Robertson v Sarina Shire Council - [2006] QLC 20

LAND COURT OF QUEENSLAND

CITATION: Robertson v Sarina Shire Council [2006] QLC 20

PARTIES: Thomas N Robertson & Pamela Robertson
(appellants)

v.

Sarina Shire Council
(respondent)

FILE NO: VC2005/1916

DIVISION: Land Court of Queensland

PROCEEDING: In the matter of an appeal against a categorisation under the provisions of the Local Government Act 1993.

DELIVERED ON: 26 April 2006

HEARD AT: Mackay

DELIVERED AT: Brisbane

MEMBER: Mr RS Jones

ORDER: The Land Court has no jurisdiction to hear the appeal.

CATCHWORDS: Jurisdiction – Local Government Act 1993 - jurisdictional limits on Court imposed by legislation – relief sought beyond the jurisdiction of the Land Court.

APPEARANCES: Mr T N Robertson, of behalf of the appellants
Mr J Scarce, Manager Corporate Services of the Sarina Shire Council, on behalf of the respondent.

These proceedings concern an appeal by landowners against a decision by the Sarina Shire Council (the respondent) disallowing their objection concerning the statutory categorisation of their land under the Local Government Act 1993.

Background

Mr T Robertson and Mrs P Robertson (the appellants) are the owners of land described as Lot 8 on RP 837374 located at Ocean View Crescent, Fresh Water Point within the respondent's local government area.
On 3 October 2005 the respondent issued a Rate Notice/Tax Invoice to the appellants. This notice, under the heading "General Rates" identified that the subject land fell within the following category:
"Differential Rate Category 8 – Other Rural/Rural Residential"
On 27 October 2005 the respondent received the appellants' "Objection Form – Zoning Categorisation Differential Rate Group" form in which, among other things, the appellants contended that their land should not have placed in category 8 and that category 5 was the appropriate category.
On or about 2 November 2005 the respondent notified in writing its response to the appellants' objection notice. It would appear that the respondent had received numerous letters of protest concerning the new rating categorisation system adopted by it at a special budget meeting on or about 9 August 2005. As a consequence of these letters of protest, the respondent wrote to a number of landowners, including the appellants, correspondence described as "a generic letter."
By way of Originating Application filed in this Court on 12 December 2005 the appellants appealed the respondent's decision concerning their objection to the categorisation of their land.
In their Originating Application the facts, circumstances and other relevant matters upon which the appellants rely in support of their appeal are stated in the following terms:
"Council for the last decade or so, has used a differential rating system but only set three different rates only differentiating between two major industrial sites and 'all other'. This year they have levied a whole new range of rates to completely new categories, which result in grossly unfair rates burdens being imposed on some ratepayers but significant benefits to others.
Every attempt by the Council to justify their decision has been shown to be illegal, arbitrary, capricious, based on false assumptions and facts and totally without justification or morality and/or in breach of the provisions of the LGA.
Yet Council, whilst admitting that the factors between categories do not 'equate to double (the differentials rates they have selected)' refuse to amend the excesses."
The orders and relief sought by the appellants are:
"1. If the concessions purported to have been granted by Council to selected property holders are ultra vires and illegal, such concessions be reversed or declared void ab initio.
2. Delete all reference to 'Rural Residential' from Category 8.
3. Change description of Category 5 from 'Other Towns/Villages' to 'Other Residential' being all rateable properties for human habitation within the Shire not included in Category 3."
By correspondence dated 20 December 2005 King & Company, solicitors for the respondent, wrote to the Court expressing their concern about whether or not the Land Court had jurisdiction to deal with the appeal, particularly having regard to the nature of the relief being sought by the appellants. On 16 March 2006 the parties appeared before me in Mackay to present argument dealing only with the jurisdictional issue.

