Nekon Pty Ltd & United Specialists Managers Pty Ltd v Hobart City Council
[2004] TASSC 44
•17 May 2004
[2004] TASSC 44
CITATION:Nekon Pty Ltd & United Specialists Managers Pty Ltd v Hobart City Council [2004] TASSC 44
PARTIES: NEKON PTY LTD (ACN 005 758 636)
UNITED SPECIALISTS MANAGERS PTY LTD
(ACN 070 385 581)
v
HOBART CITY COUNCIL
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M242/2003
DELIVERED ON: 17 May 2004
DELIVERED AT: Hobart
HEARING DATE: 7, 8 April 2004
JUDGMENT OF: Underwood J
CATCHWORDS:
Administrative Law – Judicial review legislation – Commonwealth, Queensland, Australian Capital Territory and Tasmania – Grounds for review of decision – Improper exercise of power – Unreasonableness – Exercise of power to make separate rate – Expression of corporate opinion.
Local Government Act1993 (Tas), s100.
The Council of the City of Parramatta v Pestell (1972) 128 CLR 305, applied.
Alan E Tucker Pty Ltd v Orange City Council (1969) 18 LGRA 314; Burns Philp Trustee Co Ltd v Blacktown Municipal Council [1976] 1 NSWLR 531; Parramatta City Council v Hale (1982) 47 LGRA 319, followed.
Aust Dig Administrative Law [20]
REPRESENTATION:
Counsel:
Applicants: A J Abbott, A Perkins
Respondent: M E O'Farrell, P J Ashworth
Solicitors:
Applicants: Piggott Wood & Baker
Respondent: Simmons Wolfhagen
Judgment Number: [2004] TASSC 44
Number of paragraphs: 81
Serial No 44/2004
File No M242/2003
NEKON PTY LTD and UNITED SPECIALISTS MANAGERS PTY LTD
v HOBART CITY COUNCIL
REASONS FOR JUDGMENT UNDERWOOD J
17 May 2004
The issue
The first named applicant is the owner of two multi-storey commercial properties in the City of Hobart. One is 22-26 Elizabeth Street. It is known as the ANZ Centre. The other, at 110-114 Collins Street is known as Trafalgar on Collins. The second named applicant is the owner of a six-storey building at 19-21 Argyle Street. This property is known as MBF House, although MBF Australia only occupies a portion of the ground floor of this building. At the material time, three floors of this building were vacant.
On 11 August 2003, the respondent Council passed a resolution imposing on (inter alia) each of the three properties a separate rate of 0.4 cents for every dollar of the assessed annual value. The applicants claim to be "persons aggrieved" by the Council's decision and challenge the validity of the resolution pursuant to the provisions of the Judicial Review Act 2000, s17(1)(c), (d), (e) and (h).
The legislative framework
The respondent's power to make a separate rate is conferred by the Local Government Act 1993 ("the Act"), s100, which relevantly provides:
"(1) A council may, by absolute majority, make a separate rate in respect of land, …, within a part of its municipal area.
(2) A separate rate may be made ¾
(a)…;
(b)…;
(c)for the purpose of … maintaining or improving any thing that in the council's opinion is, or is intended to be, of particular benefit to ¾
(i) the affected land; or
(ii) the owners or occupiers of that land."
(3) …
(4) At the time of making a general rate, a council may, upon the resolution of an absolute majority, continue a separate rate applying in respect of a financial year for the next financial year.
(5) …
(6) …
(7) A separate rate must not be continued for a period of more than 5 financial years unless, in the fifth financial year ¾
(a)the council resolves to continue the rate under subsection (4); and
(b)the rate is reviewed in accordance with section 105A.
(8) … ."
The Act, s101, prescribes that before the Council makes a separate rate, the General Manager is to, in effect, notify all affected ratepayers and advertise in the newspaper details of the proposed separate rate and invite submissions in accordance with the Act, s102. The notification is also to advise that there is a right to present a petition pursuant to s103. This section states that if 100 affected ratepayers, or 10 per cent of the total of affected ratepayers, petition the Council, the Council must arrange a public meeting to discuss the matter.
A separate rate on certain properties, including those of the applicants, was first levied for the financial year ending June 1990. It has been levied continuously ever since that time, either pursuant to the Act, s100, or its predecessor, the Local Government Act 1962, s234. It is called the "CBD separate rate". Basically, the rate has been used to promote the businesses in the Hobart Central Business District. It was, and is, administered by a company limited by guarantee called the City Heart Business Association Limited.
The Council resolved to comply with the Act, s100(7) and conduct a review in accordance with s105A. That section required the Council to include in its review of the separate rate:
"… an assessment of the particular benefit of the rate to ¾
(a) the affected land; or
(b) the owners or occupiers of that land."
Before the review is undertaken, the ratepayers must be notified of the intention to conduct the review and an advertisement to the same effect must be published in the local newspaper. Ratepayers are given 30 days within which to make a submission, and s105A(4) required the Council to "take into account" any submissions and the outcome of the review.
The principal contentions
The applicants were and are opposed to this separate rate. For the current financial year the total amount payable by way of this separate rate on the applicants' three properties is $13,191.60. In substance, the applicants' argument is that their properties are let to commercial tenants and the rate spent on promoting the CBD only benefits retail businesses in that district.
The evidence established that although a considerable area of the ground floor of the ANZ Building is devoted to retail businesses, the ten upper floors are let to government departments, an insurance company and a firm of accountants. At Trafalgar on Collins, the ground floor is also substantially let to retail tenants, nine of the upper fourteen floors are given over to commercial car parking and the remainder are let to an eclectic mix of businesses and government and semi-government departments.
The critical legislative provision in these proceedings is the Act, s100(2)(c) which, relevantly to the facts of this case, confine the respondent's power to make a separate rate:
(i) for the purpose of maintaining or improving;
(ii) any thing;
(iii) that in the Council's opinion;
(iv)is, or is intended to be of "particular benefit" to the applicants, the applicants' tenants or the applicants' land.
Mr Abbott, senior counsel for the applicants, submitted that:
(a)the resolution of 11 August 2003 was not passed by an absolute majority of the respondent as required by the Act, s100(1) and accordingly, the respondent did not have jurisdiction, or was not authorised to make the impugned rate;
(b) the respondent did not form the opinion that the Act, s100(2)(c) obliged it to form;
(c)there was no material at all upon which the respondent could base the opinion that s100(2)(c) obliged it to form;
(d)if the respondent did form the requisite opinion, such opinion was one that no Council could reasonably entertain upon the material it had before it (Wednesbury unreasonableness);
(e)the respondent took into account immaterial matters, thereby vitiating any opinion it formed pursuant to the Act, s100(2)(c); and
(f)the respondent did not identify the "thing", the maintenance or improvement of which is, or is intended to be of particular benefit to the applicants, their tenants or their lands, nor did it identify the nature of any particular benefit to them or any of them.
