C.F. Stanfield v Brisbane City Council [1990] QLAC 44 (1990) 13 QLCR 32

BETWEEN: IN THE LAND APPEAL COURT THE LAND ACT OF 1962-1989 COLIN FRANK STANFIELD v. BRISBANE CITY COUNCIL By Appeal BRISBANE CITY COUNCIL v. COLIN FRANK STANFIELD By Cross Ann eal Delivered the sixth day of June, 1990. IN THE MATTER of appeals against determinations of the Land Court Made on 26th July, 1989 re:- (a) Discontinuation of resumption for bus depot purposes; and {b) Resumption for motor omnibus purposes. REASONS FOR JUDGMENT This is an appeal from a decision of the Land Court in which the then President, Mr. W.F.G~ Smith, after a hearing lasting 5 days assessed compensation in favour of the appellant, Mr. Stanfield, in the sum of $2,161,981. From that decision appeals have been brought ~o this Land Appeal Court by Mr. Stanfield (claiming the compensation is too low) and by the Brisbane City Council ( claiming that the compensation is too high). The Council has also appealed against the assessment of $7,785 made by the Land Court in respect of fees incurred when an earlier resumption was discontinued, as well as challenging [1990] QLAC 44 -- 1 of 52 -- 2 the amount allowed for costs of preparation of the principal claim. These matters however can be left until the principal issue (compensation for the taking of the land) has been dealt with. Under s. 44(13) of the Land Act 1962-1989, on the application of the parties the appeal was conducted as a hearing de nova. This hearing lasted a further seven days. It may be observed that the evidence was directed substantially to the same issues as those canvassed at the original hearing, the principal variation being that each side saw fit to multiply the experts called to support various premises inferences and opinions relied on by the respective valuers. On Mr. Stanfield's part two valuers were called (Mr. Slater and Mr. R. Brett) and for the Council, one valuer (Mr. Rowland). In the end we think the essential contest comes down to the opinions of Mr. Slater and Mr. Rowland, the extent to which their views are supported by experts in other fields, and the extent to which they have applied their minds to the true issues. Mr. Slater now says that the value of the land taken was $8.24 million. Mr. Rowland says its value was $1 million. The subject land consists of two lots (hachured in figure 1) which we incorporate as part of these reasons. Lot 1 on RP 168843 contains an area of 6,748 square metres (about 1 .7 acres) whilst Lot 19 RP 111384 contains 38,550 square metres (about 9.6 acres). At the commencement of the hearing before this court the appellant sought to raise by amendment a claim for compensation for injurious affection. It was quantified at $7,107,500. No [1990] QLAC 44 -- 2 of 52 -- 3 such claim had been raised before the Land Court or in the Notice of Appeal to this court. The amendment sought to the present Notice of Appeal was to insert "and in the alternative, the member erred in failing to take into account the claim for injurious affection under the City of Brisbane Town Planning Act 1964 as amended attaching to the land as a result of the rezoning from Non-Urban zoning to Open Space zoning". The allegation of failure on the part of the member seems inappropriate inasmuch as no such claim was made before the Land Court, and furthermore the necessary notice to commence proceedings for such a claim was not given to the Council until just before the commencement of the hearing of the present appeal. It became clear during argument that the substance of the application was an outright injurious affection claim, which the appellant sought to include in the original assessment as confirmed or varied by this court. The amendment was refused on the basis that this court does not have jurisdiction to entertain such a claim in the circumstances of the present case. Our preliminary reasons were delivered (transcript p. 40-41) with the intimation that more detailed reasons would be delivered in due course. follow. These now The facts relevant to this issue are best stated in the following chronology: 1965 1971 1978 Subject land zoned "Non Urban" in town plan; Subject land zoned "Proposed Open Space" in town plan; Subject land zoned "Existing and Proposed Open Space" in town plan; [1990] QLAC 44 -- 3 of 52 -- f' April 1986 4 First notice of intention to resume issued by Brisbane City Council for bus depot purposes; March 1987 First notice of intention to resume discontinued; 8th April 1987 - Second notice of intention to resume issued by Brisbane City Council for motor omnibus purposes; 13th June 1987 - Bulk of the subject land in question rezoned "Special uses (utility installation)" in town plan; 23rd March 1988- Land taken by Council. Under the City of Brisbane Town Planning Act 1964-1986 any person who has an estate or interest in land which is injuriously affected by the coming into operation of any provision contained in the Plan shall, subject to the Act, be entitled to obtain "from the Council" compensation in respect of such injurious affection ( s. 13 ( 1 ) ) . It is to be remembered that resumptions of land may be effected by statutory authorities other than the Council, but it is only the Council that is made liable under this Act for the consequences of down-zoning. Sometimes, as in the present case the Council is also the resuming authority. When land is included in a zone specifie~ in the First Schedule to the Act - ( "Special Uses" zone; "Existing or Proposed Open Space" zone; "Sport and Recreation" zone) no claim arises against the Council for injurious affection to that land due to prohibition or [1990] QLAC 44 -- 4 of 52 -- .. 5 restriction of the use thereof because of such an inclusion until - "the land is first sold, or the owner receives Brisbane City Council notice of intention to resume land under the Acquisition of Land Act 1967-1977, after Plan comes into force .. " (s. 13(2)(a)), from the the (or until certain other events occur which are not relevant for present purposes). Before compensation is awarded where the land is sold or taken, the court needs to be satisfied - "that the land has been sold at a less price or has been taken for less compensation than might have been reasonably expected by the owner of the land had there been no such prohibition or restriction as aforesaid". (s. 13(3)). Section 15 sets out the formalities for making a claim on the Council. The claim must be made within three ( 3) years after the date on which the claim arose (s. 15(3)). The amount of compensation is, subject to these provisions, "a sum equal to the difference between the market value of such estate or interest immediately after the time of the coming into operation of the provision of the Plan by virtue of the operation whereof the claim for compensation arose and what would have been the market value of that estate or interest if such provision had not come into operation." ( s. 1 6 ( 1 ) (a)) . The court upon which jurisdiction is conferred to hear and determine such claims is the Local Government Court (ss. 3, 15(4)). The initial downgrading of the zoning of the appellant's land, which is the origin of the claim for injurious affection, occurred in 1971. A further downgrading of zone may be perceived to have occurred in 1978. The land remained in the ownership of the appellant at all material times. However no [1990] QLAC 44 -- 5 of 52 -- • • 6 claim for compensation could arise until a prescribed event occurred under s. 13(2). In the present case the prescribed event was the appellant's receipt of notice of intention to resume the land, which occurred in either April 1986 or April 1987. The jurisdiction of this court arises under ss. 37, 40 and 44 of the Land Act 1962-1989, and its jurisdiction includes certain claims for compensation when land is taken by a resuming authority. In such cases ss. 19 and 20 of the Acquisition of Land Act 1967-1977 apply. The authority that takes the land is referred to in that Act as the "constructing authority". In the present case the constructing authority and the authority ultimately responsible for any claim for injurious affection are one and the same - the Brisbane City Council. The land has not been taken for the purposes of giving effect to the zoning that allegedly causes the injurious affection. The question is whether this court has the jurisdiction to entertain both claims. The Land Court and the Land Appeal Court are courts of statutory creation and their jurisdiction depends entirely upon the conferral of power by statute. These courts cannot assume a jurisdiction which they do not possess, convenient though it may sometimes seem to be. On our reading of the relevant legislation (specifically the Acguisi tion of Land Act and the City of Brisbane Town Planning Act) there are two clear instances where two such claims may "merge" and where this court may be vested with jurisdiction to hear both. The first arises under s. 8(3) of [1990] QLAC 44 -- 6 of 52 -- 7 the Acquisition of Land Act. It was not suggested on behalf of the appellant that this provision covers the present circumstances. Quite simply the land has not been taken by the Council for the purpose of park or recreation. It may be said that the ordinary case which will enable the one assessment to be made by the one court under this section is the case where the injurious affection and the resumption relate to the same scheme. In the present case it may be noted that separate schemes were involved. In the circumstances it is unnecessary to discuss that provision further. The only other instance in which this court appears to be given the power to bring into account the effect of adverse zonings is s. 16(2) of the City of Brisbane Town Planning Act. That sub-section provides - "Where compensation for injurious affection is claimed under this Act, instead of paying compensation, the Council at its option pursuant to a resolution, may take the land and for that purpose shall be a constructing authority under 'The Acquisition of Land Act of 1967'. Provided that before resolving to take Council shall obtain the consent of (which consent the Minister may grant grant). the land the the Minister or refuse to In such case the owner shall be entitled to compensation as if the land were not injuriously affected by reason of the coming into operation of any provision contained in the Plan or any prohibition or restriction imposed by or under the Plan." In such a case there is a statutory direction for the purposes of the Acquisition of Land Act, i.e. to the Land Court, to assess compensation in a particular way, namely as if the adverse zonings had not occurred. However such assessments are / [1990] QLAC 44 -- 7 of 52 -- 8 required only when the taking of the land has been instigated by the claim for compensation, and when such taking is at the option of the Council pursuant to a resolution. The sub-section speaks only of a decision to resume after compensation for injurious affection has been claimed. Here no such claim was made until long after the completion of the resumption. The circumstances in the present matter do not in our view brings. 