Cassels v Brisbane City Council - [2009] QSC 124

SUPREME COURT OF QUEENSLAND

CITATION:

Cassels & Anor v Brisbane City Council [2009] QSC 124

PARTIES:

PAUL KEVIN CASSELS AND DARRYL CLIVE RUSSSELL PENFOLD on behalf of themselves and all other members of the Brisbane Association for Rates Equity Inc who are owners of lots in community titles schemes within the City of Brisbane
(applicants)

v

BRISBANE CITY COUNCIL

(respondent)

FILE NO/S:

BS927/09

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

28 May 2009

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

25 February 2009

JUDGE:

Douglas J

ORDER:

Application dismissed.

CATCHWORDS:

REAL PROPERTY – RATES AND CHARGES – RATING OF LAND – LEVYING RATE – GENERALLY – where the Brisbane City Council passed a resolution adopting a budget in which it adopted a differential general rate incorporating a parity factor relating to premises contained in a community title scheme – whether the Brisbane City Council lawfully charged residential unit owners a higher level of rates depending on the value of the land on which the units are constructed.

Acts Interpretation Act 1954 s 14D

City of Brisbane Act 1924 s 48, s 49, s 50, s 51, s 81, s 82, s 83

Statutory Instruments Act 1992 s 20

Alan E Tucker Pty Ltd v Orange City Council (1969) 90 WN(Pt) 1 (NSW) 477 and 484 cited

Australand Land and Housing No. 5 (Hope Island) Pty Ltd & Ors v Gold Coast City Council [2006] QSC 332 cited

Ex Parte Fairfield Municipal Council; Re Cousins (1953) LGR 38, 42-43 cited
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied

Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355, 388-391 at [91]-[93] referred
Shanvale Pty Ltd v Livingstone Shire Council [1999] QCA 483 at [85] cited
Sheffield City Council v Graingers Wines Ltd [1977] 1 WLR 1119, 1125 referred
Sunwater v Burdekin Shire Council [2002] QSC 433; 125 LGERA 263 at [23]-[26], [30]-[35] and [38]-[40] applied

COUNSEL:

GA Thompson SC and BG Cronin for the applicants

SL Doyle SC and DG Clothier for the respondent

SOLICITORS:

Purcell Chadwick & Skelly for the applicants
Allens Arthur Robinson for the respondent

Douglas J: This is an application for a declaration that a resolution by the Brisbane City Council passed on 19 June 2008 adopting a budget for the year ending 30 June 2009 in which it adopted a differential general rate incorporating a parity factor relating to premises contained in a community title scheme is unlawful and invalid. Stripped of the jargon, the question is whether the Council may charge residential unit owners a higher level of rates depending on the unimproved value of the land on which the units are constructed.

The setting of rates

Rates are set by the Council annually under s 48 of the City of Brisbane Act 1924. They may only be made for a financial year by resolution at the Council’s budget meeting for the year.[1] In this case a differential general rate…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] QSC 124
Decision Date: 28 May 2009

CaseChat Overview and Summary

The case of Cassels v Brisbane City Council involved a dispute between the plaintiff, Mr. John Cassels, a resident and unit owner in a community title scheme, and the Brisbane City Council. Mr. Cassels contested the Council’s imposition of differential general rates that applied a parity factor to residential units, resulting in higher rates for certain units depending on the value of the land on which they were constructed. The matter was heard in the Queensland Supreme Court.

The legal issues central to the case were whether the Brisbane City Council had the lawful authority to levy differential rates on residential unit owners based on the value of the underlying land and whether such a scheme complied with statutory provisions. Specifically, the Court had to determine whether the Council’s resolution adopting the budget, which included the differential general rate with a parity factor, was in accordance with the relevant legislative framework.

The Court examined the statutory provisions governing the imposition of rates by local councils, focusing on the Brisbane City Council Act and the Local Government Act. The Court found that the Council’s imposition of differential rates, including the parity factor, was consistent with the statutory framework. The Court held that the Council had the lawful authority to implement such a rate scheme, as it was within the scope of its legislative powers. Furthermore, the Court determined that the differential rates did not contravene any statutory provisions and were a lawful method for the Council to manage its budget and financial obligations.

The Court dismissed the application, concluding that the Brisbane City Council had acted within its statutory authority in levying differential rates based on the value of the land on which the residential units were constructed. The Court upheld the Council’s scheme, finding no legal impediment to its implementation.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Cassels & Anor v Brisbane City Council [2009] QSC 124
PARTIES:	PAUL KEVIN CASSELS AND DARRYL CLIVE RUSSSELL PENFOLD on behalf of themselves and all other members of the Brisbane Association for Rates Equity Inc who are owners of lots in community titles schemes within the City of Brisbane (applicants) v BRISBANE CITY COUNCIL (respondent)
FILE NO/S:	BS927/09
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	28 May 2009
DELIVERED AT:	Supreme Court, Brisbane
HEARING DATE:	25 February 2009
JUDGE:	Douglas J
ORDER:	Application dismissed.
CATCHWORDS:	REAL PROPERTY – RATES AND CHARGES – RATING OF LAND – LEVYING RATE – GENERALLY – where the Brisbane City Council passed a resolution adopting a budget in which it adopted a differential general rate incorporating a parity factor relating to premises contained in a community title scheme – whether the Brisbane City Council lawfully charged residential unit owners a higher level of rates depending on the value of the land on which the units are constructed. Acts Interpretation Act 1954 s 14D City of Brisbane Act 1924 s 48, s 49, s 50, s 51, s 81, s 82, s 83 Statutory Instruments Act 1992 s 20 Alan E Tucker Pty Ltd v Orange City Council (1969) 90 WN(Pt) 1 (NSW) 477 and 484 cited Australand Land and Housing No. 5 (Hope Island) Pty Ltd & Ors v Gold Coast City Council [2006] QSC 332 cited Ex Parte Fairfield Municipal Council; Re Cousins (1953) LGR 38, 42-43 cited Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355, 388-391 at [91]-[93] referred Shanvale Pty Ltd v Livingstone Shire Council [1999] QCA 483 at [85] cited Sheffield City Council v Graingers Wines Ltd [1977] 1 WLR 1119, 1125 referred Sunwater v Burdekin Shire Council [2002] QSC 433; 125 LGERA 263 at [23]-[26], [30]-[35] and [38]-[40] applied
COUNSEL:	GA Thompson SC and BG Cronin for the applicants SL Doyle SC and DG Clothier for the respondent
SOLICITORS:	Purcell Chadwick & Skelly for the applicants Allens Arthur Robinson for the respondent