Mr O'Farrell, Senior Counsel for the respondent, joined issue with the contentions advanced by Mr Abbott. Mr O'Farrell submitted that the impugned resolution of 11 August 2003 was passed by an absolute majority. He submitted that the respondent did properly and reasonably entertain the requisite opinion, or at the very least, the applicants have not discharged the onus of establishing that the respondent did not properly and reasonably entertain that opinion. Further, Mr O'Farrell submitted that there was sufficient identification of the "thing", viz, promotion of Hobart's Central Business District, and that there was sufficient identification of the particular benefit to the applicants, their lands or the occupiers of their lands from the maintenance or improvement promotion of Hobart's Central Business District.
The lead up to making the impugned resolution
It appears that in June 2001, Mr Rockefeller, a director of both applicants, and a proprietor of another business in Hobart, made a complaint to the Ombudsman about this separate rate. The Ombudsman made her report on 4 January 2002. On the hearing before me, that report was not evidence of the facts it contained, but was tendered as a useful source of "background information". Notwithstanding this restriction upon the use that may be made of the Ombudsman's report, I venture to set out a paragraph under the heading "Grounds of Complaint" because it well encapsulates the complaint made on this hearing on behalf of the applicants:
"The complainants and a number of those making submissions regarded the separate rate as of no particular benefit to their land or to the occupiers of that land. They regarded the rate as a detriment in that the separate rate imposed an additional financial burden, based on the AAV of that land, in circumstances where there was an increasing vacancy rate in the CBD and rents, it was said, were more difficult to achieve. As a consequence it was said that land owners found it increasingly difficult to pass on the levy to tenants. The current rates were reportedly already a significant component of the annual rental income."
Along with other recommendations, the Ombudsman recommended that the respondent "engage an independent consultant to conduct a comprehensive review of the Central Business District promotional rate and to report to Council prior to May 2002 …".
The respondent accepted that recommendation and appointed Peter Anderson Consulting Pty Ltd to provide the suggested comprehensive review. His final report to Council ("the Anderson Report") is dated October 2002. It comprises 30 pages and attaches a map, a submission received from the City Heart Business Association Limited and nearly 100 pages of material that, in the main, appear to be submissions sent to the consultant. Mr Abbott relied, in part, upon the Anderson Report. He submitted that it provided evidence that a separate rate would provide no particular benefit to his clients, their tenants or their lands, or alternatively, its content was such that reliance on it by the respondent to support an opinion that a separate promotional rate would benefit his clients, would be entirely unreasonable.
At this stage, it is necessary to interpolate that the impugned resolution of 11 August 2003 refers to Council Plan A744-08. This is a plan of the streets in the centre of Hobart. Its borders are, roughly speaking, Davey, Argyle, Melville, and Barrack Streets. The buildings in the centre are coloured green and the majority of the buildings surrounding the green area are coloured blue. The map's legend instructs that the green area is the "Core" area and the blue area is the "Fringe" area. The separate rate struck for properties in the Core area was 1.2 cents in the dollar, assessed annual value and as mentioned, 0.4 cents in the dollar for properties in the Fringe area.
It is apparent that at the time of the Anderson Report the area was divided into three, namely Core, Fringe and "Outer". The photocopy of the map attached to the Anderson Report is a little difficult to make out, but it does appear that the properties in the Fringe area at that time do not entirely coincide with the properties in the Fringe area set out in the map referred to in the resolution of 11 August 2003. However, the Fringe area, both before and after the August resolution, is substantially the same and any difference between the two is immaterial for present purposes.
The Anderson Report reviewed the City Heart Business Association Limited as well as the separate rate. It is clear from the Association's submission attached to the Anderson Report that retail businesses are the primary beneficiaries of the separate promotional rate raised by the Council and administered by the Association. The Association was primarily engaged in the business of attracting people to Hobart's Central Business District. In its submission, the Association describes its "Core Role" in the following terms:
"Whilst CHBA fully agrees that we should work towards a vibrant CBD, it does not believe our role is to fill property vacancies, nor that this be a measurement of our success. We have recently been responsible for coordinating market research data for various multi nationals interested in entering the CBD. We have done so because we want them to join us, however strictly speaking, this is not our core function. Whilst we can be of assistance, we see this as a function of the Council's Economic Development Officer, and/or in association with other organizations such as the Property Council. Obviously we recognize that such developments are important and impact enormously on CBD vitality, however we are only one party to any such development."
Mr Abbott submitted that this was a clear statement that the separate rate had no particular benefit for his client, and/or no council could reasonably opine to the contrary on reading this submission. He said that his client's business was "filling properties". However, it should not be overlooked that the particular benefit does not have to flow to his clients. The statutory requirement will be satisfied if the respondent reasonably opined that the maintenance or improvement of the promotion of the CBD ("the thing") is or is intended to be, of particular benefit to:
· the applicants' lands;
· the applicants; and/or
· the applicants' tenants.
Hereafter I shall compendiously refer to these three as simply "the applicants' lands". Mr O'Farrell submitted that the provision of a vibrant, busy and attractive city centre is, or is intended to be a particular benefit to the applicants by increasing the value of their land. He submitted that an attractive city centre is likely to make the applicants' buildings attractive to prospective tenants and likely to bring business to existing tenants even if they are accountants, insurance companies, government departments and the like.
The Anderson Report raises, as it was obviously intended to, more questions than it answers. It makes the point that making a separate rate in the same amount for all areas is unfair, as the benefits fluctuate dependent upon property usage. The report states that it is unreasonable to suppose that the benefits are provided to "all or some of those from whom the Rate revenue is collected", but points out that there are no performance indicators in place to measure these benefits. The report adds that such indicators might well be hard to find.
The Anderson Report contains a section reporting on local government involvement in CBD promotions in some other Australian cities and under the heading "No Simple Certainty" there appear these paragraphs:
"5.1
1 the desire for simple answers to questions does not mean that simple answers are available; in the present case, issues are complex and cannot readily be resolved without value judgements
2 this report avoids detailed treatment of esoteric issues in order for its contents to be readily digested : for example, growing business [or slowing or preventing its decline] has multiplier implications for the 'critical mass' of a localised economy; however, such depth of treatment is beyond the scope of this review, especially given the lack of reasonable proof available in support of alternative answers to some of the questions posed by the terms of reference
…
5.2.1
…
4 key arguments by those who argue that some form of organised CBD marketing is worthwhile include :
-CBD vitality could decline to unacceptable levels without it
-effective co-ordination of CBD marketing requires Council involvement
-all property holders in the CBD benefit from CBD marketing, both through AAV increases and other spinoffs".
