Burtenshaw v Warrubullen Drainage Board
[1994] QLC 59
•28 October 1994
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BRISBANE
28 OCTOBER 1994
Re: Appeal against Assessment by
Warrubullen Drainage Board -
Water Resources Act 1989 Section 9.48
(A94-37)
Garry Frederick Burtenshaw and Rosemary Ann Burtenshaw
v.
Warrubullen Drainage board
(Hearing at Innisfail)
D E C I S I O N
This is an appeal under s.9.48 of the Water Resources Act 1989 by Mr GF and Mrs RA Burtenshaw against the assessment of the Warrubullen Drainage Board for rates payable to it for the six months ending 30 June 1994.
The assessment is in respect of 159.83 hectares contained within land described as Lot 4 on Registered Plan 38693, Portion 299, RL 3342, Lot 1 on Registered Plan 24040, Portion 173, and Lot 297 on Plan NR 5437 and is made as follows:39.45 hectares Class 1 @ $15.94 per ha $628.83
61.71 hectares Class 2 @ $11.35 per ha $700.41
13.14 hectares Class 3 @ $ 6.38 per ha $83.83
45.53 hectares Class 4 @ $ 4.78 per ha $217.63
Total $1,630.70
This assessment was contained in a notice which issued on 1 April 1994 and which contained details of arrears and interest. During the hearing it became apparent that the Burtenshaws have been in conflict with the Board about the assessment of rates for some time. However, this appeal is against the assessment described above and the Court has jurisdiction to deal with that matter only.
The grounds for this appeal are set out in the appellants' Notice of Appeal:"1.Rates imposed are excessive and inequitable;
2.The appellants do not receive any benefits from the Drainage Scheme and nil levy or rates should be paid by them;
3.Further and in the alternative to 2 if any benefit is received rates imposed are excessive having regard to any benefits received from the Drainage Scheme;
4.That the Drainage Scheme has not been effective in preventing water damage to crops and grass and has not provided adequate drainage and therefore rates imposed are excessive;
5.That basis of rating and classifications applied are unfair and excessive."
Before dealing with the appellants' arguments, it is necessary to consider the constitution and authority of the Warrubullen Drainage Board.
The Warrubullen Drainage Area and the Warrubullen Drainage Board were constituted under the provisions of the Water Act 1926 by an Order in Council dated 7 August 1980 and published in the Government Gazette of 9 August 1980. The Order in Council states that the Area is constituted "to provide improved drainage within the area by means of a system of open drains, and to ensure continued maintenance of the existing drainage works and to provide for the proper administration of the area."
The Order in Council also sets out the constitution of the Board which was to comprise four members elected by the ratepayers within the Area and one member appointed by the Governor in Council. The works of the Board were to be financed by means of a scheme whereby the Board raised revenue by levying rates on a differential system based on land use and land elevation. The land within the Drainage Board Area was shown on a plan attached to the Order in Council and it is sufficient for present purposes to say that this area includes the land owned by the Burtenshaws.
Under the provisions of s.29C of the Water Act 1926, the Board could make and levy rates in respect of any land within its area which is subject to rating, on such basis or bases as the Board may by by-law determine. Accordingly, by By-law No. 2 published in the Government Gazette of 26 September 1981, the Board resolved to make and levy rates in respect of all land in its area which was subject to rating, in accordance with a differential scheme. This scheme fixed a separate rate per hectare for classes of land determined by whether or not it was assigned or unassigned land and whether it was above or below the 12 metre contour level. In respect of assigned land, Class 1 land was below that contour level, while Class 2 land was above that level. In respect of unassigned land, Class 3 land was below the contour level, while Class 4 land was above that level.
The Water Act 1926 was repealed by the Water Resources Act 1989, but drainage areas and boards constituted under the Water Act which were in existence immediately prior to the commencement of the Water Resources Act were, by s.1.3(2)(g) and (h), deemed to be constituted under that Act and continue in existence under the names then assigned to them, until they were abolished or dissolved or otherwise dealt with under that Act. Similarly, under s.1.3(2)(n) all by-laws made under the repealed Act and in existence immediately prior to the commencement of the Water Resources Act, continued in existence as by-laws under that Act, until repealed in accordance with the Water Resources Act.
By-law No. 2 was exempted from the provisions of the Regulatory Reform Act 1986 by Order in Council dated 22 June 1989.
Although s.1.3 of the Water Resources Act 1989 was repealed by the Primary Industries Corporation Act 1992, By-law No. 2 was itself saved by virtue of the provisions of s.16 of that latter Act and is now taken to have been made under the authority of the Primary Industries Corporation.
I return to the arguments of the appellants:
Mr and Mrs Burtenshaw argue that their land receives no benefit, or at best very limited benefit, from the operations of the Drainage Board. Both Mr and Mrs Burtenshaw gave evidence and it emerged that their dispute with the Board is based on their understanding that the original purpose of the Board was to drain the lands in the Warrubullen Drainage Area and make them suitable for growing cane. While they were prepared to concede that the Board's drains do take water away from their property, the drainage is so slow that water lies on much of the assigned land which is below the 12 metre contour for so long that it is impossible to grow cane on most of that land. Of the land above the 12 metre contour level, the Burtenshaws cannot see that the Board's drains benefit that area at all, as it drains naturally to the lower levels.
