Ventura Pty Ltd v West Tamar Council
[2005] TASSC 99
•12 October 2005
[2005] TASSC 99
CITATION: Ventura Pty Ltd v West Tamar Council [2005] TASSC 99
PARTIES: VENTURA PTY LTD
v
WEST TAMAR COUNCIL
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 116/2004
DELIVERED ON: 12 October 2005
DELIVERED AT: Hobart
HEARING DATE: 7 June 2005
JUDGMENT OF: Crawford, Evans and Tennent JJ
CATCHWORDS:
Real Property – Rating of land – Rates under local government legislation – Making and levying rate – Basis of assessment – Valuation list or book – Other States or Territories – Tasmania – Dwelling containing 14 separate flats – Service charges for water and sewage – Whether each flat separately valued in valuation list.
Land Valuation Act 1971 (Tas), s12(30(b).
Aust Dig Real Property [272]
REPRESENTATION:
Counsel:
Appellant: M E O'Farrell
Respondent: S B McElwaine
Solicitors:
Appellant: Doolan & Brothers
Respondent: S B McElwaine
Judgment Number: [2005] TASSC 99
Number of paragraphs: 64
Serial No 99/2005
File No FCA 116/2004
VENTURA PTY LTD v WEST TAMAR COUNCIL
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
EVANS J
TENNENT J (Dissenting)
12 October 2005
Order of the Court
That the parties be heard on the query referred to in par25.
Serial No 99/2005
File No FCA 116/2004
VENTURA PTY LTD v WEST TAMAR COUNCIL
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
12 October 2005
I agree with the reasons for judgment of Evans J.
File No FCA 116/2004
VENTURA PTY LTD v WEST TAMAR COUNCIL
REASONS FOR JUDGMENT FULL COURT
EVANS J
12 October 2005
The appellant is the owner of 14 flats contained on one title located in the respondent's municipality ("the land"). In July 2002, the respondent issued to the appellant a "rates and charges notice" in respect of the land by which it demanded, among other things, the payment of a "water service charge" and a "sewage service charge" in respect of each of the 14 flats on the land.
The basis for the rates and charges notice was a resolution of the respondent ("the rating resolution"), the relevant portions of which are as follows. I have highlighted some parts to which I will refer.
"1 General Rate
(a) That pursuant to Section 90 of the Local Government Act 1993 (the Act) council makes the following General Rate in relation to all rateable land (excluding land which is exempt pursuant to the provisions of Section 87) within the West Tamar Municipal Area for the period commencing 1st July 2002 to 30 June 2003, namely a rate of 7.7599 cents in the dollar of assessed annual value of the land;
…
2 Service Rates and Service Charges
That pursuant to Sections 93, 94 and 95 of the Act council makes the following service rates and service charges in respect of all rateable land within the West Tamar Municipal Area (including land which is otherwise exempt from rates pursuant to Section 87 of the Act but excluding Crown Land to which council does not supply any of the following services) for the period commencing on the 1st day of July 2002 and ending on the 30th day of June 2003 namely:
a) A service charge for water supply on all land to which council supplies or makes available a supply of water consisting of a fixed amount and an amount based on the amount of water consumed as follows:
(i) a fixed amount of $200.00; and
(ii) where there is a water meter, a consumption charge of
…
b) In respect of the fixed amount of the service charge for water which council makes available or supplies:
(i)pursuant to section 95(2) of the Act, council determines that the fixed amount of the service charge applies to all land within 30 metres at it [sic] nearest boundary from a council pipe carrying water even though water is not supplied to that land; and
(ii)if any land to which this charge applies is the subject of separate rights of occupation which are separately valued in the valuation list prepared under the Land Valuation Act 1971, then the charge applies to each such separate occupation.
c) A service rate for sewage removal upon all lands which drain into council's common sewer or drain or are within 30 metres at the nearest boundary of the land from council's common sewer or drain of 0.9716 cents in the dollar of assessed annual value of the land;
d) In addition to the service rate for sewage removal council makes a separate service charge for sewage removal upon all lands which drain into council's common sewer or drain or are within 30 metres at the nearest boundary of the land from council's common sewer or drain of $248.00;
e) Pursuant to Section 94(3) of the Act, council by absolute majority, declares that the service charge for sewage removal varies within different parts of the West Tamar Municipal Area according to the location of land, namely land situate at Beauty Point and which also has primary sewage treatment prior to connection to council's common sewer or drain, by reducing the service charge to $215; and
f) A service charge for waste management (garbage removal) in respect of all lands to which council supplies a waste management service as follows:
(i) $78.00 for a 85-litre mobile garbage bin and one recycle crate;
(ii) $91.00 for a 140-litre mobile garbage bin and one recycle crate;
(iii) $140.00 for a 240 litre mobile garbage bin and one recycle crate.
3 Separate Apportionments
For the purposes of this resolution the rates and charges shall apply to each parcel of land which is shown as being separately valued in the valuation list prepared under the Land Valuation Act 1971.
4 Fire Service Act 1979
Pursuant to the provisions of the Fire Service Act 1979 council decides to collect the Fire Service Contribution from each parcel of rateable land … .
…
9 Words and Expressions
Words and expressions used both in these resolutions and in the Local Government Act 1993 or the Fire Service Act 1979 have in these resolutions the same respective meanings as they had in those Acts.