Mr Short, the respondent's Economic Development Officer, prepared a paper for Council expressing his views upon the Anderson report. Mr Short's paper is dated 31 October 2002. The Anderson Report and Mr Short's paper discussing it were received by Council at its meeting on 11 November 2002. Mr Short fairly stated at par2.6:
"Mr Anderson's main finding is that as the rate stands at the moment, it is not fair and equitable, due to the wide range of property uses in the rateable area, which produces a wide range of beneficiary distribution patterns and in particular the fact that there is no clear correlation between benefits received and costs incurred (ie the rate)."
Mr Short also fairly stated that the Anderson Report provides that "there is little measurable value to the businesses in the Fringe or Outer areas". Mr Short set out a range of options that the Council could adopt, but he recommended confining a separate rate to the Core areas.
On 11 November 2002, the Council resolved to postpone any decision concerning the making of a separate rate until consideration could be given to the models used by the cities of Adelaide, Perth and Fremantle to promote their Central Business Districts. Accordingly, an Alderman and Mr Short visited those cities. Following that visit, Mr Short prepared another paper. It is dated 24 February 2003. Although, as was the practice, it was addressed to the respondent's general manager, it was clearly prepared for Council. Council met to consider this paper on 11 March 2003. Mr Short's discussion paper makes it quite clear that the issues for the Council were:
· Should the CBD be marketed?
· If yes, should the Council be involved?
· If yes, how; separate rate, general rate, or both?
· What model should be used for the marketing? Should it continue using City Heart Business Association Limited as the Council's administrative arm, or should it be done in some other way?
Mr Short's paper is principally confined to the issue of what model should be used to market the CBD, presumably because his paper dated 31 October 2002 (attached to the one dated 24 February 2003) contained his comments on the Anderson Report, some of which I have set out. The February paper states that it is too late in the year to stop using City Heart Business Association Limited to market the CBD and proposes that the Council agree to fund the Association by means of a separate rate for the financial year 2003/2004. Although it seems to be at odds with the recommendation in his paper dated 31 October 2002, Mr Short recommended in his February 2003 paper following the visit to Perth and the other cities:
"15.2 Pursuant to section 101 of the Local Government Act 1993, the council agree its intention to make a separate rate for the 2003 / 2004 financial year for CBD promotional purposes on the areas known as 'Core' and 'Fringe' and shown on attachment D, at the same rates in the dollar as the current financial year namely 2002 / 2003."
On 11 March 2003, the respondent resolved:
"Pursuant to section 101 of the Local Government Act 1993, the Council agree to its intention to make a separate rate for the 2003/2004 financial year for CBD promotional purposes on the areas known as 'Core' and 'Fringe' and shown on attachment D to the report attached to item 8 of the closed Finance and Corporate Services Committee agenda of 3 March 2003 at the same rates in the dollar as the current financial year namely 2002/2003."
This resolution accords with the requirement of the Act, s101(1) which prescribes what the Council must do when it intends to make a separate rate. Following that resolution the respondent set about complying with the provisions of s101, and commenced the notification procedures. Apparently, there was a false start due to "a difficulty with the advertising process". At the same time as the respondent re-started the notification procedures specified by the Act, s101, it also notified affected property owners that it proposed to conduct a review of the separate rate in accordance with the Act, s105A. It is not clear to me why the respondent complied with both ss101 and 105A, as subs(3) of the former provides that s101 does not apply to the continuation of an existing separate rate. I note that several legislative changes came into effect during the course of all these events, and this may have had something to do with it. However, no submissions were directed to this question, and as all parties to this litigation agreed that the respondent had complied with all notification and advertising requirements, there is no necessity to examine it any further. The issues are confined to whether there was compliance with the Act, s100(1) and (2)(c).
In response to the notification procedures, the respondent received 124 submissions, all but one of which were opposed to the making of a separate rate. 7 per cent of the submissions related to properties in the Core area and 93 per cent were received from the Fringe area. Mr Heath, the respondent's Director, Executive Management, prepared a detailed report for the General Manager dated 11 July 2003 ("the Heath report"). The report annexed a copy of all the representations that had been made to the respondent, one of which came from the first named applicant. The report is well described in its introduction:
"1.1 The purpose of this report is twofold:
1.1.1 to make a recommendation to the Council on the levying of a separate rate for the Central Business District area for promotional purposes; and
1.1.2 to propose to Council a model for the promotion of the central business district.
1.2 Both issues are linked and cannot be dealt with in separation."
On page 4 of the report, Mr Heath correctly identified the issues for the respondent by writing:
"3.2In the event that the Council wishes to proceed with the making of the rate, it must:
3.2.1consider each and every submission received before deciding ¾
(a) whether or not to make a separate rate; or
(b) the area to which the separate rate is to apply; or
(c) the amount of the separate rate; or
(d) the period during which the separate rate is to apply; and
3.2.2determine whether in the Council's opinion, the promotional rate is, or intended to be of, particular benefit to the affected land; or the owners or occupiers of that land."
With respect to the submissions made to the respondent, the report analyses each of them in a document annexed to the report marked C. The report also states that where there was some doubt as to the use of the property to which a submission related, or the level of the building on which the property was located, the property was physically visited by a Council officer in order to achieve clarification. In addition, the objection of the first named applicant (and another property owner) was separately analysed by Mr Short and a copy of his analysis appears as annexure E to the Heath Report.
Mr Abbott submitted that this report and its annexures were key documents. He submitted that they either made it clear that no particular would flow to the applicants, or the weight of the evidence in the report was so heavily against any such benefit flowing to the applicants that no Council, acting reasonably, could have formed the opinion it was required to form by the Act, s100(2)(c).
Before referring further to the very comprehensive Heath Report, it is appropriate to look at annexures C and E. With respect to Trafalgar on Collins, the annexure analyses 10 objections. All were made jointly in a single document written by Knight Frank on behalf of tenants. I infer that Knight Frank was the managing agent. Curiously, with respect to five submissions, the annexure reports that "site visits have been unable to determine which location within the Trafalgar building [the objector] has". These objectors include Commindico Australia, Optus Mobile Pty Ltd and Vodafone Pty Ltd. Upon the hearing of this application, a list of the tenants of each of the applicants' buildings as at 11 August 2003, the date the impugned rate was made, was tendered in evidence by consent. None of those five "tenant's" names appear on the exhibit, although it is noted that the Knight Frank submission was lodged with the respondent on 10 June 2003, two months earlier. With respect to the other five submissions, "officer comment" is "it would be difficult to conclude that a benefit is derived".
With respect to the first named applicant's other building, ANZ House, the Knight Frank submission attributes it as being made on behalf of eight tenants. With respect to one, Telstra Corporation, the annexure reports that "a site visit was unable to confirm which location Telstra Corporation utilises". I note in passing, that this tenant's name does not appear on the list tendered in evidence on the hearing of the application either. With respect to the other seven tenants, the "officer comment" is that "it would be difficult to conclude that the property derives a benefit".
