VAN OIJEN and SHIRE OF CUBALLING

[2024] WASAT 24

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: LOCAL GOVERNMENT ACT 1995 (WA)

CITATION:   VAN OIJEN and SHIRE OF CUBALLING [2024] WASAT 24

MEMBER:   DR S WILLEY, SENIOR MEMBER

HEARD:   28 MARCH 2024

DELIVERED          :   28 MARCH 2024

PUBLISHED           :   9 APRIL 2024

FILE NO/S:   DR 163 of 2023

BETWEEN:   WILHELMUS TOBIAS VAN OIJEN

Applicant

AND

SHIRE OF CUBALLING

Respondent

Catchwords:

Local government - Rates - Minimum payment - Question of general interest

Legislation:

Local Government Act 1995 (WA), s 6.32, s 6.35, s 6.35(1), s 6.35(2), s 6.35(3), s 6.35(4), s 6.35(6), s 6.76, s 6.77, s 6.82
Local Government (Financial Management) Regulations (WA), reg 52
State Administrative Tribunal Act 2004 (WA), s 46(3)
Valuation of Land Act 1978 (WA), s 33

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Mr S Scott

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

Case(s) referred to in decision(s):

Grimmond and City of Bunbury [2023] WASAT 89

REASONS FOR DECISION OF THE TRIBUNAL:

(These reasons were delivered orally and have been taken from the transcript of the hearing.  They have been edited to make necessary corrections or annotations for the purposes of correcting grammatical errors or infelicity of expression.)

Introduction

1. Mr Van Oijen (Applicant) objects against the rates notice issued to him by the Shire of Cuballing (Shire) pursuant to the Local Government Act 1995 (WA) (LG Act).  The rates notice issued was in relation to his property at 1199 Conjelin‑Narrogin Road, Contine (subject land).

2. The rates notice was issued on 25 August 2023.  Under that notice, the subject land was rated on an unimproved value 'UV value' basis and was levied at $1,215 less the State Government rebate.  The subject land was levied with the minimum payment for UV land that was adopted by the Shire at the time it adopted its budget for the 2023/24 period on 16 August 2023. 

3. The Applicant objects to the valuation on the basis that the minimum payment for UV land is too expensive.  The rates adopted by the Shire included town site, rural, and mining categories.  There is a general rate and a minimum payment. 

4. The Shire's notes outline that the adopted rates were determined by the Council so as to raise the revenue required to meet the estimated deficiency between the total estimated expenditure proposed in the budget, and the estimated revenue to be received from all sources other than the general rates and also considering the extent of any increase in rating over the level adopted in the previous year.  The minimum payment was determined by the Council on the basis that all ratepayers must make a reasonable contribution for the cost of local government services and facilities.

5. The rates were increased by 8% from the previous financial year.  The Shire says:

   … With increasing costs of materials, utilities, insurance, contractors, and staff wages, this increase was unavoidable[.]

6. The rates adopted by the Shire were pursuant to s 6.32 of the LG Act.  That section expressly authorises a local government to adopt rates either uniformly or differentially and they also adopt, relevantly, a minimum payment.  Minimum payments are addressed in s 6.35 of the LG Act.  Section 6.35(1) provides that:

   … a local government may impose on any rateable land in its district a minimum payment which is greater than the general rate which would otherwise be payable on that land.

7. That scenario arises here in the context of the Applicant's rates.  Section 6.35(2) of the LG Act provides that:

   A minimum payment is to be a general minimum but, subject to subsection (3), a lesser minimum may be imposed in respect of any portion of the district. 

8. The Shire did not adopt a general minimum and, therefore, s 6.35(3) has no application.  Section 6.35(4) of the LG Act provides that:

   A minimum payment is not to be imposed on more than the prescribed percentage of —

   (a)The number of separately rated properties in the district; or

   (b)The number of properties in each category referred to in subsection (6),

   unless the general minimum does not exceed the prescribed amount.

9. Pursuant to reg 52 of the Local Government (Financial Management) Regulations 1996 (WA), the prescribed amount is 50%. By reason of s 6.35(6) of the LG Act, where a minimum payment is applied separately under, relevantly, subsection (4), minimum payments can be applied to land rated on both gross rental value and unimproved value. In this case, the rates adopted by the Shire do not result in more than 50% of the properties in the rural category being subject to the minimum payment.[1]

   [1] 146 properties of a total of 336 properties in the rural category.

10. Therefore, the rates adopted by the Shire comply with s 6.35 of the LG Act.  I turn now to the rights of review provided under the LG Act.

Rights of review under the LG Act

1. It may immediately be said that there are only limited rights of review available in the context of rates under the LG Act.  It is also the case that the Tribunal is a creature of statute.  That is to say, it only has jurisdiction to the extent that it is provided for in either an enabling Act or the State Administrative Tribunal Act 2004 (WA) (SAT Act).[2] 

   [2] See also Grimmond and City of Bunbury [2023] WASAT 89 [27].

2. Section 6.76 of the LG Act gives a person a right to object to the rate record on the basis that there is an error in the rate record with respect to the identity of the owner or occupier of any land or on the basis that the land or part of it is not rateable land. 

1. There is a right of review where an objection is lodged, and the person lodging the objection is dissatisfied with the decision of the local government on the objection under s 6.77 of the LG Act. 

2. However, the right of review does not apply in these circumstances because the Applicant's complaint is not about the rate record.  Rather, his objection is that the minimum payment for the rural category of land is set too high. 

3. I also note that the only challenge that can be made of a valuation of rateable land is by seeking review of a valuation undertaken by the Valuer-General pursuant to s 33 of the Valuation of Land Act 1978 (WA).  However, the Applicant has not pursued that course. 

4. The only other right of review under the LG Act is s 6.82, which arises where there is a question of general interest as to whether a rate or service charge was imposed in accordance with the LG Act.  The local government or any other person may refer such a question to the Tribunal to have it resolved.

5. However, in this matter, there is no basis on which to doubt that the Shire's rates were imposed anything other than in accordance with the LG Act.  I have considered the Shire's setting of the rates in detail, and for the reasons I have explained, I am satisfied that they were imposed in accordance with the requirements of the LG Act. 

6. I have carefully considered the Applicant's submissions.  While the Applicant has given close consideration to s 6.35 of the LG Act, his submissions do not change my view that the rates that have been adopted by the Shire comply with the requirements of the LG Act. 

7. At its core, the Applicant's complaint is, in effect, that he considers the minimum rate that has been adopted for the rural UV category is simply too high. However, the setting of the minimum payment was a decision that was open to the Shire to make. The Shire's adoption of its rates in this instance is not a reviewable decision for the purposes of either the LG Act or the SAT Act.

Conclusion

1. There is no reasonable basis on which the Tribunal should entertain the Applicant's application to, as it were, review the minimum payment that was adopted by the Shire.  I find there is no question of general interest that arises from the Shire's adoption of its annual budget. 

2. The Shire's rates for the 2023/2024 financial year comply with the requirements of the LG Act.  There is no basis for the Tribunal to intervene.  The application must be dismissed. 

Orders

The Tribunal orders:

1.The review is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

DR S WILLEY, SENIOR MEMBER

9 APRIL 2024