McFerran v Glamorgan Vale Water Board
[2017] QLC 5
•15 February 2017
LAND COURT OF QUEENSLAND
CITATION: McFerran v Glamorgan Vale Water Board [2017] QLC 5 PARTIES: Samuel McFerran
(appellant)v Glamorgan Vale Water Board
(respondent)FILE NO/s: WAA1061-16 DIVISION: General Division PROCEEDING: Appeal under the Water Act 2000 DELIVERED ON: 15 February 2017 DELIVERED AT: Brisbane HEARD ON: 7 December 2016 HEARD AT: Brisbane MEMBER: WA Isdale ORDER/S: 1. Appeal dismissed.
2. The review decision is amended to confirm the decision to issue the tax invoice in the form and for the amount, namely $160.58, of the invoice subsequently issued on 19 October 2016.
CATCHWORDS: ENERGY AND RESOURCES – WATER – WATER MANAGEMENT – WATER SUPPLY – QUEENSLAND – CHARGES – WATER ACT 2000 – Where a water board has invoiced a landowner for a minimum charge for water – where the landowner is not connected to the water supply.
Water Act 2000, s 572, s 880(2), s 882
Invatel Pty Ltd v Brisbane City Council [2002] 2 Qd R 256APPEARANCES: The appellant appeared in person
C J Crawford, instructed by McNamara & Associates, for the respondent
Background
Off the Brisbane Valley Highway on Glamorgan Vale Road, between its intersection with Fernvale Road and Marburg Road, lies Glamorgan Vale, postcode 4306. Not far from the Ian Nugent Bridge over Black Snake Creek is the office of the respondent. Next door is the appellant’s home, where he has resided for a dozen years. The year 2016 has been different to past years as, for the first time, the respondent has sent an account to the appellant for rural water. This is not water for human consumption but would serve for watering the land or to flush toilets.
The appellant’s property is not actually connected to this supply. He uses tank water to meet his needs, and does not want to pay for something he does not use.
The respondent wrote to the appellant, foreshadowing that it was going to commence billing him, and in due course did so.
The appellant required that the decision to impose this charge be internally reviewed. The respondent did this and confirmed its decision.
From this review decision, the appellant comes to this Court. Under the Water Act 2000 (Act), section 880 (2) provides that the appeal is by way of rehearing, unaffected by the reviewer’s decision. The Court is not limited to a scrutiny of the actual decision but considers the matter afresh. Section 882 sets out the powers of the Court in this case. Section 882 provides that:
882 Powers of court on appeal
(1)In deciding an appeal, the court may –
(a) confirm the review decision; or
(b) set aside the review decision; or
(c) amend the review decision in the way the court considers appropriate; or
(d) send the matter back to the reviewer and give the directions the court considers appropriate; or
(e) set aside the review decision and substitute it with a decision the court considers appropriate.
(2)If the court amends the review decision or substitutes another decision for the review decision, the amended or substituted decision is, for this Act (other than this part) taken to be the reviewer’s decision.
(3)Each party to the appeal must bear the party’s own costs for the appeal.
(4)However, the court may order costs for the appeal, including allowances to witnesses attending for giving evidence at the appeal, as it considers appropriate in the following circumstances –
(a) the court considers the appeal was started merely to delay or obstruct;
(b) the court considers the appeal, or part of the appeal, to have been frivolous or vexatious;
(c) a party has not been given reasonable notice of intention to apply for an adjournment of the appeal;
(d) a party has incurred costs because the party is required to apply for an adjournment because of the conduct of another party;
(e) a party has incurred costs because another party has defaulted in the court’s procedural requirements;
(f) without limiting paragraph (d), a party has incurred costs because another party has introduced, or sought to introduce, new material;
(g) a party to the appeal does not properly discharge its responsibilities in the appeal.
(5)If the court makes an order under subsection (4), the court may also order the party ordered to pay costs under subsection (4) to pay to the other party an amount as compensation for loss or damage suffered by the other party because of the appeal if the court considers –
(a) the appeal was started merely to delay or obstruct; or
(b) the appeal, or part of the appeal, to have been frivolous or vexatious.
The hearing
The hearing of the appeal occupied one extended day of court time. In the appellant’s day in Court he gave his evidence and the respondent called its witness, Mr Donald Raymond (Doc) Hannah, who is the chairperson of the respondent. Both parties presented written material in support of their position.
