Invatel P/L v Brisbane City Council
[2001] QCA 486
•9 November 2001
SUPREME COURT OF QUEENSLAND
CITATION: Invatel P/L v Brisbane City Council [2001] QCA 486 PARTIES: INVATEL PTY LTD (ACN 010 895 520)
(applicant/appellant)
v
BRISBANE CITY COUNCIL
(respondent)FILE NO/S: Appeal No 3273 of 2001
SC No 10980 of 2000DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 9 November 2001 DELIVERED AT: Brisbane HEARING DATE: 21 September 2001 JUDGES: McPherson and Thomas JJA and Jones J
Separate reasons for judgment of each member of the Court each concurring as to the orders madeORDER: The appeal be dismissed with costs CATCHWORDS: LOCAL GOVERNMENT – POWERS, FUNCTIONS AND DUTIES OF COUNCILS GENERALLY – whether Council entitled to make and levy utility charges for supply of water and sewerage services in respect of lots owned by the appellant – consideration of various sources of Council’s power to make and levy utility charges
Water Act 1973 (UK), s 30
Body Corporate and Community Management Act 1967 (Qld), s 151
City of Brisbane Act 1924 (Qld), s 48, s 52, s 52(1), s 53, s 57, s 58(1), s 58(2), s 58(3), s 58(4), s58(5), s 58(6), s58(7), s 60(1)(b) and s 62(1)
Metropolitan Water Supply and Sewerage Act 1909 (Qld), s 86, s 87, s 89
Local Laws of the Brisbane City Council, Chapter 17Daymond v South West Water Authority (1976) AC 609, considered
Hammersmith Bridge Company v Overseers of Hammersmith (1871) LR 6 QB 230, considered
Soady v Wilson (1835) 111 ER 407, considered
South Devon Water Board v Gibson (1955) 2 QB 448, considered
Southern Riverina County Council v Lewington (1963) 8 LGRA 417, considered
Sutton v Norwich Corporation (1858) 27 LJ Ch 730, consideredCOUNSEL: M D Hinson SC for the applicant/appellant
P J Lyons QC for the RespondentSOLICITORS: Quinn & Scattini for the applicant/appellant
Brisbane City Legal Practice for the respondent
McPHERSON JA: I have read and agree with the reasons of Jones J for dismissing this appeal. I also agree with the additional reasons of Thomas JA.
To my mind, the fundamental question in this appeal is the meaning of the word “services” in s 58(1) of the City of Brisbane Act 1924. It is this provision that invests the Council with power to make and levy utility charges for supplying water services and sewerage services to land. The question at issue is whether it authorises such a charge to be made where sewerage or water services are made available by the Council even though the ratepayer in question does not in fact make use of them.
Services is a word that in recent times has been tending to lose much of its precision. It has always had a wide meaning. The Shorter Oxford English Dictionary includes the following:
“3. The supply or laying on of gas, water, etc through pipes from a reservoir; the apparatus of pipes, etc, by which this is done.”
The date of use of that meaning in that instance is given as 1879. The next is as follows:
“4. Provision of labour, material, appliances, etc, for the carrying out of some work, for which there is a constant public demand.”
In this instance the identified date of first use is 1853. Either or both of these two meanings of “services” would, I consider, be capable of comprehending the supply of water services or sewerage services to land within the meaning of s 58(1) of the Act. For both, water is supplied or laid on through pipes from a reservoir; and even if that conclusion might be more debatable in the case of sewerage (which is taken away and not supplied), that function is performed by an “apparatus of pipes by which this is done”. Originally, it should be borne in mind, sewers simply referred to drains without the connotation that it now bears of removing fecal matter: Sutton v Norwich Corporation (1858) 27 LJ Ch 730, 742.
This approach to the question tends to be confirmed by s 58(2), which authorises the making and levying of a utility charge “during construction of facilities for the purpose of supplying water or sewerage services”. Plainly, at that stage neither water nor sewerage services are in fact being supplied. The fact that specific authority was thought necessary to cover that circumstance does not detract from the general proposition that facilities are being constructed from or by means of which such services are capable of being provided.
