Houghton v Caloundra City Council
[2007] QLC 133
•20 December 2007
LAND COURT OF QUEENSLAND
CITATION: Houghton v Caloundra City Council [2007] QLC 0133 PARTIES: James Thomas and Dianne Margaret Houghton
(appellants)v. Caloundra City Council
(respondent)
FILE NO: VC2005/1139 and VC2006/0750 DIVISION: Land Court of Queensland PROCEEDING: Appeal against categorisation under Local Government Act 1993. DELIVERED ON: 20 December 2007 DELIVERED AT: Brisbane HEARD AT: Caloundra MEMBER: Mr RP Scott ORDER: The appeals are dismissed. CATCHWORDS: Local Government Act – categorisation – construction of council resolution. APPEARANCES: Mr J T Houghton, for the appellants.
Mr A Sinclair, instructed by Messrs Heiner & Doyle, solicitors for the respondent.
There is at 38 Warne Terrace Caloundra City a building named "Kokomo Caloundra" which has, pursuant to the Building Units and Group Titles Act 1980, being subdivided into 15 individual home units one of which, number 12, is owned by the appellants. Section 966 of the Local Government Act 1993 (the Act) permits a local government to make and levy a differential general rate on rateable land by categorising land into identified categories. The respondent has categorised the appellants' home unit on two relevant occasions. The appellants dispute the category said by the respondent to apply to the home unit for those occasions and the consequent level of local government rates which apply.
For the purposes of the 2005-2006 financial year the respondent resolved a total of 24 rating categories including:
"7a Unit Level 0-3,
7b Unit Level 4-6."The resolution provided for both "general" and "specific" criteria that needed to be satisfied for each category, for a rateable parcel of land to be included in that category. General criteria for each of categories 7a and 7b were expressed as follows:
"This criterion will apply where the land is; a. used for residential purposes, or has the potential predominant use by virtue of its improvements or activities conducted upon the land of residential purposes, and; b. characterised by one of the land use codes in the adjacent specific criteria attributable to this category."
The relevant specific criteria to the relevant categories are:
"Category 7a - 08 community title scheme – Unit level 0 – 3 stories above the ground."
"Category 7b – 08 community title scheme – Unit level 4 – 6 stories above the ground."
Further in the resolution the rating implications for the relevant categories are provided for:
" Rates in the dollar Minimum General Rate
Category 7a .007219 781.00
Category 7b .007732 859.00"By notice dated 22 July 2005 the respondent issued to the appellants an Annual Notice for the period 1 July 2005 to 30 June 2006 advising that the appellants' home unit was, for differential general rates purposes, categorised as falling within the level 4-6, or category 7b for that period.
A later resolution applying to the 2006-2007 year included categories in the same terms as in [2] above with general and specific criteria also expressed in the same terms as for the 2005-2006 resolution. The rating implications were altered to:
" Rates in the dollar Minimum General Rate
Category 7a .005952 826.00
Category 7b .006456 1,074.00"An annual notice for the period 1 July 2006 to 30 June 2007 was issued by the respondent to the appellants on 24 July 2006 placing the subject property in the same category as for the previous year.
The appellants objected to each of the categorisation decisions applying to their home unit (s.984) and, having failed to effect a change in categorisation by the objection, filed appeals in each matter (s.987 provides a right of appeal). The two appeals were heard together.
The appellants contend that their home unit is three levels or stories above the ground and therefore ought to be included in category 7a for each of the years in question. In support of that contention James Thomas Houghton provided documentary evidence and made submissions in support of the appeals.
A local government is said to speak by its resolutions.[1] The task before me is therefore one of considering which category the appellants' home unit falls into of the categories established by the respondent by resolution. Those categories and their respective criteria can only be altered displaced or replaced by resolution. Accordingly, the issue between the parties resolves to a question of construction of the relevant parts of the resolution of the respondent.
[1] Russell v Brisbane City Council (1955) QSR 419 and Young v Watson (1932) 11 NSW LGR 63.
I notice that in a letter the respondent sent to the appellants (exhibit 3) there was an attempt to explain how the "specific criteria" should be understood. Whilst that explanation may or may not be helpful as a source of understanding, it cannot be relied on in place of the language of the respondent's resolution. Similarly, there is what is referred to as "important information" included as part of each rate notice and which purports to explain the various rateable land categories. As useful as that information might or might not be, it does not overtake the words on the relevant resolution.
The appellant's home unit comprises a main floor and a smaller mezzanine floor. The parties are agreed that the mezzanine floor is not a "storey" for the purpose of categorisation of the unit. The inclusion of the mezzanine floor in the home unit for the purpose of categorisation is consistent with the understanding that I have placed on the term "unit level" below.
Mr Houghton submitted that as the annual rates notice applied to the appellants' home unit and not to the "Kokomo Caloundra" building, that unit complex is not relevant to the debate between the parties. I cannot accept that. It is clear that the respondent imposes rates on each home unit individually based on the category each unit falls into: something which can only be ascertained by reference to the "unit level" specific criteria in the building complex. To disregard the complex is to make the general and specific criteria meaningless.
