 44 and 45) followed by four lots with frontage to the cul-de-sac (Lots 46 - 49) and then seven regular-shaped lots on the eastern side of the internal road (Lots 50 - 56). The higher contours on the land are found in a knoll which is at RL 65M and, together with contour RL 60, swings in an arc through Lots 10, 11 and 12 and the frontage areas of Lots 22 to 26. The contour in the area of Lots 1 to 9 is towards the north-east which is a carry on of the slope from the knoll on Lots 10 to 12. The lowest point (RL35) of the area intrudes into the frontage of the proposed Lot 2. In the area of Lots 13 to 21, slopes are mixed, being in part to the north-east and part towards the south-east. In the southern area of the block the contours are mixed and can best be described as sloping to the east from the Stapylton Road frontage; to the north from midway on the Johnson Road frontage and falling away from both sides of the proposed internal cul-de-sac road, more particularly with respect of lots fronting the cul-de-sac. The view of the high-rise which the witnesses spoke about is found in the area of Lots 10 and 12. It is accepted that the land is of fair average quality for this locality. The design is one which is done on straightforward lines obtaining the maximum permissible number of lots without providing any particular feature which would isolate the design from the norm. Both Mr de Bruyn and Mr Jorgensen considered that it would be prudent to provide water to all lots. They said that under this zoning the provision of water is not mandatory but Mr de Bruyn is of the opinion that Council would prefer that reticulated water be provided and that a development application would most likely meet with approval more speedily if such was to be provided. On the other hand, Mr Grennan said that the most likely usage of lots of this size will include the running of some stock. This being so, he submits that dams would be provided. The likelihood of water rates would in his opinion deter some purchasers. In order to compare the evidence on a common footing, I propose to examine the hypothetical workings on the assumption that water is provided to all -- 7 of 17 -- 7 lots. In this light and in looking at the pricing structure on a broad base, there is a great deal of unanimity between Mr Jorgensen and Mr Grennan. Overall, with water, Mr Grennan has a gross realisation of $3,857,000 for 58 lots - an average of $66,500 per lot. Mr Jorgensen has a gross realisation of $3,886,000 or $67,000 per lot but they do vary in their individual pricing structure. This is evident in a consideration of the pricing of Lots 1 to 9 where Mr Jorgensen has priced the lots at a uniform figure of $65,000. These lots fall in a north-easterly direction from about RL 60 at the rear of Lot 9 down to RL 35 on the frontage of Lot 2. Mr Grennan's pricing structure follows the contour - the better the contour the higher the price - his pricing structure rises from $55,000 for Lots 2 and 3 up to $77,500 for Lot 9. This line of pricing, he says, is supported by sales in the area. When I come then to the pricing structure adopted by Mr de Bruyn, I find that his variation in pricing follows generally that of Mr Grennan but he is on a considerably higher plane. He has Lot 2 at $70,000 rising up to $80,000 (Lot 8) with a gross realisation for these lots of $695,000 compared with Mr Grennan's estimate of $577,500 and $585,000 (Mr Jorgensen). The key to the approach taken by Mr de Bruyn is not found in the sales of land in the locality but in the view taken by him that the estate could be marketed as an estate of some quality. In the lands generally to the north in the suburb of Pallara subdivisions are of about 1.6 hectares (some to 4 hectares) but there are no specific features which add to the area. On the other hand, Forestdale which is situated within Logan City is an estate with curved internal roads and with parkways meandering throughout. This estate is accepted by Mr de Bruyn as an imaginative design. He uses Forestdale in the sense that the flavour of the estate could flow over the subject estate. This is a proposition which I cannot accept. Nor does he accept it. It is somewhat unfortunate because I was otherwise impressed with his evidence but in this area of his evidence he admitted that if he were given a free hand in design, he would not adopt the plan which has been adopted for the purposes of the assessment of compensation. Prestigious estates, which Forestdale appears to be, require some sacrifices by the developer and these are not present in the design plans in evidence. The general layout of the plan does nothing to distinguish the proposed subdivision from subdivisions which exist to the north -- 8 of 17 -- 8 and hence, in my opinion, the market value of the