Superficially at least, it seems absurd that the Council should see fit to make and levy rates for supply of water and sewerage services to items such as car parking spaces, storage cupboards, advertising hoardings and the like. However, in England one of the criteria of rateability under the ancient and even the more recent statutes of sewers was whether the land in question derived benefit from the works, which it was said in Soady v Wilson (1835) 3 Ad & E 248, 263; 111 ER 407, 413, was not required to be immediate and might be extremely small. It was enough, said Lord Denman CJ in that case, that the land enjoyed the “the general benefit and advantage of being accessible and its approaches and neighbouring public ways being properly drained and cleansed”. See also Hammersmith Bridge Company v Overseers of Hammersmith (1871) LR 6 QB 230, where this principle was later applied as the test of rateability.
It may be that some such rationale underlies and affords the ultimate justification for authorising the Council to charge sewerage and water rates in cases like this. Viewed in this way, the rate is essentially a contribution to the maintenance of public health in the area in which the land is situated. But whether or not that is so, I agree that the Council was authorised here to make and levy a rate on the land in the present instance.
It follows that the appeal should be dismissed with costs.
THOMAS JA: I have the advantage of having read the reasons of Jones J and agree with his Honour’s conclusions.
In the present matter sewerage pipes run through the ceiling of three of the appellant’s lots but there is no connection to any of them. Similarly, water pipes run through the ceiling of 14 of the lots, which could be but are not tapped into for domestic usage. Apart from three lots, each of which has a tap on its boundary, none of them have any existing outlet or inlet for water supply or sewerage disposal. The building was of course designed without provision of separate water and sewerage facilities for each car parking lot.
It seems strange that the owner of 65 car parking lots should be charged rates for water and sewerage in respect of each lot when such services are not connected or required or ever likely to be required. The Brisbane City Council has seen fit to impose such charges. The amount involved is quite substantial. Over the past five years the amount levied, which the appellant has refused to pay, is $90,000. One can well understand the appellant’s concern, not to mention resentment, at the continuation of such an impost. However the question for this court is whether the Council has the power to impose such charges. If it has such power, the solution to what are considered to be unreasonable decisions is political, not legal.
The central charging provision in the City of Brisbane Act 1924 (CBA) is s 58. It includes the following –
“58.(1) Utility charges may be made and levied for supplying water or sewerage services to any land (whether vacant or occupied), building or structure.
…
(6) The council may do 1 or more of the following –
(a) make and levy a utility charge for services supplied or to be supplied during part of the financial year and part of another financial year;
(b) make and levy differing charges for services supplied or to be supplied during various periods in 1 or more financial years;
(c) in making and levying differing charges under paragraph (b), decide the way the charges are to be apportioned.”
The question arises whether the words “for supplying water” in s 58(1) stand alone or whether are to be read as part of the phrase “supplying water….services.” Whilst it is arguable that there might be some differentiation between the concept of supplying water or supplying water services, it seems fairly clear from s 58(6) and s 58(7) that the “services” referred to in ss (1) include both water services and sewerage services. That being so, I consider that the proper interpretation of s 58 is that the charges are levied on the supply of water service. I also consider that the right to make such a charge exists irrespective of the question whether the consumer avails himself or herself of it.
In addition to establishing its right to make charges of the present kind under the CBA, I agree with Jones J that the Council had power under the Metropolitan Water Supply & Sewerage Act 1909 to levy charges for both water and sewerage. Section 87 gives the power to make water rates in respect of any land that has direct access to a road in which a main pipe has been laid down when the land is within 300ft of the main pipe. Section 89 permits the making and levying of sewerage rates irrespective of whether the land is occupied or whether the land is connected with a sewer. I also agree with Jones J’s conclusion that the terms of the 1996/7 resolution did not add connection as a necessary additional factor for the levying of the charge, and that the terms of the resolutions in ensuing years are sufficient to make the appellant’s lots liable to such charges.
I agree with the order proposed by Jones J.
JONES J: The appellant is the owner of 65 lots in a strata titled building situated at 28 Astor Terrace, Spring Hill, Brisbane. Each lot is a car parking space in a commercial parking station which contains 226 car parking units in the first eight floors of the building with the ninth floor used as an office unit. The remaining areas are designated common property.
