Hammond Villages Pty Ltd v Council of the City of the Gold Coast

[1996] QSC 46

IN THE SUPREME COURT

OF QUEENSLAND  Application No. 144 of 1995

Brisbane

[Hammond Villages Pty Ltd v. Council of the City of the Gold Coast]

BETWEEN:
  HAMMOND VILLAGES PTY LTD

Applicant

AND:
  COUNCIL OF THE CITY OF THE GOLD COAST
  Respondent

REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered:                 27/3/1996

CATCHWORDS: Judicial Review Application - s.630 Local Government Act (1993) - remission of rates for land occupied by pensioners - remission policy up to and including 1994-95 did not extend to residents of caravan and relocatable homes - Council's decision to defer consideration of extension of rate remissions until after the next election.  No reviewable error.

Counsel:  P. Bickford for the Applicant
  S. Doyle S.C. for the Respondent

Solicitors:  Primrose Couper Cronin Rudkin for the Applicant
  Hickey Lawyers for the Respondent

Hearing date:  6/12/1995
IN THE SUPREME COURT

OF QUEENSLAND  Application No. 144 of 1995

Brisbane

BETWEEN:
  HAMMOND VILLAGES PTY LTD

Applicant

AND:
  COUNCIL OF THE CITY OF THE GOLD COAST
  Respondent

REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 27 March 1996

This application for statutory review arises in the context of a number of disputes and disagreements between the applicant and the respondent in respect of the respondent's levying of rates and charges which are canvassed by the material. 
           The particular issue with which I am dealing is the respondent's refusal of an application for the remission of rates and charges in respect of a mobile home park (the Hammond Village Relocatable Home Park) owned by the applicant.  The park is occupied by pensioners and other persons.
           The particulars of the applicant's complaint are variously expressed.  In essence however, the applicant's complaint comes down to that the respondent did not have regard to the terms of the relevant section, but rather blindly applied an existing policy without considering the circumstances of the particular case.  It was also said that the decision was so demonstrably unreasonable that it could not have been a proper exercise of power.
Section 630 (at least that is the numbering it enjoys in reprint number 3) of the Local Government Act 1993 (the Act) became law on 26 March 1994. It relevantly provides that:-

"630.(1)  A local government may remit, wholly or partially, the payment of a rate if the land is occupied, but not owned, only by pensioners or by pensioners and other persons.

(3)If land is occupied by pensioners and other persons, the local government may remit the payment of a rate only—

(a)for the part of the rate that, in its opinion, is fairly attributable to the parts of the land where a pensioner has rights to exclusive occupancy; and

(b)if the owner of the land has given a binding undertaking to the local government that the benefit of the remission will be extended to each pensioner.

(4)This section is subject to section 631 (Conditions on exercise of concession powers)." 

(Subs. 2 is irrelevant in the present circumstances).

As I have said, the applicant is the owner of land occupied by pensioners and other persons.  Before 26 March 1994 the respondent's power to remit the payment of the rates did not extend to where land was occupied by pensioners and other persons but it provided for remissions in more limited circumstances.  The respondent had a policy in respect of remissions under the more limited power.  Its budgets for the 1992-93 and 1993-94 financial years provided for remissions on the pre 26 March basis.     
When s.630 became law on 26 March, the respondent commissioned a report from its officers. The report and its recommendations commended themselves to the respondent's finance committee and were ultimately adopted by the respondent (the full council) on 3 June 1994. The recommendations adopted include:-

"That further information be obtained on the costs involved and the administrative requirements of extending rate remission to occupants of relocatable home and caravan parks and the matter be referred back to Council prior to 1995/96 budget discussions.

That the information regarding the number of pensioner non-homeowners be obtained from the Federal Department of Social Security as soon as possible."