The second named applicant's tenants made no submissions. The first named applicant's submission that was summarised by Mr Short in annexure E to the Heath Report, was made with respect to all three of the applicants' properties. In his summary, Mr Short described as "valid" the applicants' complaint that Hobart's CBD has never been properly defined, and consequently promotion of the CBD is vague and imprecise. With respect to the issue of benefit, Mr Short wrote:
"3.3 However, as a general comment it is noted that it is difficult to disagree with the proponent's submission regarding benefit to their properties. All three buildings are predominantly office buildings. While it is true that two of them have some retail component, the separate rate paid is not proportional to the amount of retail in those buildings."
In his report, Mr Heath correctly stated at par3.5.1:
"In order to make the separate rate for the Core and Fringe areas, Council needs to be of the opinion that the rate is, or intended to be of, particular benefit to the affected land; or the owners or occupiers of that land."
Mr Heath then referred to the benefit, and the Anderson Report reference to benefit, and stated at par3.5.5:
"From Council's perspective 'benefit' ought to be defined as increasing the number of customers that come into the city and that as a consequence more customers are in the city to frequent retailers and other businesses. It is a matter for the individual businesses to attract the customers into their shops."
Mr Heath stated at 3.5.6:
"Given the level of objection from businesses in the Fringe, it is difficult to conclude that majority of retailers and businesses in the Fringe receive a benefit. As a general principle it is difficult to conclude that an office tenancy receives any benefit from the separate rate. If one looks at the objections in detail, a firm of accountants on level 9 of the ANZ Tower (see objection 21) are unlikely to derive any benefit from the rate."
Mr Heath then notes that the Council rating system is such that it is not possible to confine the separate rate in the Fringe area to retail businesses and recommends, at par3.6:
"Given the above observations, it is difficult to conclude that a considerable number of properties in the Fringe receive a benefit from the rate. Accordingly it is recommended that the Council not make a separate rate for the Fringe area."
That recommendation appears amongst the formal recommendations that are set out at the conclusion of the Heath Report and formed the basis of a recommendation later considered by the Council.
The Heath Report makes it quite clear that in Mr Heath's opinion, no separate rate should be made with respect to (inter alia) the applicants' three properties upon the grounds that there will not be any benefit to the applicants from such a rate. Further, the report makes it clear that there is an abundance of evidence to support that opinion and little, if any, evidence to the contrary. Any other view of this report would be perverse. However, that is not the end of the matter.
The meetings on 14 July 2003
The Heath Report was received and noted on 14 July 2003 by a special meeting of a committee of the respondent, the Open Policy and Intergovernment Committee; an appellation that would be the envy of most bureaucrats. The Minutes of the committee meeting show that it met at 3.45pm on that day and dealt with this matter, it being the only item on the agenda, in 55 minutes. A lengthy Minute was adopted. Four of the seven committee persons present voted for the Minute, three voted against it. Its terms are identical in every respect to the recommendations with which the Heath Report concluded. According to the Minutes of the meeting, the Open Policy and Intergovernment Committee comprised all of the respondent's councillors, but five of them did not attend this meeting, having either apologised or been granted leave of absence. The Minute (inter alia):
· noted Council's opinion that "the benefit [of a separate rate] is of minimal value to those properties beyond the area known as the Core";
· provided that Council noted all the submissions annexed to Mr Heath's report;
· provided that Council "adopt" the comments in annexures C and E to Mr Heath's report (to which I have referred);
· provided that in consideration (of all the material to which I have referred) "Council not make a separate rate for the 2003/04 financial year for the area shown as the Fringe on the basis that council is of the opinion that there is no particular benefit to the affected lands or the owners or occupiers of land in the Fringe area" (cl 6 of the Minute).
Thereafter, the Minute proceeded to make a separate rate for the properties identified as being within the Core area on Council Plan A744-08. The Committee of Council and Mr Heath appear to been of the same mind.
Upon the hearing of the application before me, there was no material to enable me to find upon what terms (if any) the Open Policy Intergovernment Committee was established (the Act, s23(1)), nor for what purpose it was established (the Act, s24(1)), but at all events, at 5:25 pm on the same day as that committee met, there was a meeting of Council. It was attended by the councillors who attended the committee meeting, plus the councillor who apologised for his non-attendance at that committee meeting. One of the councillors who was on leave of absence from the committee meeting was also present at the Council meeting. At the Council meeting, the resolution adopted by the committee was presented in exactly the same terms for Council's consideration. An amendment was proposed. It related only to cl 6. The preamble to cl 6 remained unaltered, but it was proposed that the balance of that clause be amended to read:
"Council make a separate rate for the 2003/04 financial year for the area shown as the Fringe however, that rate shall be only 50% of that which would otherwise be levied and the balance made up from the General Rate, on the basis that Council is of the opinion that there is a benefit, but may be more limited, to the affected lands or the owners or occupiers of land in the Fringe area."
Before turning to the fate of that amendment, the following things can be said about it:
· What "the balance" is is not explained, but it may be inferred that it is the difference between the amount required by the City Heart Business Association Limited to carry on its business and the shortfall that will occur if the rate for properties in the Fringe area is only 50 per cent of that imposed on properties in the Core area.
· It is inconsistent with the expression of view in cl 1 of the resolution which states (inter alia) "The Council is now of the opinion that the benefit is of minimal value to those properties beyond the area known as the Core".
· It is inconsistent with the statement in cl 4 of the resolution which states (inter alia) that "Council adopt the comments made in relation to each submission and annexed as Attachments C, … and E to [the Heath Report]".
The amendment also conferred a power on the General Manager to make any "consequential amendments to the resolution required by the amendment to clause 6".
It seems to me that some of the required amendments were far more than "consequential". Clause 7 was fundamental to the whole resolution. It actually imposed the rate, but only on properties in the Core area. As adopted by Council, it contained the statement "that Council is of the opinion that there is particular benefit to the affected lands or the owners or occupiers of land in the Core area". There is no reference to any such opinion with respect to any other area in cl 7.
I should add that I have grave doubts about the efficacy of the amendment insofar as it purported to authorise the General Manager to make any amendments consequential upon the amendment to cl 6. What amendments (if any) the General Manager in fact made does not appear in the material before me. How he would make them is not clear. The Act, s22(3)(h), expressly forbids the respondent from delegating to the general manager its power to make rates and charges under the Act, Pt9. Alternatively, the only power that the amendment purported to delegate to the general manager was the power to amend the Council's resolution. As a matter of first principle, such a purported delegation would appear to be ultra vires. The Act, s22(1) and (2), confers a power on the respondent to delegate a number of matters, provided it is done in writing. However, I would not understand this to include the power to express the corporate will by amending a resolution adopted by Council. However, as the events turned out, there is no need to pursue this matter further, although it does surface in a different form at the meeting of the respondent on 11 August 2003.