The respondent has levied annual utility charges in respect of each of the 65 lots for each of the four financial years ending 30 June 1997 – 2000. The appellant has refused to pay, contending that the respondent did not have power to make and levy the charges. The appellant sought a declaration to this effect in Supreme Court proceedings at Brisbane but was unsuccessful. The appellant appeals against the dismissal of its application in those proceedings.
The utility charge is defined by s 52(1) of the City of Brisbane Act 1924 (CBA) as a “charge for the supply by the Council of water, sewerage or cleansing services to any land, building or structure in the city.”
The first source of the power to levy such a charge relied upon by the respondent is s 58 of CBA. This section relevantly provides:-
“(1) Utility charges may be made and levied for supplying water or sewerage services to any land (whether vacant or occupied), building or structure.
(2) Utility charges may be made and levied during construction of facilities for the purpose of supplying water or sewerage services.
(3) Utility charges may be made and levied for supplying cleansing services (within the meaning of section 52) to any occupied land or any building or structure.
…
(5) Utility charges may be made and levied on such bases as the Council considers appropriate.”
The actual utility charges are made by resolution each financial year (s 53 CBA) and are levied by a rate notice given to the owner of the land in relation to which the rate is levied (s 60(1)(b) CBA). The owner of the land is liable to pay any rate levied by the Council that is applicable to the land (s 62(1)CBA).
Each of the 65 lots owned by the appellant is part of a community title scheme and is therefore, by virtue of s 151 of the Body Corporate and Community Management Act 1997, “a separate lot, piece or parcel of land for a law imposing charges, levies, rates or taxes on land”.
None of the appellant’s lots is connected to either water mains or sewerage mains though such mains are located in the footpaths adjacent to the building. There are pipes connecting those mains to the building which continue into and through parts of the building. Water is supplied to a fire service booster and the external wall at the rear of the building and to fire sprinklers in different parts of the building. Sewerage pipes run through some of the appellant’s lots to provide a connection to the office unit but there is no connection to any of the appellant’s lots.
The appellant contends that without connection of the lots to either the water supply or sewerage system there is no supply of services within the meaning of s 58(1)CBA and that therefore, the lots are not liable to be the subject of a utility charge.
The issue turns on the proper construction of that section and the resolutions purportedly made thereunder. The terms of the resolutions for each of the relevant financial years are identical save as to the amount of the service charge for the respective year. I shall set out the relevant terms for the 1996/7 year. They are –
(a) Water Charges
Utility charges for the supply of water services to land in the City (“water charges”) are made and are to be levied for the financial year on all land within 100 metres of a main supply and to which the Council is prepared to supply water on a bases that are specified in the Schedules of this Resolution and which the Council considers appropriate.
SCHEDULE
(v)…[T]he water charge in respect of all land to which (i), (ii), (iii), and (iv) apply is not to be less than the amount of $298.24, but if the relevant land is a lot on a Building Unit or Group Title Plan and used for car parking space, storage cupboard, mini-storage unit, advertising hoarding or purposes of a like nature, the water charge is not to be less than $149.12.[1]
[1]Appeal record p 158
(b)Sewerage Charges and Sewerage Pedestal Charges
Utility charges for the supply of sewerage services to land in the City (“sewerage charges and sewerage pedestal charges”) are made and to be levied for the financial year on all land that is sewered premises on the bases that are specified in Schedule of this Resolution and which the Council considers appropriate.
SCHEDULE
(vi)…[T]he sewerage charge in respect of all land to which (i), (ii), (iii) and (iv) apply is not to be less than the amount of $188.96, but if the relevant land is a lot on a Building Unit or Group Title Plan and used for a car parking space, storage cupboard, mini-storage unit, advertising hoarding or purposes of a like nature, the sewerage charge is not to be less than $94.48.
“sewered area” means an area declared in a general notice which has been given in accordance with the provisions of Local Law 28 of Chapter 17 of the Local Laws of the Council.
“sewered premises” means premises in a sewered area or a premises which is connected with any sewer of the Council. [2]
[2]Appeal record p 162
The respondent identified the provisions of ss 86, 87 and 89 of the Metropolitan Water Supply and Sewerage Act 1909 (“MWSSA”) as an alternate source of power for the making of the resolution. This statute provided for water supply and sewerage services before the establishment of the respondent Council under the City of Brisbane Act 1924. The learned trial judge found (at [36] of her reasons) that the power to make and levy the rates did exist in the provisions of the MWSSA in addition to the power under ss 48-62 of CBA. Mr. Hinson, of Senior Counsel for the appellant, conceded that the respondent had power under the MWSSA [3] but argued that the terms of the resolution, regardless of the power on which it is based, requires a physical connection of the lots to the water supply or sewerage system.