..."
By an objection lodged with the respondent pursuant to the Local Government Act 1993, s123, the appellant challenged the rates and charges notice on grounds which included that:
"The rating resolution passed by the West Tamar Council in respect of the period 1 July 2000 to 30 June 2003 is, to the extent to which it purports to impose,
i) a service charge for water supply, and
ii) a service charge for sewerage,
upon each separate occupation (or separate right of occupation) to land which is the subject of separate rights of occupation which are separately valued in the valuation list prepared under the Land Valuation Act 1971, ultra vires section 94 of the Local Government Act 1993, and is, to that extent, void or alternatively voidable."
The respondent rejected the objection, whereupon the appellant applied to the Magistrates Court (Administrative Appeal Division) for a review of the respondent's decision pursuant to the Local Government Act, s123(4). The sole ground for review was that:
"The rating resolution passed by the West Tamar Council in respect of the period 1 July 2000 to 30 June 2003 is, to the extent to which it purports to impose a service charge '… for each water meter or tenement capable of separate permanent occupation …' ultra vires section 94 of the Local Government Act 1993, and is, to that extent, void or alternatively voidable."
The Chief Magistrate affirmed the respondent's decision, whereupon the appellant appealed to the Supreme Court against that affirmation on the grounds that:
"1That the Learned Chief Magistrate erred in law in holding or ruling that a service charge made pursuant to section 94(1) of the Local Government Act 1993 may be made otherwise than on, or in respect of, rateable land.
2That the Learned Chief Magistrate erred in law in holding or ruling that an apartment or portion of a dwelling which is occupied by more persons than one, is capable of being separately valued pursuant to section 12 of the Land Valuation Act 1971.
3That the Learned Chief Magistrate erred in law in holding or ruling that an apartment or portion of a dwelling which is occupied by more persons than one, is required to be separately valued pursuant to section 12 of the Land Valuation Act 1971.
4That the Learned Chief Magistrate erred in law in holding or ruling that, on its proper construction, the Valuation List prepared by the Valuer-General pursuant to section 42 of the Land Valuation Act 1971 disclosed that the Valuer-General had made a valuation (as distinct from an assessment) of the assessed annual value of each of the flats comprising the Appellant's Property."
Underwood J (as he then was) dismissed the appeal and the appellant has appealed that dismissal to the Full Court on the grounds that:
"1The learned primary judge erred in law in finding that the appellant's 14 flats were shown as being separately valued in the valuation list prepared under the Land Valuation Act 1971 ('the Act').
2The learned primary judged erred in law in failing to take into account, or construe the meaning of the Act, s12(1).
3The learned primary judge erred in holding that the task was to construe the terms of the respondent's resolution that provided for the calculation of the number of service charges that were charged on the parcel of land.
4The learned primary judge erred in holding that the Act, s12(3)(b) authorised the Valuer-General to make an assessment of the assessed annual value of each of the appellant's 14 flats for the purposes of the valuation list.
5The learned primary judge erred in holding that by assessing the annual value of each of the appellant's flats the Valuer-General exercised a discretion conferred on him by the Land Valuation Regulations 1972, reg12(2) and entered those valuations on the valuation list."
As can be seen from the above, the appellant started out objecting to the rates notice on the ground that it was ultra vires, the Local Government Act, s94. That ground was rejected and the appellant has not persisted with it before this Court. The focus of the objection has become a challenge to the legitimacy of the Valuer-General ascribing a separate assessed annual value to each flat. The link between the separately assessed annual values of each flat and the appellant's asserted liability for the service charges in dispute is the terms of the rating resolution which include:
·"In respect of the fixed amount of the service charge for water … if any land to which this charge applies is the subject of separate rights of occupation which are separately valued in the valuation list prepared under the Land Valuation Act 1971, then the charge applies to each such separate occupation" and
·"For the purposes of this resolution the rates and charges shall apply to each parcel of land which is shown as being separately valued in the valuation list prepared under the Land Valuation Act 1971."
The valuation list referred to records, amongst other things, the land value, capital value and assessed annual value ("AAV") of the land, as well as recording an apportionment of the AAV between the 14 flats. These matters were common ground between the parties, as was the fact that each of the 14 flats was the subject of a separate right of occupation. The appellant, however, contends that the entries in the valuation list recording a separate AAV for each flat are not a legitimate basis for the imposition of the impugned charges. This contention involves two propositions: broadly, the first proposition is that the rating resolution only applied to entries in the valuation list that were made in accordance with the Land Valuation Act; and the second proposition is that the entries in question were not so made. All concerned have taken the first proposition as given and I will do likewise.
