Ventura Pty Ltd v West Tamar Council
[2004] TASSC 136
•26 November 2004
[2004] TASSC 136
CITATION: Ventura Pty Ltd v West Tamar Council [2004] TASSC 136
PARTIES: VENTURA PTY LTD
v
WEST TAMAR COUNCIL
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 48/2004
DELIVERED ON: 26 November 2004
DELIVERED AT: Hobart
HEARING DATES: 21 October 2004
JUDGMENT OF: Underwood J
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 occupied in separate apartments – Service charge – Whether each apartment separately valued in valuation list.
Land Valuation Act 1971 (Tas), s12(3)(b).
Local Government Act 1993 (Tas), Pt9.
Aust Dig Real Property [272]
REPRESENTATION:
Counsel:
Appellant: M E O'Farrell
Respondent: S B McElwaine
Solicitors:
Appellant: Doolan and Brothers
Respondent: Shaun McElwaine
Judgment Number: [2004] TASSC 136
Number of Paragraphs: 36
Serial No 136/2004
File No LCA 48/2004
VENTURA PTY LTD v WEST TAMAR COUNCIL
REASONS FOR JUDGMENT UNDERWOOD J
26 November 2004
Introduction
This is an appeal from an order made by the learned Chief Magistrate, sitting in the Administrative Division of the Magistrates Court, on 26 May 2004. The Magistrates Court (Administrative AppealsDivision) Act 2001, s47(2), confines such an appeal to a question of law.
The facts
The learned magistrate encapsulated the relevant facts in the following summary taken from his judgment at 1:
"At all material times, the applicant was the registered proprietor of the land comprised in Torrens Title Volume 55427 Folio 4 being Lot 5 on Plan 55427. That land, which is situated at the junction of Pitt Avenue and Rankine Street, Riverside, is within the municipal boundaries of the respondent.
The building erected on that site is divided into 14 flats.
In July 2002, the respondent issued to the applicant a 'Rates & Charges Notice' in respect of that property, which is designated as 1–5 Rankine Street, Riverside, by which it demanded, among other things, the payment of a 'Water Service Charge' and a 'Sewage [sic] Service Charge' in respect of each of the 14 flats located there."
The respondent's resolution
On 18 June 2002, the respondent resolved to make and levy for the financial year commencing 1 July 2003, a general rate, service rates, and service charges. Relevantly, the resolution provided:
"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 [sic] 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 [sic] removal council makes a separate service charge for sewage [sic] 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 [sic] 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 [sic] 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."
[I have emphasised those parts of the resolution that are at the centre of this dispute.]
The issue
By the terms of this resolution:
· service rates and service charges apply to each parcel of land which is shown as being separately valued in the valuation list prepared under the Land Valuation Act 1971; and
· with respect to the service charge for water, if the land is the subject of separate rights of occupation (flats) "which are separately valued in the valuation list prepared under the Land Valuation Act 1971", the charge applies to each flat separately.
The respondent contended that the appellant's land was the subject of separate rights of occupation which were separately valued in the valuation list. Accordingly, it issued a notice of demand for 14 service charges for water supply, one for each flat. The appellant accepted that its land is the subject of separate rights of occupation, but contended that such rights were not "separately valued in the valuation list prepared under the Land Valuation Act 1971", and therefore it was only liable to pay one water service charge.
The appellant objected to the respondent's assessment pursuant to the Local Government Act 1993 ("the Act"), s123. After consideration of the objection, the respondent resolved not to amend its notice. On 18 October 2002, the appellant sought a review of the respondent's resolution of 18 June 2002, but the learned magistrate affirmed the respondent's decision not to amend the notice of demand. The issue presently for determination was whether he was right in doing so.
The legislative provisions
Although the Land Valuation Act 1971 ("the Valuation Act") has now been repealed, counsel were agreed that the learned magistrate was correct when he held that the relevant legislation was that Act and the Land Valuation Regulations 1972 ("the Valuation Regulations").
The respondent's authority to make rates and charges is to be found in the Act, Pt9. Division 2 deals with a general rate. The Act, s90, empowered the respondent to make a general rate on rateable land, whether it provides services in respect of that land or not. The rate must be based on either land value, capital value or assessed annual value. Division 3, s93, empowered the respondent to make a service rate on rateable land for the services listed in s93(1), which list includes water supply and sewerage removal. Subsection (2) requires a service rate to be based on the same category of land value as the general rate is based. The Act, s94, empowered the respondent to make a service charge in the following terms:
"94 ¾ (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) In addition to making a service charge under subsection (1), a council may make a service charge in respect of part or all of the amount of water supplied by the council based on the amount of water consumed.