16(2) into operation. Under the particular scheme adopted by the City of Brisbane Town Planning Act the claim for injurious affection does not run with the land, and is vested in the owner. The eventual resumption of such land in no way destroys the owner's contingent right to compensation. Indeed, it enlivens such a right. Perusal of s. 13 ( 2) of the City of Brisbane Town Planning Act shows that at least in claims to which that subsection applies the claim is personal to the owner and does not run with the land. The right to compensation may of course be assigned, and no doubt commonly is assigned by an owner who sells his land before settlement of such claims has been finalised. In the absence of such an assignment it remains vested in the owner who suffered the down-zoning. Section 13(3) deserves notice. where land "is taken" the Court It provides inter alia that ( i . e . the Local Governrnen t Court), before awarding compensation shall be satisfied that the land "has been taken for less compensation than might have been reasonably expected by the owner of the land had there been no such prohibition or restriction". When this section is read with ss . 13(2) and 16(2) there can be no doubt that separate [1990] QLAC 44 -- 8 of 52 -- 9 claims may be brought against the Brisbane City Council for injurious affection and for the taking of land, and that the assessments may be made in different forums. Mr. Gallagher Q. C. for the appellant cited a number of cases to support his primary submission that the two claims have "become merged in terms of valuation"; that the claim must include not only the value of the land taken, but also the rights to claim compensation for injurious affection and that the Council could not take the land on the footing of land zoned "Open Space" without being obliged to add on the value of the injurious affection. The authorities commence with Thistlethwa y te v. The Minister (1953-1955) 19 L.G.R. (N.S.W.) p. 87. In that case, although planning with a view to the preservation of the resumed land for "Open Space" use was in train when the land was resumed, the prescribed scheme which would give rise to the claim for compensation for injurious affection did not come into operation until after the date when the land was resumed. The possibility of a claim for injurious affection was thus a matter which went with the land and was properly a matter which would be taken into account by the hypothetical prudent purchaser. Sugerman J.'s obiter discussion at p. 90 has some relevance to the present case. He said - "The valuation of land after events had happened wh i ch had given rise to a claim for compensation under s. 342AC might involve considerations other than those here involved. Such an accrued right to compensation might have to be regarded as a right personal to the owner of the land at the time of its accrual. The right might be assignable, i.e. by express assignment (cf. Dawson v. Great Northern and City Railway Co. (5)) but yet be independent of the land itself and not [1990] QLAC 44 -- 9 of 52 -- ,· 10 a factor in its valuation. Thus land might have to be valued subject to an existing statutorily imposed restriction upon use (as being a characteristic of the land itself binding it in the hands of any taker) but without regard to a corresponding accrued right to compensation (as being a separate and personal right not belonging to or running with the land itself). On the other hand the owner as at 1946 or 1948 of land in the then situation of the subject land had land and nothing more. The land might thereafter have been affected by a prescribed scheme and, if the original owner had in the meantime parted with the land, the right to compensation would then have accrued not to him but to the new owner. Both the risk of such an injurious affection and the expectancy of a right to compensation in respect thereof were thus characteristics of the land itself passing with it into whose-ever hands the land might pass to by purchase or otherwise. (It is possible that a right to compensation may thus accrue even after resumption and to the resuming authority)." In Chapman v. The Minister (1966-67) 13 L.G.R.A. 1. At p. 6, Wallace J. said - "On a resumption the owner loses the inchoate right of compensation but if such right existed at the time of resumption it is a factor affecting value when an action is brought against the constructing authority." By comparison in the subject case the inchoate right remains in the claimant and is preserved by the legislation. Because of the particular legislation it must, as we have said, remain as an item for determination in another forum and be kept separate from the issue of the value of the subject land to the claimant as zoned at the relevant date. In Commercial Banking Co. of Sy dne y Limited v. Penrith Cit y Council (1968-1970) 19 L.G.R.A. 366 the position appears to have been similar to that of Chapman and the question considered was whether the resumption deprived the plaintiff not only of the land but the attached or associated right to compensation under the relevant statutory provisions. In Pandu v. Colo Shire Council (1974-77) [1990] QLAC 44 -- 10 of 52 -- 1 1 34 L.G.R.A. 52, circumstances were comparable with those of Thistlethwa y te v. The Minister (supra) and need no further comment. Accordingly in the present case it will be necessary for the appellant to pursue his claims for compensation for injurious affection in the Local Government Court. Our jurisdiction permits us to award compensation for the taking of the land on the usual principles applicable to resumption cases, and in particular having regard to s. 20(2) of the Acquisition of Land Act and the cases which have demonstrated how the words "value of the estate or interest of the claimant in the land taken" are to be interpreted, starting with Sp encer v. Commonwealth (1907) 5 CLR 418. In this respect it is as well to note the principles which now seem well established and which must be applied to the present assessment. There is no dispute in relation to these principles. The problem lies in finding the facts to which they should be applied. The object of the assessment will be to place the claimant as far as money can do so in the position he enjoyed immediately before the resumption. It is the value to the claimant and not to the resuming authority that is to be assessed. The measure to be applied generally speaking in the assessment of value is the price which a willing but not over-anxious vendor/purchaser would negotiate on the open market as for the highest and best use to which the land may be lawfully put. All matters or circumstances which such parties would take into consideration should thus be brought into focus including the zoning at the [1990] QLAC 44 -- 11 of 52 -- J. 12 date of resumption and the prospects of that zoning being advantageously or disadvantageously altered. Because in the present case the land was resumed for the purposes of a particular scheme, a principle known as the "Pointe Gourde" principle will operate (Pointe Gourde Quarrying and Transport Company Limited v. Sub-Intendant of Crown Lands (1947) A.C. 505; Housing Commission of New South Wales v. San Sebastian Pty. Ltd. (1978) 140 C.L.R. 196; Melwood Units Pty. Ltd. v. Commissioner of Main Roads (1978) 52 A.L.J.R. 593). In short the existence of the bus depot scheme must not be allowed to appreciate or depreciate the amount of compensation payable. The special zoning attached to the land between the giving of the notice of intention to resume and the taking of the land ("Special Uses Utility Installation") was specifically for the purposes of the scheme and will not affect the relevant valuation exercise. So far as zoning is a relevant matter in the value of the land taken, the case must be determined on the footing that the land was zoned "Open Space" at the relevant time but its potential for change has to be taken into account. The assessment must not be increased by any allowance for injurious affection suffered by the appellant by reason of the earlier down-gradings in zoning of the appellant's land. The appellant's rights to compensation for those actions will fall for determination in the Local Government Court. It was submitted that the claim for injurious affection is barred in any event because the claim was made out of time. Such a submission was advanced as a matter that could defeat the amendment and ultimately defeat the claim even if it were within [1990] QLAC 44 -- 12 of 52 -- J, ,, 13 the jurisdiction of this court. It is fair to say that we have not based our rejection of the amendment upon the time limitation prescribed bys. 15(3) of the Cit y of Brisbane Town Plannin g Act, (having particular regard to s. 13(2) of that Act, and to s. 16 1 of the Acq uisition of Land Act.) However in expressing that view it is recognised that that question remains alive for the determination of the Local Government Court. Our rejection of the claim in this court is based on the other grounds already expressed above. We turn to the facts relevant to the assessment of compensation. The lots are situated within an area of Upper Mount Gravatt of triangular shape with the apex in the south, bounded on the north by Kessels Road, on the west by the South-East Freeway and on the east by Logan Road. This larger area of land which is described in the evidence as an "island" block contains, for the greater part, the Upper Mount Gravatt Regional Business Centre. The subject lots take up the southern area. The subject land is undeveloped and prior to the resumption was zoned "Open Space". As a combined parcel the land has a frontage of about 160 metres to Logan Road and a boundary of about 722 metres to the South- East Freeway. A substantial part of that part of the subject land described as "the Southern triangle" is subject to flooding. Logan Road is a designated arterial road of six lanes under the control of the Main Roads Department. That Department has made it known for more than a decade that access from Logan Road to the subject land would not be permitted for the purpose of [1990] QLAC 44 -- 13 of 52 -- 14 any land use other than for a single residential dwelling. Access to the subject land from the South-East Freeway is not permitted. The north-western part of the area adjoins land owned by the AMP Society which houses the Garden City Drive-In Shopping Centre. Immediately to the east of this part of the subject area, there is a parcel of land which is referred to in evidence as the Village Roadshow land. Between the Village Roadshow land and the southern part of the subject land - that part with frontage to Logan Road - there is a parcel of land which was owned by one Dendle. This land was purchased by the respondent Council for the same purpose as that for which the subject land was resumed. The respondent first showed its intention to take the subject land on 18th April, 1986, by the issue of a notice of intention to resume the lots for "bus depot purposes". About twelve (12) months later - 18th March, 1987 - a notice of discontinuance was issued. On 8th April of the same year a notice of intention to resume the lots for "motor omnibus purposes" was issued and the land was taken under the provisions of the Acquisition of Land Act on 23rd March, 1988. Under relevant Brisbane Town Plans including the 1987 plan, the concept of a Regional Business Centre forms part of the provisions relating to the Business zone. In the area of Upper Mount Gravatt, the Business zone, speaking broadly, includes a prescribed Regional Business Centre consisting of the northern portion of the "Island block", and other land radiating from the intersection of Logan Road and Kessels Road (the western arm of [1990] QLAC 44 -- 14 of 52 -- .... 