Romeo Investments Pty Ltd v North Burdekin Water
[2005] QLC 8
•4 February 2005
LAND COURT OF QUEENSLAND
CITATION: Romeo Investments Pty Ltd v North Burdekin Water
Board [2005] QLC 8PARTIES: Romeo Investments Pty Ltd
(Appellant)
v.
North Burdekin Water Board
(Respondent)FILE NO: A2003/0004 PROCEEDING: Application to determine preliminary questions DELIVERED ON: 4 February 2005 DELIVERED AT: Brisbane HEARING DATE: 1 February 2005 MEMBER: Mr G.J. Koppenol ORDER/S: The preliminary questions are answered as follows:
1.
The respondent’s decisions to make and levy the subject rate were lawful. (at [19])
2.
As a result, there is no utility in considering whether the Court has power to substitute a different rate on a different basis. (at [19])
CATCHWORDS:
WATER ACT – WATER BOARD – CANE PRODUCTION AREA – IMPOSITION OF RATE – whether rate imposed “on a property basis” – whether method unfair or discriminatory
PRELIMINARY QUESTIONS – whether respondent acted lawfully – whether Court empowered to substitute different rate
Water Act 2000, ss 572(5), 877(1)(d)
Sugar Industry Act 1999, ss 7, 8Yanner v Eaton (1999) 201 CLR 351, applied
Minister for Aboriginal Affairs v Peko-Wallsend Ltd
(1986) 162 CLR 24, applied
O’Sullivan v Farrer (1989) 168 CLR 210, applied
Sunskill Investments Pty Ltd v Townsville Office
Services Pty Ltd [1991] 2 QdR 210 (FC), appliedCOUNSEL: C. White for the appellant
R. Gotterson QC for the respondentSOLICITORS: Roberts Nehmer McKee for the appellant Dickinson Simeoni & Robins for the respondent AGENT/S: N/A
Background
In January 2003, the appellant filed in the Court a notice of appeal under section 877(1)(d) of the Water Act 2000 (Water Act). The decision appealed against was that of the manager of the respondent, who affirmed an earlier decision of the respondent to make and levy a particular rate on the appellant’s cane production areas.
In November 2004, the respondent requested the Court to determine, as preliminary questions, whether the respondent’s imposition of the rate was lawful and whether the Court has the power to substitute a different rate on a different basis (as sought by the appellant).
Arguments
The respondent has power under section 572(5) of the Water Act to make and levy a “rate … on a property basis” for land in its area of responsibility. The appellant’s land is within that area.
The appellant submitted that the respondent’s decision was unfair and discriminatory (and therefore unlawful) because it had imposed a flat rate for cane farm land per hectare of cane production area—rather than per hectare of land (property) owned. The appellant’s argument centred upon the phrase, “on a property basis”, in section 572(5). That was said to refer to the area of land owned by the grower, rather than to the grower’s cane production area. A “cane production area” is described in the Sugar Industry Act 1999 (Sugar Industry Act) as a cane production board-granted entitlement for a grower to supply a sugar mill with cane from a specified number of hectares within the grower’s land.[1] The appellant grower held cane production area entitlements (for varying hectares) on its 4 farms.
[1] Sections 7, 8.
The unlawfulness of the rate was also said to result from the respondent’s not distinguishing between or imposing differing rates upon those growers (such as the appellant) who use bore water for irrigation and those who use above-ground water via the Burdekin River or the respondent’s irrigation channels. It was submitted that a uniform rate did not reflect the differing costs incurred (a) by the respondent in supplying water to particular types of users, or (b) by particular ratepayers— depending upon whether they use above- or below-ground water.
The respondent argued that the respondent’s decision was correctly made because:
•
a “cane production area” was described in the Sugar Industry Act as “property” which may be sold, leased or transferred;[2]
• in that context, “property” means property in the legal sense; • the Water Act authorised a rate on a property basis; •
the respondent had imposed a rate on a property basis—namely per hectare of cane production area;
•
it would be impossible for the respondent to provide some form of rate costs equivalence depending upon the particular type of water user.
[2] Sugar Industry Act 1999, s. 7.
Analysis
“Property”: As noted, the respondent is empowered to impose a rate on a property basis. In Yanner v Eaton,[3] Gleeson CJ, Gaudron, Kirby and Hayne JJ said that the “concept of ‘property’ may be elusive”; their Honours went on to say that: [emphasis added]
“Nevertheless, as Professor Gray also says, “An extensive frame of reference is created by the notion that ‘property’ consists primarily in control over access. Much of our false thinking about property stems from the residual perception that ‘property’ is itself a thing or resource rather than a legally endorsed concentration of power over things and resources.”
“Property” is a term that can be, and is, applied to many different kinds of relationships with a subject matter. It is not “a monolithic notion of standard content and invariable intensity.” …”
[3] (1999) 201 CLR 351, 366.