The appellant’s evidence and submissions
The appellant contended that the respondent was not neutrally disposed towards him, tracing the breakdown in polite relations to when he personally returned their invoice dated 7 July 2016 to them. He had printed in large letters “UP YOURS!” on the invoice and he suggested that this may have coloured the respondent’s outlook towards him, perhaps contributing to his lack of success in the internal review.
Mr Hannah rejected the suggestion that there was any attempt to be unfair to the appellant. Even though the address used was, “To-Mad Hatter Hannah and his Tea Party Waterboard c/- money for nothing Wonderland”. Delivery was by the appellant’s own hand, to the respondent’s office next door.
The appellant submitted that the respondent could not impose this charge as he was not its customer, not being connected to their supply. He also made much of the repeated reliance, in the respondent’s own internal records of its decisions, on “By-Law 1”, which was published in the Government Gazette of 1 October, 1983, at page 467 and which is now, both parties agree, no longer the law. The appellant submitted strongly that by purporting to rely on this now incorrect basis, the respondent has done what was, in effect, a nullity. Accordingly, the appellant submits that the appeal should succeed. He also challenged the correctness of the respondent viewing him as a “ratepayer” and a “customer” when he is not someone who pays any rate levied by the respondent and is not a customer as that expression is commonly understood. Particularly, he is not connected to the respondent’s supply grid at all so it is failing to deliver to him something which represents good value, as it ought to do.
The Notice of Appeal became Exhibit 1 and the appellant’s statement of evidence and attachments became Exhibit 2.
The content of Exhibit 2, after page 15A, was initially objected to but the respondent later withdrew its objection to sheet 19, a copy of the Survey Plan (SP) 157311. It shows the appellant’s land, Lot 13, with an area of 2023m². It shows its location near the intersection of the Glamorgan Vale Road and Marburg Road.
The respondent’s efforts to invoice the appellant have been accompanied by a number of errors, including failure to perform mathematical addition correctly and to state the area of his land correctly. The third iteration of the tax invoice for the period from 1 July to 31 December 2016 was issued on 19 October 2016 and represents the respondent’s last word on what it says the appellant owes it, being $160.58.
The appellant’s application for internal review, dated 20 July 2016 includes a hand-written comment which reflects his position quite well. He wrote:
“I have read and re-read many times over the relevant chapters contained in the “Water Act 2000” relating to a category 2 authority and whilst I wouldn’t fancy my changes in court, I would be interested on what a judge may have to comment regarding the letter of the law versus my own particular circumstances and whether this situation is a cut and dried intention contained in chapter 4 anyhow, I’ve stated my side based on little more than fairness and circumstance. Que sera sera!”
It is clear from the evidence, and it is not contested, that the respondent is a category 2 water authority in accordance with the Act and that the appellant’s land is in the authority’s area. Indeed, he is next door to their office.
The respondent’s evidence and submissions
Mr Hannah, known in the respondent’s minutes, and perhaps more widely, as “Doc” gave evidence and was cross-examined. His statement became Exhibit 3 and the response to the notice of appeal became Exhibit 4.
In Exhibit 3, a good deal of the respondent’s minutes was redacted. It was explained that this was done for reasons of privacy. By Order 3 made on 20 October 2016, this Court ordered that the full version of these documents be brought to court at the hearing so that any argument about disclosure could be determined. In the event, the full version was not called for by the appellant, nor was it produced by the respondent, so the redacted material was not seen by the Court. The Court must determine the appeal on the evidence which the parties put before it.
The minutes show that the respondent resolved at its meeting on 22 February 2016 that currently unrated lands in Division 3 of the gazetted area, which expression refers to or at least includes the appellant’s property, would now be rated as “unconnected.”
It is not in dispute that the appellant’s land is in Division 3 and was then “currently unrated”.
That motion was “Motion 3” It was preceded by “Motion 2”, which referred to changing the Rating Resolution “to better reflect By-Law 1”.
This is the matter which has been stressed by the appellant as tainting the process, on the basis that it purports to rely on the expired By-Law in order to impose rates for water.
Mr Hannah’s evidence was that this reference to By-law 1 was only for administrative convenience and at all times the respondent relied on the Water Act 2000 to impose the water rate charge.
The tax invoice itself, in its various iterations including the most recent version issued on 19 October 2016 contains the following:
“Notice is hereby given that by virtue of the “Water Act 2000” the Glamorgan Vale Water Board has issued the following assessment.”