Since the material time, the Land Valuation Act 1971 has been repealed. As to the rights and obligations of the Valuer-General in relation to the valuation of land at the material time, that Act relevantly provided:
"Duty of Valuer-General to make valuation
12 (1) The Valuer-General shall, subject to this section, make –
(a) valuations of the land values, capital values, and assessed annual values –
(i) of all lands (other than Crown lands and lands held by or on behalf of State authorities) within each valuation district
…
(3) For the purposes of this Act, the following provisions shall apply to and in respect of the assessment of the assessed annual value of any land, that is to say:
…
(b) in the case of a dwelling which is occupied in apartments or portions by more persons than one, the Valuer-General may separately assess the annual value of such apartments or portions if he, having regard to the construction of the dwelling or the structural alterations (if any) made therein, is satisfied that the dwelling comprises or has been converted into flats capable of separate occupation;
…
Fresh valuations: When made
21 (1) A fresh valuation of all lands within each district shall be made within a period of 10 years (or such lesser period as the Valuer-General may, in any particular case, determine) after the date on which the last such valuation under this Act…
(2) When a fresh valuation has been made pursuant to subsection (1) the Governor shall, by proclamation, fix a date on and after which the fresh valuation shall come into force, and, on and after the date so fixed, that valuation shall, subject to objection under this Act, be the valuation of all lands to which it relates."
Parallel with the Valuer-General's obligation to value land was an obligation to maintain a valuation roll for each district, as to which the following provisions are relevant:
"Valuation rolls
23 (1) A valuation roll shall be prepared for each district, and every valuation roll shall set forth, in respect of each valuation of land contained therein, the following particulars, that is to say:
(a) the name and postal address of the owner holding immediately of the Crown;
(b) the situation and description, and the measurements or area, of the land;
(c) the land value of the land;
(d) the capital value of the land;
(e) the assessed annual value of the land;
(f) a brief description of the land;
(g) such additional particulars as may be prescribed –
and may contain such other particulars as the Valuer-General thinks fit.
Making and entry on roll of valuations
24 (1) A valuation of land made under section 12 or section 21(1) is a valuation as at a date determined by the Valuer-General.
(2) A valuation to which subsection (1) relates shall be entered upon the roll, and the entry shall be signed or initialled by the Valuer-General or by an officer approved by him, in writing, for that purpose, and the roll as so signed or initialled is conclusive proof of the making of the valuation."
A means for the Valuer-General to provide interested entities with details of the valuation roll was a valuation list as to which s42(1) provided:
"Valuation lists
42 (1) The Valuer-General shall, as soon as is reasonably practicable after the making of any proclamation under section 21, furnish to –
(a) the Commissioner of Taxes; and
(b) every rating authority, the rating area or municipal district of which is, or is wholly or partly comprised within, the district to which the valuation relates –
a valuation list giving such particulars as are prescribed with respect to the ownership and values of all lands within that district (except such lands of the Crown as are not rateable and have not been valued under this Act) and certified by him as being correct."
This provision was supplemented by the Land Valuation Regulations 1972, reg12, which provided:
"12 (1) For the purposes of subsection (1) of section 42 of the Act, a valuation list shall give the following particulars with respect to the ownership and value of any land within the district to which the list relates, namely:-
(a) The name and postal address of the owner of the land;
(b) The situation and description, and the measurements or area, of the land;
(c) The unimproved value of the land;
(d) The land value of the land;
(e) The capital value of the land;
(f) The assessed annual value of the land; and
(g) The nature of the improvements on the land.
(2) A valuation list may, in addition to the particulars prescribed by sub-regulation (1) of this regulation, give particulars of –
(a) the value of the estate and interest of every owner of land within the district to which the list relates (including the interests of lessors and lessees);
(b) the name and postal address of every lessee of land within that district; and
(c) the apportionment of any valuation that the Valuer-General deems warranted."
Before addressing the question of whether in these circumstances the 14 flats attract the service charges in question, I return to the initial ground of objection that was abandoned by the appellant. That ground was, in substance, that the rating resolution was, to the extent that it purported to impose the service charges in question, ultra vires the Local Government Act, s94. On the appeal from the decision of the Chief Magistrate, this ground was rephrased as an assertion of error "in holding or ruling that a service charge made pursuant to s94(1) of the Local Government Act 1993 may be made otherwise than on, or in respect of, rateable land" (ground 1). The argument pressed in relation to this issue before the Chief Magistrate and again before Underwood J was to the effect that the service charges in question, like a service rate, could only be levied in respect of rateable land and not on the basis of separate rights of occupancy or the like on rateable land. To understand this argument, it is necessary to set out the following provisions of the Local Government Act:
"90 General rate
(1) A council may, not earlier than 1 June and not later than 31 August in any year, in respect of each financial year, make one general rate for that year on all rateable land in its municipal area.
(2) A council may make a general rate on rateable land whether or not it provides any services in respect of that land.
(3) A general rate is to be based on one of the following categories of values of land:
(a) the land value of the land;
(b) the capital value of the land;
(c) the assessed annual value of the land.
…
93 Service rate
(1) A council may make a service rate for a financial year on rateable land for any, all or a combination of the following services:
(a) water supply;
(b) sewage removal;
(c) nightsoil removal;
(d) waste management;
(e) stormwater removal;
(f) fire protection;
(g) any other prescribed service.
(2) A service rate for a financial year is to be based on the same category of value of land as the general rate is based on under section 90(3) for that financial year.
…
94 Service charge
(1) In addition to, or instead of, making a service rate under section 93, a council, when making a general rate in respect of a financial year, may make a separate service charge for that financial year for any or all of the services specified in that section which the council supplies or makes available.
(2) A council may make a service charge in respect of part or all of the amount of water supplied by the council.