Relevant Legislation and Arguments

The Land Court, unlike the Supreme Court of Queensland, is not a Court of general jurisdiction. Although having a wide jurisdiction, the jurisdiction of the Court is defined and limited by statute.
Section 5 of the Land Court Act 2000 provides:
"Jurisdiction of Land Court
(1) The Land Court has the jurisdiction given to it under any Act.
(2)If jurisdiction for a proceeding is expressly conferred on the Court under any Act, the jurisdiction is exclusive."
Relevant to these proceedings the jurisdiction of the Land Court is to be found in s.987 of the Local Government Act 1993 (LGA) which provides:
"Right of appeal against decision
If the owner of rateable land is aggrieved by –
(a) the decision on an objection to the categorisation of the land; or
(b)…
the owner may appeal to the Land Court against the decision …"
The extent of the jurisdiction provided for under s.987 will be dealt with further below.
Other relevant provisions of the LGA are ss.984, 985, 988 and 990 which provide:
"984 Owner's objection to categorisation
(1) An owner of rateable land categorised under division 1 may object to the categorisation of the land on the sole ground that, having regard to the criteria decided by the local government by which rateable land is categorised, the land should have been included, as at the date of issue of the relevant rate notice, in another rating category.
(2) The objection must be made by giving notice of the objection to the local government.
(3) The notice of the objection must –
(a)be given within 30 days after the date of issue of the rate notice or any further period the local government allows; and
(b)be in the form approved by the local government; and
(c)nominate the rating category in which the owner claims the land should have been included; and
(d)specify the facts and circumstances on which the claim is based.
985 Decision on owner's objection
(1) If the owner of rateable land objects to the categorisation of the land, a person authorised by the local government for the purpose must –
(a)        consider the categorisation of the land; and
      (b)        consider the facts and circumstances on which the claim is based
(2) The person may –
(a)        allow the objection; or
      (b)        disallow the objection; or
      (c)        decide that the land should be included in another rating category.
(3) The person must decide the objection, and give written notice of the decision to the owner, within 60 days after the end of the period within which the objection had to be made.
(4) The notice must include the reasons for the decision.
988 Where and how to start appeal
(1) The appeal must be started by filing a notice of appeal in the Land Court registry.
(2) The notice of appeal must –
(a)        be filed within 42 days after the owner received notice of the decision or                   failure; and
      (b)        be in a form approved by the Land Court.
(3) The owner must give a copy of the notice of appeal to the local government within 7 days after the notice of appeal is filed in the Land Court registry.
(4) …
990 Decision on appeal by Land Court
(1) In deciding an appeal against a decision on an objection to the categorisation of land, the Land Court may –
(a)set aside the decision and decide that the land should be included in a different rating category; or
(b)disallow the appeal.
(2) …
(3) If the Land Court sets aside the decision on the objection, the land is taken to be included in the category decided by the Land Court for the period for which the relevant rate notice is issued."
It is within this legislative framework that the appellants say that the Land Court has the jurisdiction to hear their appeal. Their argument is very straightforward. They say that they are aggrieved by a decision made by or on behalf of the respondent concerning their objection to the categorisation of their land. They rely specifically on s.5 of the Land Court Act 2000 and s.987(a) of the LGA in support of their argument.
The argument on behalf of the respondent is twofold. The first submission is to the effect that the construction of Ss.984(1) and 990(1) of the LGA leads to the conclusion that the jurisdiction of the Land Court concerning appeals brought before it pursuant to s.987 is limited to the consideration of the criteria set by the local government and whether the subject land should have been included in the category determined or in some other category having regard to that criteria. And, following from that, that the Land Court has no jurisdiction to review the decision making process of the local government underlying the setting of the criteria and categories utilised within its differential rating system. In this context the respondent suggests that the appellants' Originating Application is more akin to an application for a judicial review of the respondent's decision making process.
The second submission is that the orders and relief sought by the appellant are beyond the jurisdiction of the Land Court.
No specific objections or submissions were made on behalf of the respondent concerning the form and content of the appellants' notice of objection. I say no "specific" objections or submissions because, in the written submissions relied on by the respondent, under the heading "Facts" it is said in paragraph 4 that the appellants "purportedly objected" to the categorisation and, in paragraph 6, reference is made to the "council's apparent disallowance" of the objection.
It is clear from the notice of objection that it is not limited solely to the grounds identified in s.984(1) of the LGA. However, in their notice of objection, under the heading "Reasons for Objection" the appellants contended in part:
"…category 8 refers to 'Other Rural/Rural Residential' i.e. it does not refer to only a residential category and therefore it follows that it cannot comply with a sole residential criteria and attract 'special consideration'
It therefore follows, inevitably, that Category does not, and cannot, comply with Council criteria or with s.977(b) of the Local Government Act and therefore it is an invalid category.
It therefore also follows, inevitably, that the assignation of category 8 to our property is invalid but it does require a Residential Category. The only other residential categories are 3 or 5.
Of these categories, category 5 is by far the more logical and we submit that correct category should therefore be category 5".
The so-called generic letter forwarded by the respondent to the appellants commences by saying "This is a generic letter compiled to answer the questions being raised by letter of objections…" and concludes with the words "In conclusion Council advises that they will not be amending any further rural residential rate cards, as such the charges remain. Further, Council will be reviewing the differential rating categories for the 2006/2007 financial year".
On balance I am of the opinion, and so find, that the notice of objection and letter in response of the respondent are sufficient to satisfy the requirements of s.984 and s.985 of the LGA. And, accordingly, the jurisdiction of the Land Court is prima facie enlivened pursuant to s.987(a) of that Act. It follows from this finding that I do not accept the respondent's argument that the Originating Application should be seen as an application for judicial review rather than appeal under the LGA.
However, it is my opinion that the relief sought in the Originating Application, as presently pleaded, seeks orders which go beyond that contemplated by s.990(1)(a) of the LGA and, that the equity and good conscience direction contained in s.7 of the Land Court Act 2000 is of no assistance to the appellants in the circumstances of this appeal. Section 7 should not be regarded as authority for the Court to assume a jurisdiction not specifically conferred by statute.[1]
[1]Stevenson v Commissioner of Water Resources (1990-91) 13 QLCR 29 at 30 (LAC); Cox v Commissioner of Water Resources (1992-93) 14 QLCR 304 at 309.8 to 310.2 (LAC).