lots would more likely tie in with the market value of these lots than elsewhere. Sales in this part of the locality support the pricing structure adopted by Mr Jorgensen and Mr Grennan. My only criticism of Mr Jorgensen's approach is that his pricing structure is too general. If the market distinguishes between elevation which is demonstrated in the sales attached to the valuation of Mr Grennan then I would expect a developer to follow suit. In fact, to do otherwise could result in a fairly rapid sale of the better blocks with little or no interest in the lower blocks. It follows that I take the pricing structure and selling prices as advanced by Mr Grennan as the appropriate commencing point. Not a whole lot needs to be said further. The development/engineering costs which he has adopted are the lower of the estimates (by $30,000 in $1 million) and it is agreed that the Court, acting on the well established principle of resolving doubts in favour of the dispossessed owner adopt such costs. Mr Grennan has allowed for commission on sale at rates recommended by the Institute. He has allowed for legal expenses in the sum of $300 per lot and advertising he has placed at $1,000 per lot. On the latter point, Mr Jorgensen allowed $150 per lot. Mr de Bruyn would allow $2,000 per lot. He has, however, endeavoured to market a prestigious estate on a standard design. The estimate of Mr Jorgensen amounts to about $9,000 for the whole estate. Mr Grennan's estimate is $58,000. Mr Jorgensen relied to some extent on the figures he obtained in respect of a completed estate at Karama Outlook which was bought subsequent to the resumption date, subdivided and sold in a market which it is agreed was more active than when the subject land was resumed. The development was also a flow on from an existing development. Mr Grennan's estimate envisaged signage on the property and newspaper advertisements. In the opinion of Mr de Bruyn, if the lots were priced at the figures proposed by Mr Grennan and Mr Jorgensen, a realistic estimate for advertising would be at the rate of $1,000 per lot. This estimate will accordingly be adopted. It is agreed that it is reasonable to allow a period of six months to obtain development approval. Mr Jorgensen and Mr de Bruyn postulated a selling rate of about three lots per month. Mr Grennan has made his calculations on the basis that two lots would be sold per month. It is agreed at the relevant date the market was static. Mr -- 9 of 17 -- 9 Grennan places a deal of reliance on statistics gathered by his employer. In the areas of Pallara for the six month period - July/December, 1987 - two lots in excess of 4,000 square metres were sold. In the ensuing six months, five lots were sold. In the area of Heathwood and for the same periods, one lot and zero lots were sold. This form of evidence met with some criticism on grounds that it could not be related to the number of lots on the market and hence could not be directly related to the likely performance of a proposed development. Mr Jorgensen placed some reliance on the sales of vacant lots in the areas which he used for pricing the lots in subdivision and in the history of the Karana Outlook subdivision. The sales attached to his valuation comprise three lots in Pallara which sold between June and October, 1987, three lots in Greenbank which sold between April, 1986, and July, 1987, two lots in Park Ridge which sold between August and October, 1987, and two in Browns Plains which sold in June, 1987. The exercise in respect of Karana Outlook showed that the land was purchased, subdivided into 38 lots and sold between July, 1988 and May, 1990. The rate of sale as worked out by Mr Jorgensen was 2.5 lots per month. Gross returns reflected an average of $42,000 per lot. By comparison lots in the proposed subject subdivision are priced at around $65,000. The market at the time of resumption was not active. The estate would have been a new estate. The evidence suggests that a selling period based on 2 lots per month is the more realistic. The allowance for risk and profit is the next matter in issue. Here, Mr Jorgensen and Mr de Bruyn have allowed 30 percent. Mr Grennan has allowed 40 percent. Mr Jorgensen relies predominantly on the outcome of Karana Outlook. In retrospect the development returned "as profit" about 30 percent. Mr de Bruyn relies on his opinion and the opinion of another member of his firm taken from a settlement of compensation with the constructing authority at Browns Plains. Mr Grennan relies on Court determinations. The range of allowances appears to be between 30 percent to 40/50 percent. In L.M. Turner v. The Crown (1962) 29 C.L.L.R. 53, the Land Appeal Court at p. 62 said this: "It is of course not possible to lay down a rigid standard to be applied in