Dorrington v Council of the City Of Townsville [1993] QLC 3

LAND COURT BRISBANE. 12th February, 1993 Re: Claim for compensation Acquisition of Land Act 1967 A92-54 CM Dorrington v. Council of the City Of Townsville (Hearing at Townsville) J U D G M E N T This is a claim for compensation consequent upon the taking by the Townsville City Council under the provisions of the Acquisition of Land Act 1967, of an easement for stormwater purposes over an area of two square metres of land described as Easement A in subdivision 2, section 8 of subdivision 1 of selection 13 on Plan 42604, being part of the land contained in Certificate of Title No. N33236, Volume 259, Folio 196. Notice of resumption was published in the Government Gazette of 31st May 1986 and this is the date at which compensation is to be assessed. A claim for compensation was served on the Council by letter dated 28th July 1986 for the sum of $6,895.00 and this was amended before me to the sum of $3,314.30. The easement is over 2 m2 of rear land of a resiential allotment of 1012 m2 at 49 McAlister Street, Oonoonba in Townsville. Despite the relatively small area of land affected, the matter has been the subject of some acrimony. This seems to arise from a feeling of resentment by Mr Dorrington that the easement was resumed over his land, creating an encumbrance on his title which he considers was both [1993] QLC 3 -- 1 of 13 -- 2 unwarranted and unnecessary. This has led to the somewhat unorthodox claim for compensation which Mr Dorrington served on the Council. Since then there has been a great deal of correspondence between the Council and Mr Dorrington and mention was made of an action brought by Mr Dorrington against the Council in the Magistrates Court. The Claim for Compensation contained in Mr Dorrington's letter of 28th July 1986 is as follows: 7 fruit trees @ $200 each $ 1,400.00 Fill and levelling to Council requirements $ 60.00 Stationery and phone calls $ 20.00 Travelling expenses so far $ 15.00 Estimated fruit loss $ 200.00 Fencing around your land $ 100.00 Damage to citrus trees by surveyors $ 200.00 Loss of selling with this section missing $ 100.00 Loss of wages so far $ 70.00 Value of land $ 400.00 Replacement of drill and drills missing when unauthorised surveyors $ 240.00 Compensation for emotional and stress to myself $ 500.00 Estimate of independent surveyors to check $ 400.00 Estimate cost of deeds change $ 150.00 Estimate cost of independent valuation $ 140.00 Estimate of compensation for wages to me $ 400.00 Estimate of cost of legal expenses including Barristers and Solicitors $ 2,500.00 -------------- Sub-Total $ 6,895.00 At the commencement of the hearing Mr Dorrington was granted leave to amend the claim in a number of particulars. As his evidence proceeded it became clear that a number of other items were abandoned. The amended claim as best I can understand it is now as follows. -- 2 of 13 -- 3 7 fruit trees at $200 ea $ 1,400.00 Loss of wages for 4 days $ 448.00 Fencing around the land $ 520.00 Legal advice $ 40.00 Incidental expenses, phone calls, stamps, photocopying and facsimile fees etc. $ 106.30 Fill and levelling to Council requirements (Replacement of specially prepared soil) $ 60.00 Encumbrance on title and loss of quiet enjoyment $ 100.00 Value of land $ 400.00 Replacement of stolen Makita Drill and Bits $ 240.00 ------------- Total $ 3,314.30 Mr Dorrington explained how each of the heads of claim was calculated. In order to construct the drainage pipes it was necessary for Council employees or contractors to remove three large banana trees and two smaller ones. Mr Dorrington said that he had purchased these trees from a nursery for about $200. When challenged as to the cost of these trees, Mr Dorrington said that they were special trees. The other two fruit trees claimed for are in respect of two orange trees which, although not on the easement, were damaged by surveyors who cut several limbs from them. The trees subsequently died. During the construction of the drain, part of the fencing had to be taken down and although it has been replaced, Mr Dorrington is concerned that his fence is now out of alignment by about 300mm. He also disagrees with the Council about the corner post which is not to his satisfaction. He has obtained a quotation for $520 from a local firm to supply and erect a corner post and 10.5 metres of chain wire -- 3 of 13 -- 4 fencing. Mr Dorrington's claim for filling and levelling the ground is in respect of the Council's digging up and carting away specially prepared soil which he had in the easement area for the growing of his fruit trees. Although the Council eventually replaced the soil, Mr Dorrington is claiming $60 for expenses associated with running his vehicle, checking the soil etc. With regard to his claim for incidental expenses, Mr Dorrington's claim for $106.30 is to cover such things as telephone calls, stamps, photocopying, facsimile costs etc, but he has not provided an itemised list of these expenses. It is the encumbrance on his title that seems to be of most concern to Mr Dorrington. He gave evidence that he had on several occasions avoided buying land encumbered by easements. He feels that the very existence of the easement will reduce the potential selling price of the land and he has claimed $100 for the blot on his title. Associated with this is his claim of $400 for the value of the land affected by the easement. Although he has not been deprived of the use of the land, he says that it is of very limited use as he has been told that he cannot build on it or even grow trees on it. He admits that the estimate of $400 is his own, made without the benefit of valuation advice. Mr Dorrington has also claimed an amount of $240 for a Makita drill and drills. He said that after the Council had taken down the fence, he had left these tools in