15 which is Kessels Road and the eastern arm of which is known as the Mount Gravatt-Capalaba Road). Neither the subject land nor Dendle's land has ever been included in the Regional Business Centre. The Village Roadshow land was included in the centre in the Plan which became law on 13th June, 1987. In the area of the City of Brisbane, there are four (4) defined Regional Business Centres. There is Chermside on the north, Indooroopilly in the west, Upper Mount Gravatt in the south and Carindale in the east. The establishment of such Centres is designed to relieve pressure on the Central Business District. The intent may be taken from cl. 10.3.2 of the 1987 Plan which we do not set out, but which indicates the functions that Regional Business Centres are intended to serve, and exposes the policy behind their provision. In addition to compactness and integration of developments within a centre itself, land designated Regional Business Centre has two distinct advantages over other land within the Business zone. In the Business zone, the maximum plot ratio is 1. 0. Within that part of the Business zone included in a Regional Business Centre, the maximum plot ratio is 2.5. The second is that substantially higher buildings are allowed in the Regional Business Centre. What is meant by compactness and integration of development appears to be clearly defined in the paragraph of cl. 10.3.2 beginning with the words "Development of any Regional Business Centre " and ending with the words "should be properly integrated at all stages." There are about 29 hectares of land contained within the Upper Mount Gravatt Regional Business Centre. The Centre [1990] QLAC 44 -- 15 of 52 -- 16 contains the Garden City Drive-In Shopping Centre, a number of office buildings and a bus interchange. The land is held under four (4) ownerships with AMP holding 84.9 per cent on which is constructed the shopping centre, followed by the Village Roadshow holding 8.3 per cent (vacant), Pidgeon and Sons Pty. Ltd. holding 5.7 per cent (commercial offices) and Shell Company of Australia holding 1 . 1 per cent ( service station) . It is apparent that the AMP land holdings and developments dominate the area. The internal works provided by AMP include a link- road from Logan Road entering the south-eastern area (directly opposite the Newnham Road-Logan Road link-road provided by AMP) which circles the site to meet Kessels Road in the north-western area at a point referred to as the Kessels Road-MacGregor Street intersection. The bus interchange is in this north-western area and there is a roundabout to the north of the western area of the Village Roadshow with a road running northerly and then easterly therefrom connecting with Logan Road between Kessels Road and the Newnham Road link-road. Newnham Road south of the link-road joins Logan Road opposite the frontage of the Village Roadshow. Access to the Centre from residential land west of the Freeway is via an overbridge from Wadley Street which enters the site near the interchange. In a Deed executed between AMP and Brisbane City Council in May, 1985 covering inter alia the rezoning of land to accommodate an extension of the development southerly (Garden City Stage II), there is provision that AMP in the layout of the area which is to be provided and set aside for the parking of motor vehicles and access ways "will make provision for [1990] QLAC 44 -- 16 of 52 -- ,_ 17 vehicular access between the Wadley Street-Logan Road link-road and the lands to the south of the amalgamated lands generally in the position indicated on the Plans comprising the Sixth and Seventh Schedules hereto". The Schedules contain designed access running south from the link-road roundabout towards the rear of the Village Roadshow. At the date of resumption the Village Roadshow was vacant land. It still is vacant land although much has been done towards achieving its development. The land has frontage to Logan Road opposite the junction of Newnham Road. The land is of lower elevation than the adjoining AMP land and is broken by a gully at the rear. The land consists of two (2) adjoining parcels of rectangular shape containing areas of 2.0236 hectares and 4,219 square metres. The larger parcel was purchased by Pidgeon in November, 1984, for $1.2 million and the smaller in May, 1985, for $250,200. The purchase in each instance is equivalent to a price of $59.30 per square metre. The land was zoned "Non-Urban" in the 1965 Town Plan and subsequently zoned "Future Urban". The land was within this zone when purchased by Pidgeon. It remained as such when included within the boundaries of the Regional Business Centre in the 1987 Plan. On 1st July, 1988, the land was sold to a consortium for $4,450,000 ($182 per square metre). Uses proposed for this site comprise entertainment, hotel and office development comprising two high- rise tower blocks and one low-rise complex containing 8 - 10 cinemas. Approval for the development was formally obtained subsequent to the date of the resumption. [1990] QLAC 44 -- 17 of 52 -- 18 The land of Dendle is of somewhat similar shape to the Village Roadshow and contains an area of 1.213 hectares. This land was purchased by the respondent on 6th June, 1986, for $410,000 or about $34 per square metre. Dendle's land is lower again in elevation than land to the north. In common with the Village Roadshow, this land was in 1965 zoned "Non-Urban" and subsequently zoned "Future Urban". We come then to the subject land. Lot 19 comprises two triangles with the hypotenuse on the south with the north- western area touching the southern area by a narrow neck. Lot 1 is a low-lying area in the southern part. The contour of the land falls from a level of about 48 metres in the north-western tip to around 26 metres in the south. The land straddles a south facing ridge and is cut by a gully which affects both triangles. Lot 1 comprises low-lying creek flats on Bulirnba Creek an anabranch of which severs the area and affects the south-eastern corner of Lot 19. Through the development of Garden City - Stage II, the area of Lot 19 adjoining AMP is isolated therefrom by a long high earth bank. The lower area is subject to flooding. In the highest recorded flood (1974) which reached a level of RL 29.5 metres about 28 per cent of the area was affected. A number of other floods have reached RL 28 or above since recordings were first made in 1966. In its present state, the land receives stormwater drainage from Garden City - Stage II and from the South-East Freeway. The land has been in the ownership of the claimant since 1946, formerly as part of a larger landholding which has in the course of time been severed [1990] QLAC 44 -- 18 of 52 -- 19 by the development of the Freeway and the part to the west of the Freeway put into single unit residential usage. In the 1965 City Town Plan, the subject land was zoned "Non-Urban". In the 1971 Town Plan the land was zoned "Proposed Open Space". In the 1978 Town Plan the land was zoned "Existing and Proposed Open Space". In the draft Town Plan of 1986, Lot 19 was proposed to be included in the "Special Uses (Utility Installation)" zone and Lot 1 was proposed to remain "Open Space". The zoning of the land as "Open Space" commenced with a review of the Plan in 1967. It came about through a proposal to establish recreation areas and natural habitat corridors surrounding Bulimba Creek and its tributaries. The scheme was publicised as the Bulimba Creek Scheme. The resumption of the subject land followed, as can be expected, a chain of investigation and decision making by the respondent and between the respondent, the Main Roads Department, AMP and the owners of the Village Roadshow. Within the departments of the respondent, the need for a bus depot in this part of the City seems to have been first recognised in a memorandum dated in May 1984 from the Department of Planning and Co-Ordination to the Department of Transport in which reference was made to a site size of about 4 hectares, to zoning, to compatibility of a bus depot with other land uses and to the identification of sites within seven kilometres of Garden City. The Establishment and Co-Ordination Committee of the Council at its meeting of 17th September, 1984, resolved that a Working Party comprising the Department of Transport, a representative from the Property Management Office and a representative from [1990] QLAC 44 -- 19 of 52 -- 20 the Department of Planning and Co-Ordination, be established to report on the identification of suitable depot sites near Garden City and Chermside. In the memorandum from the Department of Transport to the Department of Planning and Co-Ordination, it is stated that the identification of a site as close as possible to Garden City is the more pressing of the two sites. By 28th May, 1985, progress towards resolution of a suitable site had reached the stage where the subject land and Dendle 1 s land were identified as suitable sites although not to the exclusion of land adjoining to the north. It is evident in that memorandum that discussions had taken place with the owners of the Village Roadshow. AMP was aware of the proposal. It spoke about the matter in a letter to the Council in June of that year. On 16th April, 1986, the Planning Policy Advisory Committee of the Council proposed that boundaries for the four Regional Business Centres be defined. The first notice of intention to resume the subject land issued on 18th April, 1986. On 6th June, 1986, Dendle's land was purchased by the respondent. The claim for compensation for the taking of the subject land was filed in court in November, 1988. The claim was