At the Council meeting on 14 July 2003, the amendment was carried. The record shows that Aldermen Hayes, Freeman, Christie, Jones and Briscoe were in favour of the amendment. Aldermen Sexton and Haigh and the Lord Mayor and the Deputy Lord Mayor were against the amendment. The amended motion was carried, six in favour and three against. The voting pattern was the same as it was for the amendment, except that Alderman Haigh, who voted against the amendment, voted in favour of the motion after amendment.
Overlooked was the fact that the Act, s100(1) requires an absolute majority in order to pass a valid resolution to make a special rate. The Act, s3, defines an absolute majority to be more than half of the councillors to be elected to Council, whether present at the meeting or not. In the case of the respondent, the minimum number for an absolute majority is seven. As only six councillors voted in favour of the amended resolution, the proceeding was a nullity.
The making of the impugned rate
By letter dated 15 July 2003 the General Manager notified ratepayers that a separate rate had been made. The Council entered into an agreement with City Heart Business Association Limited to promote the CBD. At this point in time, solicitors for the applicants wrote to the respondent's solicitors pointing out that the rate was invalid because it had not been passed by an absolute majority. The General Manager moved quickly and prepared a memorandum for the respondent advising of the failure to make a special rate by an absolute majority and recommending that it pass a resolution in terms of the document annexed to the memorandum. That attachment is not amongst the material before me, but there is written evidence that the "substance of it" is accurately reflected in the impugned resolution that was passed by Council on 11 August 2003.
The General Manager's memorandum recommends that before passing the attached resolution, the Council should note having considered all the material that was before the committee on 14 July 2003. It also recommends that the Council also note having considered the following:
"The outcome of the s105A Local Government Act 1993 review. The outcome is set out in the minutes of the Council meeting of 14th July 2003, which were adopted on 28th July 2003. The minutes state:
'The outcome of the Council's review was that the Council was of the opinion that the separate rate has been intended to provide a benefit to those lands affected, or the owners or occupiers of those lands that have been subject to the rate. However, after consideration of the submissions made during the review the Council is now of the opinion that the benefit has been more limited in the Fringe area, compared with the Core area'." [Emphasis added.]
At its meeting on 11 August 2003, the Council duly noted having considered all those matters. The trouble is that the Minutes of the meeting of the Council on 14 July record:
· by the amendment to cl 6, that "Council is of the opinion that there is a benefit, but may be more limited, to the affected lands or the owner or occupiers of land in the Fringe area"; and
· by cl 1, "Council is now of the opinion that the benefit is of minimal value to those properties beyond the area known as the Core".
The material before me sets out the relevant resolution of Council passed on 14 July 2003 and the amendment to it. On the back of that document is a notation signed by "Chairman" on 28 July 2003 that the Minute was "Taken and Read and signed as a correct record".
Notwithstanding these apparent discrepancies, the key question remains namely whether the respondent entertained the opinion that it was required to entertain by the Act, s100(2)(c) and, in effect, whether it was reasonably open for it to do so. Clause 3 identifies the Central Business District of the Hobart City Council Municipal area as the "Fringe and Core areas on Council Plan No A744-08". This clause answers the complaint earlier made by the applicants and referred to in Mr Short's summary of the applicants' submission that the CBD is not precisely identified. Clause 9 identifies "providing the service of promoting the Central Business District of the Hobart City Council municipal area" as the purpose of the separate rate. Clause 6 provides (inter alia):
"From the material it has considered, it is the Council's opinion that the purpose of the separate rate, being the promotion of the CBD, is, or is intended to be, of particular benefit to the land, or owners or occupiers of land in the Fringe area. The separate rate is struck at the rate of 0.4 cents in the dollar assessed annual value in order to take account of a perceived lower level of particular benefit to the Fringe area, compared with the Core area." [Emphasis added.]
The resolution goes on to identify, by reference to street numbers, each of the properties in the Fringe area. The terms of the impugned resolution do not identify what is the particular benefit, that in the opinion of counsel is, or is intended to be, of benefit to the applicants, but there is no statutory requirement that this be spelled out. The statute requires that there be a corporate opinion that the separate rate is, or is intended to be, of particular benefit to (inter alia) the applicants, and inferentially, an expression of that opinion means that the corporate mind has contemplated a particular benefit unless there is sufficient material to lead to a conclusion that such a particular benefit was not in the corporate contemplation or that it could not reasonably have been within such contemplation.
Was the August resolution passed by an absolute majority?
Eleven Aldermen were present at the August meeting. Alderman Hayes, who was at the 14 July 2003 meetings, was absent from the 11 August Council meeting. The voting record shows that at the latter meeting, all the Aldermen except the Lord Mayor, voted in favour of the resolution. The Lord Mayor voted against it. Prima facie then the resolution was passed by an absolute majority. However, Mr Abbott submitted on behalf of the applicants, that on close examination it can be seen that the prima facie proposition is fundamentally flawed because five Aldermen acted in a way that was manifestly unreasonable, capricious and perverse.
Mr Abbott correctly submitted that in order to make a valid resolution, it was necessary for the corporate body to form the state of mind prescribed by the Act, s100(2)(c), viz, maintaining or improving promotion of the CBD is, or is intended to be, of particular benefit to (inter alia) the applicants. Clause 6 of the August resolution so states. Mr Abbott submitted that because five Aldermen changed their minds between 14 July 2003 and 11 August 2003, the opinion expressed in cl 6 was not the bona fide opinion of five Aldermen and thus not a proper expression of the corporate opinion. Mr O'Farrell submitted that absent fraud or the like, it was not appropriate to enquire into the expression of corporate opinion set out in cl 6. See Parramatta City Council v Hale (1982) 47 LGRA 319 at 345 – 347. Mr Abbott's submission relied upon the following facts:
(a)In Committee on 14 July 2003, Alderman Haigh voted in favour of confining the rate to the Core area. At the Council meeting on the same day, she opposed extending the rate, albeit in a lesser sum, to the Fringe area, but when the amendment was passed, she voted for the amended resolution. She also voted for the new resolution at the Council meeting on 11 August 2003. I see nothing capricious, unreasonable or perverse in her so doing. Alderman Haigh may well have supported the imposition of a separate rate. She may well have been of the opinion that the rate is, or is intended to be, of particular benefit to (inter alia) the applicants, but preferred that it be confined to the Core area. However, when she found the majority was against that, she may well have taken a perfectly reasonable view that an extended separate rate was better than no rate at all.