[3]Transcript p 5/1
In support of this submission Mr. Hinson first[ly] made a comparison with the terms of the resolution made by the council prior to the 1996/7 financial year. Dealing with water rates, for example, in the 1994/5 year, the relevant criteria for liability to pay water rates was whether the land “abuts upon or has direct access to or from any road in which main pipe has been laid down from which the Council is prepared to supply water to that land which is within 100 metres of such main pipe…”
In the 1995/6 financial year the relevant charge related to land “which the Council is prepared to supply water to that land which is within 100 metres of a main supply pipe”. [4]
[4]Appeal record p 157
Thus there were two criteria establishing liability to pay the charge - location within 100 metres of a water main and the Council’s preparedness to supply. There was no requirement for connection to the main or actual supply of water. Those criteria were satisfied with respect to the appellant’s lots and it duly paid the charges in those years.
It was the change in the terms of the resolution for the 1996/7 and subsequent years that provokes the appellant’s claim that the charges are not now payable. The criteria of location within 100 metres of the water main and the Council’s preparedness to supply still remain. The change is found in the commencing words “Utility charges for the supply of water services to land in the City (“water charges”) are made and are to be levied…” The appellant contends that the words “the supply of water services” requires a physical connection to the land additionally to the other criteria.
To support this contention the appellant refers to a number of cases where various terms associated with the supply of water for rating or taxing purposes were considered.
In Southern Riverina County Council v Lewington[5], the relevant statutory power provided for rates to be levied upon land “which is supplied with water from a water pipe of the Council.” The issue was whether a charge so defined applied to four of the five allotments through which ran a private water pipe connected to the Council main but where water supply was physically connected only to the one lot. Nagle J held that what was contemplated by the words in that section was that the water was “supplied for use and for it to be so supplied then there must be immediately available the means of using the commodity supplied”[6]. He held that in those circumstances the rate could not be levied unless and until the pipeline was tapped rendering the water available for use.
The terms in the statutory provision “supplied with water” are to my mind distinctly different to the terms under consideration “supply of water services”.
[5](1963) 8 LGRA 417
[6]ibid at p 420
In South Devon Water Board v Gibson[7] the relevant provision empowered the authorities which “supply water to any premises” to charge a water rate. The circumstances were that residents in the area had enjoyed an immemorial right to draw water free of charge from three public standpipes. The control of the water system later vested in the local authority for “the gratuitous supply of water” to local inhabitants. However, the local authority laid a main to the public standpipes and made the connection to the defendant’s cottage and then levied a rate for the supply of water. The issue was whether the water which came into the cottage as a result of the connection was “supplied” by the authority. The Court of Appeal held that the charge was valid. Denning LJ said (at p 455):-
“The whole question depends, therefore, on whether the Board “supply water to any premises” within the meaning of those section. I think that they do. It seems to me that, when the Board collect the water into their tank and pass it through their filter and then into their main, the Board thereby reduce the water into their possession: so much so, that if anyone tapped the main without their authority, the Board would have sufficient property in the water to maintain larceny at common law.”
His Lordship then went on to find that because the authority had facilitated the supply of water to the premises they were entitled to charge a water rate for it.[8]
This case concerned a determination of the right to water at the point of supply. It does not particularly assist in the task of construing this resolution to determine whether actual supply of water was a relevant criterion for the right to make the water charge.
[7](1955) 2 QB 448
[8]See also Birkett LJ at p 457
In Daymond v South West Water Authority[9] the House of Lords considered whether under certain statutory provisions an occupier of a hereditament not connected to a public sewer could be charged for sewerage disposal services. The power to impose the charge was derived from s 30 of the Water Act 1973 (UK) whose terms relevantly provided –
“30. (1) Subject to the provisions of this Act, a water authority shall have power to fix, and to demand, take and recover such charges for the services performed, facilities provided or rates made available by them …as they think fit.”
