DEAN and CITY OF KALAMUNDA
[2021] WASAT 30
•11 MARCH 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: DEAN and CITY OF KALAMUNDA [2021] WASAT 30
MEMBER: JUDGE D R PARRY, DEPUTY PRESIDENT
HEARD: 19 FEBRUARY 2021
DELIVERED : 19 FEBRUARY 2021
PUBLISHED : 11 MARCH 2021
FILE NO/S: DR 262 of 2020
BETWEEN: JAMES DEAN
Applicant
AND
CITY OF KALAMUNDA
Respondent
Catchwords:
Practice & procedure - Summary dismissal - Dismissal of proceeding as misconceived - Local government - Rating - Method of valuation - Gross rental value - Tribunal has jurisdiction to determine question of general interest as to whether a rate or service charge was imposed in accordance with the Local Government Act 1995 (WA) - Applicant seeking to challenge method of valuation by gross rental value
Legislation:
Local Government Act 1995 (WA), s 6.25, s 6.26, s 6.28, s 6.32, s 6.82
State Administrative Tribunal Act 2004 (WA), s 47, s 47(1)(a), s 47(2)
Valuation of Land Act 1978 (WA), s 4(1)
Result:
Proceeding dismissed as misconceived
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Mr A Watts |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 27 November 2020, Mr James Dean (Mr Dean or applicant) filed an application purporting to be under s 6.82(1) of the Local Government Act 1995 (WA) (LG Act) in the Tribunal. In the application, Mr Dean seeks the following determination from the Tribunal:
Gross Rental Value not be applied where no gross rent is received and a full refund of GRV credited against future city service charges.
The grounds on which Mr Dean applies to the Tribunal for this determination are stated in the application as follows:
The Local Government Act 1995 applies a gross rental value GRV as being received by me in accordance with s4 of the Valuation [of Land] Act 1978. These amounts are supplied on all Commonwealth land. The West Australian State local government district of Kalamunda must discern which land is tenanted by a tenancy agreement so it can apply a GRV rate with the City service charges. Rates are a tax applied on an income, my dwelling home is where I live and make no such gross rental income where a GRV can be applied.
The City of Kalamunda (City or respondent) has made an application for an order that the proceeding be dismissed or struck out as being misconceived under s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
I will firstly set out the legislative framework and then the parties' submissions in relation to the application to dismiss or strikeout the proceeding before considering that application.
Legislative framework
Section 6.82 of the LG Act states as follows:
(1)Where there is a question of general interest as to whether a rate or service charge was imposed in accordance with this Act, the local government or any person may refer the question to the State Administrative Tribunal to have it resolved.
(2)Subsection (1) does not enable a person to have a question relating to that person's own individual case resolved under this section if it could be, or could have been, resolved under section6.76.
(3)The State Administrative Tribunal dealing with a matter referred to it under this section may make an order quashing a rate or service charge which in its opinion has been improperly made orimposed.
Section 6.28 of the LG Act concerns the basis of rates and includes the following:
(1)The Minister is to —
(a)determine the method of valuation of land to be used by a local government as the basis for a rate; and
(b)publish a notice of the determination in the Government Gazette.
(2)In determining the method of valuation of land to be used by a local government the Minister is to have regard to the general principle that the basis for a rate on any land is to be —
(a)where the land is used predominantly for rural purposes, the unimproved value of the land; and
(b)where the land is used predominantly for nonrural purposes, the gross rental value of the land.
(3)The unimproved value or gross rental value, as the case requires, of rateable land in the district of a local government is to be recorded in the rate record of that local government.
…
The term 'gross rental value' is defined in s 6.25 of the LG Act asfollows:
gross rental value in relation to land has the same meaning as under the Valuation of Land Act 1978[.]