determining the risk of realisation. The matter is one for determination in each case according to the circumstances of each case. It seems clear to us that subdividers expect, quite rightly in our opinion, a greater return on their outlay if areas are large, subdivisional costs are likely to be high, if economic conditions point to delay in -- 10 of 17 -- 10 winding up an estate and if an estate is situated some distance from centres of population and avenues of employment than they would if an estate is small, costs are moderate, economic conditions favour quick sales and the land is close to a metropolis. " In the particular case a risk and profit factor of 35 percent was adopted for development comprising 58 residential lots with an anticipated selling period of 12 to 15 months. Towards the other end of the scale, the Land Appeal Court in J.A. and I.M. Schofield v. The Crown (1968) 35 C.L.L.R. 233 determined a risk and profit factor of 45 percent in respect of land having twice the number of lots involved in the Turner case and where it appeared that a delay in obtaining approval was unavoidable. A consideration of the factors mentioned in these judgments as being relevant for the purpose lead me to the conclusion that 40% should be applied. It follows that the land may be valued before the resumption at the value advanced by Mr Grennan, that is, $1,040,082 to which he would add the value of the dwelling on the property at $70,000. The exercise reflects an englobo value of $4307 per hectare excluding the dwelling. The planning of the area after the resumption resulted in a loss of four lots. In Stapylton Road south of the resumed area between what was to be Lot 26 in the "before" plan and Johnson Road there were ten lots (Lots 27 to 36). After the resumption there will be eight lots of similar dimensions to the former with the exception of Lot 24 where the northern (side) boundary follows the funnel shape of the resumed land. The other alteration to the design in the southern area is a reshaping of the lots at the end of the internal cul-de-sac road which follows the conversion of the cul-de-sac into a T-type cul-de-sac whereby five lots are obtained in lieu of four. On the northern side of the resumed land there were five lots fronting the internal cul-de-sac road coming off Stapylton Road with northerly aspects. These lots would have had the easement crossing them between the centre and the southern boundary. In the "after" plan five lots remain - there being a widening of the frontage and a shortening of the depth with the easement being placed on or near the rear boundary. In the area of Lots 13 - 21 (9 lots) the redesign provides for six lots. In the "before" plan at least -- 11 of 17 -- 11 four were affected by the easement - three where the easement was quite near the frontage. In the "after" design two lots are affected with the easement being towards the rear. Shape and frontage has also changed. In the pricing of lots contained within the estate after the resumption (and on the basis that water is provided to all lots), it is necessary to consider not only the question of injurious affection but also the changes which have been made in design, shape and frontage. According to Mr de Bruyn, the toll road presently has a traffic count of about 8,000 vehicles per day. It is well lit, more so around the tollway. Lighting provides a glow over the area which will, in his opinion, be within the view of those lots on the north and south where the land slopes towards the east or to the point where the toll road leaves the resumed land. Similarly he submits that the traffic drone will follow up the valleys, in particular to those lots fronting the internal cul-de-sac road in the southern area. On the assumption which seems reasonable that a purchaser would construct a home on a site so as to gain the benefit of elevation and aspect, there is force in the submission put forward by Mr de Bruyn. Conversely, in those areas where elevation and aspect is the opposite, the effect must be much less if there is an effect at all. It is accepted that the lot which will be most severely affected by the use made of the resumed land is Lot 24 as this lot borders the ramp of the tollway and the toll road. Its counterpart on the north, Lot 23, has the tollway on the rear boundary. Some idea of the measure of depreciation can be taken from the figures applied to Lot 24 and those applied to Lot 27 on the plan before the resumption. Mr Grennan has the relationship at $67,500 to $75,000; Mr de Bruyn $60,000 to $90,000; and Mr Jorgensen at $ 52,500 to $65,000. Lots 22 to 26 on the "before" plan and which on the "after" plan with redesign become Lots 19 to 23 have, according to Mr de Bruyn, been depreciated from about $87,500 to $75,000. Mr Jorgensen's