for $8,177,165. At the commencement of the hearing of the matter in the court below, the claim was amended with leave to $10,023.165 made up as follows:- Land Disturbance Costs of preparation of Claim Town Planner's fees Traffic Engineer's fees Valuation fees Legal fees TOTAL $ 5,332 $ 280 $16,053 $ 1 1 500 $10,000,000 $ 23 , 165 $10,023,165 [1990] QLAC 44 -- 20 of 52 -- 21 The respondent led evidence of a land value of $1 million. The valuation relied on by the claimant was made by Mr. M.J. Slater, registered valuer .. He had consulted with experts in other relevant fields and these experts gave evidence. Mr. J.R. Humphreys, a town planning consultant, gave evidence as to the most appropriate zonings for the resumed land on the assumption that it had not been required for bus depot purposes. Mr. J.M. Norling, a market economic and finance consultant, gave evidence as to projected rates for office accommodation development in the Upper Mount Gravatt locality. Mr. P.G. Breene, a consulting engineer and planner, gave evidence as to the drainage and flooding propensity of the resumed land and Mr. N.D. Viney, a Master of Engineering Science specialising in Traffic Engineering, gave evidence as to access to the resumed land and in particular the design of a new four- way Newnham Road-Logan Road intersection. The valuation presented on behalf of the respondent was that of Mr. P.N. Rowland, a registered valuer in its employ. Evidence was also given on its behalf by Mr. R. Littlejohn, an urban and regional planner; Mr. J.A. Hanisch, a town planner; and by Mr. T.E. Johnston, an engineer employed by the respondent as Assistant Traffic Engineer (Development). The view taken by Mr. Slater may be stated with some brevity. He considered that the restrictive conditions of the "Open Space" zone were clearly inappropriate in 1988. He was of the opinion that on an application of correct town planning principles, the subject land should have been included within the boundaries of the designated Upper Mount Gravatt Regional [1990] QLAC 44 -- 21 of 52 -- 22 Business Centre and zoned "Future Urban" at the date of resumption. development He valued the land for a highest and best use as a site for commercial use and he applied no discounting of the value of $225 per square metre applied _to the site on grounds that the potentialities in the land for this use would have been immediately realised at the date of the resumption but for the resumption process and that access would have been available. The purchase by Village Roadshow at $182 per square metre figured prominently in this assessment. It is apparent in what we have said that Mr. Slater ignored the "Special Uses" zoning and he ignored the zoning of "Open Space" on ground that the Scheme behind it (the Bulimba Creek Scheme) was effectively dead. In other words, his argument may be put this way - that if the history of the Village Roadshow is taken as a guide and both Schemes affecting the subject land put out of mind, the land would have followed the path of the Village Roadshow and would have at the date of resumption been included within the boundaries of the Centre and zoned "Future Urban". Mr. Rowland's assessment discarded the "Special Uses (Utility Installation)" zoning as it was in his words "merely a zoning step entirely due to the public purpose underlying the resumption''. This is a correct recognition of the Pointe Gourde principle. (Pointe Gourde case (above)). He valued the land as being zoned "Open Space" with a portion thereof having limited commercial development potential. An area of one hectare was identified as the area having this limited potential and valued, after comparison with sales including the Village Roadshow and discounted for risk, at $700,000 to which was added a value of [1990] QLAC 44 -- 22 of 52 -- 23 $300,000 for the balance area of 3.5307 hectares. In the final paragraph of his valuation under the heading of "Zoning", Mr. Rowland observed - "The prior (1971-1987) Open Space zoning was a preliminary step for the proposed Bulimba Creek Scheme which envisaged recreation areas and natural habitat corridors surrounding Bulimba Creek and its tributaries. The Open Space zoning is much more restrictive of the use to which the subject lands may be put than the previous Non-Urban Zone (1965-1971)." Although looking for potential in the land over and above that of "Open Space" zoning and identifying an area with such potential, he valued the balance area as having value as a long- term holding proposition. Whilst accepting the Pointe Gourde rule excluded any appreciation or depreciation in the value of the land by reason of the resumption, the parties then directed their evidence to the issue whether the Bulimba Creek Scheme was effectively dead or alive. The learned former President concluded that it would be commercially realistic to regard the commercial potential as applying to the whole of the northern triangle of about 1.4 hectares and he valued the area at $135 per square metre less an allowance for risk at 20 per cent which yielded a figure of $1,512,000. The balance area was valued in relation to sales of land purchased for long-term holding purposes (consistent with the approach taken by Mr. Rowland) and after allowing for the superior situation of the subject land to the sale lands, he applied a value to this land at a rate of $20 per square metre to the whole of the area including the low flooded land in the southern part, some of which is below the Flood Regulation Line and not reasonably capable of development on the basis that this part of the area would be available for [1990] QLAC 44 -- 23 of 52 -- 24 landscaping and plot ratio purposes. The application of the figure to the area of 3 .1350 hectares reflected the sum of $627,000 which brought up a sum of $2,139,000 or $2,140,000 as compensation . for the land. A determination in that sum was accordingly made. Upon the appeal to this court both valuers gave essentially the same evidence and opinions as before. The court was however subjected to a formidable volume of material supplied by a barrage of expert witnesses. There is considerable overlapping and prolixity in the material. Those called by the appellant sought to minimise the difficulties of development of the site and advanced ways and means of overcoming them. Those called by the respondent underlined those difficulties, and emphasised the problems that would be apparent to any potential purchaser of the land at the relevant date. It is worthwhile to mention in list form the experts called by each party. The appellant called Mr. Challenor ( town planner), Mr. Middleton (architect and project manager), Mr. Todd (town planner), Mr. Humphreys ( town planner), Mr. Eppel ( traffic planner) , Mr. Breene property consultant) (consulting engineer), Mr. Crane and Mr. Mc Innes ( town planner) . (real The respondent called Mr. Hanisch (town planner), Mr. Abnett (town planner and economist), Mr. Harper (civil engineer), Mr. Maher (hydraulic engineer) and Mr. Johnston (traffic engineer). We preface the evidence we are about to discuss with matters which are not in dispute. The subject land is in an undeveloped state. It is of irregular shape and it is effectively land-locked. It has a total area of 4.53 hectares [1990] QLAC 44 -- 24 of 52 -- 25 (about 11 . 4 acres) . It adjoins land within the Upper Mount Gravatt Regional Business Centre. The land is within view of the South-East Freeway. The land in the south-eastern corner is severed by an anabranch of Bulimba Creek. The land has been in the ownership of the claimant since the inception of the "Open Space" zoning. He applied to the Council in 1973 to have the land rezoned "Future Urban" and offered the Council about 1 . 6 hectares in the south-eastern corner. The application was refused. In 1974, he again wrote to the Council requesting that Council include the land in a higher zoning in the next Town Plan and again offered the Council land in the south-eastern corner. In the Plan (1978) which followed the application, the land was zoned "Existing and Proposed Open Space". In 1977 the claimant wrote to the Council requesting consideration in principle to a rezoning of the land to a zone which would allow the land to be used for a sporting complex. He was advised that the application was considered by the Planning Policy Advisory committee and that, because the nature of the enquiry was one which would require a detailed investigation to a degree normally associated with a formal application, such an application should be made. He was also advised to discuss with the Main Roads Department the question of access to the site. No formal application was made. He decided to bide his time. In November, 1985 he became aware that Brisbane City Council intended to resume the land. The land was therefore in this raw state physically and zonally when acquired. The compensation sought before this court is either of the revised valuation of Mr. Slater at $8,240,000 which is a sum [1990] QLAC 44 -- 25 of 52 -- 26 directly related with the selling price of the Village Roadshow at $182 per square metre on 1st July, 1988, or in the sum of $7,630,000, being an assessment written by Mr. R.L. Brett. He also assessed compensation in direct relationship with the sale of Village Roadshow but, given the relative merits of both parcels, he applied $180 per square metre to that part of the subject land excluding the lower land around Bulimba Creek. The lower land he valued at $90 per square metre (5,800 square metres) on grounds that the land has value to the extent that it contributes in area to plot ratio calculations and provides an amenity and attraction for an overall scheme. He valued the land on the premise that, if the schemes were ignored, the subject land at resumption would have been in the position of the Village Roadshow land with consequences which he summarised as follows - "Rezoning would have been a matter of time rather than risk - there is no reason why agreement would not already have been reached with the AMP securing access via its internal link-road - that on relative merits with the Village Roadshow land, size was not a discounting factor." The flaw in both exercises apart from ignoring the realities of the actual zoning is that, whilst the effects of the resumption (which began in 1985) should be disregarded in determining compensation, it is wrong to assume that the subject land at the relevant date would have been in the position of the Village Roadshow, and to assume that the subject land should be valued as if it was in that position. If the land possessed a potential for a higher and better use the potential forms part of the value of the land but it is the present value alone of that potential which has to be valued at the date of resumption. [1990] QLAC 44 -- 26 of 52 -- 27 "You must not notionally bring what is only potential into being and value it as if it existed" - (Per Dixon C.J. in Turner v. Minister for Public Instruction (1956-1957) 95 C.L.R. 245, 268. The planners called on behalf of the appellant dealt with the concepts of Regional Business Centres, of the location and suitability of the subject land for uses compatible with the concept and of matters relevant to that object being achieved by a prospective purchaser/developer of the subject land. They all expressed the opinion that the current zoning of "Open Space'' is inappropriate and that given the location of the land to the defined Regional Business Centre and its location within the "island" block, the land is strategically placed to take up a continuance of the development of the Centre, with particular regard to those matters contained in cl. 1 0. 