Section 4(1) of the Valuation of Land Act 1978 (WA) (VL Act) contains the definition of the term 'gross rental value' which states, in part, as follows:
gross rental value of land means the gross annual rental that the land might reasonably be expected to realize if let on a tenancy from year to year upon condition that the landlord were liable for all rates, taxes and other charges thereon and the insurance and other outgoings necessary to maintain the value of the land …
Section 6.32 of the LG Act provides for the making of rates and service charges and relevantly includes the following:
(1)When adopting the annual budget, a local government —
(a)in order to make up the budget deficiency, is to impose* a general rate on rateable land within its district, which rate may be imposed either —
(i)uniformly; or
(ii)differentially;
and
(b)may impose* on rateable land within its district —
(i)a specified area rate; or
(ii)a minimum payment;
and
(c)may impose* a service charge on land within itsdistrict.
* Absolute majority required.
(2)Where a local government resolves to impose a rate it is required to —
(a)set a rate which is expressed as a rate in the dollar of the gross rental value of rateable land within its district to be rated on gross rental value; and
(b)set a rate which is expressed as a rate in the dollar of the unimproved value of rateable land within its district to be rated on unimproved value.
…
Section 6.26 of the LG Act states as follows:
(1)Except as provided in this section all land within a district is rateable land.
(2)The following land is not rateable land —
(a)land which is the property of the Crown and —
(i)is being used or held for a public purpose; or
(ii)is unoccupied, except —
(I)where any person is, under paragraph (e) of the definition of owner in section 1.4, the owner of the land other than by reason of that person being the holder of a prospecting licence held under the Mining Act 1978 in respect of land the area of which does not exceed 10ha or a miscellaneous licence held under that Act; or
(II)where and to the extent and manner in which a person mentioned in paragraph (f) of the definition of owner in section 1.4 occupies or makes use of the land;
and
(b)land in the district of a local government while it is owned by the local government and is used for the purposes of that local government other than for purposes of a trading undertaking (as that term is defined in and for the purpose of section 3.59) of the local government; and
(c)land in a district while it is owned by a regional local government and is used for the purposes of that regional local government other than for the purposes of a trading undertaking (as that term is defined in and for the purpose of section 3.59) of the regional local government; and
(d)land used or held exclusively by a religious body as a place of public worship or in relation to that worship, a place of residence of a minister of religion, a convent, nunnery or monastery, or occupied exclusively by a religious brotherhood or sisterhood; and
(e)land used exclusively by a religious body as a school for the religious instruction of children; and
(f)land used exclusively as a non‑government school within the meaning of the School Education Act 1999; and
(g)land used exclusively for charitable purposes; and
(h)land vested in trustees for agricultural or horticultural show purposes; and
(i)land owned by Co‑operative Bulk Handling Limited or leased from the Crown or a statutory authority (within the meaning of that term in the Financial Management Act 2006) by that co-operative and used solely for the storage of grain where that co-operative has agreed in writing to make a contribution to the local government;and
(j)land which is exempt from rates under any other written law; and
(k)land which is declared by the Minister to be exempt from rates.
(3)If Co‑operative Bulk Handling Limited and the relevant local government cannot reach an agreement under subsection (2)(i) either that co-operative or the local government may refer the matter to the Minister for determination of the terms of the agreement and the decision of the Minister is final.
(4)The Minister may from time to time, under subsection (2)(k), declare that any land or part of any land is exempt from rates and by subsequent declaration cancel or vary the declaration.
(5)Notice of any declaration made under subsection (4) is to be published in the Gazette.
(6)Land does not cease to be used exclusively for a purpose mentioned in subsection (2) merely because it is used occasionally for another purpose which is of a charitable, benevolent, religious or public nature.
Finally, s 47 of the SAT Act states as follows:
(1)This section applies if the Tribunal believes that a proceeding —
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)is being used for an improper purpose; or
(c)is otherwise an abuse of process.
(2)If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and make any appropriateorders.
(3)The Tribunal's powers to act under subsection (2) are exercisable only by a legally qualified member.
(4)The Tribunal may act under subsection (2) on the application of a party or on its own initiative.
City's submissions
The City submits that:
[Mr Dean's] application … challenges the method of valuation of land determined by the Minister under [s] 6.28 of the [LG] Act
and it:
… therefore falls outside the scope of [s] 6.82 of the [LG] Act as it is not a question as to whether or not rates are 'imposed' in accordance with the Act.