The actual charge was made by a statutory instrument requiring a local authority to collect the charge in the form of a poundage upon the rateable value of the hereditament.
[9](1976) AC 609
The judgments of their Lordships criticised the generality of the statutory provision and its failure to stipulate who should be charged with the levy. Viscount Dilhorne described this lack of certainty as “most astonishing”[10]. In the absence of any express provision, the determination of the question depended on what inferences could be drawn as to the legislature’s intention. In the end result the majority (Viscount Dilhorne, Lord Kilbrandon and Lord Edmund-Davies) decided that as the legislature failed to state, as it could have done, that benefit was to be the test of chargeability, the court should not so interpret the section as to read into it something that is not, but could have been, there.[11] The minority (Lords Wilberforce and Diplock) relied on the fact that the historical basis for charging sewerage rates related to the public benefit and in the absence of express words saw no justification for imputing to parliament an intention to change established legislative policy.
The House of Lords were dealing with legislation of an entirely different kind to that under consideration here. The decision depended more upon the inference as to the legislative intent and this does not assist in the construction of the respondent’s resolutions.
[10]ibid at p 639H
[11]ibid at p 641C
In my view none of the cases relied upon by the appellant provided any direct guidance as to the proper construction of the terms of these resolutions. This fact rather bears out the remarks of Nagle J in Southern Riverina in stating that he did “not think that much can be gained by reference to other cases dealing with other acts of parliament which concern the interpretation of the word “supply””.[12]
[12]Southern Riverina at p 418
Mr. Lyons of Queen’s Counsel for the respondent argues that the terms of s 58 and 60 of CBA make clear that the charge is levied, not on water supply but on supply of water service. There seems little doubt that s 58 of CBA is to be read this way.
Turning then to the terms of the Council resolution, the respondent argues that the words “Utility charges for the supply of water services to land in the city (“water charges”)” are introductory and are simply descriptive of the nature of the charges; that the words which follow show that the charges are levied on the two familiar criteria of location (within 100 metres of the main) and the Council’s preparedness to supply. In other words, the respondent contends that the criteria for determining what land is to be subject to the charges depends not on connection but on proximity to the services as has historically been the case. The respondent suggests that if those introductory words were to be treated as imposing an additional criterion, namely connection, they would make the other criteria otiose, or perhaps more absurdly, could lead to a property more than a 100 metres from the main exempt from the levy even though connected to it.
Further support for this argument arises from the fact that a minimum charge is expressly contemplated for a lot which is used for a “car parking space, broom cupboard, mini-storage unit, advertising hoarding etc.” There is, generally, little likelihood of water connections being made to lots which have such a limited purpose.
These arguments apply with equal force to the resolutions concerning sewerage charges. In the case of sewerage charges, the criteria for determining the land on which the charge is to be levied is that the land fits the definition of “sewered premises”. This means premises in a sewered area or premises which is connected with any sewer of the Council. “Sewered area” means the area declared by general notice in accordance with the provisions of Local Law 28 of Chapter 17 of the Local Laws of the Council. In this case it is agreed that the subject lots are within a declared sewered area.
Again, the initial phrase in the terms of the resolution – “Utility charges for the supply of sewerage services to land in the city (“sewerage charges and sewerage pedestal charges”)” are either introductory to identifying the nature of the charges as the respondent contends or they impose a new or additional criterion for the levy to those historically used. The reference in the Schedule to the charges identifying a specific minimum charge for lots which are used for a purpose unlikely to require a sewerage connection, gives further support to the argument that the criteria for making the levy is not based upon connection.
In my view the construction of s 58 and of the resolution proposed by the respondent is the correct one. The recasting of the terms of its resolution for the 1996/7 financial year, does not in my mind add the additional criterion of connection as a condition for the levying of the charge. The addition of that criterion would make otiose the criteria which have historically been the basis for the levy. The identification of lots, with uses unlikely to require either a water or sewerage connection as being liable to the charges, indicates an intention that the levy is made on criteria of location and preparedness on the part of the Council to supply.
I would construe the opening words in the respective resolutions as being merely introductory and descriptive of the charges to which they refer and not therefore requiring actual connection to the Council services.
Therefore, I would hold that the decision of the learned trial judge was correct. The appeal should be dismissed with costs.
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