(2A) …
(3) A council may, by absolute majority, declare that a service charge varies within different parts of the municipal area according to any or all of the factors specified in section 107.
(4) …
(5) …".
Mr O'Farrell, who appeared for the appellant, submitted that s94(1) must be construed so that it reads, like s93(1), to empower the making of a service charge "on rateable land" even though those words do not appear in s94(1).
The learned magistrate rejected this argument. The Act, s3, defines "rateable land" to mean "land in respect of which rates are payable". The Act, s87(1), provides that all land is rateable, but the lands listed in subs(1)(a) – (e), are exempt from general and separate rates and any rates collected under ss88 or 97. Paragraphs (a) – (e) refer to such land as that which is owned and occupied exclusively by the Commonwealth, and Crown land that is unoccupied or occupied exclusively for public purposes, and so on. Sections 88 and 97 refer to the Council collecting rates for another statutory authority and a construction rate respectively. Thus, Commonwealth lands and other lands set forth in s87(1)(a) – (e) are exempt from general and separate rates and rates levied pursuant to ss88 and 97, but are liable for service rates and service charges.
Had Parliament intended to enact the words "on rateable land" in s94(1), as it did in s93(1), it surely would have done so, as one section follows the other. It has long been established that "[i]t is a strong thing to read into an Act of Parliament words which are not there, and the absence of clear necessity it is a wrong thing to do," per Lord Mersey in Thompson v Goold& Co [1910] AC 409 at 420. There is absolutely no such necessity in the case of the Act, s94(1). It is true, as the learned magistrate observed, there is a significant difference between a rate and a service charge. The former is calculated with reference to the value of the land as ascertained in accordance with the Valuation Act. A service charge is just that: a charge for a service. However, both are made in respect of land and both become a charge on the land. The Act, Pt9, Div9, deals with liability for, and payment of, rates. The Act, s86, defines a rate to include, for the purposes of Div9, a charge made under Pt9 and Div9, s119, makes rates a charge on the land. Section 120 lists the persons who are ratepayers and liable to pay rates. The owner of the land is the first person on that list and he or she is defined by the Act to mean a person whose name appears as owner on a valuation roll prepared under the Valuation Act. So, it seems to me that the whole argument about whether a service charge can only be made on rateable land or whether it can be made on any land in the municipality is otiose to the issue for determination viz, whether the 14 flats are separately valued in the valuation list prepared under the Valuation Act.
At the relevant time, land was defined by the Act, 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."
Neither 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."
Christies 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 ¾ 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."
His 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."
In 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."
That 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.
Finally, 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."
Thus, 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. However, with respect to the contentions on this point, for the reasons that follow, they too, are otiose to the issue for determination as the evidence before the learned magistrate demonstrated that the "parcel of land" shown in the valuation list is the whole of the land on which the 14 flats had been erected. The issue remains, viz, whether each flat or parcel of land "is shown as separately valued in the valuation list prepared under the Land Valuation Act 1971".
What is "the valuation list"?
The Valuation Act, s3, defines it to mean "a valuation list under section 42". Relevantly, that sections provides:
"42 ¾ (1) The Valuer-General shall, as soon as is reasonably practicable after the making of any proclamation under section 21, furnish to ¾
(a) …; 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.
(2) …".
The prescribed particulars are set out in the following terms by the Valuation Regulations, reg12:
"12 ¾ (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: ¾
(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."
The valuation list referable to the appellant's land gives each of the prescribed particulars. The name of the owner is shown as Ventura Pty Ltd and the postal address is given as 7 Gordon Place, Devonport Tas 7310. The situation of the land is given as 1 Rankin Street, Riverside. The improvements are shown as 14 flats. The land size is shown as "0.2932 hs". There is an entry that reads "Land Use Code: R2", and one that reads "UPI No: FVS 86". There is a note that the title reference is 55427/5 and a plan reference with the same number. The list shows the date of valuation and that the land value is $47,500, the capital value is $320,000 and the assessed annual value is $36,348. Under the heading "Additional Information", there appear three "AAV Apportionments", one for flats 1 – 12 in Rankin Street and one each for two flats in 53 Pitt Avenue. (I was told from the Bar table that the 14 flats are built on a corner block of land.) The apportionments are $29,952, $3,900 and $2,496 respectively. The total of the apportionments for the 14 flats equals the assessed annual value of $36,348. Mr McElwaine, who appeared for the respondent, submitted that this was authorised by the Valuation Regulations, reg12(2), which provided:
"(2) A valuation list may, in addition to the particulars prescribed by sub-regulation (1) of this regulation, give particulars of ¾
(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."