3. 2 which are expressed in the negative. The matter which must first be addressed from a town planning point of view is that of the relevance of the Bulimba Creek Scheme and the prospects of the hypothetical prudent purchaser achieving a higher zoning. As explained by Mr. Todd who held the position of consultant to the Council on review of the Plan which culminated in the 1987 Plan, land may be included within the boundaries of a regional business centre although not zoned "Business". This may occur as a pro-active application of planning policy by the Council in providing for anticipated growth of a centre. When such land is included development is subject to a rezoning application with rezoning being dependant on a comprehensive co-ordinated development proposal. He did not consider it repugnant to the intent of a regional business centre to have "Open Space" land [1990] QLAC 44 -- 27 of 52 -- 28 as such included within the centre although he did not see any particular need for it. The principles he highlighted in determining the boundaries of a regional business centre were these - "Compactness, encouragement of comprehensive development with a reasonable restriction on pedestrian movement provide certainty for the scope limited road access - boundaries amended by Council." road system - defined area to of development - only able to be He and Mr. Humphreys pointed to areas in the history of development of the Bulimba Creek Scheme since its inception in 1967 which, on consistency of application and in their opinion on correct town planning principles, would limit the retention of the lower part only of the subject land for "Open Space" usage. Mr. McGuiness approached this question from the point of view of change in development which has occurred over the years including the growth of the Mount Gravatt business area and Mr. Challenor tacitly recognised that the lower area (below the regulation line) would be best kept as "Open Space" but pref er ably in the hands of a developer. The Bulimba Creek Scheme was announced publicly in 1967. In the plan accompanying the announcement, the whole of the subject land is included in the scheme. The announcement stated that the purpose of the scheme was to provide beautification and recreation areas and to divide residential areas into communities with their own open space. The evidence has demonstrated that in the course of time the scheme has been moulded to provide more of a corridor of recreation area as explained in Planning Policy 11.01 adopted by the Council on 23rd June, 1987. Clause (1) of the Policy under the heading "Implementation" reads as follows - [1990] QLAC 44 -- 28 of 52 -- 29 "Consequently, any proposal for the development or subdivision of any land abutting Bulimba Creek should provide: ( i) an open space corridor along the creek's banks for walking, cycling and other recreational pursuits. The dimensions and details of this open space corridor will vary from site to site and will be determined in any particular case with reference to the following guidelines: (a) the open space corridor should include as a minimum, land from the low flow bank of the creek ( or the high water mark for tidal sections of the creek) to the level of the 1: 20 year flood frequency mark. In most circumstances, this will allow for the construction of a bikeway and other recreational facilities on sections of the flood plain which are relatively flood free and which would not necessitate constant rehabilitation by Council of community facilities after minor flooding; and (b) in cases where the open space corridor cannot provide for continuous pedestrian and cycle routes due to such factors as soil condition, drainage problems or unsatisfactory grades, Council may require an alternative part of the site to be provided so as to ensure continuity of these facilities;" Mr. Humphreys stresses and Mr. Todd concurs that the implementation of the scheme appears to have been made in the manner stated in Policy 11. 01 and that the scheme could be satisfied in the subject case by reserving the lower land for open space. Those who gave evidence on this aspect of the matter on behalf of the respondent were Mr. R. Littlejohn, whose evidence before the lower court is before us, and Mr. J. Hanisch, who gave evidence below and again before us. Both are town planners in the employ of the respondent. The evidence of Mr. Littlejohn covered the scheme and the matter of office demand in the area. (Mr. Littlejohn said he could not [1990] QLAC 44 -- 29 of 52 -- 30 justify the inclusion of the subject land in the Upper Mount Gravatt Regional Business Centre as designated in the 1987 Plan because there was adequate area within the Centre and the strategy was to continue to reflect the "Open Space" zoning that had been in place since 1971.) Mr. Hanish became involved in the matter in October, 1986, when the Development and Planning Department of the respondent wrote an assessment of the development potential in the subject land "to assist in arriving at a realistic valuation of the property". The report dealt with the development potential in the land having regard to topography, location, access and flooding and zoning. It did not address the question of the Bulimba Creek Scheme. Rather it set out to identify land which might have development potential. To this end an area of one (1) hectare in the north-western part of Lot 19 adjoining the AMP land was identified as having limited development potential. Mention was made of a further area of .5 hectare to the west of the flooded area which was thought to be up to RL 31 metres when the report was written and the balance having no potential. On a review of the matter, considering contours drawn up by the respondent from ground surveys, he is now of the opinion that an area of about two (2) hectares has development potential. We are of the opinion that the respondent's planners did not proceed consistently with the relevant principles in Policy 11 . 01 . Where in circumstances similar to those of the subject case there exists a potential in land for a higher and better use the fact that the potential may not arise for some considerable time is not a ground for retaining the land in "Open Space". Rather such potential is a [1990] QLAC 44 -- 30 of 52 -- 31 matter going to the value of the land. In the maps appended to Mr. Humphreys report and found also in the plans accompanying the evidence of Mr. D.E. Maher, an engineer in the employ of the respondent, residential "B" development in Lani Street which is immediately downstream of the subject land and on Bulimba Creek has been permitted to the Regulation Line. Immediately to the west of the subject land and across the Freeway, single unit residential development would appear to have been permitted to a level slightly above the 197 4 flood level. The regulation line severs Lot 1 diagonally whilst RL 29.5 enters the south-eastern section of Lot 1 9 and substantially takes up the Logan Road frontage including, in part, the anabranch of Bulimba Creek. In the potential development scenarios put before the court by Mr. Middleton development is envisaged which although intruding in part into an area covered by the highest recorded flood is set well back from the regulation line and basically reserves for open space, an area consistent with the line of open space reservations of land reflected in the developments immediately to the east and west and which would allow for the construction of a bike-way along the northern bank Bulimba Creek. That the land may be offending Policy 11 .01 has support in of the anabranch of so developed without the action of the Transport Department of the respondent in planning the depot to cover the area to the exclusion of Lot 1 and the south-eastern corner of Lot 1 9 . We are of the opinion that were the respondent placed in the position of re-acting to an application for permission to develop the subject land along such lines, it [1990] QLAC 44 -- 31 of 52 -- 32 would on correct principles accede to a request to reserve only so much of the land in open space as is contained in the Plans of Mr. Middleton. The area appears to coincide with the area estimated by Mr. Brett at 5,800 square metres. Mr. Middleton provided design strategies for the subject site in isolation and as part of a megasite incorporating the land of Dendle and the Village Roadshow in which the subject land would gain the benefit of access via either or both these parcels in addition to obtaining access from the AMP land in the north-western area. He regarded the site as being well-suited topographically for development purposes and his designs postulated commercial and other uses. The development scenarios were put on short to medium to long term with the short-term design being based on plot ratios of . 