Belcrest Pty Ltd v Brisbane City Council
[1999] QLC 107
•1 October 1999
|
BRISBANE
1 October 1999
Re: Appeal against the Determination of an Objection
to Categorisation –
(Ref. VC99-244).
Belcrest Pty Ltd
v.
Brisbane City Council
D E C I S I O N
Under and in accordance with Section 89(1) of the City of Brisbane Act 1924, the incorporated company Belcrest Pty Ltd has appealed against the determination by the Brisbane City Council of an objection to the categorisation for differential general rating purposes of its land which is more particularly described as Lot 3 on RP 683389, Parish of Yeerongpilly, containing an area of 3.207 hectares. The parcel is situated at 148 Algester Road, Algester, and is zoned "Future Urban".
The objection against the decision by the Brisbane City Council on 9 September 1998 to change the categorisation of the land from Category A to Category E within its resolved categories was filed with the respondent Council on 25 November 1998. The reason for the Council's decision to change the categorisation is contained within the letter of 9 September 1998, the relevant part of which reads:"Re: Rates Reference No. 20-16930
Situate: 148 Algester Rd, Algester
Due to a review of Council's rating records, an inspection of the abovementioned property on 20 August 1998 revealed two single unit dwellings.
As a result of this inspection and in accordance with Council's Budget Resolution, General Rates will be charged at category E effective from 01 October 1998. All other rates and charges will reflect that of two single unit dwellings effective from 01 October 1998 also."
By way of letter dated 20 April 1999 under the hand of Allan Webster, Manager (Corporate Finance), the Council disallowed the Company's objection for the following reasons:
"I refer to your objection against the category in which your land was included for the purpose of making and levying differential general rates for the quarter commencing 1st October 1998.
An inspection of the property on 15th March 1999 revealed two single unit dwellings on the land in the assessment. Rating categories are determined by land use and as your land sustains two dwellings, it meets the criteria that Council has determined for category E, regardless of whether any income is derived from them or not.
Therefore, I, being the person authorised by the Council for the purposes of section 87 of the City of Brisbane Act 1924, disallow your objection and confirm the category specified on the rate account."
It is from this decision that the Company appeals to this Court on the following grounds:
"1.Notwithstanding two single units exist upon the said land, insofar as the land is used
(a) solely for residential purposes, and
(b) not for income producing purposes
there is no basis in law that the categorisation should be changed from Category A to Category E, but should remain in Category A.
2.The re-categorisation of the land from Category A to Category E is the result of a blind application of Council's policy, without regard to the circumstances of the case above described. "
The change in the categorisation of the appellant's land was made in the 1998/99 Financial Year. In accordance with Section 81 of the City of Brisbane Act, the respondent Council resolved to categorise rateable lands into six categories (Categories A to G – curiously and no doubt for a reason which is not apparent to me, there is no Category F).
The resolution outlines the general intent of the land use within the categories with which we are concerned in this case. They are:
Category A - In general terms covers all land where the dominant purpose for which that land is used or intended for use is a residential purpose and for the exclusive residential use of the 1 family.
In the case of land on which there is erected a single unit domestic dwelling, or a single unit domestic dwelling and a granny flat, to the extent that the dominant use of the land is residential and exclusively used for the residence of the 1 family or exclusively used for the residence of the 1 family and the care of an aged or infirmed family member, it falls into this category regardless of the zoning of the land. Where the land is used for single unit domestic dwelling purposes and some other purpose, then the dominant purpose for which the land is used or intended for use will be ascertained by reference to the visual, economic and spatial aspects of the uses.
Category E - In general terms covers land which is used or is intended for use for multi-residential purposes on a permanent or semi-permanent basis, or retirement village purposes.
It also covers land on which duplex dwellings and more than 1 dwelling exist and a lot on a group title or building units plan which is divided into and used as flats.