Conclusions

I find that the Originating Application in its present form is not demonstrably within the jurisdiction conferred on this Court by s.987 and s.990 of the LGA and, that I do not have the jurisdiction to grant the relief sought. In reaching this conclusion I have had the benefit of the reasoning of McPherson J, (as he then was), in Startune Pty Ltd v Ultra-Tune Systems (Aust) Pty Ltd[2].
[2] (1991) 1 QdR 192 (FC).
Accordingly, I find that the Land Court has no jurisdiction to hear the appeal.
That is not to say that it may not still be open for the appellants to amend their Originating Application to seek relief within the jurisdiction of the Court.[3] However, as there is no application before the Court concerning any amendment of the Originating Application it is not a matter which has to be decided by me at this time.
[3]Startune at 197-198: Dawson v Department of Natural Resources and Mines [2002] QLAC0023 (unreported decision of the Land Appeal Court, 31 March 2003).
The parties will have the opportunity to consider these reasons and make submissions (if any) as to costs.

Order
The Land Court has no jurisdiction to hear the appeal.

R S JONES
MEMBER OF THE LAND COURT

CITATION:	Robertson v Sarina Shire Council [2006] QLC 20
PARTIES:	Thomas N Robertson & Pamela Robertson (appellants)
v.
Sarina Shire Council (respondent)
FILE NO:	VC2005/1916
DIVISION:	Land Court of Queensland
PROCEEDING:	In the matter of an appeal against a categorisation under the provisions of the Local Government Act 1993.
DELIVERED ON:	26 April 2006
HEARD AT:	Mackay
DELIVERED AT:	Brisbane
MEMBER:	Mr RS Jones
ORDER:	The Land Court has no jurisdiction to hear the appeal.
CATCHWORDS:	Jurisdiction – Local Government Act 1993 - jurisdictional limits on Court imposed by legislation – relief sought beyond the jurisdiction of the Land Court.
APPEARANCES:	Mr T N Robertson, of behalf of the appellants Mr J Scarce, Manager Corporate Services of the Sarina Shire Council, on behalf of the respondent.