The material indicates that the concern of the respondent and its officers was directed essentially to the budget impact of granting remissions of rates under the expanded powers conferred by s.630 and considerations of the equity of the impact of that on the general body of rate payers. The size of the potential rate remission liability for the 1994-95 financial year was estimated to be in the order of $1.5 million. The matters canvassed by the report ultimately adopted by the Council are plainly relevant. It is not suggested that any irrelevant considerations were canvassed and the matters are quite capable of supporting the conclusions reflected in the recommendations adopted.
By letter dated 12 September 1994 the applicant's solicitors wrote to the respondent canvassing a number of the differences between the parties. Relevantly for present purposes it came to be accepted by the respondent that the letter was to be treated as including an application, relying on s.630, for the remission of water and sewerage rates for the 30 June 1993; 1994 and then current financial years. I say "came to be accepted" because the letter made no express reference to s.630 and although in its opening paragraph it referred to remission, the balance of the fairly lengthy letter dealt with what were described as specific liabilities disputed by the applicant. The arguments advanced by the letter appear to have little regard for the requirements of s.630.
           After receipt of the letter of 12 September, a council officer met with representatives of the applicant to canvass issues raised by the letter including that presently under consideration.  The issues were discussed by that officer with the respondent's director of financial services before going before the finance committee and ultimately the respondent.
           On 21 December 1994 the respondent wrote to the applicant in respect of the remission of rates for eligible pensioner residents of the respondent's park.  The letter relevantly stated:-

". . at its meeting of 16 December 1994 . . (the respondent) resolved that:

`the rate payer be advised that the Council's current pensioner remission policy does not extend to permanent residents in relocatable home parts.'

Please note, legislation enabling Council to consider an extension of rate remission to residents of caravan and relocatable home parks only became available under the auspicious of the newly adopted Local Government Act 1993. Subsequent to that legislation, Council resolved at its meeting of 3 June 1994:

`that further information be obtained on the costs involved and the administrative requirements of extending rate remission to occupants of relocatable home and caravan parks and the matter be referred back to Council prior to 1995-96 budget discussions'.

Notwithstanding however, I advise that the State Government's recent decision to amalgamate the current Gold Coast City and Albert Shire Councils has meant that any decision on extending the current rate remission scheme will become a matter for the new Council after the election of 11 March 1995.

In view of the foregoing I reiterate that as Council's current policy does not include provision for residents of relocatable home or caravan parks to receive rate remission, no concession on rates can be granted for the years up to and including 1994-95."

This is the decision which the applicant seeks to have reviewed.
           The picture which, to my mind, emerges from the material is that at its June meeting, the respondent resolved to further investigate the impact of extending rate remissions to categories including those into which the applicant came before determining its attitude to remissions on an extended basis.  Remissions on the extended basis could not, for obvious reasons, be accommodated in the then existing policy reflecting as it did a narrower power.  After consideration of the matters raised by the respondent's application, the respondent adhered to that position with the added consideration of the issue being a matter for the new Council after the election of 11 March 1995.  It cannot, in my view, be suggested that that was an improper consideration. 
           Put shortly then, the respondent's position was that the applicant did not come within the existing policy, framed as it was on a narrower remissions power.  The respondent was not prepared to grant wider remissions without investigation; in the meantime the matter became one for the new Council.  This course of events does not, to my mind, demonstrate a reviewable error of the kind complained of by the applicant in its application. 
There are moreover difficulties with the application of 12 September 1994. The exercise of the discretion conferred to by s.630 requires that only that part of rates fairly attributable to occupation by pensioners is eligible for remission. The remissions sought by the letter of 12 September, at least in respect of sewerage rates, appears to relate to vacant (as distinct from occupied) sites on the applicant's land.
           Moreover, the undertaking offered by the applicant did not pass the benefit of the remission to pensioners in respect of their occupation but rather sought to confer a benefit on all occupants of the applicant's park.  Whilst it may be true that an undertaking could be formulated which would comply with the statutory requirement, the application which was in fact made could not lawfully have been granted by the respondents.
It remains to deal with a complaint that the respondent failed to have regard to (what was at the time of the application), s.787(1) and (2) of the Act. The provisions have the effect of deeming rates levied prior to the 1993 Act to be rates levied under that Act. It is therefore arguable that s.630 can apply to permit the remission of rates levied and payable (perhaps even paid) prior to the 1993 Act. As I say the proposition is arguable without offering it as a concluded view. It has not been demonstrated that the respondent considered the position to be otherwise and indeed its concerns about exposure to the period prior to 3 June 1994 suggests that it regarded that as being the case.
           The considerations being those which I have addressed, the application should be dismissed.