E Cocco & Sons Investments Pty Ltd v Gold Coast City Council

The case of E Cocco & Sons Investments Pty Ltd v Gold Coast City Council involved the applicant, the owner of land forming the tip of a peninsula, on which it operated a caravan park. The respondent, Gold Coast City Council, had constructed a bridge in the 1970s, providing access to the land. When the bridge fell into disrepair and was closed, the respondent undertook to rebuild the bridge and to recover the costs by levying a “special charge” on the applicant. The applicant sought judicial review of the respondent's decision to make and levy the charge, alleging that the decision was not authorised by the Local Government Act 2009 (Qld) and the Local Government (Finance, Plans and Reporting) Regulation 2010 (Qld), and that the respondent had not adopted an “overall plan” and an “annual implementation plan” as required by the Regulation.

The court had to decide whether the respondent’s decision to levy the charge was authorised by the Act and the Regulation, and whether the respondent had adopted an “overall plan” and an “annual implementation plan” prior to undertaking the work. The court also had to determine whether non-compliance with the Regulation should result in invalidity and whether relief should be refused on discretionary grounds. The respondent argued that non-compliance with the Regulation should not result in invalidity, and that it was not a purpose of the legislation that an act done in breach of the Regulation should be invalid.

The court found that the respondent’s decision to levy the charge was not authorised by the Act and the Regulation, and that the respondent had not adopted an “overall plan” and an “annual implementation plan” prior to undertaking the work. The court also found that non-compliance with the Regulation should result in invalidity, and that it was a purpose of the legislation that an act done in breach of the Regulation should be invalid. The court refused to refuse relief on discretionary grounds.

The court declared the decision of the respondent dated 24 June 2011, whereby the respondent resolved to make and levy a special charge for the year 2011/2012 on rateable land described as Lot 1, RP192926 and situated at 73 Nerang Street, Nerang, in the sum of $2,157,268, invalid and of no effect. The court also set aside the rates notice issued by the respondent dated 5 September 2011, so far as it sought to levy the said special charge. The respondent was ordered to pay the applicant’s costs of and incidental to the application to be assessed on the standard basis.