Collins v Livingstone Shire Council [1972] HCA 35

High Court of Australia Barwick C.J. Menzies, Walsh, Gibbs and Stephen JJ. Collins v Livingstone Shire Council [1972] HCA 35

ORDER Objection to competency upheld. By majority special leave to appeal granted. Appeal allowed. Order of the Full Court of the Supreme Court of Queensland varied by ordering that the third question asked in the stated case be answered as follows:Compensation is to be assessed for the land and all its improvements including the structure of the partially completed reservoir. It is to be supposed that the balance of the reservoir had not been built at the date of the compulsory acquisition. The respondent may be regarded as a possible purchaser. The compensation will in this case be that sum which the Land Appeal Court decides that the respondent if a purchaser would give and the appellants accept, for the land and all its improvements, each being willing but not anxious respectively to buy and to sell and without being under any compulsion to do so. In estimating the price which would be so agreed, the Land Appeal Court may have regard along with any other relevant evidence to the cost of constructing the partially completed reservoir, not as a measure of price or value but as a fact to be weighed in making the estimateand by deleting the order for costs.

Cur. adv. vult.

The following written judgments were delivered:—

June 30 Barwick C.J.

The appellants since 1962 have been the registered owners of an allotment of land at Emu Park, a place within the local government area of the respondent shire. In 1966 the council resolved upon a town water supply which involved the construction of a reservoir for reticulation purposes on an elevated area of land at Emu Park. It decided upon a site which included some Crown land, a portion of a street and a portion of the said allotment owned by the appellants. Without obtaining the consent of the appellants, the respondent proceeded to construct the reservoir, placing a substantial portion of the structure on the said allotment. Apparently it also constructed what is described as an eight feet high manproof fence on a portion of the said allotment. The construction of the reservoir and the erection of the fence were completed before the end of 1966, and probably by 14th October 1966. On 13th January 1967, the respondent gave the appellants notice of its intention to exercise its powers of compulsory acquisition under the Public Works Land Resumption Acts, 1906 to 1955 Q. ("the Act"). Thereafter a proclamation was duly made pursuant to the former Acts declaring that the respondent had taken an area of the said allotment as from 12th August 1967 for water supply purposes.