54 and 1 . Mr. Breene examined the engineering aspects of the development whilst Mr. Eppell made a study of the effects development would have on traffic flow and the capacity of roads and access ways including the link-road within the AMP site to take the additional traffic. Comparative development costs and matters of traffic generation were covered by the respondent's witnesses Maher, Johnston and Harper. The evidence was presented with much optimism and detail but the problems were not satisfactorily solved. We do not think it is realistic on the facts to consider a development of the land as part of a megasite with the land of Dendle and the Village Roadshow. In practice, the introduction of another owner or owners into negotiations on access and, if all were prudent, on complementary development introduces a [1990] QLAC 44 -- 32 of 52 -- 33 further area of speculation which on ordinary business principles would favour the advantaged over the disadvantaged and could add materially to delays and expenses in resolving difficulties and achieving objectives. Mr. Todd was careful to point out in the final paragraph of his report that the actual development of the land would depend on many factors, including access, type of use proposed and the need for that use. The comment is applicable equally to the adjoining land. We may take this further on the facts by returning to the position when the resumption was proposed. The prudent purchaser in our opinion (and this goes to possible purchasers of the adjoining lands including Pidgeon) would bank on a course which is more likely to occur and with more degree of certainty than one containing all these elements of possible controversy. Among other deficits there is no evidence to demonstrate that at that time development of Dendle's land was contemplated. It may be observed that neither Dendle' s land nor the Village Roadshow land have the topographical constraints of the subject land, and overall are superior to it. The development of the Village Roadshow land and project shows orchestrated planning over a lengthy period with eventual agreement between multiple commercial entities. It was the product of careful planning and ad hoc achievement that cannot automatically be transposed to the subject land. The Village Roadshow land purchases were completed in May 1985. The purchaser of that land was in the business of land development. Previous to the purchase by Pidgeon, development of the site had been considered on at least two occasions by the [1990] QLAC 44 -- 33 of 52 -- 34 Planning Policy Advisory Committee of the Council. In 1981, the Cammi ttee in reacting to a proposal to rezone the land to "Residential B" zoning decided that it would oppose the proposal on grounds that "any development on the subject site should be properly integrated with any proposed development on the adjoining land to the north and developed in conjunction with any such proposal . Furthermore, no direct access would be permitted to Logan Road from the adjacent site at this intersection." In June 1984, the Committee, in resolving that a formal application to re-zone the site to a commercial zone would have reasonable prospects of approval, foreshadowed a number of conditions including the following - " (vi) no direct vehicular or pedestrian access to Logan Road and that the buildings and entrances to be orientated towards the proposed A. M. P. car parking and access road to be constructed as part of the major extension to the existing Garden City Shopping Centre. In this regard no development could be approved without access being available through the adjacent A.M.P. site or being appropriately zoned;" Within three months of acquiring the site, Pidgeon made application to rezone the land to suburban commercial for 36,680 square metres of offices in multi-storey buildings with access through the AMP site only. No decision on the application was made until February 1986 when the Committee raised no objection to the proposal. By that time, however, the respondent had come on the scene as a potential owner of the land ultimately resumed and the decision which followed incorporated matters relevant to the depot proposal. It follows that it is not inconceivable that if the respondent had no proposals for a bus depot for the [1990] QLAC 44 -- 34 of 52 -- 35 site, the approvals governing the development of the Village Roadshow land would have followed the intent expressed in the Planning Policy Advisory Committee's decision of June 1984 and as requested in the application for rezoning dated August 1985. In our view a development of the subject land with the adjoining lands is more in the nature of an outside chance than a realistic prospect. Other conceptual designs for the subject land in the short and medium term drawn up by Mr. Middleton were in the form of the land being developed in isolation. The plans provide for access to the site from the internal link-road following the eastern boundary of the northern triangle and thereby leaving a substantial platform for development and car-parking to the west of it before coming through the narrow neck joining the triangles with car-parking on the west and thence travelling east along the northern boundary of the lower triangle ending in a cul-de-sac and leaving a substantial platform for development purposes to the south. The building platforms are placed at levels of RL 37, 33 and 30, cut and fill is required up to 4 metres in places and foundations would require piling. Drainage would be required. The development would sit below the AMP development. The uses contemplated in the drawings of Mr. Middleton in the short term are on a plot ratio of .54 - and 1 comprising office space of 9,600 square metres, medical centre of 2,000 square metres in the northern triangle and retail warehousing of 12,300 square metres in the southern triangle and over part of Lot 1. In the medium term and by adopting a plot ratio 1:1, the office component is enlarged to 42,807 square [1990] QLAC 44 -- 35 of 52 -- 36 metres. The plot ratio he adopted was determined on the basis of what he considered was the best fit for the land in the context in which he examined it. Mr. Humphreys, in his considerations of potential uses including the above, was of the opinion that subject to obtaining planning approval and settling access, some such uses could be established at this time whilst the range of uses could take 5 to 10 years. He imagined that the office component might intensify after that period and that one might get a replacement of the retail warehouse after that period. Mr. Slater did not discount retail warehousing as an interim use. We return briefly to the evidence which revolves around the factors mentioned by Mr. Todd. In other areas of his evidence he speaks of developers getting their thoughts together and generating plans. the taking of In practice, these events can occur following an option over land but in this case a hypothetical buyer must be envisaged who is prepared to purchase the land unconditionally. Prior to entering negotiations, he can be expected to have researched the demand for commercial uses and other uses in the area and he may well have ideas on a development which he believes would satisfy a need in the area. He could be expected to have knowledge of the planning processes and of the necessity to convince the Council that what he proposes will be of benefit to the locality. He is unlikely to have achieved, prior to the taking of ownership and putting a proposal before the authorities, any commitment or agreement from either AMP or the Main Roads Department concerning access beyond that which is evident in the Deed. The Deed contains a [1990] QLAC 44 -- 36 of 52 -- 37 covenant, enforceable by the Council obliging AMP to design access to the land to the south. The obligation lacks the specificity that would give comfort to the hypothetical developer to the south. It falls well short of solving or even offering a solution to the acute access problems that always confronted development of the subject land. Mr. Eppell addressed the question of traffic generation and flow. He identified problems and proposed solutions together with the costs of achieving those solutions. The Kessels Road MacGregor Street intersection currently is operating at capacity. No clear solution was offered. The roundabout within the link-road would have to be expanded and traffic lights rephased. The matter of the availability of land for commercial purposes, mainly for office use within the area of the business zone in Upper Mount Gravatt, was covered extensively by the parties in the Court below and again in this Court. This was one factor which influenced the minds of the respondent's planners in concluding that the land should remain in the open space zoning. Although we did not hear from Mr. Littlejohn in these proceedings, some of the evidence he covered was covered before us by Mr. R. Abnett. We do not propose to discuss this evidence in depth. It is clear that within the area of the business zone which covers an area of about 40 hectares including the land within the Regional Business Centre there exists, conservatively, in excess of 100,000 square metres of potential office space including a potential for same contained in about 7 hectares of vacant AMP land bordering the link-road. Long term forecasts of 20 years or so before the area would [1990] QLAC 44 -- 37 of 52 -- 38 reach density appear to be realistic. In the short to medium term, we consider there is merit in the concepts put forward by Mr. Middleton. As concepts they were not found objectionable by any witness and there are sales by which the present value of the land for those purposes can be ascertained. The sales of course would include any present value of long term prospects and for this reason we will address that issue no further. The weight of the evidence leads us to a conclusion that were the subject land available for development at the date of resumption, the likely hypothetical prudent purchaser would be looking at the uses envisaged by Mr. Middleton of office/medical centre in the northern triangle and retail warehousing in the south. We are not satisfied that the price he would pay would be materially influenced by the long-term forecasts. Mr. Slater put details of some 22 sales before the court. Some have also been considered by Mr. Rowland. The majority occurred after the relevant date but we can find sufficient evidence in the body thereof that tends to support a number of conclusions. In the court below and again in this court, the valuers appear to be in agreement that the most relevant sale is the sale of the Village Roadshow land. This land sold in July 1988, at a figure representing a selling price of $182 per square metre. The development envisaged is substantial. In June 1989, an area of 25,397 square metres situated in Capalaba Road to the east of the Kessels Road-Logan Road intersection was purchased by Leighton Properties for $5,870,000 or about $230 per square metre. The land was at the time within a "Particular Development" zoning which limited usage to commercial office [1990] QLAC 44 -- 38 of 52 -- 39 purposes. The land was purchased for such usage. The sale occurred well after the date of resumption and it has been admitted by Mr. Slater that the market rose in that period. He was of the opinion that the rise in the market could account for at least 20 per cent of the purchase price. The sale is of land zoned for the purpose for which it was purchased, it has no access problems, has reasonable topography and is reasonably situated to the hub of the business area. If his discounting of the sale for the rise in values is taken as being correct, the sale supports the sale of the Village Roadshow land at $182 per square metre. In June 1988, an area of 18,060 square metres situated within the Carindale Regional Business Centre and zoned "Particular Development" sold for $2. 