Theo v Moreton Bay Regional Council

[2011] QLC 43

LAND COURT OF QUEENSLAND

CITATION:

Theo v Moreton Bay Regional Council  [2011] QLC 0043

PARTIES:

Solon Theo
(appellant)

v.

Moreton Bay Regional Council
(respondent)

FILE NO:

LGR041-11

DIVISION:

General Division

PROCEEDING:

Appeal against categorisation of land for differential rating purposes

DELIVERED ON:

11 July 2011

DELIVERED AT:

Brisbane

HEARD AT:

Redcliffe

PRESIDENT:

CAC MacDonald

ORDER:

The appeal is dismissed.

CATCHWORDS:

Categorisation of land - Local Government (Finance, Plans and Reporting) Regulation 2010.

Jurisdiction of Land Court - Local Government (Finance, Plans and Reporting) Regulation 2010, Land Court Act 2000.

APPEARANCES:

The appellant, Mr S Theo, in person.
Mr SM Fitzgerald, Solicitor, of Moreton Bay Regional Council, for respondent

1. The appellant in this matter, Mr Solon Theo, has appealed against the disallowance by the respondent, the Moreton Bay Regional Council, of an objection to the categorisation of land under the provisions of the Local Government (Finance, Plans and Reporting) Regulation 2010 (the Regulation).  The appeal relates to land described as Lot 2 on SP 140030 in the Parish of Redcliffe, situated at 202 King Street, Clontarf.

2. In the Notice of Appeal filed by the appellant, the category appealed against was stated to be R2 and or F2.  The appellant contended that the category should have been R1.  At the hearing the appellant accepted that the property had been categorized by the respondent as F2  and that the appeal related to that categorisation. 

3. Section 14(1) of the Regulation provides that a local government may levy general rates that differ for different categories of rateable land in the local government area.  Such rates are called differential general rates[1].  Section 15 of the Regulation provides that -  

   [1] S.14(2) Local Government (Finance, Plans and Reporting) Regulation 2010.

   15 Categorisation of land for differential general rates

   (1) Before a local government levies differential general rates, it must decide the different categories (each a rating category) of rateable land in the local government area.

   (2) The local government must, by resolution, make the decision at the local government’s budget meeting.

   (3) The resolution must state -

   (a) the rating categories of rateable land in the local government area;  and

   (b) a description of each of the rating categories.

   …

   (4) After the rating categories and descriptions have been decided, the local government must identify the rating category to which each parcel of rateable land in the local government area belongs.

   (5) The local government may do so in any way it considers appropriate.

   (6) The fact that some parcels of rateable land are inadvertently not categorised does not stop differential general rates being levied on rateable land that has been categorised.

4. Pursuant to those provisions, the Moreton Bay Regional Council categorized the lands within its local government area.  The relevant rating categories adopted by the Council are set out in a document described as Rating Category Statement 2010/11.  The criteria pursuant to which a property is to be categorized are set out in the document and the rate per dollar to be levied in relation to each category is also set out. 

5. The document provides that the R category applies to residential single unit dwellings.  Category R1 is described as residential - owner occupied.  Category R2 is residential - non-owner occupied.  The F category relates to multi-residential dwellings (flats).  Category F2 is described as rateable land where the number of flats on the physical land parcel are equal to two.

Objection and Appeal

1. The objection and appeal process relevant to this matter is set out in Chapter 2, Division 4 of Part 5 of the Regulation. Section 24 provides that a landowner may object to a rating category. Subsection (2) provides that the only ground for objecting is that the owner considers that the land should belong to a different rating category. Where a landowner objects, s.25(2) provides that the local government's Chief Executive Officer must consider the objection and decide to either change the rating category or not to allow the objection. In this matter, the appellant duly objected and the objection was disallowed.

2. Section 26(1)(b) and s.26(2) of the Regulation provide that the owner may appeal against a decision of the Chief Executive Officer on the owner's objection to the rating category for the land by filing an appeal notice in the Land Court registry.  Section 27(3)(b) provides that the Land Court may (i) change the rating category for the land, or (ii) not allow the appeal. 

3. The appellant's grounds of appeal as set out in the Notice of Appeal were as follows -  

   (a)the wording of the respondent's "Notice of Objection to differential rating categorisation specifically -

   "reason for objection" third and fourth lines are erroneous and confusing.

   (b)the R2 or F2 categories used are not based on any unimproved attributes of the land

   (c)as per the Local Government (Finance, Plans and Reporting) Regulation 2010, division 4, section 24, and any other relevant regulations as well as the land unimproved valuation principles.

   (d)legal precedent:  the decision of Xstrata Coal Qld Pty Ltd -v- Council of the Shire of Bowen,[2] the categories used by the Council/respondent are wealth based and not based on any unimproved attribute valuation of the land principles as per the Land Valuation Act of Queensland.

   (e)this form supersedes the previous one faxed approximately on 3 February 2011.  [This ground of appeal refers to a previous Notice of Appeal filed by the appellant.  That earlier Notice of Appeal has been disregarded.] 

   [2] [2010] QCA 170.

4. The appellant's Notice of Appeal was supplemented by written submissions filed in accordance with Court Directions and the appellant gave evidence at the hearing.