On behalf of the Board, the Chairman, Mr KJ Adams, gave evidence and tendered the Minutes of the Board meeting of 17 February 1994. These Minutes showed that the Board resolved to issue rate notices for the six months ending 30 June 1994 in accordance with By-law No. 2, and to levy the rates per hectare as follows:Class 1 $15.94
Class 2 $11.35
Class 3 $6.38
Class 4 $4.78
He affirmed that these levies were applied to all land in the Drainage Board Area on the basis of the areas of each class of country in each property.
Mr Adams said that prior to the introduction of the drainage scheme, the area below the 12 metre contour level on the subject land was a low-lying, swampy area upon which it was not possible to grow cane. He expressed the opinion that the drainage in that area has improved.
Mr MD Johnson, a technical officer employed by the Water Resources Section of the Department of Primary Industries and the Government representative on the Board, also gave evidence. He explained that he understood that the purpose of the Board was to provide residual drainage to agricultural land to get rid of ponded water in low-lying areas once the flood waters had receded. To achieve this purpose, the Board provided and maintained major drains as outlets for each farm's internal drains. The Burtenshaws' land was at the top end of the catchment and the Board's drains at their property's boundary provide outlets for its internal drainage water.
Mr Johnson understood that the Board levied rates in accordance with By-law No. 2, which had been continued in force, and that in levying rates there were no exceptions to the four classes of rateable land. Even though the Burtenshaws were not growing cane on some of their assigned land, this land was rated as assigned land below the 12 metre contour level.
Mr Johnson said that it was his understanding that any rating scheme made under the provisions of s.9.41 of the Water Resources Act required that benefit to the land owner be taken into account. However, there was no such requirement for the rating scheme in By-law No. 2. The assessment was based on a mathematical calculation of the area of the assigned and unassigned lands above and below the 12 metre contour, multiplied by the appropriate rate per hectare determined by the Board from time to time. He understood that the Board did not have the discretion to take into consideration the circumstances affecting individual property owners.
Mr Johnson said that the Board is currently undertaking a complete review of its assessment programme. However, until it changes its system of assessment, it is bound by By-law No. 2 and not by the provisions of s.9.41 of the Water Resources Act.
The solicitor for the Board, Ms V Gibson, made the following submissions: The purpose of the Board was to improve the drainage of the Area by means of open drains and not to make growing crops economically viable. The Board has imposed rates and levies in accordance with By-law No. 2 which are not excessive or inequitable. These rates have been applied equally to all rateable lands in the Area as prescribed by the By-law.
Ms Gibson argued that because By-law No. 2 had been preserved, there was no need for the Board in making and levying its rates, or for this Court, to consider the concept of benefit to the ratepayer. However, in the alternative, if that argument should fail, she submitted that the land does receive benefit from the Board's drains.
Mrs Burtenshaw argued that in her opinion the Water Resources Act 1989 does repeal By-law No. 2 and therefore benefit must be taken into account. She does not believe that the appellants have been treated fairly or equitably. The natural drainage of the land has not been improved and they do not feel that there has been any real benefit because of the works of the Drainage Board.
This case turns on whether or not in making and levying the rates, the Board should have had regard to the benefit received or likely to be received by a ratepayer. The appellants contend that it should do so and rely on the provisions of s.9.41 of the Water Resources Act 1989, which reads as follows:"(1) A Board, instead of making and levying rates in accordance with s.9.40 may make and levy rates in respect of land within its area that is subject to rating under this Act on a basis or bases as the Board by by-law determines.
(2) In determining by by-law the basis or bases on which rates may be made or levied in accordance with this section, the Board must have regard to the benefit received or likely to be received by a ratepayer."
In CR Lancini v. Foresthome Drainage Board (1992) 14 QLCR 97, this Court considered whether a by-law of a Drainage Board made under the provisions of s.29C of the Water Act 1926 and continued by the savings provisions of the Water Resources Act 1989, required the Board to take into account benefit to the land owner.
In that case the Court found that the Board had to take into account the concept of benefit, but only because of the way in which the proviso to the by-law was framed. If it had not been for that proviso then there was no requirement for the Board to take into account the concept of benefit. The Court also found that the Board had the power to make and levy rates in accordance with any of the methods provided for in the Water Resources Act, but had chosen to continue to make and levy rates as authorised by the by-law made under the Water Act.
As found in Lancini's case, this Court has no jurisdiction to order a Board to adopt any particular method of rating. Under the provisions of Division 6 of the Water Resources Act 1989, a Board has wide powers to adopt a method of assessment which it considers appropriate. In this case the Warrubullen Drainage Board has continued to apply By-law No. 2 which has been preserved in force as set out previously. That by-law makes no reference to the concept of benefit and, in accordance with the reasoning in Lancini's case, this Court cannot imply such a term into the by-law.
It would seem from the evidence that the appellants do not gain significant benefit from the Drainage Board's works for at least some of the area of assigned land below the 12 metre contour, the area which has been assessed at the highest rate. Be this as it may, this Court has no jurisdiction to review the decision of the Board on the basis of equity or fairness.
Mr Johnson has said that the Board is presently reviewing its methods of assessment and it may be of some comfort to the appellants to know that if the Board does adopt another basis of assessment by by-law under the provisions of s.9.41 of the Water Resources Act, then it will be obliged to consider questions of the benefit received or likely to be received by a ratepayer. However, I am of the opinion that the present method of assessment has been correctly carried out in accordance with the relevant legislative provisions. Therefore, the appeal must fail.
Accordingly, the appeal is dismissed and the assessment of the Board for the six months ending 30 June 1994 in the sum of $1,630.70 is affirmed.
(JJ Trickett)
MEMBER OF THE LAND COURT
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