the yard one morning and when he returned from work they were missing, but there were new survey pegs in his yard. Mr Dorrington holds the Council responsible for, as he put it, destroying the security of his property. In addition to the missing drill, he said that there have been several acts of vandalism and that he has found strangers in his backyard on various occasions, who, when challenged, said they were authorised to enter by the Council. In giving this evidence Mr Dorrington made it clear that he feels that his quiet -- 4 of 13 -- 5 enjoyment of his land has been affected. He can no longer regard it as completely his own as not only the easement area, but the whole of his yard could, as he put it, be invaded by strangers seeking access to the easement. His resentment is intensified as he feels that his land gains no benefit from the drain and that it should have been positioned only on the allotments that did benefit from it. Mr Dorrington had claimed an amount of $500 for emotional stress to himself and it was obvious that the whole matter has given him a great deal of stress and the tone of some of the correspondence and the evidence indicates this. However, this is something which is of a personal nature and cannot be recognised as a claim for compensation consequent upon the resumption of land. In total, Mr Dorrington has claimed for the loss of four days wages in dealing with this matter. He said that one day was occupied in removing soil from the easement area by wheelbarrow after the completion of the drain. The other three days appear to be the result of Mr Dorrington handling this matter himself without legal or other professional advice. On a number of occasions when giving his evidence, Mr Dorrington said that he had been told either in official correspondence or by an employee of the Council that the resumption would be undertaken "at no expense to the land owner", and this seems to be the basis for some of his heads of claim. However, he was unable to find this phrase in any of the correspondence and the Council witnesses deny that they had used this phrase. Mr Stuart Osborne, registered valuer employed by the Townsville City Council gave evidence that he carried out a valuation of the affected land. Mr Osborne tendered a report and valuation which was made subsequent to his inspection on the 6th November 1986. At the date of inspection the construction of the drain had commenced, the fencing had been removed from the vicinity of the subject land and there were some cubic metres of soil dumped on the land between the shed and the dwelling. -- 5 of 13 -- 6 Mr Osborne said that in his opinion the resumption of the easement over two square metres of rear land had minimal effect on its value. He started from the premise that an easement cannot, to the freehold owner, represent more than the value of the fee simple. If he looked at it on the basis of a before and after valuation, he said that he could see no difference between an allotment of land having an area of 1010 square metres and one with an area of 1012 square metres. Mr Osborne said that the market place does not draw a distinction between such small differences in area on a site basis. However, he analysed the only vacant sale of land in the Oonoonba area which showed him a value of $19.76 per square metre. On this basis he considers that the two square metres of back land on the subject allotment would have a value of approximately $40.00, and giving the owner the benefit of the doubt, he applied $35.00 to the easement for the purpose of his valuation. Mr Osborne's report also mentions that the banana trees were moved from the land. He said that they comprised three adult trees and a number of smaller ones. He allowed $30.00 for the banana trees. This gave a total valuation of $65.00. Mr Osborne said that he looked at a number of sales of land in Townsville with and without drainage easements in three suburbs and was not able to find any difference in value for those with and those without easements. On the matter of valuing the banana trees, Mr Osborne said that he spoke to a Mr Wilschefski of the Daydawn Nursery at Idalia who told him that nurseries do not sell banana trees, they are the sort of things you get from cuttings from neighbours' trees. The $30 that he applied was as he said a token value for those trees. Mr Osborne said that he believed that there was no enhancement to Mr Dorrington's land because of the drain, as his allotment had been filled to such an extent that the storm water flow from the neighbouring properties would go around Mr Dorrington's property and any enhancement would occur to those properties and not to his. -- 6 of 13 -- 7 Mr Roy John Whittle, an engineer employed by the Council of the City of Townsville and holding the position of Manager, Planning and Investigations, gave evidence. Mr Whittle tendered a report stating that drainage in the Oonoonba area is generally poor and that storm water often ponds on residential properties other than in areas where land owners have carried out extensive works to drain the ponded water away. The area is also surrounded by mangrove salt flats and the incidence of mosquitoes in the area causes many problems. The report went on to state that the subject easement was needed to resolve a drainage problem which existed at the rear of properties fronting Ireland Street and McAlister Street at Oonoonba. A condition had been placed on the building application in respect of the subject land requiring that the owner filled the property so that it falls from the back boundary to the front boundary. Building had proceeded on the basis that the allotment was filled. This caused a problem with the surrounding owners, particularly the owner at No. 51 McAlister Street, where flooding of the property would be aggravated by the filling of the