Izard v Cairns Regional Council
[2011] QCAT 85
•10 March 2011
| CITATION: | Izard v Cairns Regional Council [2011] QCAT 85 |
| PARTIES: | Mr William Izard |
| v | |
| Cairns Regional Council |
| APPLICATION NUMBER: | GAR121-10 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Sandra Deane, Member |
| DELIVERED ON: | 10 March 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | [1] Amendment to the land record is confirmed. [2] Application is dismissed. |
| CATCHWORDS : | Application for review under Local Government Act 1993 – amendment to land record – person dissatisfied may apply for review Local Government Act 2009 Local Government Regulation 2005 Local Government (Finance, Plans and Reporting) Regulation 2010 Judicial Review Act 1991 Australand Land and Housing No 5 (Hope Island) Pty Ltd v Gold Coast City Council [2006] QSC 332 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Background
This is an application by Mr Izard to review the decision of the Cairns Regional Council (“the Council”) to:
a) continue charging a “Special levy” on his rates; and
b) refuse to refund or provide a rates credit for inappropriately charging “Special levy” fees.
Each year since 20 June 2006 the Council has levied a special charge known as the Bluewater Canal Special Charge on certain parcels of land including Lot 36 on RP737260 (“Izard’s Land”).
The Council brought an application to strike out Mr Izard’s application.
On 25 August 2010 the Tribunal:
a) was satisfied that section 971 of the Local Government Act 1993 (“the 1993 Act”) does not confer a right of review by the Tribunal of a decision by a local government to make and levy a special rate or charge on rateable land;
b) refused the strike out application as it was satisfied that it has jurisdiction to hear an application for review in respect of a decision made under section 996 of the 1993 Act;
c) decided that Mr Izard’s application can be characterised as an application to review a decision under section 996 of the 1993 Act in accordance with section 999 of the 1993 Act.
The Council confirmed that decisions to amend the land record have been made in respect of Izard’s Land to reflect that the land is subject to the Bluewater Canal Special Charge.
Legislation
Section 19 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) which came into effect on 1 December 2009 provides:
Exercising review jurisdiction generally
In exercising its review jurisdiction, the tribunal—(a) must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made; and
(b) may perform the functions conferred on the tribunal by this Act or the enabling Act under which the reviewable decision being reviewed was made; and
(c) has all the functions of the decision-maker for the reviewable decision being reviewed.
Section 20 of the QCAT Act provides:
Review involves fresh hearing
(1) The purpose of the review of a reviewable decision is to produce the correct and preferable decision.
(2) The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.
The Council’s decisions to first strike and levy the Bluewater Canal Special Charge and to make the consequential amendments to the land record occurred when the 1993 Act and regulations under that Act were in force.
The 1993 Act was repealed and has been replaced by the Local Government Act 2009 (“the 2009 Act”) on 1 July 2010. The relevant provisions are in substantially the same terms in the 2009 Act and the regulations under that Act, being the Local Government (Finance, Plans and Reporting) Regulation 2010 (“the 2010 Regulation”).
Section 994 of the 1993 Act provides:
Land record to be kept
(1) A local government must keep a record of every parcel of rateable land in its area.
(2) A land record must comply with the regulations.
Regulation 42 of the Local Government Regulation 2005 (“the 2005 Regulation”) provided:
Land record—Act, section 994
(1) A local government’s land record must contain the following information for each parcel of rateable land in its area—
(a)the owner’s name and postal address;
(b)a description of the parcel, including its location and size;
(c)the unimproved value, and effective value, of the land and the date the most recent effective value took effect;
(d)information about rates for the parcel, including the following—
(i) the type and amounts of rates levied on the parcel;
(ii) if differential general rates are levied—the parcel’s rating category;
(iii) the date of each levy and the time for payment;
(iv) the period for which the rates are levied;
(v) the financial year to which the rates apply;
(vi) information about the local government’s discount periods, concessions and payment by instalments arrangements;
(vii) overdue rates, accrued interest on overdue rates and the interest rate applying to overdue rates;
(viii) the date the rates are paid;
(2) The local government may include any other information in the land record that it considers appropriate.