5 million or $138 per square metre. The evidence is that the Mount Gravatt Business Centre is a more progressive Centre. The sale supports the sale of the Village Roadshow. Turning then to sales of land that were bought for warehousing purposes, there is a sale of 25,200 square metres situated at 1290 Logan Road which was bought for this purpose for $4,030,000 or about $160 per square metre in November 1988, after the resumption and in a rising market. It is agreed this land has no access problems for commercial development and it was zoned appropriately as "business" at the date of purchase. In March 1988 and just prior to the date of resumption, an area of 19,904 square metres situated at 557 Kessels Road, MacGregor, was purchased for $1,250,000 or $63 per square metre. The land was developed following sale for retail warehousing purposes. Mr. Slater considers that the selling price of this land is slightly low. He considers that the land [1990] QLAC 44 -- 39 of 52 -- 40 has not the best of shape in that the narrow frontage is the road frontage and that the site has access problems - there being delays at times in crossing the traffic flow on Kessels Road for eastbound traffic entering and leaving the site. Of the two sales which appear to provide the upper and lower market for retail warehousing land, the lower part of the subject land appears to us to have more in common with the last mentioned sale than with the former. Mr. Rowland adhered to the valuation that he had placed before the lower court. He viewed the commercial potential in the subject land in the light of its physical and commercial isolation from the old-established business area centred around the intersection of Kessels Road and Logan Road; he had regard to the difficulty of obtaining reasonable vehicular access, the physical constraints of the site of contour and shape and the need to obtain rezoning and development approval. His use of the sale of the Village Roadshow land began with a discounting factor of $500,000 which, in his opinion, was a fair reflection of a premium a purchaser would pay for the benefits derived from the efforts of Pidgeon towards development approval. He then applied the result - about $150 per square metre - to that area of the subject land which he considered had limited development potential at a rate of $100 per square metre and discounted that by 30 per cent for the risk of obtaining rezoning and development approval. The balance of the land was valued at the rate of about $10 per square metre exclusive of Lot 1. In the evidence of Mr. Todd it is clear that even if the land were included in the Regional Business Centre it would not be included in an as- [1990] QLAC 44 -- 40 of 52 -- 41 of-right zoning and thereby require an application for rezoning, the success of which would be dependant on a comprehensive, co- ordinated development proposal and the need for the particular use demonstrated. In this manner, the intent of the zoning may be controlled and preserved by the planning authority. We were invited to accept a line of reasoning in the claimant's case that the subject land could "go it alone" in a business zone. The location of the subject land to the AMP land and the need to obtain access through that land leaves no doubt in our minds that to contemplate a development independently of the inclusion of the land within the designated Regional Business Centre would be foolish. We find that the observation made by Wells J. in De Ieso v. Commissioner for Hi q hwa v s ( 1981) 22 S.A.S.R. p. 248 is apposite on this point and to much of the evidence in this case. At p. 254, he said - "Finally, it is impossible to overlook the very human tendency for a developer - like an entrepreneur in any field of commerce - to cut his business risks as far as reasonably practicable; and because the Court must consider what the decision of a hypothetical developer would have been before the purchase took place, and not after it - when he could, within limits, feel his way - it must give real weight to the possibility that a hypothetical developer would be guided more by a plan from which there were absent, than by a plan in which there were present, elements of controversy." The ultimate test applicable to the evidence is that contained in the Sp encer case - Sp encer v. The Commonwealth of Australia (1908) 5 C.L.R. 412, so often quoted but conveniently overlooked by valuers - "To arrive at the value of the land at that date, we have, as I conceive, to suppose it sold then, not by means of a forced sale, but by voluntary bargaining between the plaintiff and a purchaser, willing to trade, but neither of them so anxious to do so that he would overlook any ordinary business consideration. We must further suppose both to be perfectly [1990] QLAC 44 -- 41 of 52 -- \, ' 42 acquainted with the land, and cognizant of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding features, the then present demand for land, and the likelihood, as then appearing to persons best capable of forming an opinion, of a rise or fall for what reason soever in the amount which one would otherwise be willing to fix as the value of the property." (per Isaacs J. at p. 441) At the relevant date the appellant had to sell a large parcel of undeveloped land zoned "Open Space". The land had been in this zoning since 1971. The land has a freeway on one boundary and a six-lane arterial road on the other. It adjoins on its northern boundary a regional business centre. Land to the west across the freeway is in single unit residential development whilst land immediately across Logan Road is in residential "B" development. Any development complementing the site will have to come from the north. Mr. Hanisch conceded that about two hectares had potential for development. The architectural and engineering evidence has established that the land would best be developed on three platforms. Earthworks and drainage costs have been estimated. There is no suggestion that such costs would be prohibitive. Direct access from Logan Road has not been considered. The ~pparent feasible access is via the AMP link road through the northern triangle. The development envisaged by Mr. Middleton would have the office/medical centre in the north-west and a large retail warehousing block in the south. The development would sit upon land of lower elevation than any complementary development on the AMP site. This part of the AMP site is vacant. It has a potential for office development which has not yet been tapped. [1990] QLAC 44 -- 42 of 52 -- 43 Any development would require negotiation with AMP on access, road re-arrangements and redevelopment to accommodate the additional traffic. The Main Roads Department as the authority charged with the control of the adjacent arterial roads would be a party to such negotiations. The intent embraced in the Bulimba Creek Scheme has become manifest in both means of acquisition and purpose in Policy Statement 11.01. Mr. W.G. Crane, who was called on behalf of the claimant and who is in business as a property agent and familiar with the area, described AMP as a "monolithic bureaucratic organisation very difficult to speak to about anything" but, having said that, he said that he had recently negotiated access with the Society on behalf of the Village Roadshow. In the eyes of a potential developer this would be put down as a time factor. He freely recognised that in the development process time is money, an observation that gains force in times of high interest rates. Negotiating and obtaining access is not as simple as it sounds. The history of the Village Roadshow serves to illustrate the point. Pidgeon completed the purchases of the Village Roadshow land in May 1985. In August, he made application to rezone the land to "Suburban Commercial". In February 1986, the Planning Policy Advisory Committee raised no objection to the proposal. In June 1986, a deed was executed between Pidgeon and AMP providing access to the land. Subsequently it was found that the access was not workable. In June 1987, the land was included within the Regional Business Centre. By October 1987, access arrangements had been approved in principle by the Main Roads Department. In November 1987, [1990] QLAC 44 -- 43 of 52 -- 44 Pidgeon applied for the rezoning of the land to the "Business" zone for a proposal involving hotel, offices and cinemas. In June 1988, the Planning Policy Advisory Committee raised no objection to the proposal. In July 1988, the land was sold to the Village Roadshow consortium. Final approval followed some time later. When all this is put into context together with the location of the subject land to existing developments and its exposure to the passing public and their problems of finding the site, there is room for saying that the hypothetical purchaser would tread cautiously and that if he was to err he would err on the conservative side. We accept that the sale of the Village Roadshow land is the most comparable sale for determining a value of the area contained in the northern triangle but it remains highly distinguishable and in all relevant points superior in value. The Village Roadshow has exposure to Logan Road and to the AMP land. When sold in 1988 much had been done towards its development - in use, in planning and in access. The circumstances governing the value of the subject land are inferior to those pertaining to the sale land when it was sold. This sale was near to and all other relevant basic sales were in their appropriate zoning when purchased. The subject land is not. We anticipate that the zoning would add to the delays in motivating the Council to include the land in the Regional Business Centre and in approving a development but not greatly in the overall scheme of negotiations, approvals and consents which would be required. The assessments made by Mr. Slater and Mr. Brett are of little assistance. They have been made on [1990] QLAC 44 -- 44 of 52 -- ' . 45 insupportable assumptions and appear to have lost sight of the Spencer test. We find that Mr. Rowland's valuation is the most realistic, but that it does not make sufficient allowance for the higher potential use of parts of the subject land. It is fair to say that on essential matters we agree with the approach taken by the former President of the Land Court in the initial hearing. However as the evidence before us is in some respects more extensive, and as it places a different emphasis upon relevant matters such as the Bulimba Creek scheme, it is reasonable that a slightly greater emphasis be placed upon the potential for higher use, and the compensation should reflect this. This is not a case where the court is bound to accept one valuation or the other. Where part of the reasoning upon which a valuation is based is unsatisfactory, and sufficient criteria and surrounding circumstances exist to enable a realistic adjustment to be made, the court must do its best to assess the appropriate figure. Counsel for both parties agreed that intermediate possibilities were open in the present case. The evidence enables a picture to be drawn of the footing upon which the hypothetical prudent purchaser would view the land, and the sales provide a useful basis for determining the value. We agree with the Land Court's assessment of the northern triangle as containing 1 . 