subject land and the Council resolved to overcome the problem by constructing a drain along the rear boundaries to drain the water to an existing underground drain in O'Donnell Street. When the Council decided to resume the easements for the drain Mr Dorrington objected. A number of alternatives were considered but for reasons explained in Mr Whittle's report it was still necessary to dogleg the drain through the corner of the subject land. It was therefore necessary to acquire this easement to protect the drainage structure. Works were carried out by Council day labour. Mr Whittle said that it is unlikely the Council will need to have access to the subject land for inspection purposes in the future, as access can be obtained through man-holes on adjoining land. Mr Whittle says that the drain will benefit the whole area as it will prevent water from ponding on properties adjacent to Mr Dorrington's land and will have benefit to his land as it provides a convenient point for the discharge of storm water which -- 7 of 13 -- 8 collects upon that land. The depth from ground level to the top of the pipe is at least 300mm. Before considering each of his items of claim, I propose to deal first with Mr Dorrington's assertion that he was advised by some person in authority that the resumption of the easement would be undertaken "at no expense to the landowner." I know of no such proposition with regard to the acquisition of land. The dispossessed landowner is to be compensated for the loss of the interest in the land taken and for any severance and injurious affection to his remaining lands. In addition, he is entitled to compensation for disturbance which is not too remote and which is the natural and reasonable consequence of the resumption. This differs markedly from the proposition that the dispossessed owner will bear no expense. For example, if a landowner has incurred expenditure which cannot be said to be the natural and reasonable consequence of the resumption then, in accordance with the above principles, he cannot be compensated for such expenditure. It is also clear that the landowner has a duty to mitigate his loss and the constructing authority will not be called upon to compensate him for losses which he could have avoided or minimised. See The Commissioner for Railways v. G and M Core Pty Ltd (1976) 3 QLCR 342 at p 349. The proposition relied on by Mr Dorrington may arise from a misquotation or misunderstanding of the general principles, which were stated in the judgment of the Land Appeal Court in P Joyce v. The Northern Electric Authority of Queensland (1974) 1 QLCR 171, where at pages 177 and 178 the Court said: "The principles to be applied in the compulsory taking of an easement are no different from those applying when the full fee-simple is taken. The Court must restore, as best it may, the claimant in money form, to the position which he enjoyed prior to the taking of the easement. For practical purposes it becomes a matter of assessing the extent to which he has been disadvantaged as the natural and reasonable consequence of the taking of the easement. -- 8 of 13 -- 9 The test is the attitude of the hypothetical prudent purchaser and the extent to which in the opinion of such a person the claimant has suffered diminution in the value of his property resulting from... the creation of the easement including when appropriate severance and injurious affection damage." At page 178 the Court went on: "Each case must be considered according to the terms and conditions of the easement created and the frequency and magnitude of the disturbance likely to result in consequence of the claimant's proprietary rights." Also on page 178 the Court said: "It should be stressed that negligent or other tortious acts done by the employees or agents of the Constructing Authority are not compensable before us nor is the probability of such acts occurring. Lawful use only and its consequential effects, if any, call for our assessment." I now turn to the individual items of claim as amended by Mr Dorrington. 1. Value of Land and Fruit trees It is obvious that Mr Dorrington's assessment in the loss of value of the land and the value of trees that were destroyed due to the easement are based on a layman's appreciation of the situation. I accept the evidence of Mr Osborne that there is no discernible difference between the value of the land before the easement was taken and after. However, the before and after method of valuation may not be sensitive enough to reflect small differences in valuation and I think that he has taken a reasonable approach in resorting to the method that he has used to arrive at a value of $35 for the loss of the interest in 2 square metres of back land. However, having said that, there is still the matter of the fruit trees that were destroyed on the easement area and which form part of the amount of $1400 claimed for by Mr Dorrington. It is conceded by the Council that Mr Dorrington has lost the fruit trees which were growing on the easement. In the absence of any evidence to -- 9 of 13 -- 10 the contrary I feel that I must accept Mr Dorrington's assessment of the worth of the banana trees at $200. I do so with some reservations as Mr Osborne has said it is usual for banana suckers to be freely obtained, particularly in the Townsville region, and for these to have very little value. However, I have Mr Dorrington's sworn evidence that they were special trees and that he paid $200 for the trees from a nursery. Therefore, unless I am to totally reject that evidence, I feel I must accept his estimate of the cost of those trees. Mr Dorrington originally claimed an amount of $200 for the estimated loss of anticipated profits from the sale of fruit from the trees that were lost. However, I told him during the hearing that he was not entitled to claim loss of profits from