The City submits that Mr Dean's application:
… in substance seeks the Tribunal's review of the Minister's determination rather than the City's decision in imposing the rate, which raises a question of jurisdiction.
The City submits that because the Tribunal does not have jurisdiction to make the determination that Mr Dean seeks, the application should be struck out or dismissed as misconceived.
Mr Dean's submissions
Mr Dean submits that, ultimately, the question he asks the Tribunal to determine in this proceeding is relatively simple one to answer, namely:
Does the applicant receive an annual rent or not where the Local Government Act 1995 applies regarding a GRV [gross rental value] levy?
Mr Dean submits that, because his home is not rented from year to year and he therefore does not receive an annual rent:
This GRV [gross rental value] is an unfair State Government tax.
He submits that where no rental income is derived from property, a rate cannot be imposed on the basis of the gross rental value of that property. In support of his submission, Mr Dean refers to the definition of the term 'gross rental value' under s 4(1) of the VL Act to which I have referred and, in particular, emphasises the words '… if let on a tenancy from year to year…' in the definition. Mr Dean also submits that because he does not rent out his home, it is not relevantly 'rateable land' for the purposes of the LG Act.
Should the proceeding be dismissed or struck out?
The respondent's submission that the Tribunal does not have jurisdiction under s 6.82(1) of the LG Act to determine the question sought to be raised by Mr Dean in this proceeding is correct. Section6.82(1) of the LG Act only authorises the Tribunal to resolve a question of general interest 'as to whether a rate or service charge was imposed in accordance with this Act', not any question as to the correct method of valuation to be used by a local government as the basis for a rate, including whether the correct method of valuation to be used for the imposition of a rate is gross rental value. The determination by the Minister of the correct method of valuation to be used for the imposition of a rate is both logically and temporally anterior to the imposition of a rate by a local government. The determination of the correct method of valuation, whether by gross rental value or otherwise, is not a question as to whether a rate or service charge was imposed in accordance with the LG Act.
The proceeding is therefore misconceived within the meaning of s 47(1)(a) of the SAT Act, as the City submits, on the basis that the Tribunal does not have jurisdiction to make the determination sought by Mr Dean.
Furthermore, a local government has no choice but to set a rate on the basis of the gross rental value of rateable land under s 6.32 of the LG Act, whether rent is received by the landowner or not, when the Minister has determined under s 6.28 of the LG Act that the method of valuation of the land to be used by the local government is the gross rental value of the land. The proceeding is misconceived for this reason as well.
As I said earlier, Mr Dean refers to the definition of gross rental value under the VL Act and emphasises in particular the words '… if let on a tenancy from year to year …'. However, this definition does not mean that gross rental value can only be used as the method of valuation for the imposition of a rate under the LG Act if the rateable land in question has in fact been let on a tenancy from year to year. Rather, the definition simply prescribes the meaning of the term 'gross rental value' in terms indicating that it is a hypothetical tenancy, not an actual one.
Finally, as I indicated earlier, Mr Dean submits that not only is his land incapable of being rated on the basis of gross rental value, because it is not rented out but used by him, but also that, in consequence, it is not 'rateable land' for the purposes of the LG Act. However, as indicated earlier, the term 'rateable land' refers under s 6.26(1) of the LG Act to 'all land within a district' except as provided in s 6.26 of the LG Act. Mr Dean does not point to any particular provision within s 6.26 as relevant and indicating that his property falls within an exception and therefore is not rateable land. Nor, in my view, could the property reasonably fall within any of the exceptions set out in s 6.26 of the LG Act to land being rateable land. Mr Dean's land is land within the district of the respondent and therefore is rateable land as it does not fall within any of the exceptions set out in s 6.26 of the LG Act.
Conclusion
For these reasons, the proceeding that Mr Dean has brought before the Tribunal is misconceived and, consequently, should be dismissed on that basis under s 47(2) of the SAT Act. I therefore make the followingorder:
The proceeding is dismissed under s 47(2) of the State Administrative Tribunal Act 2004 (WA) on the basis that it ismisconceived.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE D R PARRY, DEPUTY PRESIDENT
11 MARCH 2021
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