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.
What is that charge? The answer to that question lies in that part of the respondent's resolution which provides:
"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."
Stated shortly, and made relevant to this case, if the flats are separately valued in the valuation list, 14 water charges are charged on the land and payable by the ratepayer.
As well as imposing a statutory duty to make valuations, the Valuation Act, s12, prescribes rules for the making of such valuations. Subsection (3) prescribes rules for making assessed annual valuations. Paragraph (b) of that subsection provides:
"(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."
After some initial misgivings, I have come to the conclusion that this provision applies to the appellant's land. Initially, it seemed to me that to describe the block of flats as a "dwelling" was inappropriate and to describe a block of flats as a "dwelling which is occupied in apartments …" is tautologous. Bearing in mind the caution that all words should be construed in their statutory context, I cite the following passage from Campbell v O'Sullivan [1947] SASR 195 at 201 – 202 to illustrate the problem:
"What is a 'dwelling'? To the word as used in the complaint must be ascribed the meaning it has in s 86 (1) (n) of the Police Act. There it appears in the following context: ¾ 'Dwelling, lands, warehouse, shop, office, coachhouse, stable, dressing room, training shed, club house, tent, or outhouse, or any other building, structure, or erection, or in any enclosed yard, garden, or area.' 'Dwelling' ordinarily signifies a place of abode or residence, a tenement, habitation, or house, which premises a person or persons are using as a place for sleeping, and usually for the provision of some or all of their meals. The word is not used as a term of art, and has to be interpreted in accordance with its ordinary, proper, and grammatical sense in the context in which it appears: compare Lowe J in A-G (ex rel Jackman) v Griffith (1934) VLR 338 at p 342. 'Dwelling' is perhaps more comprehensive than 'dwelling house'; 'house' may imply some additional requirement not necessitated by 'dwelling.' In Cobbold v Abraham (1933) VLR 385 Lowe J said: 'In my opinion, where one portion of the building is structurally so separated from the rest of the building as to be capable of occupation by a separate family or household it may constitute a separate dwelling'."
However, as I say, I have concluded that the Valuation Act, s12(3)(b), was applicable to the appellant's 14 flats. I am fortified in this conclusion by the equivalent paragraph in the successor to the Valuation Act, the Valuation of Land Act 2001, s11(3)(c), which provides:
"(c) in the case of land which is occupied in portions by more persons than one, the Valuer-General may separately assess the annual value of those portions if he or she, having regard to the occupation or construction of the land or improvements, or the structural alterations (if any) made in it, is satisfied that the land is capable of separate occupation."
Mr O'Farrell submitted that although apportionment of valuations was authorised by the Valuation Act, ss19 and 20, the circumstances prescribed in those sections for apportionments were inapplicable to the circumstances in this case. He also submitted that the Valuation Act, s12, did not authorise the apportionment of assessed annual valuations and thus the apportionment of assessed annual valuations shown in the valuation list for the appellant's land had no statutory authority.
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."
Mr O'Farrell contended that in so concluding the learned magistrate was correct. He submitted, however, that when the learned magistrate concluded that the apportionments of the assessed annual value in the valuation list were themselves valuations, he contradicted the proposition that had been stated earlier, namely, that assessment and valuation were two different concepts. Thus, it was submitted, error occurred.
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. The primary meaning in the Shorter Oxford English Dictionary of the verb "assess" is:
"To fix the amount of (taxation, fine, etc) to be paid by a person or community."
I cannot see any difference between the assessment of a valuation and the valuation. The assessment is the making of the valuation. I agree with the learned magistrate that an assessment is a process, but the end of the process is the valuation and it is not possible to separate the two. One might say make a valuation or assess a valuation. Accordingly, it seems to me that the Valuation Act, s12(3)(b), authorised the Valuer-General to make a valuation of each of the flats erected on land in respect of which he made a land valuation, a capital valuation, and an assessed annual valuation, all of which, together with other information prescribed by the Valuation Regulations, reg12(1), he wrote down and supplied to (inter alia) the respondent and thus created a valuation list. As he made an assessment of, or fixed, the annual value of each flat in accordance with the Valuation Act, s12(3)(b), he exercised a discretion conferred upon him by the Valuation Regulations, reg12(2), and entered those valuations on the list.
In the light of that analysis there cannot be any doubt that each flat is separately valued in the valuation list within the meaning of the Council's resolution.
The appeal is dismissed.
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