the trees, but only their market value. The matter was considered by the Privy Council in Pastoral Finance Company v. The Minister (1914) AC 1083, where their Lordships said: "That which the appellants were entitled to receive was compensation not for the business profits or savings which they expected to make from the use of the land but the value of the land to them. No doubt the suitability of the land for the purpose of their special business affected the value of the land to them .... But that is a very different thing from saying that they were entitled to have the capitalised value of these savings and additional profits added to the market value of the land in estimating their compensation. They were only entitled to have them taken into consideration so far as they might fairly be said to increase the value of the lands." I have found that the fruit trees increased the value of the land by $200, making a total of $235 under this head of claim. 2. Loss of Fruit Trees lost by the action of Surveyors -- 10 of 13 -- 11 This item can be disposed of quickly as the citrus trees were not on the affected land and if they died as a result of the tortious actions of the surveyors, this is not compensable. See Joyce v. Northern Electric Authority of Queensland. The same reasoning applied to the loss of the Makita drill etc and to any other damage which occurred as a result of vandalism on the property. These matters also are not compensable before this Court. 3. Encumbrance on the Title and Loss of Quiet Enjoyment These are matters which go together in addition to the loss in value of the land because of the taking of the easement which has been dealt with by the evidence of the valuer, Mr Osborne, and has already been addressed. The easement constitutes a blot on the title and while there is evidence from the engineer, Mr Whittle, that it is unlikely that there will be need for physical inspection of the subject easement, the possibility still remains that persons authorised by the Council will need to have access to the land and it is obviously of great concern to Mr Dorrington. In Brisbane City Council v. Len Cali Holdings Pty Ltd (1984 - 85) 10 QLCR 41 at p 47, the Land Appeal Court approved the making of small allowances for easement encumbrances. It is difficult to reduce to monetary terms just how much less a prudent purchaser would pay for this possibility, but I feel that an award of $100 would adequately cover the amount which such a person would pay rather than be faced with the possibility of future inspections. 4. Disturbance The remaining items of claim come under the general heading of disturbance and while there is no such statutory head of claim in the Acquisition of Land Act 1967, it is well settled that a dispossessed owner is entitled not only to the market value of the resumed land and improvements, but also to his losses reasonably and necessarily incurred as a result of the resumption. See for example Barber v. The Landsborough/Maroochy Water Supply Board (not reported, decision delivered 11th December, 1986). In that case the then learned President of the Land Court, Mr -- 11 of 13 -- 12 WFG Smith, in discussing the principles of disturbance, referred to the test adopted by the Courts to establish whether there is a nexus between the disturbance claimed and the owner's dispossession of the property. This test was laid down by Romer L.J. in Harvey v. Crawley Development Corporation (1957) 1 ALL E.R. 504, that to be compensable disturbance must not be too remote and must be the natural and reasonable consequence of the resumption. With regard to Mr Dorrington's loss of four days wages, this item is also not compensable before this Court. There is a line of authority cited in Barbers Case which indicates that such matters are not legitimate claims for disturbance. However, when the test in Harvey v. Crawley Development Corporation is applied to the subject situation it was inevitable that Mr Dorrington was going to incur some incidental costs in this matter. His claim for $106.30 would have also involved expenditure on telephone calls, postage etc. for matters which are not within the test in that case. Therefore I am of the opinion that this is excessive and have awarded an amount of $50.00 for this item. Mr Dorrington's claim for legal advice for $40 is, he said, based on his payment of that amount to a solicitor with regard to his claim for compensation. However, Mr Dorrington seemed a little unsure of the amount paid and what is was in connection with. In any case he did not produce a receipt and has not proven this item of claim. It is also obvious from the evidence before me that there has been a certain amount of damage caused during construction of the drain. Mr Dorrington has given evidence, which is not contradicted, that he had to erect part of the fencing and has had to place concrete blocks at its base. He has also been put to expense in removing soil and in generally tidying up the affected area. Once again, it is difficult to reduce this to monetary terms as I have no firm evidence of the cost involved. However, doing the best I can on the evidence before me I have come to the conclusion that an amount of $100 would be appropriate. Therefore I award an amount of $485 compensation payable to the claimant by -- 12 of 13 -- 13 the respondent Council, under the following heads: Loss of interest in land, loss of fruit trees and encumbrance on title $335 Disturbance $150 I also order that the respondent pay to the claimant interest at the rate of 12.25% per annum on the amount of the award up to and including the day immediately preceding the date on which payment is made. In the exercise of the discretion given to me under section 27 of the Acquisition of Land Act 1967 I make no order as to costs. (J J Trickett) Member of the Land Court -- 13 of 13 --