(b)At the Committee meeting on 14 July 2003, Aldermen Freeman and Christie supported the rate being confined to the Core area, but at the Council meeting later that day, supported the amendment. Both maintained that position at that Council meeting and at the one held on 11 August 2003. All that means is that on 14 July 2003, these two aldermen changed their minds between the committee meeting and the Council meeting. They may have done so as a result of re-considering the material, re-thinking the issues, discussing the matter with others and so on. As the Master of the Rolls said in R v Waltham Forest London Borough Council, ex parte Baxter [1987] 3 All ER 671 at 673 – 674:
"Bearing in mind that it must always be open to a member of the council to change his mind at any time before the actual vote in council, the fact that he expressed a different view at an earlier time does not, of itself, give rise to any inference that his discretion was fettered or that he voted contrary to his genuinely held views."
(c)At the Committee meeting on 14 July 2003, the Deputy Lord Mayor and Alderman Sexton were against the proposal to make a separate rate confined to the Core area. At the Council meeting the same day, they were against the amendment to extend it to the Fringe area and against the motion once it was amended. However, both Aldermen voted for the resolution at the Council meeting on 11 August 2003. All this means is that in the month that elapsed between the two Council meetings, the two Aldermen changed their minds as, of course, they were so entitled.
I reject the submission put on behalf of the applicants that the resolution passed by Council on 11 August 2003 was not passed by an absolute majority as required by the Act, s101(1).
The applicants' contentions
Mr Abbott next submitted that although the resolution stated that "the thing", referred to in the Act, s101(2)(c), was "providing the service of promoting the Central Business District of the Hobart City Council municipal area", such expression is "too loose" to be a proper description of "the thing". I reject this submission. These days, "promotion" is a word in common usage in the business world. The Shorter Oxford English Dictionary relevantly defines the verb "promote" to mean, "to further the growth, development, progress of establishment of (any thing)". The means by which promotion is achieved may be many and various, but in the context of the resolution, cl 6, promotion of the Central Business District of the municipality of Hobart (clearly identified by cl 3), is perfectly clear. The purpose of the rate is to further the growth, development or progress of the businesses and properties in the business centre of the municipality. In this respect, this case is clearly distinguishable from Alan E Tucker Pty Ltd v Orange City Council (1969) 18 LGRA 314 and Burns Philp Trustee Co Ltd v Blacktown Municipal Council [1976] 1 NSWLR 531. In both these cases, the legislation (Local Government Act 1919 (NSW), s121(1)) empowered the raising of a special rate "for or towards any work or service". The terms of this provision are far more restrictive than the broad expression, "maintaining or improving any thing" as enacted in the Act, s100(2)(c). Further, the New South Wales legislation contained statutory provisions (ss106(1)(b) and 109(2)) that required the local authority to keep a separate fund for each local rate, and restricted spending to the purpose for which each local rate was raised. These factors required precise definition of the purpose for which the rate was raised. See Burns Philp at 541. The purpose for which the subject rate was raised, promotion of the CBD, does not readily admit to the same precision of definition. It is more akin to the word "improvement" in respect of which their Lordships' advice in Western Stores Ltd v Orange City Council [1973] 1 NSWLR 19 observed at 25, "Improvement being a word of some generality, the council must have some latitude in the formation of its opinion …".
Next, on behalf of the applicants, Mr Abbott made submissions that the rate was not made with respect to a "class of land" as the division of the CBD into the Core and Fringe areas did not divide the land into two classes. It is unnecessary to deal with these submissions because cl 11A of the impugned resolution refers to each piece of land in the Fringe area by reference to its street name and number. Thus, the rate was made "in respect of land" (including the applicants' lands), not made "in respect of a class of land". I think Mr Abbott accepted that this was correct, but made the submissions because at the time he put them forward, he did not know if the respondent was going to contend that the rate was made "in respect of a class of land". The respondent did not so contend.
On behalf of the applicants, Mr Abbott then submitted that the rate failed to identify the nature of the "particular benefit" that, according to cl 6 of the resolution, the Council opined is, or is intended to, flow to the applicants' lands as a result of the maintenance or improvement of the promotion of the CBD. As I have observed, there is no statutory requirement that any particular benefit be articulated by the corporate mind no matter how desirable such articulation may be. Further, the benefit does not have to be a single benefit. It may be more than one. See the Acts Interpretation Act 1931, s24(d). It may be a different benefit to the several tenants of the applicants' lands. For example, attracting shoppers to the CBD retail outlets may provide an increased turnover for those floors in Trafalgar on Collins that are used for car parking. It may provide a similar benefit to retail outlets in the same building. Although it might be said that attracting shoppers to the CBD may not be a particular benefit to some tenants, eg, Medicare, the benefits to the car parking and retail outlets may provide a benefit to the first named applicant by enhancing the overall value of his property. No doubt the first named applicant would argue that this is not the case, but it does not follow that because there is such an argument, the relevant opinion could not reasonably have been held. The requirement for a valid rate is not a reasonably held corporate opinion that it will provide a particular benefit, but a reasonably held corporate opinion that it is, or is intended, to provide a particular benefit(s) to the applicants' lands.
Whilst the statute is clear that the Council must opine that maintaining or improving promotion of the CBD is, or is intended, to be of particular benefit to the applicants' lands, it imposes no obligation to spell out the nature of the particular benefit or benefits in any written expression of the corporate will. In Western Stores v Orange City Council in the New South Wales Court of Appeal, [1971] 2 NSWLR 36, Moffitt JA said, at 46 – 47 with respect to an argument that there must be written expression of the corporate opinion:
"… as the case is one where the opinion required by s 121 (1) was open to be held, it is to be presumed, in default of reason to conclude to the contrary, that the rate was regularly made and therefore was made upon the prerequisite opinion having been formed: Jones v Robson [1901] 1 KB 673, at pp 679, 681; McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835, at pp 849-850, and see Shire of Lillydale v Gainey [1930] VLR 73, at p 80 and Hebburn Ltd v Kearsley Shire Council (1955) 11 LGRA 116, at p 130. In applying the presumption I do not think that any distinction should be drawn between the exercise of a power by an individual and the exercise of such power by a body or group which acts by way of resolution, or vote."
The Court of Appeal's affirmation of that proposition, shared by Hardie J at first instance, was not challenged in the Privy Council. In my opinion, it applies with equal force to Mr Abbott's submission that invalidity attended the impugned rate because the nature of the particular benefit or benefits to the applicants' land was not expressly spelled out in the resolution.
Subject to the argument about reasonableness to which I shall turn in a moment, generally speaking, promotion of the CBD so that it becomes a vibrant, bustling and busy area could well enhance the value of all the buildings in that district, and thus, be to the benefit of the applicants and, albeit in different ways, and to different degrees, be a benefit to some of the applicant's tenants.