…"
As explained by the Chief Magistrate, and as endorsed by Underwood J, there is a significant difference between a service rate imposed pursuant to s93, and a service charge imposed pursuant to s94; the former is based on the value of land, but the latter is not. A service charge is just that: a charge for services. To my mind, the significance of the distinction is that as to a service for which a council may impose a service charge, there is no obstacle to a council identifying circumstances in which rateable land may receive a multiple benefit from the same service and imposing a multiple of the same charge for the service. A good illustration of this distinction and its application is the service charge imposed by rating resolution 2(f) for waste management (garbage removal). The imposition of that charge was not challenged by the appellant. That charge reflects the size, and I assume, the number of bins provided; it is in no way dependent upon the value of the land to which the service is provided.
I first address the service charge for water as to which I extract the following from the rating resolution:
"… council makes the following service charges in respect of all rateable land … namely:
(a) A service charge for water supply on all land of …
(i) a fixed amount of $200.00. …
(b) In respect of the fixed amount of the service charge for water …
(ii) if any land to which this charge applies is the subject of separate rights of occupation which are separately valued in the valuation list prepared under the Land Valuation Act 1971, then the charge applies to each such separate occupation."
On the face of the statutory provisions referred to and the undisputed facts, it can be said that:
·The service charge for water was made in respect of rateable land which included the appellant's land.
·The Valuer-General was obliged pursuant to s12(1) to make a valuation of the AAV of the appellant's land and did so.
·On the appellant's land there were 14 flats, each of which was the subject of a separate right of occupation.
·In the record made of the valuation of the appellant's land in the valuation roll, the Valuer-General was entitled, pursuant to s23(1) to include, in addition to the particulars there specified, "such other particulars as the Valuer-General thinks fit".
·The Valuer-General was obliged to furnish a valuation list to the respondent. Pursuant to the Land Valuation Regulations, reg12(2)(c), the list could and did contain an apportionment of the AAV of the appellant's land between the 14 flats, that is, between the 14 separate rights of occupation.
·As the appellant's land was subject to separate rights of occupation which are separately valued in the valuation list, the service charge applies to each such separate occupation.
Counsel for the appellant submits that under s12(1), the Valuer-General's obligation when valuing any land was to determine each of the specified values, that is, its land value, capital value and AAV. On this basis, counsel submits that if the appellant's flats are land for the purposes of the Land Valuation Act, then the Valuer-General was only empowered to value a flat by determining all three of the specified values of the flat. The Valuer-General did not purport to determine the land value and capital value of each flat. Counsel, in effect, submits that in these circumstances it was not lawful for the Valuer-General to only determine the AAV of each flat. I am dubious about this argument. It seems to me that once it is accepted that each flat was land for the purposes of the Act, then the Valuer-General was entitled to value them. I am unpersuaded that insofar as s12(1) requires that the three separate valuations be made, an incomplete exercise of that power, that is, the ascertainment of only one of those values, is not lawful. Such a conclusion appears to be contrary to s12(3) which expressly authorises the Valuer-General to separately assess the AAV of flats that come within that provision. I do not, however, find it necessary to take counsel for the appellant's submission in this regard any further as, to my mind, it is clear beyond argument that the Valuer-General, having determined the land value, capital value and AAV of the appellant's land, was authorised by reg12(2)(c) to include in the valuation list an apportionment of all or any of those values. In this instance the Valuer-General chose to include in the valuation list an apportionment of the AAV between the 14 flats. In doing so, he acted in accordance with his authority under the Land Valuation Act. That being so, for the purposes of the rating resolution, are the 14 rights of occupation, which it is acknowledged are constituted by the flats, "separately valued in the valuation list prepared under the Land Valuation Act 1971"? I find that they are. To my mind there is no justification for excluding from the meaning of this phrase a valuation derived from a process of apportionment. This is particularly so as reg12(1)(c) expressly recognises that the valuation list may include an apportionment of any valuation.
I now address the service charge for sewage removal, as to which I extract the following from the rates resolution:
"2 Service Rates and Service Charges
… council makes the following … service charges in respect of all rateable land … namely:
…
(d) … a separate service charge for sewage removal upon all lands which drain into council's common sewer … of $248.00;
…
3 Separate Apportionments
For the purposes of this resolution the rates and charges shall apply to each parcel of land which is shown as being separately valued in the valuation list prepared under the Land Valuation Act 1971."
The plain effect of these portions of the rating resolution is that the sewage removal charge of $248 applies "to each parcel of land which is shown as being separately valued in the valuation list".
With reference to the meaning of the term "parcel of land", Underwood J said:
"12 At the relevant time, land was defined by [the Local Government Act 1993], s86, to mean:
'"land" means a parcel of land which is shown as being separately valued in the valuation list prepared under the Land Valuation Act 1971.'
13Neither the Act, nor the Valuation Act, defined 'parcel of land'. Mr O'Farrell submitted that in the statutory context, the expression "parcel of land" was a reference to the land comprised in a certificate of title or a conveyance. Whilst a parcel of land may be defined by the terms of the certificate of title, I do not accept that this must necessarily be the case. 'Parcel' is an ordinary word. Its primary meaning is set out in the Shorter Oxford English Dictionary as follows:
'1 gen. A part of anything, considered separately, as a unit; a small portion, a particle (arch) late ME b A component part (of something), something included in a whole. (Often without article) arch exc in phr part and p (PART sb I 1 c). Late ME.'