Regulation 87 of the 2010 Regulation is in substantially the same terms to Regulation 42 of the 2005 Regulation.
Section 996 of the 1993 Act in force as at 1 December 2009 provided:
Amendment of land record
(1) The chief executive officer of a local government must ensure the particulars contained in its land record are amended whenever necessary to make the record comply with the regulations.
(2) If an amendment of a land record (other than an amendment made because of an annual valuation of all rateable land in a local government area by the valuation authority) changes a rate that is or may be levied on land, the chief executive officer of the local government must immediately give a QCAT information notice for the amendment to the owner of the land.
(3) A local government must give a QCAT information notice for an amendment of a land record only if subsection (2) so requires.
Regulation 89 of the 2010 Regulation is in substantially the same terms to s 996 of the 1993 Act.
Section 999 of the 1993 Act in force as at 1 December 2009 relevantly provided:
Who may apply for review
A person dissatisfied by an amendment of a land record, ………… may apply, as provided under the QCAT Act, to QCAT for a review of the amendment.
Prior to 1 December 2009 the 1993 Act provided that a person aggrieved by an amendment of a land record had a right to appeal to a Magistrates Court. There was a right to further appeal to the District Court in respect of a question of law.
Regulation 91 of the 2010 Regulation is in substantially the same terms to s 999 of the 1993 Act.
Section 1000 of the 1993 Act in force as at 1 December 2009 provided:
Powers of QCAT on review
In deciding the review, QCAT may—
(a) confirm the amendment; or
(b) set aside the amendment and order the particulars previously contained in the land record be restored.
Regulation 92 of the 2010 Regulation is in substantially the same terms to s 1000 of the 1993 Act.
Evidence
The Council provided to the Tribunal a written statement of the reasons for the decision and documents in its possession or control that may be relevant to the Tribunal’s review of the decision as required by section 21(2) of the QCAT Act.
The Council provided the following notices given to Mr Izard in respect of amendments to the land record in respect of Izard’s Land:
a) Letter re Canal Access to Mr Izard dated 25 July 2005;
b) Letter re Blue Water Canal Special Charge dated 21 June 2006.
The Council gave evidence that:
a) On 20 June 2006 the Council passed a resolution to strike a Blue Water Canal Special Charge and levy it, inter alia, on Izard’s Land for the 2006/2007 rating year. The sum of $1,735.65 was to be levied half yearly on Izard’s Land.
b) On 25 June 2007 the Council passed a resolution to strike a Blue Water Canal Special Charge and levy it, inter alia, on Izard’s Land for the 2007/2008 rating year. The sum of $713.78 was to be levied half yearly on Izard’s Land.
c) On 23 July 2008 the Council passed a resolution to strike a Blue Water Canal Special Charge and levy it, inter alia, on Izard’s Land for the 2008/2009 rating year. The sum of $507.22 was to be levied half yearly on Izard’s Land.
d) On 29 June 2009 the Council passed a resolution to strike a Blue Water Canal Special Charge and levy it, inter alia, on Izard’s Land for the 2009/2010 rating year. The sum of $529.87 was to be levied half yearly on Izard’s Land.
e) On 29 June 2010 the Council passed a resolution to strike a Blue Water Canal Special Charge and levy it, inter alia, on Izard’s Land for the 2010/2011 rating year. The sum of $585.83 was to be levied half yearly on Izard’s Land.
Mr Izard and the Council gave evidence of correspondence between them in which Mr Izard disputed the Council’s entitlement to levy the Blue Water Canal Special Charge on Izard’s Land on various grounds.
Mr Izard and the Council gave evidence of correspondence between them in which the Council responded to Mr Izard’s correspondence. Mr Izard’s evidence is that the responses were not to his satisfaction.
Mr Izard and the Council gave evidence that Mr Izard paid some of the amounts levied. Mr Izard claims that the payments were made under duress.