The applicants' principal contention on this aspect of the case was that the respondent's decision as expressed by the impugned resolution was completely unreasonable in that:
· all the "evidence" was one way;
· there was no benefit to the applicants' lands;
· the respondent did not exercise its powers properly in that it imposed the rates to fund City Heart Business Association Limited, not to benefit (inter alia) the applicants' lands; and
· on any view of the facts, the opinion of the Council, expressed in cl 6 of the impugned resolution, is so unreasonable that it constituted an invalid exercise of power.
The principle expounded by Lord Greene in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 at 230 found expression in this passage in the judgment of Alan E Tucker Pty Ltd v Orange City Council (supra) at 231:
"It is clear, as a matter of words and in point of authority, that it is the opinion of the council as to the extent of the special benefit which the section adopts as a condition of the imposition of a local rate; but it is obviously not open to a council to form an opinion which has no basis in fact nor to reach an opinion by the exercise of considerations or factors which have no relevance to the benefits ensuing from the provision of the works or services to be financed from the local rate. It is not in doubt, either, as I pointed out in KCR Pty Ltd v Orange City Council (1968) 16 LGRA 153, that there is a presumption as to the validity of a rate levied by a resolution of a local government council and the burden of showing that no case existed for the levy of the rate, that the council exceeded its powers, or that it otherwise acted improperly rests upon the person seeking to avoid liability to pay the rate."
In Burns Philp Trustee Co Ltd v Blacktown Municipal Council (supra) Wootten J said, at 541:
"While it is, under the section, for the council to form the opinion specified in the section, it is necessary that the council should in fact form that opinion, and not merely adopt a verbal formula saying that it has done so, when in fact it has not, or has done something else. The fact that it has not adopted the opinion specified in the section, despite the adoption of a resolution purporting to be pursuant to the section, may be indicated by evidence, either from the terms of the resolution itself or from surrounding circumstances, that the council was pursuing a purpose foreign to the section, or was taking into account circumstances or considerations that were not relevant to the opinion which it was required to form under this section. It may be shown also by demonstrating that the facts known to the council were incompatible with any rational basis for the resolution which it passed, as where the council included in the portion defined land which could not reasonably be considered to benefit from the work or service, or excluded land which any reasonable man who considered the matter must be of the opinion would be specifically benefited equally with the land within the portion defined."
Parramatta City Council v Hale (1982) 47 LGRA 319 was a case concerning council consent to a development application. The legislation required the council to consider certain matters in determining whether to give its consent. With respect to whether corporate expression that it had done so was a valid corporate expression, Moffitt JA said, at 345 – 347:
"Where it is a collegiate body which makes the s 91 determination, s 90 requires that the collegiate mind in granting its approval shall have considered the s 90 matters. Proof of a state of mind whether of a person or collegiate body may be a matter of difficulty, but the person, who seeks under s 123 to bring down a decision, must discharge that onus however difficult that may be and he must do so in accordance with proper legal requirements and by inference not suspicion. The responsibility to make the consent determination is given to a responsible authority, which will normally be a council democratically elected. The court exercising jurisdiction under s 123 does not sit on appeal from its determination. A conclusion by a court finding a breach of s 90 by way of inference is one to be come to only after anxious consideration, but when the inference is available and ought to be drawn, the court should, in service of the policy which underlies the Act, not hesitate to give effect to the inference it has drawn.
As in any case, civil or criminal, the state of mind of an individual (or of a body) can be proved by inference from what the person (or body) does or says or omits to do or say. The question whether a particular inference should be drawn as to a person's or body's state of mind should be resolved by a consideration of the whole of the relevant evidence. Where a party seeking to establish a particular state of mind or lack of it from a number of events, error may arise if the particular events or circumstances are considered and disposed of separately upon a determination whether the particular event or circumstance standing alone is open to some possible, even remotely possible, explanation by reference to a state of mind otherwise, and then, by reason of the separate answers, declining to draw the inference in question. I mention this obvious proposition because the strength of the respondent's case lies in the cumulative effect of quite a number of factors and the arguments of the appellants in defence have been largely to isolate a particular factor and answer the respondent's case by posing a possible explanation of individual factors not involving a breach of s 90(1). An inference that an act was done with a particular state of mind or lack of it may be drawn from the totality of twenty events, although each event standing alone may be possible of explanation with a state of mind otherwise. Circumstantial evidence is admitted not because it provides the ultimate inference contended for but because with other evidence it may support such inference.
Where a collegiate body exercises the power of the consent authority under s 91 and does so by its resolution, as the appellant council did by the resolution of its aldermen in general meeting on 16th October, 1981, the question in a case under s 123 is whether that collegiate body took each of the relevant s 90(1) matters into consideration in passing that consent resolution. It is the state of mind of that body in passing that resolution which is in question.
While it is the collegiate body which must take the matters into consideration and accordingly must be aware of such matters to enable it to do so, that body may rely on the inquiry, advice and recommendations of its officers. Accordingly it is open to it to adopt such a recommendation, provided in doing so it is aware from the report or from some other source, for example its general knowledge, of all the relevant s 90(1) matters, as earlier discussed. By adopting the recommendations it takes such relevant matters into consideration. The simple adoption even without debate, of a recommendation made by the council's officers in a report which refers to the relevant s 90(1) matters, would without more, leave no room for an inference that the collegiate body had not taken such matters into consideration. As earlier appears, of course, the case may be otherwise.
…Of course individual aldermen or some group of them are perfectly entitled to decide prior to a meeting what motion or amendment will be moved and to oppose any adjournment. Prior consideration by individuals of relevant matters may result in the collegiate mind giving consent taking into consideration relevant s 90(1) matters. However, not only what is resolved, but the course of events leading to the resolution, may prove relevant to whether it can be inferred some s 90(1) matters were not taken into consideration by the council meeting in resolving to consent."
Finally, I refer to the following passage from the judgment of Barwick CJ in The Council of the City of Parramatta v Pestell (1972) 128 CLR 305 at 313:
"The nature of a special benefit, as well as the choice of a portion to be subject to a local rate, are both matters apt to be committed to the opinion of the local government authority. In this connexion, it must be borne in mind that the council is a representative body of limited tenure of office. The question whether or not the given works or services are of special benefit to a portion of the local government area is very much a matter of opinion probably involving many imponderables and a great deal of local knowledge. The purpose of the legislature in committing the selection of the portion in respect of which a local rate is to be levied to the opinion of the local council reflects such considerations."
I direct myself in accordance with those authorities.