Now the issue here is not whether in the case of each appeal, the appellants' home unit is on level 3 or on level 4 by reference to some general understanding of what a level or storey is. That is so whether that general understanding comes from an architect, an elevator company or from a building code. The issue to be first understood is what the relevant resolution of the respondent means. What did the council intend by the language used; in particular, by the language in the "specific criteria"? In order to consider this question I will select one specific criterion as an example noting that the language in each criteria in categories 7a, and 7b is similar, only the numbers being different. I take the following from category 7a:
"08 community title scheme – Unit level 0 – 3 stories above the ground"
The categories determined by the respondent's resolution apply to "all parcels of rateable land". The general criteria for categories 7a and 7b require that land be "used for residential purposes" or have that potential. It is clearly referring to a residential "unit" – the term found in the specific criteria. The term "unit" therefore apparently refers to the living space in a home unit (or residential unit) usually identified as lying between the floor and the ceiling of that unit. It cannot sensibly apply to the floor only of a particular home unit. It applies to that which the owner of the home unit uses and enjoys; that is the airspace between the floor and the ceiling as confined by the walls.
Reference in the specific criteria is to a "unit level" which is, in category 7a "0-3 storeys above the ground". Thus, in the present case I am concerned with identifying how many "storeys above the ground" the appellants' home unit level is found. That is, the unit level is identified by reference to the number of storeys. It is common ground that the term "level" means the same as "storey". No definition of "storey" is, however, found in the respondent's resolution.
The City Plan 2004 for the respondent defines a "storey" as:
"'storey' means a vertical dimension within a building which is situated between one floor level and the floor level next above it, or if there is no floor above it, the ceiling or roof above. The term includes a space for the storage of goods or for the accommodation of vehicles."
Whilst that definition applies to the City Plan and is not expressed to apply to all resolutions of the council, it is consistent with the definition of "storey" found in the Macquarie Dictionary (2nd edition):
"1. a complete horizontal section of a building, having one continuous or approximately continuous floor. 2. the set of rooms on the same floor or level of a building. 3. each of the stages separated by floors, one above another, of which a building consists."
Mr Houghton referred to the definition of "storey" as it appears in the Australian Building Codes Board publication. One aspect of that definition is that it provides that a storey does not include
"a space that contains only accommodation intended for not more than 3 vehicles".
On the basis of that definition, Mr Houghton submitted that, as it is the appellants' unit that is subject to differential rates and not the whole building; and as space for not more than 3 vehicles is attached to the appellants' home unit, the garage level in the "Kokomo Caloundra" building is not a storey for the purpose of categorisation.
That point of view fails on two counts. First, it is quite clear that any reference must be made to the whole building for the purpose of identifying the category into which an individual home unit falls. Second, there is nothing in the resolution of the respondent adopting the building code definition for the purpose of the specific criteria set out in the resolution. An understanding of the resolution under consideration must arise from an analysis of the language found in the resolution itself, not from other legislation or delegated legislation which happens to deal with a similar subject matter. A definition appearing in one piece of legislation cannot be used to interpret the same word in another piece of legislation.[2] The definition supplied by the Building Codes Board is specialised to its particular purpose and should not be preferred to the ordinary and plain meaning of the term "storey" found in the dictionary definition and in the City Plan 2004.
[2] R v Hancox [1989] 3 NZLR 60 (CA).
The first point of reference in the criterion quoted at [15] to which I will refer is "the ground". The criterion does not speak of a ground level or storey, but of the ground on which the building is located – the ground which the levels or storeys of the building are above. It is quite clear that, in context, "the ground" refers to something that is not part of the building. It hardly seems necessary to define "ground" however, for completeness I adopt the description "the earth's solid surface" found in the Macquarie Dictionary (2nd edition).
The second point of reference is provided by the numbers and in this category it is the number "3" that is relevant. The "storey 3" provides the upper limit of category 7a. The identification of storey 3 is to be established by reference to "the ground", which is the first point of reference.
In the case of "Kokomo Caloundra" the first part of the building above "the ground" is a number of undercover car parks or garages used and owned by the individual home unit owners. It would be usual to refer to that first storey as a "ground level" car park, but that should not be confused with the language in the specific criteria under discussion which refers to "the ground" not to a ground level. In the context of that criterion the ground level car park occupies the first storey of the building. It is the first storey above "the ground".
The next storey above that level comprises home units as does the next storey again. It is this last mentioned storey that is the third storey above "the ground". Each of the storeys mentioned in this paragraph is a "unit level", as I have understood that term. It is important to notice, however, that the specific criteria refers to unit levels which are 0 – 3 storeys above the ground, not to the number of unit levels above the ground.
The appellants' home unit is on the next storey above the ground. Therefore, it is not within the group of unit levels that are 0-3 storeys above the ground, but it falls into the 7b grouping in that it lies 4 storeys above the ground. My conclusion is therefore that the appellants' home unit falls into category 7b in each appeal.
The application of my understanding of the word "storey" to the term "0-3 storeys above the ground" does not lead to the conclusion that the garage level of the building is to be found "0" in storeys above the ground. It is clear that the garage level is a storey and that it is above the ground, not below it. It is therefore the first storey above the ground. Logically, there can be no actual storey of a building that is "0" storeys above the ground. Something that is "0" storeys above the ground is at ground level and is not part of the structure of the building. The expression "0 storeys above the ground" is therefore not a helpful one. That has been recognised by the respondent who wrote to the appellants indicating an intention to alter the specific criteria to designate levels 1-3 as category 7a and levels 4 – 6 as category 7b rather than persist with the language presently employed. Such a change would not lead to a different outcome from that presently found in each respective category but it may make clearer to ratepayers what is intended.
Order
The appeals are dismissed.
RP SCOTT
MEMBER OF THE LAND COURT
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