The correspondence is in the date range 28 August 2006 to 8 January 2010. Mr Izard’s application for review was filed on 19 April 2010.
Mr Izard gave some, though very limited evidence, that another landowner, namely John O’Grady “another canal front owner some 6 doors away from my property” had not been charged the Bluewater Canal Special Charge.
Mr Izard gave no evidence that the amendments to the land record were in error.
Mr Izard’s evidence related to his challenge, on various grounds, to the validity of the Council’s decision to strike the Bluewater Canal Special Charge and levy it against Izard’s Land.
There was no evidence that Mr Izard appealed to the Magistrates Court.
Submissions
Mr Izard’s submissions were in the nature of submissions pursuant to an application for judicial review under section 20 of the Judicial Review Act 1991 that the decision to strike the Bluewater Canal Special Charge and levy it on Izard’s Land was unreasonable for various reasons including that another parcel of land which was proximate to Izard’s Land had not been charged the Bluewater Canal Special Charge and that the Council had failed to specify to his satisfaction the applicable special benefit.
These submissions seek to challenge the validity of the underlying decision to strike the Bluewater Canal Special Charge and levy it upon Izard’s Land.
Mr Izard has referred the Tribunal to the following cases involving a review of decisions regarding the striking of special levies pursuant to the Judicial Review Act 1991:
a) Australand Land and Housing No 5 (Hope Island) Pty Ltd v Gold Coast City Council [2006] QSC 332
b) Leagrove Pty Ltd & Ors V Gold Coast City Council [2010] QSC 370
c) Shanvale Pty Ltd v Council of the Shire of Livingstone [1999] QCA 483
The Council submitted that the amendments to the land record did not contain any error but simply reflected the special rates which the Council contends were lawfully levied.
Discussion and Decision
This is not an application for review pursuant to the Judicial Review Act 1991. The Tribunal does not have jurisdiction under that Act.
The Tribunal has jurisdiction to review a decision to amend the land record.
Section 996(2) of the 1993 Act provided that if an amendment of a land record (other than as a consequence of a valuation of all rateable land in the local government area) changes a rate that is or may be levied then the owner is to be given notice of the amendment.
The Council gave notice of an amendment by letter dated 21 June 2006.
Section 999 of the 1993 Act provided for a right of appeal to the Magistrates Court and that was subsequently replaced by a right of review of the amendment by the Tribunal.
The 1993 Act did not prescribe a time for appeal to the Magistrates Court. Under Rule 748 of the Uniform Civil Procedure Rules any such appeal ought to have been filed within 28 days after the date of the decision.
Neither party raised time as an issue in relation to this application.
No relevant authority was submitted by the parties nor was found by the Tribunal for the proposition that the Tribunal may look behind the decision to amend the land record to determine the validity of the Council’s decision which caused the amendment to be made.
The scheme of the legislation clearly vests in the Tribunal a right of review of amendments to the land record. The legislation does not vest in the Tribunal a right of review of decisions to strike special levies.
If the legislature desired to vest in the Tribunal a right of review of decisions which caused an amendment to the land record which are otherwise not the subject of express rights of review then it could have done so in clear language. It did not.
I accept the Council’s submission that the right of review is more limited. It would be available to ensure that errors and inaccuracies are corrected.
Accordingly, the Tribunal does not have jurisdiction to make findings in relation to whether the Council’s decisions to strike a Blue Water Canal Special Charge and levy it on Izard’s Land in each year in which it did so was reasonable or lawful or whether the Council has sufficiently articulated or was required to articulate the special benefit said to be enjoyed by Izard’s Land or any other matter that goes to the merits or validity of those decisions.
I accept that the land record amendments to Izard’s Land arose because of the Council’s decisions to strike a Blue Water Canal Special Charge and levy it on Izard’s Land.
I find that the correct and preferable decision is to confirm the amendment to the land record.
Orders
The amendment to the land record is confirmed.
The application is dismissed.
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