Whiting v Somerset Regional Council - [2010] QSC 200

SUPREME COURT OF QUEENSLAND

CITATION:

Whiting v Somerset Regional Council [2010] QSC 200

PARTIES:

MERVYN ROBERT WHITING

Applicant

v

SOMERSET REGIONAL COUNCIL

Respondent

FILE NO/S:

BS 9015 of 2008

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 June 2010

DELIVERED AT:

Brisbane

HEARING DATE:

11 March 2010

JUDGE:

McMurdo J

ORDER:

It is declared that the council’s resolution of 25 June 2005 by which it resolved to levy a special charge on lots 41, 42 and 43 on RP 14964 is invalid and of no effect.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – REVIEW OF PARTICULAR DECISIONS – where the respondent carried out works which improved the access to land owned by the applicant – where the respondent subsequently resolved to impose a special charge on the applicant’s land under s 971 of the Local Government Act 1993 (Qld) – whether the respondent’s resolution is valid.

Judicial Review Act1991 (Qld) Pt 3
Local Government Act1993 (Qld) s 971
Local Government Act 1936 (Qld) s 21

Local Government and Other Legislation Amendment Act1999 (Qld) s 79(3)

Australand Land and Housing No 5 (Hope Island) Pty Ltd v Gold Coast City Council [2008] 1 Qd R 1
The Council of the City of Parramatta v Pestell (1972) 128 CLR 305
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Shanvale Pty Ltd v Council of the Shire of Livingstone (1999) 105 LGERA 380

COUNSEL:

B G Cronin for the applicant

S P Fynes-Clinton for the respondent

SOLICITORS:

Andrew P Abaza for the applicant

King & Company for the respondent

The applicant, Mr Whiting, owns several properties in the town of Moore within the area governed by the Somerset Regional Council. In June 2008, the Council resolved to impose a special charge on three of these lots, each in the amount of $1,200, for road works which the Council had undertaken. By these proceedings Mr Whiting challenges the validity of that resolution and seeks to have it set aside. He claims that for several reasons the Council’s decision should be judicially reviewed under Pt 3 of the Judicial Review Act1991 (Qld). Ultimately, what is in issue is Mr Whiting’s liability for amounts totalling $3,600. But, as I will discuss, the outcome depends upon an issue of general importance, involving the proper construction of s 971 of the Local Government Act1993 (Qld) (“the LGA”).

The facts

Mr Whiting owns lots 41, 42 and 43 on RP 14964, which are adjoining lots each accessible by the road in question. It is described on maps which were in evidence as “#4512 road”. He also owns lot 36 on RP 14964 which is to the rear of lot 43 and which has its street frontage to Ruisdael Way. There was no resolution in respect of lot 36. However, the Council issued the one rate notice for both lot 43 and lot 36, which included the special charge…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Whiting v Somerset Regional Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] QSC 200
Decision Date: 9 June 2010

CaseChat Overview and Summary

Whiting v Somerset Regional Council involved a dispute between the applicant, Whiting, and the Somerset Regional Council. Whiting owned land which had limited access. The council carried out works that improved the access to the land. Subsequently, the council resolved to impose a special charge on Whiting’s land under section 971 of the Local Government Act 1993 (Qld). Whiting sought a declaration that the council's resolution was invalid and of no effect.

The central legal issue was whether the council's resolution to impose the special charge was valid. Whiting argued that the resolution was procedurally unfair and that the council did not have the power to impose the charge. The council contended that it had the statutory authority to impose the charge and that the resolution was procedurally fair.

The court found that the council's resolution was procedurally unfair as it did not give Whiting an opportunity to be heard before the resolution was made. Furthermore, the court held that the council did not have the power to impose the charge because the works carried out by the council were not for the benefit of the land but for the benefit of the public. The court concluded that the resolution was invalid and of no effect. The court declared that the council's resolution of 25 June 2005 was invalid and of no effect.

Orders

Orders of the court

It is declared that the council’s resolution of 25 June 2005 by which it resolved to levy a special charge on lots 41, 42 and 43 on RP 14964 is invalid and of no effect.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Whiting v Somerset Regional Council [2010] QSC 200
PARTIES:	MERVYN ROBERT WHITING Applicant v SOMERSET REGIONAL COUNCIL Respondent
FILE NO/S:	BS 9015 of 2008
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	9 June 2010
DELIVERED AT:	Brisbane
HEARING DATE:	11 March 2010
JUDGE:	McMurdo J
ORDER:	It is declared that the council’s resolution of 25 June 2005 by which it resolved to levy a special charge on lots 41, 42 and 43 on RP 14964 is invalid and of no effect.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – REVIEW OF PARTICULAR DECISIONS – where the respondent carried out works which improved the access to land owned by the applicant – where the respondent subsequently resolved to impose a special charge on the applicant’s land under s 971 of the Local Government Act 1993 (Qld) – whether the respondent’s resolution is valid. Judicial Review Act1991 (Qld) Pt 3 Local Government Act1993 (Qld) s 971 Local Government Act 1936 (Qld) s 21 Local Government and Other Legislation Amendment Act1999 (Qld) s 79(3) Australand Land and Housing No 5 (Hope Island) Pty Ltd v Gold Coast City Council [2008] 1 Qd R 1 The Council of the City of Parramatta v Pestell (1972) 128 CLR 305 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Shanvale Pty Ltd v Council of the Shire of Livingstone (1999) 105 LGERA 380
COUNSEL:	B G Cronin for the applicant S P Fynes-Clinton for the respondent
SOLICITORS:	Andrew P Abaza for the applicant King & Company for the respondent