I deal first with the submission that the respondent took into consideration extraneous material. It was contended that in forming the opinion that it was required to form in order to make a valid special rate, the respondent took into account, or was influenced by, a perception that it was necessary or desirable that the business of City Heart Business Association Limited continue. It was submitted that the method by which any separate rate might be expended on the expressed purpose was immaterial to the formation of an opinion concerning the particular benefit to the applicants' land. It was not only inevitable, but also perfectly proper that in the event of the respondent being of the opinion that the promotion of the CBD is, or is intended to be, a particular benefit to (inter alia) the applicant's land, it consider how such promotion should be carried out before proceeding to make the separate rate. The City Heart Business Association Limited had been promoting the CBD for many years and, accordingly, it was proper for the Council to consider whether the arrangements that persisted over the years should continue or not. Indeed, it is clear that the Council did consider this issue, for it sent Alderman Freeman and Mr Short to Adelaide, Perth and Fremantle to investigate the way the CBD is promoted in each of those cities.
It would have been permissible for the respondent to consider how the CBD might be promoted and whether the model used in previous years had been successful, for such consideration might well have been relevant to the formation of an opinion about the likelihood of a particular benefit to the applicants' lands. It would be impermissible to reason that there is a need to keep the City Heart Business Association Limited in business and therefore the Council will opine that a separate rate is, or is intended to be, of particular benefit to the applicants' land. There is nothing in the material to suggest that the Council indulged in such an impermissible process. In his report dated 24 February 2003, made after that investigation, Mr Short spelled out the issues in very plain terms at par2.11:
"2.11The argument is not about whether CHBA remains as an organisation or not. This is outside Council's control as CHBA is a separate legal entity to Council and has its own membership. The discussion centres around:
2.11.1 Does Council wish to see Hobart or part of it marketed?
2.11.2 If so, does the Council want to play an active role in this marketing and promotion?
2.11.3 Again, if yes, how does Council want to fund this?
·Via a separate rate
·Via the general rate
·A combination of both.
2.11.4 And, what 'model' does Council wish to see undertake this marketing and promotion role?"
The report then proceeds upon an expressed assumption that the answers to pars2.11.1 to 2.11.3 are in the affirmative and sets out various methods by which the CBD could be promoted. It is true that in the report Mr Short states that it is too late in the year to advise City Heart Business Association Limited that it will not be funded in the following year, but his expression of opinion to that effect is not sufficient to lead to the inference that the expressed corporate opinion in the resolution was not a valid one. The report made it clear to the respondent that it had to consider two separate issues, namely, whether it should make a separate rate and, if yes, how should the CBD be promoted.
The amendment made to the invalid resolution propounded on 14 July 2003 does refer to "the balance" being made up from the general rate. As I observed earlier, the meaning of those words is obscure, but even assuming they are a reference to the difference between the budget of City Heart Business Association Limited and the lower rate struck for the Fringe area, it does not invalidate the expression of corporate opinion in the impugned resolution made a month later. Consideration of the model by which the CBD would be promoted does not lead to the inference that the expression of corporate opinion with respect to a particular benefit is vitiated or based upon irrelevant material.
Although it is clear that the view of the Council's officers was that with respect to the applicants' land "it would be difficult to conclude that a benefit [from the separate rate] is derived", and "as a general principle it is difficult to conclude that an office tenancy receives any benefit from the separate rate", that view did not extend to a categorical statement that no benefit from a separate rate would flow to (inter alia) the applicants' land. I adopt as apposite the following remark from the judgment of Reynolds JA in Paramatta City Council v Hayle (supra) at 390:
"Much of the argument addressed to us has as an unspoken premise that it is wrong or abnormal to reject the recommendations of specialist officers. So far from that being the case it would be wrong for the members of council merely to endorse such recommendations without considering their propriety and it is their duty to reject them if they do not agree."
It is important to bear in mind that in order to invalidate the resolution the applicants have to show that "Wednesbury unreasonableness" attended the formation of the coporate opinion, not only that the separate rate is of particular benefit to the applicant's land, but also that the separate rate is intended to be of particular benefit to such lands. In this respect, this case in quite different from Alan E Tucker Pty Ltd v Orange City Council and Burns Philp Trustee Co Ltd v Blacktown Municipal Council (supra) in which cases the statutory opinion that had to be formed was that the work or service "would be of special benefit …".
Clearly, the issue of whether a particular benefit to the applicants' land will result from promotion of the CBD is one with respect to which minds will differ. That is evident from the voting patterns at the respondent's meetings held on 14 July and 11 August 2003. It cannot be doubted that the material in the possession of the respondent provided a strong argument against the formation of an opinion that the separate rate is, or is intended to be, of particular benefit to the applicants' land. However, it is an entirely different matter to say that the respondent's opinion to that effect was so unreasonable that it was irrational. It must not be overlooked that in forming its opinion, the respondent was not confined to considering the material put to it by its officers. See Shanvale Pty Ltd v Council of the Shire of Livingstone (1998) 103 LGERA 114 at 135.
Also, it must not be forgotten that it is for the respondent, not this Court, to determine what weight is to be given to the matters that can properly be taken into account. See Minister for Aboriginal Affairs v Peko-Walsend Limited (1986) 162 CLR 24 at 41. Can it be said that there was no evidence upon which the respondent could have based its expressed corporate opinion? The answer is clearly in the negative. At the time the impugned resolution was passed, the rate had been collected and expended for more than a decade. The aldermen were entitled to pay regard to their own knowledge and experience over that period of time in forming individual opinions as to whether it had been of particular benefit to (inter alia) the applicants' land. The possible benefits that I have articulated earlier are probably not, as mentioned in the Anderson Report, susceptible to measurement. Consequently, the opinion set out in the impugned resolution is largely one of impression and general knowledge. Indeed, the Anderson Report notes that, "it is reasonable to suppose that benefits are provided to all or some of those from whom the rate revenue is collected", but there is no method to quantify those benefits.
There is no statutory prescription specifying the matters the respondent can or must take into account in the formation of the opinion. See Minister for Aboriginal Affairs v Peko-Walsend Limited (supra) at 40. In a case such as this where the opinion in question relates to such a wide and undefined matter as a particular benefit to a particular property or properties from the promotion of a defined area in the city, the factors that could properly influence the corporate mind are so wide and varied that the applicants face an extremely onerous task in establishing that the opinion formed on 11 August 2003 was so unreasonable that no council, acting lawfully and reasonably, would have formed such an opinion.
Without fetter, the Parliament has entrusted to local government the task of forming an opinion that a separate rate for the purpose of improving or maintaining promotion of the CBD is, or is intended to be of particular benefit to (inter alia) the applicants' lands in the widest terms. By the enactment of the Act, ss100(7), and ss101- 105A, Parliament has sought to control an arbitrary exercise of the power to make a separate rate by resort to extensive democratic consultation. Although the respondent's opinion differed from the opinion of its advisers, it cannot be said that it was one that no Council, acting in accordance with law and reasonably, could have entertained.
The application is dismissed.
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