Paton v Mackay Regional Council

SUPREME COURT OF QUEENSLAND

CITATION:

Paton & Ors v Mackay Regional Council [2014] QSC 75

PARTIES:

Ayril Richard Paton
First Applicant

And

Peter John Crossan
Second Applicant

And

Maincrest Pty Ltd
ACN 054 304 933
Third Applicant

v

Mackay Regional Council
ABN 56 240 712 069
Respondent

FILE NO/S:

S50/13

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Mackay

DELIVERED ON:

30 April 2014

DELIVERED AT:

Rockhampton

HEARING DATE:

16 April 2014

JUDGE:

McMeekin J

ORDERS:

The parties to agree on and file formal orders within seven days consistently with these reasons.1.   

CATCHWORDS

REAL PROPERTY – RATES AND CHARGES – RATING OF LAND – TYPES OF RATES – DIFFERENTIAL RATES – where the applicant submits that the respondent’s decisions to impose differential rates are invalid – where the applicant contends that the respondent took into account irrelevant considerations including the capacity of landowners to pay rates in making its decision – whether the decision to impose differential rates by the respondent is invalid.

Local Government Act 2009 (Qld) s 91, s 92, s 94, s 96.
Local Government Regulation 2012 (Qld) s 80, s 81, s169(2), s 172(1)(a), s 193
Judicial Review Act 1991 (Qld) s 20(2)(e), s 20(2)(f), s 21(2)(e), s 21(2)f)

Xstrata Coal Qld P/L & Ors v Council of the Shire of Bowen [2010] QCA 170 applied

COUNSEL:

S Anderson for the applicants
M Hinson QC for the respondents

SOLICITORS:

SR Wallace & Wallace for the applicants
S.B. Wright & Wright and Condie for the respondents

1. Meekin J:Mc This is an application for a statutory order of review. The point in issue concerns the limits on a Council’s ability to impose differential general rates.

1. The applicants own various parcels of land which are located within the local government area for which the respondent, the Mackay Regional Council, is responsible. The applicants argue that the Mackay Regional Council (“the Council”), brought into account irrelevant matters in fixing the rates applicable to their land. They seek judicial review of the respondent’s decision to charge those differential rates. Sections 20(2)(e) and (f) and 21(2)(e) and (f) of the Judicial Review Act 1991 (Qld) are relevant.

The Rival Contentions

1. In its budget for 2013-14 the Council introduced a new categorisation of land for the purposes of differential rating – that which the owner identified as his or her principal place of residence. The applicants contend that in doing so, the Council, in resolving on the particular categories of land, and in fixing the differential rate with respect to such a category, impermissibly took into account the following matters:

(a) "whether or not the land is revenue producing, or has the capacity to produce revenue (bearing in mind that revenues provide a source of funds which is relevant to the net impact of the landowner, and also that most revenue producing lands are used for a business for which rates are tax deductible)"

(b)"Ability to pay"

(c) "the capacity of the property to generate revenue"

(d) That "certain categories…