depreciation is from about $70,000 average to $52,500 whereas Mr Grennan has these lots reduced by the order of about 5 percent; that is, if Lot 20 is taken as a guide, from $75,000 to $71,000. In the southern area and in respect of lots fronting the T-type cul-de-sac, Mr de Bruyn would reduce the value of lots by the order of $65,000 down to $60,000 whilst Mr Jorgensen would appear to have depreciated these lots from about $70,000 to $55,000. Mr Grennan sees little depreciation in this area in view of -- 12 of 17 -- 12 the fact that the logical homesites are near the road frontage. Both Mr Jorgensen and Mr de Bruyn took their depreciation a little further away than Mr Grennan and generally followed the valleys to lots at or near the end of the culs-de sac roads. Mr Grennan's approach is based on reasoning that the depreciation would disperse after a couple of hundred metres and hence would not affect the value of lots where the logical homesite was this distance or more from the resumed land. The second part of this aspect of the case deals with the matter of depreciation of lots fronting Wadeville Street, Stapylton Road and Johnson Road. On these frontages the depreciation allowed by Mr Jorgensen and Mr de Bruyn is of the order of 4-6 percent. Mr de Bruyn who for several years was in the employ of the Department of Main Roads describes Johnson Road as a sub-arterial road. He would describe Stapylton Road as a collector road. He agrees that both are very busy roads. The purpose of the resumption was to provide a corridor between the Cunningham Arterial Road at Gailes and the Mount Lindesay Arterial Road at Browns Plains. In the absence of the corridor, access between the two points was via Johnson Road-Browns Plains Road. This access remains. Stapylton Road which he describes as a collector road takes traffic between Browns Plains and the industrial areas to the north via Blunder Road. Wadeville Street carries only local suburban traffic. It ceases just beyond the eastern boundary of the subject land. The toll road has been constructed as a two-lane road. Mr de Bruyn said that when traffic flow gets to around 16,000 to 18,000 vehicles per day it is likely to be upgraded to a four-lane road. Mr Grennan agrees with the description of Johnson Road as a sub-arterial road. He said that the road carries a lot of truck traffic from the industrial areas to the west. He would describe Stapylton Road as somewhere between a collector and sub-arterial road. He says that both are very busy roads. He agrees that the construction of the toll road should increase the traffic flow in the area around Johnson Road and Stapylton Road but, on the other hand, said that an increase in traffic flow could be expected as the surrounding areas develop. The greater part of the evidence on this issue is speculative. Mr de Bruyn's opinions came from his deliberations on what might happen. There is no evidence of traffic counts on these roads before and after the construction of the toll road. There is no evidence from a traffic -- 13 of 17 -- 13 engineer which the valuers could translate into their field of expertise. It is agreed that both Johnson Road and Stapylton Road are at present very busy roads. It is reasonable to expect that with development of the surrounding areas traffic would increase. Any increase above that which may be directly related to the construction of the road on the subject land was not quantified and in the absence of it being quantified in some reasonable form, no conclusions can be drawn. This brings me back to the primary argument regarding depreciation. All three valuers sought support in their opinions on depreciation by reference to sales of lots on a freeway and off a freeway. Such exercises were relied on by Mr Grennan not only for the purpose of obtaining some idea of the rate of depreciation but also of measuring the distance over which the depreciation would flow. In the area of Browns Plains from sales of residential lots situated on the toll road and those a few lots away, he came to the conclusion that depreciation dissipated within a couple of hundred metres. He then applied this reasoning to the subject land with the result that lots with homesites several hundred metres away from the toll road were not depreciated by either visual or noise pollution. I am influenced in this respect by the evidence of Mr de Bruyn which is to the effect that it is in some way fallacious to compare depreciation of standard size residential lots on and off a toll road with 4-hectare rural residential lots notwithstanding that logical homesites could be a few hundred metres from the road. I have considered the evidence of the pricing of the lots on the plan of the land after the resumption and set out my conclusions below. In doing