Robertson v Sarina Shire Council (No. 2)
[2006] QLC 80
•22 December 2006
LAND COURT OF QUEENSLAND
CITATION: Robertson (No. 2) v Sarina Shire Council [2006] QLC 0080 PARTIES: Thomas N Robertson and 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 the categorisation of land under the provisions of the Local Government Act 1993. DELIVERED ON: 22 December 2006 DELIVERED AT: Brisbane HEARD AT: Mackay MEMBER Mr RS Jones ORDER: The appeal is disallowed.
CATCHWORDS: Local Government Act 1993 – Categorisation of land. APPEARANCES: Mr T N Robertson on behalf of the appellants
Mr M Williams, Solicitor, for the respondent
Mr T Robertson and Mrs P Robertson, the appellants, have appealed against a decision by the Sarina Shire Council, the respondent, disallowing their objection against the categorisation of their land under the Local Government Act 1993.
When this matter first came before me I was concerned with whether or not the notice of appeal filed on behalf of the appellants enlivened the jurisdiction of this Court. On 26 April 2006 I handed down my reasons for determining that, as pleaded, the notice of appeal filed by the appellants did not enliven the jurisdiction of the Land Court. [1] Following that decision the appellants sought leave to amend their notice of appeal and, by consent it was amended to seek relief in the following terms:
"That the Court set aside the decision by the respondent to dismiss our application to change the existing rating Category 8 and order that the land should be included in rating Category 5."
[1] Robertson v Sarina Shire Council (2006) QLC 0020.
On 12 December 2006, the appeal came back before me in Mackay to be determined on its merits.
Background
The appellants are the owners of land described as Lot 8 on Registered Plan 837374, Parish of Sarina located at Freshwater Point within the respondent's local government area. Freshwater Point lies approximately ten kilometres east of the town of Sarina. The subject land comprises an area of just over two hectares and is zoned "Rural Residential".
At the relevant time the subject land was classified Category 8 for the purposes of the respondent's differential rating system. Category 8 is defined in the Revenue Statement of the respondent for the year 2005/2006 under the heading "Category & Criteria" in the following way:
"(8) Other Rural/Rural Residential
All other rateable properties within the rural areas of the shire not included in Categories 6 or 7 including those used for or designated for use for rural residential purposes."Categories 6 and 7 refer to "Cane Land" and "Other Primary Industry" uses respectively.
As already referred to, the appellants in their amended notice of appeal asserted that the land ought to have been placed in Category 5 under the respondent's differential rating system. In the respondent's Revenue Statement 2005/2006 Category 5 is defined as follows:
"(5) Other Towns/Villages
All rateable properties in the designated towns or villages of the shire other than the towns of Sarina and Koumala."
The Issues
Section 984(1) of the Local Government Act 1993 (LGA) relevantly provides:
"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."
Pursuant to s.985 the relevant local government authority must consider the objection and notify the landowner as to its decision about the objection. The right of the landowner to appeal against the decision on objection is contained in s.987 of the Act and, pursuant to s.990(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."
As can be seen from the category descriptions set out in the respondent's Revenue Statement for 2005/2006 the relevant category is identified first followed then by the criteria used to determine the appropriate categorisation of the land.
The criteria decided upon by the respondent relevant to Category 5 is that the rateable property must be within the boundaries of designated "towns" or "villages" other than the towns of Sarina and Koumala. The subject land cannot, in my opinion, satisfy that criteria. The only locations designated "Town" within the town-planning scheme of the respondent are the towns of Sarina and Sarina Beach. The subject land does not lie within the towns of Sarina or Sarina Beach. Also within the town planning scheme of the respondent, there are eight locations or localities zoned "Village" including Koumala. The subject land does not lie within any of the locations or localities zoned "Village". As the appeal developed it seemed to me that Mr Robertson was really accepting that, objectively speaking, the subject land could not sensibly be placed in Category 5 having regard to the criteria set for that category.
According to Ms Moller, the Acting Manager of Corporate Services of the respondent, the zoning assigned to land under the respondent's town planning scheme was the predominant consideration in determining into which category land in different locations within the Shire should be put. As mentioned above, the subject land is zoned "Rural Residential". Other matters considered in determining into which category land should be put included the size of the property, the Land Use Code adopted by the Department of Natural Resources and Water in carrying out its valuation responsibilities under the Valuation of Land Act 1944 and, in respect of land zoned "Rural" and "Rural Residential" the actual use to which the land was being put. The subject land is about 2 hectares in area and, in the Land Use Code of the Department of Natural Resources and Water it has been given a code "0400" designation which is further defined as "Vacant-Large Housesite". As I understand the evidence, the subject land is and was being used by the appellants predominantly as a large residential house site.
For the reasons set out in paragraphs 9 and 10 above it is my opinion that, having regard to the relevant criteria adopted by the respondent, there is no sound basis for giving the subject land a Category 5 designation. It is also my opinion that when all of the relevant evidence is considered the Category 8 designation within the respondent's differential rating system is the one most suitable for the subject land. Accordingly, the appeal ought be disallowed.
Order
The appeal is disallowed.
RS JONES
MEMBER OF THE LAND COURT
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