The Water Act does not elaborate the meaning of “property” in section 572(5). However, some assistance is found in the Explanatory Notes for the Water Bill 2000. The following was said: [emphasis added]
“Clause 572 enables a category 1 water authority to charge for carrying out its functions. It will not be able to levy rates on a property basis. A category 2 water authority may, for carrying out its functions, make or levy a charge and if it has an area it may make or levy rates on a property basis.”
…
Clause 576 provides that a water authority can recover any overdue rate or charge together
with interest owing. The water authority can only recover the rate or charge from the person
on whom the rate or charge is made or levied. For instance, if a property is leased and the rate
or charge is levied upon the lessee then the authority cannot recover an overdue rate or chargefrom the landowner of the property.
The respondent is a category 2 water authority.
The significance for present purposes of the italicised last sentence is that because an overdue rate can be recovered from the lessee only and not the owner, the determining factor is not ownership but control over access (one of the lessee’s rights). Although the references in that sentence to “a property” and “the property” are undoubtedly to the land as opposed to the concept of a cane production area as property, I take that usage to be illustrative of a particular factual scenario rather than as an indication of the intended legal meaning of “on a property basis” in the rate- imposition power under an earlier-discussed clause. No authorities were cited which would take the matter any further.
[10] In the circumstances, I regard control of access, and not land ownership, as the determining factor for section 572(5) purposes. Thus I do not accept the appellant’s argument in this respect.
[11] Criteria: The respondent’s rate-imposition power under section 572(5) is not conditioned or assisted by reference to prescribed factors or guidelines. As a result, the process should be conducted by reference to the subject matter, scope and purpose of the Act.[4]
[4] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-40, 56; O’Sullivan v Farrer (1989) 168
The long title of the Water Act is relevantly instructive. It provides as follows: [emphasis added]
“An Act to provide for the sustainable management of water and other resources, a regulatory framework for providing water and sewerage services and the establishment and operation of water authorities, and for other purposes.”
The sustainable management of water resources was also stressed in the respondent’s manager’s written decision; he said:[5]
[5] Page 5.
“The object of the Board’s operation is primarily to ensure that there is an adequate supply of water in the aquifer which can be drawn upon by persons farming lands in the authority area, and also to ensure that the quality of that water is suitable for agricultural purposes.
The procurement by the Board of quantities of water from the Burdekin River for replenishment purposes is obviously an essential element of that activity. The acquisition of that water and its application to the aquifer is a principal activity of the Board and it is the activity towards which the Board directs most of its funding. In fact all activities of the Board can be said to be directly or indirectly related to that purpose.
It cannot be doubted, in my view, that the activities of the Board are directly responsible for maintaining an adequate supply of good quality water which is accessible to the Romeo interests. In fact, I noticed during the submissions that it was admitted on behalf of the Romeo Family that there has been a constant supply of good quality water underneath their land over the whole of the period of the Board’s operations. That quantity and quality has been maintained notwithstanding substantial withdrawal of water supplies from the system by a cane farming industry in the authority area which has been expanded greatly in production and also in production area during the period of the Board’s operations.”
[14] The appellant did not dispute those comments and they should be accepted for present purposes. Indeed the appellant formally accepted that it has benefited from the respondent’s water management activities—and specifically from the provision of additional ground water storage.[6]
[6] Statement of Agreed Facts, paras 3, 19.
[15] Accordingly the respondent’s rate imposition power should be guided by considerations relevant to the sustainable management of the water resources in its area. The respondent’s manager’s reasons demonstrate that they were indeed the guiding factors in the present case.
[16] Rate: The respondent’s relevant power is to make and levy a “rate”. The fundamental nature of a rate (albeit in the local government context) has been described by McPherson JA as follows:[7]
[7] Sunskill Investments Pty Ltd v Townsville Office Services Pty Ltd [1991] 2 QdR 210 (FC), 216; followed in Victoria Park Golf Club Inc v Brisbane City Council [2001] QCA 528, at [19].
“Its essence is that it is calculated according to values of land or buildings in the locality rather than the costs of supplying the service to particular premises, so that each owner or occupier bears his rateable share of those expenses. Hence the word “rate”.”
In my view, the respondent’s actions were consistent with that statement of principle, in that the subject rate was calculated by reference to the area of cane production areas rather than the value of the land (a factor specifically applicable to local government)—and not to the cost of supplying the service to particular premises (a very complex task). In that way, each cane production area holder bears that person’s rateable share of the expenses of ensuring that there is a sustainable supply of water which can be drawn upon by all cane farmers in the respondent’s area.
[18] Conclusion: It follows that (a) I do not accept the appellant’s argument in this respect, and (b) the respondent’s actions cannot be categorised as unfair, discriminatory or unlawful.
Disposition
The respondent’s decisions to make and levy the subject rate were lawful. The first preliminary question is answered accordingly. As a result, there is no utility in considering whether the Court has power to substitute a different rate on a different basis.
CLR 210, 216.
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