so I might say that I have leaned in favour of the relativity adopted by Mr Grennan and Mr de Bruyn rather than the more general approach taken by Mr Jorgensen. Where individual prices are not listed, the gross selling price is that estimated by Mr Grennan. Wadeville Street Lots 1 - 9 $577,500 Stapylton Road Lots 10-12 $242,500 Cul-de-sac road - -- 14 of 17 -- 14 north Lots 13-15 $215,000 Lot 16 $ 60,000 Lot 17 $ 48,000 Lot 18 $ 55,000 Lot 19 $ 61,000 Lot 20 $ 64,000 Lot 21 $ 67,500 Lot 22 $ 67,500 Lot 23 $ 70,000 $493,000 Stapylton Road Lot 24 $60,000 Lots 25-31 $502,500 Johnson Road Lots 32-36 $322,500 Cul-de-sac road Lots 37-39 $194,000 Lot 40 $ 60,000 Lot 41 $ 52,500 Lot 42 $ 48,000 Lot 43 $ 48,000 Lot 44 $ 45,000 Lot 45 $ 50,000 Lot 46 $ 60,000 $363,500 Lots 47-53 $509,500 The gross realisation therefore becomes $3,480,000. This is $74,000 below Mr Grennan's gross realisation of $3,554,000. His net value was $918964 or $4064 per hectare. By comparison his exercises providing reticulated water to Lots 1 - 12 only yielded land values with the residence at $1,305,312 before the resumption (about $5300 per hectare) and $1,197,212 after the resumption (about $5300 per hectare). He followed these exercises with an estimate of compensation based on a -- 15 of 17 -- 15 "piecemeal" valuation. The calculations were as follows: Land taken 15.41 hectares adopt englobo $ 5,500 per hectare = 84 755 Injurious affection, road noise, 1,050 metres long say 10% to depth 200 metres each side i.e. 10% 1050 x 200 x 2 i.e. 42 hectares @ 550 per hectare = 23 100 Severance - 300 metre extension over corridor in Stapylton Street Electricity 30% of 6000 = 1800 Telecom = 400 2 200 These items of severance are not supported by the subdivision exercise but area practical allowance for continued use as one parcel 110 055 Mr de Bruyn did not attempt a similar exercise. Mr Jorgensen had some regard to the englobo value of the land. His estimate of the value of the parcel before the resumption is about $5,600 per hectare. Based on his hypothetical exercise, the value of the area after the resumption is about $4,500 per hectare. If the exercise is pursued, it seems to me that it would not be unreasonable to find that any injurious affection from the use of the resumed land would be completely dissipated within 300 metres and that a factor of 15% could be applied and so spread the depreciation over the whole of the lots within this ambit notwithstanding that the impact on value would vary. The last item (severance) was not covered in any detail. Mr Grennan admitted that in the subdivision of the land after the resumption, development costs would be dearer. With 58 watered lots before the resumption, development costs excluding interest are $768,900 or $13,257 per lot. With 54 watered lots after the resumption, development costs excluding interest are $760,100 or $14,076 per lot. With reticulated water in part the costs are $7924 per lot before the -- 16 of 17 -- 16 resumption and $8237 per lot after the resumption. The differences need to be reflected in the exercise. The exercise could take this form - Land 15.41 ha @ $5,500 $84,755 Injurious Affection 63 ha @ $825 $51,975 Severance - higher development costs (say) $45,000 $181,730 At $5,500 per hectare, the parcel before the resumption is worth $1,328,250. If the land is reduced in value by $181,730, the value of the parcel after the resumption becomes $1,146,520 or $5,070 per hectare. With the hypothetical exercises and this exercise, there is ever present an element of error which any prudent purchaser would resolve in his favour. In my opinion, the sensible conclusion which would be reached by the hypothetical prudent purchaser and vendor is that the land is worth $5,500 per hectare before the resumption and $5,000 per hectare after the resumption. Compensation for the taking of the land will therefore be determined in round figures in the sum of $198,000. Disturbance is agreed in the sum of $9,550. Accordingly, compensation under all heads is determined at $207,550. Advances against compensation were made in the sums of $40,000 on 9th January, 1989, and $36,500 on 31st January, 1989. A stay of interest was ordered by the Court during the period of an adjournment between 5th March, 1990, and 29th July, 1990. Interest is therefore ordered to be paid on the sum of $207,550 at the rate of 13 percentum per annum from and including the date of resumption up to and including 9th January, 1989; thence on the sum of $167,550 up to and including 29th January, 1989; and thereafter on the sum of $131,050 up to and including the day immediately preceding the date compensation is paid save that interest shall not be paid on the sum during the period of the adjournment. Acting President of the Land Court -- 17 of 17 --