14Christies Sands Pty Ltd v City of Tea Tree Gully (1975) 37 LGRA 325 involved a rating assessment and the meaning of the expression 'parcel of land'. The respondent local authority understood the expression to have the same meaning as that urged upon me by Mr O'Farrell. As it happened, the appeal was dismissed on the basis that the court did not have jurisdiction to entertain it, but with respect to the meaning of 'parcel of land', Wells J said (obiter dicta) at 335:
'I confess that I find such an interpretation [parcel means the whole of the land in the certificate of title] surprising. In my judgment, it accords neither with the ordinary usage of language, nor with the history of land law in South Australia, nor with conveyancing tradition. In ordinary usage, the word "parcel" imports a part of something, a component part of a whole - one obtains a parcel of books from the library, or a parcel of provisions from the grocer. [His Honour set out the whole of the entry in the Shorter Oxford English Dictionary].
It is rare to find in a book of reference such uniformity and consistency. Judging, therefore, just by ordinary usage, the implication carried by the word "parcel" in that context is that the land constituting the parcel in question forms part of a greater area of land; that meaning is far from incapable of applying to a portion of the land comprised in a certificate of title.'
15His Honour then turned to the history of South Australian land law and concluded, at 336:
'It [parcel of land] means, in my opinion, a specified and reasonably well defined area of land. That area may be defined by general description, by reference to a map or plan, by clearly established usage, or by a combination of all three (or one or two of them) with landmarks, fences, walls, tracks, watercourses or natural boundaries or signs on or in the land of any kind whatever. It is essential to the creation of a parcel, in this sense, that its limits should be ascertainable with reasonable precision.'
16In Russell v Brisbane City Council [1955] St R Qd 419, Macrossan CJ said, at 435:
'A "parcel of land" means a piece of land which can be distinguished from adjoining pieces or areas and a parcel of land which is vacant, and a parcel of land on which there are residential buildings is capable of being a defined part of the City.'
17That the expression 'parcel of land' is of uncertain meaning and not confined to land within a certificate of title or conveyance is illustrated by McMillan v Commissioner of Land Tax [1972] 1 NSWLR 545. In that case, it was held that for the purposes of the Valuation of Land Act 1916 (NSW), s26, a parcel of land comprised the unsold part of a subdivision in respect of which there were separate titles, but all of which were still in the name of the subdivider. See also Ryan v Commissioner of Land Tax [1982] 1 NSWLR 305.
18Finally, on this point, I draw attention to the provisions of the Acts Interpretation Act 1931, s46, which provides that in any Act, 'land' means:
'"land" shall include messuages, tenements, and hereditaments, houses, and buildings of any tenure and any estate or interest therein.'
19Thus, it seems to me that, for the purposes of the Act, s86, and the Valuation Act, each one of the 14 flats is capable of being regarded as a parcel of land, as is the whole of the appellant's land on which the flats are built. …".
I agree with Underwood J and conclude that each of the appellant's flats was a parcel of land within the meaning of that term as used in the Local Government Act, the Land Valuation Act and also the Fire Service Act 1979; s74(1) of which Act defined land in the same terms as it is defined in the Local Government Act, s86. I mention the Fire Service Act as the rating resolution, par9, provides:
"Words and expressions used both in these resolutions and in the Local Government Act 1993 or the Fire Service Act 1979 have in these resolutions the same respective meanings as they had in those Acts."
Accordingly, I have no hesitation in concluding that each of the appellant's flats is a parcel of land within the meaning of that term as used in the rating resolution. That being so, by a similar reasoning process to that which I adopted in relation to the service charge for water, I am satisfied that the service charge for sewage was properly payable in respect of each of the flats. My reasoning is as follows:
·The service charge for sewage was made in respect of rateable land which included the appellant's land.
·The Valuer-General was obliged, pursuant to s12(1), to make a valuation of the AAV of the appellant's land and did so. There were 14 flats on the appellant's land.
·Pursuant to the Land Valuation Regulations, reg12(2)(c), the valuation list could and did contain an apportionment of the AAV of the appellant's land between the 14 flats.
·Each flat was a parcel of land within the meaning of that term as used in the rating resolution.
·The rating resolution imposed the service charge for sewage in respect of each flat as it applies that charge "to each parcel of land which is shown as being separately valued in the valuation list prepared under the Land Valuation Act 1971".
My reasoning process in relation to this appeal differs somewhat from that of Underwood J and in result I have not found it necessary to deal with every submission advanced on behalf of the appellant. It is sufficient to say the following with reference to each ground of appeal:
Ground 1
For the reasons I have given, I consider that the appellant's 14 flats were legitimately shown as separately valued in the valuation list pursuant to the Land Valuation Act for the purposes of the rating resolution.
Ground 2
No meaning that has been advanced for s12(1) detracts from the authority of the Valuer-General, having valued the land, to apportion that value pursuant to the Land Valuation Regulations, reg12(2)(c).
Ground 3
The construction of the rating resolution is central to determining whether and in what manner the service charges imposed apply to the appellant's land and as I construe the resolution the charges apply in respect of each flat.
Grounds 4 and 5
I have not found it necessary to directly address ground 4 as I reject ground 5. My finding is that the Valuer-General, having determined the AAV of the appellant's land, was entitled pursuant to the Land Valuation Regulations, reg12(2)(c), to apportion that value between the flats.
