Hillmoon Pty Ltd and Amos v Whitsunday Regional Council

[2015] QDC 77

DISTRICT COURT OF QUEENSLAND

CITATION:

Hillmoon Pty Ltd & Amos v Whitsunday Regional Council [2015] QDC 77

PARTIES:

HILLMOON PTY LTD
ACN 050 315 755

Appellant/Defendant

v

WHITSUNDAY REGIONAL COUNCIL Respondent/Applicant

and

SUZANNE MARGARET AMOS

Appellant/Defendant

v

WHITSUNDAY REGIONAL COUNCIL Respondent/Applicant

FILE NOS:

9/15 & 10/15

PROCEEDING:

Appeals from decisions of the Magistrates Court at Bowen granting summary judgment to the council

ORIGINATING COURT:

Magistrates Court at Bowen

DELIVERED ON:

10 April 2015

DELIVERED AT:

Southport

HEARING DATE:

27 March 2015

JUDGE:

Judge CF Wall QC

ORDERS:

Leave to appeal refused in each case; appeals dismissed.

CATCHWORDS:

APPEALS – LOCAL GOVERNMENT – RATES AND CHARGES – whether council entitled to levy utilities charges for sewerage where sewerage treatment plant is not owned by council – summary judgment entered for council in Magistrates Court – less than $25,000 involved in each appeal – whether an important principle of law or justice is involved.

LEGISLATION:

Local Government Act 2009, Sections 91, 92, 94, 99
Magistrates Court Act 1921, Section 45
Local Government Regulation 2012, Section 99
Water Supply (Safety and Reliability) Act 2008

COUNSEL:

Ms L. Harris (Solicitor) – for the appellants/defendants

 Mr M. de Ward– for the respondent/applicant

SOLICITORS:

 Simmonds & McCartney – for the appellants/defendants

 Macrossan & Amiet – for the respondent/applicant

Introduction

1. These are appeals from decisions of the Magistrates Court at Bowen granting summary judgment to the council.

1. In each case the council sued the appellants for unpaid rates and charges.

1. In each case the appellant defended the claim on the basis that the council was not entitled to levy the sewerage component of the rates and charges because the sewerage infrastructure was not owned by the council, rather it was owned by Aspen Whitsunday Shores Pty Ltd (the company) and the company had not authorised the council to issue rates and charges on its behalf.

1. In Amos judgment was entered for $10,366.01 including interest of $1,773.99 plus costs.

1. In Hillmoon judgment was entered for $24,044.96 including interest of $4,463.42 plus costs.

1. In each case the Magistrate’s reasons were expressed as follows

I hear the parties and read the material.  Applicant respondent have proved to me that they are entitled to levy rates for the infrastructure that connects the sewerage plant to the lot owned by the defendant. 

Sections 99, 92(1) and 92(4) LGA 2009 provide for the authority for the WRC to do so [sic].  The defendant maintains the plaintiff cannot levy rates for the infrastructure it does not own and/or operate and/or maintain the plaintiff owns, operates and maintains the sewerage plant and the defendant’s lot.  Curiously, the defendant states its position would be different if the lot was not vacant.

There is, in my view, no trialable issues and the defendant, on its argument has no real prospects of success at trial.

Application is granted.  I grant judgment for the plaintiff’s claim, interest and costs.

1. Because the amount of each judgment is less than $25,000 s. 45(2)(c) Magistrates Court Act provides that leave to appeal is required and shall not be granted unless the court is satisfied that some important principle of law or justice is involved.  This was the issue argued before me.  Related to it is a consideration of the merits of the appeals.  The council says there are no merits and an appeal would be futile.  The appellants submit that issues involved are of public and general importance and affect many ratepayers in the Whitsunday region and in other areas of Queensland.

1. The appellants only challenge the sewerage charges and not the other rates and charges levied.  This reduces the amounts involved in the appeals considerably.

1. The appellants’ argument is summarised in their outlines of argument as follows

4.         The Defendants deny that the sewerage rates are fully payable on the basis that the council does not fully own the business activity providing the service and has no right to claim charges in respect of services they either do not own or do not own and have no authority to charge from the owners.

5.         The Defendants’ claim that the sewerage treatment plant (‘STP’) is owned and operated by a third party Aspen Whitsunday Shores Pty Ltd who has not authorised the Plaintiff to issue rates and charges on its behalf.  The defence is limited to the percentage of sewerage charges relating to the STP.

1. The council owns the pipes and infrastructure (including sewerage pump stations) between the sewerage treatment plant and the appellants’ property but not the treatment plant.

1. In each case the Magistrate had before him an affidavit by Amanda Ayers, a council employee which contained the following two paragraphs

The sewerage at the Defendant’s property discharges into Council’s gravity sewerage system which discharges into Council’s sewerage pump station on the corner of Ocean View Drive and Fairway Drive, which then pumps the sewerage along our pressure rising main to discharge into the Aspen Sewerage Treatment Plant.

Council also attend to the repairs and maintenance of the sewerage system at the Defendant’s property which includes the pump stations mechanical, electrical systems and structures.  Further, Council attends to identification and repair of leaks, breaks to the sewerage reticulation networks such as manholes, junctions and pipes.