The Land Use Code criteria within the relevant categories as contained within the Council's resolution are:
Category A – Land to which codes
01 – vacant urban land,
04 – vacant urban land, greater than or equal to 2,500 square metres,
06 – outbuilding/amenity block, and
72 – vacant land – valuation discounted for approved subdividers, and
94 – vacant rural land
of the Land Use Codes apply where that land is not wholly residential zoned land or falls within the general intent of this category, and land to which codes
02 – single unit dwelling,
05 – single unit dwelling – large homesite, greater than or equal to 2,500 square metres,
08 – building unit, and
09 – group title unit
of the Land Use Codes apply, other than a lot on a Community Titles Scheme registered under the Body Corporate and Community Management Act 1997 where that lot is used for predominantly non-residential purposes or for purposes other than a single unit dwelling.
Category E – Land to which codes
03 – multiple dwelling/s,
07 – guest house, bed & breakfast, private hotel, tenement building, flatette and rooming units apply, and
21 – residential institution – retirement villages registered as such with the State Justice Department, or retirement villages which are exempt from registration by the State Justice Department and land used for 2 or more unit residences other than to which codes 08 – building unit or 09 – group title apply; and
53 – relocatable home park.
Called in evidence by the appellant company was Ross Vincent Forgione who is a practising solicitor by profession and a director of Belcrest Pty Ltd. Mr Forgione told us that his company has owned Lot 3 on RP 683389 for many years. He erected upon the company's land a residence for himself about 15 or 16 years ago. In 1991, Mr Forgione and his brother Joseph, decided to build a second residence upon the land for occupation and use by Joseph.
The respondent Brisbane City Council tendered in evidence a bundle of correspondence and documents from which I have gained assistance in outlining the following history leading up to the construction of Joseph's residence.
An application was received by Council on 25 March 1991, requesting relaxation of development standards under Section 24.5 of the City of Brisbane Town Plan to construct the second residence on the land. By resolution on 7 May 1991 Council decided that from a Town Planning Point of view no objection could be raised to the relaxation being granted, subject to certain developmental requirements. Council's formal decision dated 16 May 1991 was that it does relax the development standard in relation to the erection of a second detached house on one allotment.
Further documentary evidence suggests that on 13 August 1991, a building application was made to Council for the erection of the residence, and Council advised approval of the building application subject to certain additional requirements by letter on 4 October 1991. It is Mr Forgione's recollection that Joseph's residence was erected on the land soon after receipt of the building approval.
Mr Forgione told us that until Council made the change to the categorisation, his company had been paying rates on the basis of the land being included within the single dwelling category which he nominated as Category 05. But it is clear that Mr Forgione has not distinguished between the categories used by the Brisbane City Council for differential general rating purposes and those used by the Chief Executive, Department of Natural Resources, for valuation purposes. Tendered in evidence by the appellant company is a copy of I.V.A.S. advice from the Department on 23 August 1999 that the Departmental primary land use code was 05. There is no evidence as to what this valuation code is, although Mr Forgione believes it to apply to single dwelling valuations. But in any event, it is not necessary for me to further comment on the Departmental valuation codings as the Council has resolved to establish its own criteria and categories and is empowered to specify such categories of rateable land in accordance with Sections 81, 82, 83 and 85 of the City of Brisbane Act and the Departmental codings are simply irrelevant. But I must say that it appears to be a matter of coincidence that one of the land use codes within Category A as contained within Council's differential general rating table happens to be 05 – single unit dwelling – large homesite, greater than or equal to 2,500 square metres. Mr Forgione told us about the increased rating liability his company has assumed since the change in the categorisation. But this is not a relevant issue, since rating liability within the various categories is a matter for, and the responsibility of, Council.
The respondent Brisbane City Council elected not to call evidence as it is not in dispute with the evidence furnished by Mr Forgione. But its submission is that the multiple residential use of the land clearly allows Council to include it within its land use code 03 within Category E. With this submission I agree, as its use places an absolute prohibition on its inclusion within land use code 05, which is a mandatory requirement if the land is to be placed within Category A for differential general rate assessment purposes.
In the circumstances, and in accordance with the provision of Section 91(1)(b) of the City of Brisbane Act, the appeal is disallowed.
(CH Carter)
Member of the Land Court
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