I would dismiss the appeal, but before finally disposing of it I would give the parties an opportunity to be heard. As already mentioned, the hearings before the Chief Magistrate and Underwood J proceeded on the basis that it was common ground that the AAV of the land was apportioned between the 14 flats on the valuation list. These reasons have been prepared on that basis. However, in the course of this hearing a query was raised as to whether the evidence before the Chief Magistrate as to the valuation list showed that there were only 3 apportionments of the AAV on the list, not 14 apportionments. As that query had not previously been raised, this hearing proceeded on the basis that the issues raised by the notice of appeal would be determined without regard to the query. Those issues having been dealt with, I would give the parties an opportunity to be heard against the event that it is submitted that anything arising from the query should affect the final disposition of the appeal.
File No FCA 116/2004
VENTURA PTY LTD v WEST TAMAR COUNCIL
REASONS FOR JUDGMENT FULL COURT
TENNENT J
12 October 2005
This litigation relates to an assessment of rates and charges issued by the West Tamar Council ("the Council") to Ventura Pty Ltd ("the appellant") in respect of a property situated on the corner of Pitt and Rankine Streets, Riverside for the financial year ended 30 June 2003.
Facts
The appellant was the registered proprietor of a property situated on the corner of Pitt and Rankine Streets. Buildings erected on the property contained 14 flats. There was only one title to the whole property. There were no individual stratum titles for each flat. The property was within the Municipality of West Tamar.
On 18 June 2002 the Council passed certain resolutions for the purposes of rating properties within its municipality. It made resolutions relating to general rates, service rates and service charges. As a consequence of those resolutions, a rates notice was issued to the appellant in respect of the property at Riverside. It purported to contain levies of certain rates and charges. Pursuant to the Local Government Act 1993 ("the LGA"), s123, the appellant objected to that rates notice. The Council considered the objection and resolved not to amend its rates notice. The appellant applied for a review of that decision to a magistrate under the Magistrates Court (Administrative Appeals Division) Act 2001. That review was unsuccessful and it then appealed to a single judge of this Court. That appeal was also unsuccessful.
The issue
There was no dispute between the parties that the appellant's property was the subject of 14 separate rights of occupation, that is, there were 14 flats there.
However, the appellant argued that the heart of the issue was whether each of the flats could be said to be separately valued. He argued that the Land Valuation Act 1971 ("the LVA") did not authorise the Valuer-General to separately value each flat and include that separate valuation in a valuation list, and hence the flats could not be, and were not, separately valued (irrespective of what wording appeared in the valuation list). Therefore, while the Council could pass the resolutions that it did, those resolutions could not authorise it to then issue a notice to the appellant as if it were the owner of 14 separately valued entities.
The Council argued that the appellant's property was subject to 14 separate rights of occupation which were separately valued in the valuation list. On that basis and pursuant to its resolutions, it issued a notice claiming, amongst other things, a service charge of $200 by way of a service charge for water for each of the 14 flats and $248 by way of a sewage charge for each flat. It was these charges to which the appellant took objection.
There was no dispute the Council had the power to make general rates, service rates and service charges. There was no dispute it had the power to pass resolutions determining the values to be ascribed to those rates and charges. The issue was to what could it then apply those resolutions.
The Council’s resolutions
The resolution in relation to the general rate determined that that rate should be calculated by reference to the assessed annual value of land.
The Council then passed further resolutions relating to service rates and charges. For the purpose of the present argument it is only parts of those resolutions which need to be considered. While I set out the whole of certain resolutions, I have highlighted those parts which underpin the dispute:
"2 Service Rates and Service Charges
That pursuant to Sections 93, 94 and 95 of the Act council makes the following service rates and service charges in respect of all rateable land within the West Tamar Municipal Area (including land which is otherwise exempt from rates pursuant to Section 87 of the Act but excluding Crown Land to which council does not supply any of the following services) for the period commencing on the 1st day of July 2002 and ending on the 30th day of June 2003 namely:
a)A service charge for water supply on all land to which council supplies or makes available a supply of water consisting of a fixed amount and an amount based on the amount of water consumed as follows:
(i) a fixed amount of $200.00; and
(ii) where there is a water meter, a consumption charge of:
· 50 cents per kilolitre of water consumed up to a maximum of 300 kilolitres; and
· 90 cents per kilolitre of water consumed in excess of 300 kilolitres.
b)In respect of the fixed amount of the service charge for water which council makes available or supplies:
(i)pursuant to section 95(2) of the Act, council determines that the fixed amount of the service charge applies to all land within 30 metres at it [sic] nearest boundary from a council pipe carrying water even though water is not supplied to that land; and
(ii)if any land to which this charge applies is the subject of separate rights of occupation which are separately valued in the valuation list prepared under the Land Valuation Act 1971, then the charge applies to each such separate occupation.
c)A service rate for sewage removal upon all lands which drain into council's common sewer or drain or are within 30 metres at the nearest boundary of the land from council's common sewer or drain of 0.9716 cents in the dollar of assessed annual value of the land;
d)In addition to the service rate for sewage removal council makes a separate service charge for sewage removal upon all lands which drain into council's common sewer or drain or are within 30 metres at the nearest boundary of the land from council's common sewer or drain of $248.00;
e)Pursuant to Section 94(3) of the Act, council by absolute majority, declares that the service charge for sewage removal varies within different parts of the West Tamar Municipal Area according to the location of land, namely land situate at Beauty Point and which also has primary sewage treatment prior to connection to council's common sewer or drain, by reducing the service charge to $215; and
f)A service charge for waste management (garbage removal) in respect of all lands to which council supplies a waste management service as follows:
(i)$78.00 for a 85-litre mobile garbage bin and one recycle crate;
(ii)$91.00 for a 140-litre mobile garbage bin and one recycle crate;
(iii)$140.00 for a 240-litre mobile garbage bin and one recycle crate.