4 hectares with commercial potential. In that Court, the value of this part of the subject land was determined at a rate of $110 per square metre on a process adopted by Mr. Rowland. We are of the opinion the value [1990] QLAC 44 -- 45 of 52 -- 46 is too high and we do not adopt the process. In the circumstances of this case, risk in our opinion is but one of the factors which the hypothetical prudent purchaser would consider among the many others which have been identified. A value of $100 per square metre for this part of the area is reasonable. Insofar as the lower land is concerned, we have studied the evidence of the sales, more particularly the sales for warehousing purposes. This part of the subject land, in addition to the factors already covered, is at the tail end of the "island" block and although having road exposure could not be accessed except by a route winding through the AMP land and down through the subject land from the north. We think most of this area has greater value than the $20 per square metre assessed in the Land Court. We are however of the opinion that the hypothetical prudent purchaser would not go beyond a figure of $50 per square metre for the area and that any prudent vendor would readily accept such figure for this balance of land (less an area which they, as prudent prospective developers, would consider it necessary to offer Council as open space land.) We accept the evidence of Mr. Hanisch that the open space area would not contribute to plot ratio and we are of the opinion that the retention of an area of the size envisaged by Mr. Middleton (5,800 square metres) and the planners and as demonstrated in the plans would satisfy the need of the Bulimba Creek Scheme and provide an amenity and buffer to the developments north of it. This area in our opinion would have a nominal open space value of $30,000 or about $5 per square metre which we have taken from sales put in evidence by [1990] QLAC 44 -- 46 of 52 -- 47 Mr. Rowland. The exercise may therefore be summarised - 1 • 4 hectares @ $100 per square metre $1,400,000 2.55 hectares @ $ 50 per square metre $1,275,000 .58 hectare @ $ 5 per square metre $ 29 , 000 $ 2 , 704 , 000 In the commercial market, we would expect the parties to meet at a round figure of $2.7 million, but we will allow the appellant the benefit of the precise total in assessing the value of the land. The primary basis of our assessment is acceptance of Mr. Rowland's evidence subject to allowance of an enhancement factor for the prospect that the zoning of certain portions of the land might be advantageously altered and taking account the potential of parts of the land for higher and better use. Disturbance The Land Court included a sum of $21 , 981 as an i tern of disturbance for the costs incurred by the dispossessed owner consequent upon the resumption up to the date of lodgment of the claim in the Land Court. Included in this amount is the sum of $15,953 for valuation fees. There was a further claim for compensation for costs and expenses incurred by the owner occasioned by the service of the original notice of intention to resume on 18th April, 1986, up to the issue of the notice of discontinuance of resumption on 18th March, 1987. In the award of compensation is the sum of $7,260 for valuation fees. The respondent by cross appeal challenges these awards on the following grounds: (a) the learned member ought not to have allowed fees based upon the amount of the claim or valuation, rather than upon the amount assessed by the learned member; [1990] QLAC 44 -- 47 of 52 -- 48 ( b) Meri vale Motel Investments Pt y . Ltd. -v- The Brisbane Ex p osition and South Bank Redevelo p ment Authorit y 1985 10 QCLR 268 was, on this point, wrongly decided (the respondent having reserved its position on this point before the learned member)." Dealing with the claim for disturbance, in this case the Land Court said: "There remains the various items of disturbance claimed in respect of the preparation of the claim for resumption. The principle pursuant to which disturbance is granted for items of the types claimed are set out in Merivale Motel Investments Pt y . Ltd. - v- Ex po - Land Court (1984-1985) 10 Q.L.C.R. 175 at p. 203 et seq. These principles were approved by the Land Appeal Court when the case went on appeal vide 10 Q.L.C.R. 268 pp. 287/8. I am satisfied that the various professional fees were necessarily incurred in preparation of the claim prior to lodgment in the Court. The valuation fee of $16,053 represents 75% of the A.A.I.V. Scale based on the amount of $8.154m as claimed plus $100 for attending a conference with the respondent's representatives. There was no suggestion · that the valuation was frivolous or lacking in bona fides. I disallow the fee for attending the conference. It was not incurred in preparation of the claim but rather towards its settlement." In dealing with the claim for the discontinuance of the resumption, the Land Court said: "The valuation fees in the subject case are based on 70% of the Scale of Fees of the Australian Institute of Valuers (Queensland Division) for a valuation of $3.25M. In addition $260 has been included as fees for attending conferences. I cannot find that this basis is unreasonable." On behalf of the Council it was submitted that a fee fixed by reference to a valuation that is held to be incorrect does not satisfy the requirement that a disturbance item be "reasonable". On the contrary, says the submission, it is unreasonable. Further, according to the submission, a fee fixed by reference to a professional scale cannot be regarded as necessarily reasonable; other factors including the time and [1990] QLAC 44 -- 48 of 52 -- • r j ' .,. 49 effort involved should be taken into account. It was also submitted that the onus should not be on the Resuming Authority to show that the advice is frivolous or lacking in bona fides. It is sufficient for the Resuming Authority to establish that it is wrong (in the sense that it is based on an inappropriate scale), and that that prima facie shows the fee to be unreasonable. Counsel for the claimant makes reference to the decision of the Land Court in the Merivale case (supra) that the principles set out at p. 202 of that judgment dealing with a claim for disturbance for legal and valuation fees were correct and were confirmed on appeal vide 10 Q.L.C.R. 268 at p. 287/288. At p. 288, the Land Appeal Court said: "Following written instructions, counsel for the respondent Authority submitted that the award for valuation fees should be adjusted to scale upon the amount of compensation awarded by the Court for the value of the land taken. We reject this submission. Our charge as judicially interpreted is to compensate for items which are the reasonable and not too remote consequence of the resumption (Harve y v. Crawle y Develo p ment Cor p oration (supra)). Dispossessed owners are entitled to seek professional advice and assistance in order to comply with the requirements of the Acquisition of Land Act insofar as lodging claims for compensation are concerned. Providing the valuation advice is not frivolous or lacking in bona fides, a fee based on a claimant's valuation should be reimbursed. To refuse this would be lacking in fairness and generosity to the claimant and too restrictive of its personal right of choice irrespective of whether or not the claim is successful." It is the submission on behalf of the claimant that the claim for valuation fees should be allowed as an i tern of disturbance unless it can be shown to be frivolous or vexatious. The fact that the court does not adopt that valuation is no [1990] QLAC 44 -- 49 of 52 -- 50 answer to the question whether the costs were reasonably incurred. It has been the practice of the Land Court and this court to allow a dispossessed owner as an i tern of disturbance the costs incurred for legal and valuation fees during the period from receipt of the notice of intention to resume up to the date of lodgment of the claim in court. We agree with the finding made in the court below that there is no suggestion that the valuation was frivolous or lacking in bona fides. There may well be cases which will arise where some adjustment of a claim for such fees may in the particular case require variation but we find no grounds for this to apply in the subject case. Although we have determined that the valuation approach on behalf of the claimant in this case is not the proper approach, the opinion formed by the valuer was supported by legal advice. It was accordingly appropriate for the claimant to refer the matter to the court for determination. The valuation fees have been charged having due regard to the Scale of Fees recommended by the Australian Institute of Valuers and Land Administrators and we consider that this is the appropriate method to adopt. It is, of course, open for parties to agree on a fee other than the recommended fee but each claim falls to be determined on the facts in that case. In the result, the appeal against the award for valuation fees in both instances fails. Compensation for the taking of the subject land will thus be determined in the total sum of $2,725,981. [1990] QLAC 44 -- 50 of 52 -- 1! 51 Accordingly, the appeal is allowed, the cross-appeal is dismissed and compensation payable by the respondent to the claimant for the taking of the subject land is determined in the sum of $2,725,981. Interest on the sum at 12. 75 percenturn (12.75%) per annum is ordered to be paid from and including the date of resumption up to and including the date of payment of compensation subject to any adjustments which may be necessary if advances have been made. The appeal in respect of the award of the Court for compensation arising from the discontinuance of the notice of intention to resume issued on 18th April, 1986, is dismissed. It is further ordered in the exercise of the Court's discretionary powers that the respondent pay the claimaint' s costs of and incidental to these actions. The amount of such costs shall be ascertained and fixed by the Taxing Officer of the Supreme Court at Brisbane in accordance with the provisions of Section 44(16) of the Land Act 1962 (as amended). J.B. TI:IOMAS J. Judge of the Supreme Court D.J. Barry. President of the Land Court D. M. White Member of the Land Court [1990] QLAC 44 -- 51 of 52 -- FIGURE 1 ,: ., I I /S:J "' .. ' "' - ., ', -.:.:...::_·, .. "'-·,. [1990] QLAC 44 -- 52 of 52 --