Brisbane Developer in Cross River Rail Compensation Tussle

A Brisbane builder-developer has crossed swords with the authority behind the Cross River Rail mega-project in court over the details of a land acquisition compensation claim. Philip Usher Constructions took the Cross River Rail Delivery Authority to Queensland’s Land Court earlier this year after the latter refused to pay the builder-developer compensation for a site it had earmarked for Brisbane’s biggest infrastructure project. Cross River Rail rejected the compensation claim by Philip Usher Constructions as it was not the owner at the time the authority resumed the land, highlighting the importance of early assignment of compensation rights. In court documents released this month it was revealed the Land Court heard that Cross River Rail had resumed land owned by the family trust D&amp;S Ring Family Pty Ltd in July of 2020. ▲ The case was brought over compensation claims for a site in Woolloongabba. Only a small section of the site at 310 Vulture Street was required for the Cross River Rail project. But Ring sold the land to Philip Usher Constructions in September, 2021. The eponymous director of the development company Philip Usher told the court that he spent most of 2022 investigating the potential impact of the Cross River Rail Project on the remnant parcel. Eventually, the previous owners assigned their compensation rights to Philip Usher through a Deed of Assignment in November of 2022. In 2023, Philip Usher served a claim for compensation to Cross River, but the authority did not accept the claim and denied that the builder-developer had a right to compensation. The legal argument lay in whether Philip Usher Constructions had a right to compensation under the Acquisition of Land Act 1967 and, if not, whether it could exercise the right to compensation originally held by the Ring family. ▲ Woolloongabba has been the subject of considerable speculation as developers flock to the PDA. Previous cases cited, which had gone to the Court of Appeal, held that the right to compensation was personal to the landholder at the time of the acquisition and could not be assigned after the fact. It was found that Philip Usher did not have an interest in the site at the time of the resumption of the land by Cross River Rail, according to the court documents. Gadens partner Gerard Timbs says that rather than a dispute about the amount of compensation, it was about Philip Usher’s right to claim compensation. “Unfortunately for Philip Usher, they did not have an interest in the land when it was resumed by Cross River Rail as it was only acquired by them after the resumption,” Timbs says. Philip Usher argued that the right to compensation was assignable and that it had acquired an interest in the land through the assignment. ▲ Gadens partner Gerard Timbs: Landowners need to be careful in future when acquiring land resumed by authorities. It said that the assignment had created a new, separate right to compensation in its own name. In a roundabout ruling, the Land Court ordered that while Philip Usher Constructions had no right to compensation individually, it may exercise the right to compensation that was held by the previous owner. This will mean that landowners will need to be careful in future when acquiring land resumed by authorities like Cross River Rail, Timbs says. “Philip Usher could not claim compensation and I think in the future what others in the same position will do is exercise the rights of the landowner to make the claim and rely on an assignment of the compensation.” Philip Usher Constructions and Cross River Rail declined to comment. The authority still has time to appeal the Land Court’s decision. ▲ A map of the southern section of the Cross River Rail project. Cross River Rail, a 10.2km rail link connecting Dutton Park and Bowen Hills in Brisbane’s centre, is the Queensland Government’s “highest priority infrastructure project”. Plans for the infrastructure project were launched in 2010 and include a 5.9km tunnel under the Brisbane River and CBD. It was expected to cost a total of $5.2 billion. Following significant cost blow-outs, the Cross River Rail project is now expected to open for passenger services in 2029 and cost an estimated $17 billion. While total figures are not available, it was reported in 2019 that the Cross River Rail Delivery Authority planned to spend $534 million in two years to compensate business owners and buy properties needed for the project. Sitting in the heart of Brisbane, the Woolloongabba precinct has been earmarked for around 14,000 homes over the next 40 years after it was declared a Priority Development Area last year . Developers have subsequently flocked to the area to amalgamate sites and get to work on its renewal.

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