3 Separate Apportionments
For the purposes of this resolution the rates and charges shall apply to each parcel of land which is shown as being separately valued in the valuation list prepared under the Land Valuation Act 1971."
Legislative framework
The LGA, s90, empowered the Council to "make one general rate ... on all rateable land in its municipal area". That section also provided that a general rate was to be based on one of the following categories of land values, namely the land value of the land, the capital value of the land or the assessed annual value of the land ("the AAV"). In this case, the Council determined, as it was entitled to do, that its general rate would be fixed by reference to the AAV. The term "rateable land" was defined in the LGA, s3, as "land in respect of which rates are payable." The LGA, s87, provided that all land was rateable subject to certain exceptions not relevant here. "Land" was defined as "a parcel of land which is shown as being separately valued in the valuation list prepared under the Valuation of Land Act 2001."
The LVA, s12, imposed a duty on the Valuer-General to value land.
The LVA, s12(1), provided:
"(1) The Valuer-General shall, subject to this section, make –
(a) valuations of the land values, capital values and assessed annual values –
(i) of all lands … within each valuation district;"
The LVA, s12(2), provided:
"(2) … a valuation made under this section may include the land values, capital values, and assessed annual values of the estates and interests of all owners in any such lands, and omit such value of such estates and interests as are carved out of or exists in or upon other estates and interests therein."
The LVA, s12(3)(b), provided that in respect of the AAV:
"(b) in the case of a dwelling which is occupied in apartments or portions by more persons than one, the Valuer-General may separately assess the annual value of such apartments or portions if he, having regard to the construction of the dwelling or the structural alterations (if any) made therein, is satisfied that the dwelling comprises or has been converted into flats capable of separate occupation."
The LVA, s21, empowered the Valuer-General to make fresh valuations of properties in certain circumstances and for there to be a proclamation as to the date upon which they took effect.
The LVA, s24, provided that a valuation made under ss12 or 21 shall be entered on the valuation roll and the entry signed by the Valuer-General or his nominee and the roll as so signed was conclusive proof of the making of the valuation.
The LVA, s23, provided that valuation rolls were to be prepared for each district and in respect of each valuation of land contained on the roll, the roll:
"(1) … shall set forth …
(c) the land value of the land;
(d) the capital value of the land;
(e) the assessed annual value of the land;
…
and may contain such other particulars as the Valuer-General thinks fit."
The LVA, s23(3), made provision for amendments to the roll.
The LVA, s42, imposed a duty on the Valuer-General to supply to every rating authority a valuation list "giving such particulars as are prescribed with respect to the ownership and values of all land".
The Land Valuation Regulations 1972 ("the LVR"), reg12, provided:
"12 — (1) For the purposes of subsection (1) of section 42 of the Act, a valuation list shall give the following particulars with respect to the ownership and value of any land within the district to which the list relates, namely:-
(a) The name and postal address of the owner of the land;
(b) The situation and description, and the measurements or area of the land;
(c) The unimproved value of the land;
(d) The land value of the land;
(e) The capital value of the land;
(f) The assessed annual value of the land;
(g) The nature of the improvements on the land.
(2) A valuation list may, in addition to the particulars prescribed by sub-regulation (1) of this regulation, give particulars of -
(a) the value of the estate and interest of every owner of land within the district to which the list relates (including the interests of lessors and lessees);
(b) the name and postal address of every lessee of land within that district; and
(c) the apportionment of any valuation that the Valuer-General deems warranted."
The LVA, s44, provided that a valuation list furnished to a rating authority shall constitute the valuation roll or assessment roll of that authority for the purposes of any Act.
The LVA, s45, provided that any rates or charges were to be assessed by reference to the values in the valuation list.
The LGA, s93, empowered the Council to make a service rate on rateable land for various services. It specifically provided that such service rate was to be based on the same category of value of land as the general rate was based.
The power which enabled the Council to levy service charges was contained in the LGA, s94. That provided:
"94 (1) In addition to, or instead of, making a service rate under section 93, a council, when making a general rate in respect of a financial year, may make a separate service charge for that financial year for any or all of the services specified in that section which the council supplies or makes available.
(2) …"
Section 94 did not make specific reference to such a charge being tied to rateable land as did ss90 and 93.
Grounds of appeal
The grounds of appeal set out in the notice of appeal filed on 16 December 2004 were as follows:
"1The learned primary judge erred in law in finding that the appellant's 14 flats were shown as being separately valued in the valuation list prepared under the Land Valuation Act 1971 ('the Act').