1. This evidence was not disputed.

1. The appellants maintain that the council can only charge for that part of the infrastructure that it owns and/or operates and/or maintains.  Their argument does not amount to much more than this and the contention that s. 99 Local Government Regulation 2012 does not allow the council to levy sewerage charges in their case. They filed no material in the Magistrates Court other than written submissions.

1. Their written submissions refer to correspondence between the parties which the appellants contended “identified the issues” and their opposition to the charges.  They raised the following issues

(a)         the sewerage component of rates is being paid to the wrong entity

(b)         the sewerage treatment system is maintained by Aspen, the developer of Whitsunday Shores estate and is located on that estate

(c)         sewerage treatment needs to be maintained by council before it can claim levies

(d)         the council is charging by false pretences

(e)         Aspen is an independent sewerage service.

1. The council’s position was stated in the correspondence in the following terms

The Whitsunday Regional Council is the registered service provider for the sewerage service in the Whitsunday region. The properties fall within the serviced area for Bowen. Under section 99 of the Local Government Regulation 2012, the Council may levy utility charges, which includes charges to access to a sewerage service.

A ‘sewerage service’ is defined in the Water Supply (Safety and Reliability) Act 2008 as sewage treatment, the collection and transmission of sewage through infrastructure or the disposal of sewage or effluent.

The Council currently operates and maintains the sewerage network (such as gravity mains, man-holes, pump stations and rising mains) within the Whitsunday Shores development.  This is clearly the collection and transmission of sewage through the Council’s infrastructure and therefore the provision of a sewerage service for which the Council is entitled to levy a utility charge.  It does not matter if a property is not physically connected to the sewerage network (as is generally the case for vacant lots) as property within the Bowen service area are able to access the sewerage network.

The annual charge for vacant lots within the Bowen service area is $445.00 for the 2011/12 financial year.  Council is not able to waive or refund payment of this charge in relation to the properties.

The acceptance of the sewage treatment plant ‘on maintenance’ by Council is a matter between the developer and the Council and is not connected to the charging of utility charges.  It is up to the developer to ensure that the sewage treatment plant is constructed in accordance with the conditions of the development approval before Council can accept the plant ‘on maintenance’.

1. Council relied on s. 99 Local Government Regulation 2012 and ss 91(2), 92(1)(c) and s. 92(4)(c) Local Government Act. [1]

   [1] Email 18 July 2013

1. Section 99(1) Local Government Regulation empowers a local government to “levy utility charges on any basis the local government considers appropriate”.  The appellants contend that ‘the legal meaning of s. 99(1) does not correspond with the literal meaning” but do not amplify this argument beyond contending that “a proper process of statutory construction was not undertaken”.  Likewise I am unable to see that the provisions of the Planning Guidelines for Water Supply and Sewerage which the appellants also refer to are of any assistance to them.   In my view, the words are clear and unambiguous and mean what they say.  For present purposes they are qualified by sub secs (2) – (4).  Subsecs (3) and (4) empower a local government to levy utility charges for services. 

1. Section 91(2) Local Government Act provides that ‘rates and charges’ are levies that a local government imposes

(a)         on land; and

(b)         for a service, facility or activity that is supplied or undertaken by –

(i)        the local government; or

(ii)       someone on behalf of the local government (including a

garbage collection contractor, for example)

1. Section 92(1)(c) provides that rates and charges include utility charges.

1. “Utility charges” are defined in s. 92(4) as follows

92(4)     Utility charges are for a service, facility or activity for any of the following utilities –

(a)     waste management;

(b)     gas;

(c)     sewerage;

(d)     water.

1. ‘Sewerage’ is not defined but Schedule 4 of the Act defines ‘sewerage treatment system’ as follows

the infrastructure used to receive, transport and treat sewage or effluent (including sewers, access chambers, machinery, outfalls, pumps, structures and vents, for example).

1. Council made reference to the dictionary definition of “sewer” as

pipe or conduit for conveying sewerage drainage; drainage by, system or provision of sewers.

1. The Macquarie Pocket Dictionary defines “sewer” and “sewerage” as follows

‘sewer’ a pipeline, usually underground, for carrying off waste water and matter as from a town

‘sewerage’ 1. the removal of waste water and matter by means of sewers.  2.  The pipes and fittings carrying sewerage.

1. The council also referred to the following part of the Revenue Statement for the 2012/13 financial year

Council will levy waste water and sewerage charges on each rateable property, both vacant and occupied, that council has or is able to provide with sewerage services.

1. The council’s “Utility charge – sewer” is in the same terms.

1. The council contended that “the underground pipes and sewerage pump stations are owned and operated by council.  Therefore council provides a sewerage service (to the appellants’ properties) therefore sewerage rates are able to be levied and are payable”.

1. The basis for the council charges clearly extends beyond what occurs at the sewerage treatment plant.

1. There is no legislative requirement that a sewerage treatment plant be owned by council before it can levy sewerage charges.  There is no legislative support for the arguments advanced by the appellants, on the contrary, the statutory provisions I have referred to support the stance taken by council.

1. Whether a property is vacant or developed makes no difference to the liability to pay applicable utilities charges.

1. The Magistrate was correct in the decisions he reached.  Nothing turns on his incorrect description of s. 99 being in the Act rather than the Regulation.

1. There is thus no merit in either appeal and therefore no important principle of law or justice is involved. 

1. In these circumstances leave to appeal will be refused in each case and the appeals will be dismissed.

1. I will hear the parties on the costs of the appeals.