Resolution
It is not in dispute that the respondent is a category 2 water authority, as it claims to be. It is clear that the appellant’s land is within its area of authority. There was a point raised that the land was inadequately described as it is shown on a Survey Plan rather than a Registered Plan. There is no merit to this point. The land is clearly described. As Thomas JA said in Invatel Pty Ltd v Brisbane City Council[1]:
“… 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.”
[1][2002] 2 Qd R 256 at 263.
It is not in dispute that “By-Law 1” is not currently part of the law. The explanation for why it was referred to in the respondent’s minutes was given by Mr Hannah and the Court made him aware that it was very concerned to have this satisfactorily explained. He maintained his position that it was for, in effect, administrative convenience, and that the Water Act 2000 was, at all relevant times, being relied upon.[2]
[2]T 1-38 L 23 - 1-39 L 30.
As has already been noted, the tax invoice refers to the “Water Act 2000” as the source of authority for its issue.
Section 572 of the Act Provides that:
572Power to make and levy rates and charges
(1)A category 1 water authority, for carrying out its functions under this Act, may make and levy charges on its customers.
(2)A category 2 water authority, for carrying out its functions under this Act, may make and levy—
(a) charges on its customers; and
(b) if the authority has an authority area—rates and charges on its ratepayers.
(3)Without limiting subsection (1) or (2)(a), the authority may make and levy a charge for providing connections to its works.
(4)A charge may be made and levied on a volumetric basis for water activities carried out.
(5)A rate may be made and levied on a ratepayer’s land in the authority area in relation to a water service—
(a) if the water service is provided to the land as an irrigation service involving the supply of water the volume of which is not measured—on the basis of the area of the land that is the subject of the irrigation service; or
(b) otherwise—on the basis that it is land to which water may be supplied under the water service.
(6)Subsections (4) and (5) do not limit the ways in which a charge or rate may be made or levied.
Section 572 (2)(b) will apply if the appellant is one of “its ratepayers”, which he says he is not since he does not pay anything to it.
Schedule 4, the Dictionary for the purposes of the Act, states “ratepayer, of a water authority that has an authority area, means an owner of land within that authority area.” This definitely includes the appellant.
Annexure 1 of Exhibit 3 is the plan of the Glamorgan Vale Water Supply Area, plan AP22179. It shows where the appellant’s land is, at the centre of the area. When the respondent withdrew its objection to page 19 of Exhibit 2, it made sure that the Court would have before it, tendered by the appellant, a plan showing exactly where his land is.
Section 572(5)(b) allows for a rate to be levied on the appellant’s land “on the basis that it is land to which water may be supplied under the water service.” In Exhibit 2, the appellant’s Exhibit, the respondent’s letter of 19 May, 2016 is the first sheet. It contains the respondent’s offer to have the property connected to this supply for “a reduced rate of $500 valid until 30 June, 2017”.
Subsection 6 is more general but, for present purposes, there is no need to consider whether it may also apply to authorise charging a rate. It is however, clear from it that sub-sections 4 and 5 of section 572 do not limit how the rate may be set.
The respondent can lawfully impose the rate which it seeks to levy upon the appellant.
The appeal must be dismissed. The original decision is, however, incorrect as it wrongly stated the area of the land and was mathematically erroneous as it sought to add $156.86 and $7.44 to get a total of $132.50. The most recent iteration, dated 19 October 2016, reflects the actual land area and totals $160.58. How the respondent arrived at this figure, by its charges for water which would be able to be provided and the discounted rate for an unconnected property, was explained in evidence and was not challenged. It is therefore unnecessary to examine it for present purposes. It was explained that the costs of running and maintaining the respondent’s undertaking were reflected in the charges.
As well as dismissing the appeal, the Court ought to act under section 882(1)(c) to amend the review decision to refer to the invoice as issued on 19 October 2016 for the sum of $160.58. While it does refer to a document issued later than the review, the essence of the matter is the decision, which was correct, and it removes the errors in the original tax invoice, errors which do not invalidate the decision but are merely flaws in carrying it out.
Orders
Appeal dismissed1.
The review decision is amended to confirm the decision to issue the tax invoice in the form and for the amount, namely $160.58, of the invoice subsequently issued on 19 October 2016.2.
WA ISDALE
MEMBER OF THE LAND COURT
0
0
1