2The learned primary judge erred in law in failing to take into account, or construe the meaning of the Act, s12(1).
3The learned primary judge erred in holding that the task was to construe the terms of the respondent's resolution that provided for the calculation of the number of service charges that were charged on the parcel of land.
4The learned primary judge erred in holding that the Act, s12(3)(b) authorised the Valuer-General to make an assessment of the assessed annual value of each of the appellant's 14 flats for the purposes of the valuation list.
5The learned primary judge erred in holding that by assessing the annual value of each of the appellant's flats the Valuer-General exercised a discretion conferred on him by the Land Valuation Regulations 1972, reg12(2) and entered those valuations on the valuation list."
The appellant sought that the orders of the learned primary judge be quashed.
The judgment of the learned primary judge — was there error
The learned judge, having at pars25 to 32 of his judgment dealt with various arguments of counsel and findings of the learned chief magistrate about various matters, said at par33:
"With respect to those who take a different view, all that reasoning seems too complicated. The task is to construe the provision in the Council's resolution that provides for the calculation for the number of water service charges that are a charge on the parcel of land as defined by the Act, s86."
That conclusion pre-supposes that all other steps in the valuation and council processes were valid. The appellant does not challenge the capacity of the Council to pass the resolutions that it did. What it argued was that the Council then applied those resolutions to information it should not have done for the purpose of issuing its rates notice. To deal with that argument it was necessary to look at that underlying information and whether it had a valid basis.
While the task of looking at the validity of that underlying information may have been complicated, nevertheless in my view it was necessary to determine the argument before the Court. His Honour clearly began the task, but then stopped with the words I have set out above.
His Honour said at pars23 and 24:
"As I have said, the Valuer-General treated the parcel of land as the whole of the land in the title document on which was erected 14 flats. Had he valued each flat as a parcel of land, he would have provided different details in obedience to the requirements of the Valuation Regulations, reg12(1).
By virtue of the definition of 'land' in the Act, s86, and that part of the resolution which provides that rates and charges shall apply to each parcel of land that is shown as being separately valued in the valuation list, the service charge for water applies to the whole of the land upon which the flats are built."
His Honour then accepted that the LVA, s12(3)(b), applied to the appellant's land but clearly construed that in so applying it meant that the Valuer-General had power to and did separately value each of the flats. What s12(3)(b), in my view, authorised the Valuer-General to do was, in relation to an AAV only (and not the whole valuation which the Valuer-General was obliged to make) of a dwelling (that is the whole property), apportion the AAV between each flat capable of separate occupation.
At par31, his Honour referred to certain reasoning of the learned chief magistrate in relation to the process undertaken pursuant to s12. He said
"The learned magistrate took the view that the Valuation Act, s12, imposed a duty on the Valuer-General to make valuations and that making an assessment was part of the process of making a valuation. He said, at 12 of his reasons for judgment:
'A broad overview of section 12 leads me to the conclusion that the Valuer-General's duty is to make "valuations" of "lands" and that that process includes making "assessments" based on various considerations being considerations that he either shall (or must) or may take into account.
Put another way, in my view the terms "valuation" and "assessment" are not used interchangeably. An assessment is merely part of the process that leads to a valuation - the outcome of the process.'"
He disagreed however with the view that assessment and valuation were different concepts. With respect, I am of the view he erred in these conclusions as again it ignored precisely what it was the Valuer-General was empowered to do in the first place pursuant to the LVA, s12(1).
The LVA, s12(1), required the Valuer-General to make valuations of the land values, capital values and AAVs of all lands. He was obliged to make all three types of valuations and to record those in the valuation roll and hence they would appear in the valuation list. Subsections (2), (3), (4) and (5) then gave him guidance as to how those three types of valuations were to be made and what he could or could not do in relation to them. In particular, subs(2) allowed him to provide extra information about certain estates and interests and omit other parts "as are carved out or exists in or upon other estates and interests therein".
The LVA, s12(3), does not, in my view, authorise the Valuer-General to value a parcel of land by simply preparing an AAV alone. There would be no reason for subs(1)(a) to even exist if that were the case. Clearly the obligation on the Valuer-General is to make all three valuations. It is then his obligation to record all three. A rating authority may then use any one as the basis of its rating.
In the case of the flats in this matter, there is no capital or land value. By reason of their status there could not be. However, if the Valuer-General could not therefore make land and capital valuations for each flat, he could not fulfil his obligation under the LVA, s12(1)(a)(i).
In my view, all he has done in noting additional information in the valuation list is set out the information upon which he has based his valuation of the assessed annual value of the whole property. That is, he has calculated the whole by the sum of its parts as the LVA, s12(3) provided he could. He has not separately valued each part. As I have said, he could not if he were to properly fulfil his function under the LVA, s12(1)(a)(i).
For the foregoing reasons I am of the view that the learned primary judge erred when he found that each of the 14 flats was separately valued in the valuation list prepared by the Valuer-General; that in doing so he failed to take into account or construe correctly the meaning of the LVA, s12(1); that in doing so he approached his task as being one of construing the terms of the Council’s resolutions; and lastly, that in doing so he found that the LVA, s12(3)(b) authorised the Valuer-General in any event to separately value each flat for the purpose of the valuation list when it did not.
I would uphold the appeal and quash the orders of the learned primary judge.
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