Consideration of the appellant's submissions

1. The appellant's first ground of appeal relates to the wording of the notice of objection form issued by the respondent Council for the purpose of enabling ratepayers to object to a rating categorisation.  Although not strictly relevant to this appeal, it appears that the appellant considered that the options offered in the form, for the purpose of an objector identifying the category objected to, were erroneous and confusing.  As explained to the appellant at the hearing, the appellant appears to have misunderstood the form because he ticked the box "objection to the residential non-owner" category, that is category R2 under the rating category statement.  In fact the appellant's property was classified as category F2 and the appellant accepted at the hearing that that was the category against which he was appealing.  In other words the appropriate box for the appellant to have ticked on the objection form was the second box, "objection to another rating category".  It is unnecessary to pursue this because nothing turns on it.

2. The second, third and fourth grounds of appeal appear to be related.  The appellant relied on the decision in Xstrata Coal Qld Pty Ltd v Council of the Shire of Bowen[3] to submit that the categories used by the respondent in the categorization scheme (including categories R2 and F2) were wealth based and not based on any unimproved attribute valuation of land principles as per the Land Valuation Act of Queensland.

   [3] [2010] QCA 170.

3. In Xstrata Coal, Xstrata Coal and others challenged, by way of an application for judicial review, the resolution of the Bowen Shire Council to adopt a categorisation scheme, on the ground that the Bowen Shire Council had taken into account an irrelevant consideration, namely the appellants' personal capacity to pay rates, in fixing the differential rates applicable to each category under the scheme.  The appeal was successful.  The appellant in this matter has submitted that, similarly, the categories adopted by the respondent Shire Council were wealth based. 

4. I do not consider that I have jurisdiction to deal with these grounds of appeal for two reasons. The first is that s.24(2) of the Regulation provides that the only ground for objecting to a rating category is that the owner considers that the land should belong to a different rating category. Section 26(1)(b) provides that the owner may appeal against a decision of the Chief Executive Officer on the owner's objection to the rating category for the land. It follows that the only ground of appeal available in this matter is that the Chief Executive's decision on the objection was wrong and that the land should belong to a different rating category. The appellant has challenged the validity of the respondent Council's rating categorization scheme as a whole in grounds (b), (c) and (d) of the Notice of Appeal. That challenge is clearly not within the grounds of appeal allowed under the provisions of the Local Government (Finance, Plans and Reporting) Regulation 2010 and, therefore, I have no jurisdiction to deal with it. 

5. Further, s.5(1) of the Land Court Act 2000 provides that the Land Court has the jurisdiction given to it under an Act.  This Court does not have jurisdiction at large and therefore any applicant in a proceeding before the Court must be able to establish that the Court has jurisdiction to deal with the matter under an Act.  The appellant was unable to point to any legislation which gave the Land Court jurisdiction to deal with a challenge to the respondent's rating categorization scheme in the nature of the challenge undertaken in grounds (b), (c) and (d) of the Notice of Appeal. 

6. The appellant also alleged that the respondent had conducted numerous confidential meetings relevant to the formulation of its budget policies.  The appellant sought an order that the respondent make the minutes of those meetings available, so that the appellant could challenge the Council's decisions reflected in the Rating Category Statement. 

7. As already explained, I do not have jurisdiction to deal with the appellant's submissions about the validity of the rating category scheme.  Accordingly, I do not have jurisdiction to order the respondent to produce copies of the minutes of any confidential meetings, relating to that issue, conducted by the respondent. 

8. The appellant then requested that, should I decide that I do not have jurisdiction to deal with the matters set out above, I should direct that this appeal be transferred to a Court with the necessary jurisdiction.  The appellant was unable to identify precisely which Court the matter might be transferred to.

9. There is no provision in the Land Court Act 2000 or the Land Court Rules 2000 which enables me to order that a proceeding be transferred to another Court so I am unable to accede to this request. 

10. I do have jurisdiction to deal with the appellant's contention that the subject land should be put into Category R1.  I have decided, however, that the appeal cannot succeed.  The respondent's Rating Category Statement provides that Category R1 is Residential - owner occupied.  The criteria for determining whether land falls into that category are -

    (a)rateable land which is a single residential dwelling, not part of a community titles scheme, owned solely or partially by a natural person and the principal place of residence of at least one of the property owners;  or

    (b)rateable land not categorised in any other differential rating category.

11. Mr Theo stated in evidence that there are two flats on the subject land.  The land therefore does not meet the criteria for inclusion in the R1 category.  Further, the land does meet the criteria for F2 and has therefore, been correctly included in that category. 

12. Mr Theo complained that the subject land had been slugged with extra taxes without any explanation by the respondent.  The unimproved value of the property had not altered since the previous valuation, he said, but his rates bill had increased.  There was only one water metre on the property, there is less than a 50% occupancy rate and the owner is responsible for damage and repairs which are not covered by the bond.

13. While Mr Theo is clearly aggrieved by the extra rates that he says have been levied in respect of the subject property, these grievances do not assist him in establishing that this appeal should succeed. 

14. Accordingly, the appeal is dismissed.

ORDER

The appeal is dismissed.

CAC MacDonald

PRESIDENT OF THE LAND COURT