WOODWARD and CITY OF MELVILLE
[2015] WASAT 90
•20 AUGUST 2015
WOODWARD and CITY OF MELVILLE [2015] WASAT 90
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 90 | |
| LOCAL GOVERNMENT ACT 1995 (WA) | |||
| Case No: | DR:128/2015 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUDGE D R PARRY (DEPUTY PRESIDENT) | 20/08/15 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Declaration made that the Ardross East Underground Power Project Area Service Charge imposed by the respondent on 24 June 2014 for the 20142015 financial year was imposed in accordance with the Local Government Act 1995 (WA) | ||
| B | |||
| PDF Version |
| Parties: | GREGORY BRUCE WOODWARD BEVERLEY ANNE FARREN CITY OF MELVILLE |
Catchwords: | Local government Service charge Underground power Question of general interest as to whether service charge was imposed in accordance with the Local Government Act 1995 (WA) Whether service charge can lawfully be imposed in relation to properties that did not exist when service charge was imposed but came into existence during financial year for which service charge was imposed |
Legislation: | Local Government Act 1995 (WA), s 6.32(1)(c), s 6.38, s 6.82(1), s 6.82(3) Local Government (Financial Management) Regulations 1996 (WA), reg 54(c) State Administrative Tribunal Act 2004 (WA), s 91(1) |
Case References: | City of Kwinana v Lamont [2014] WASCA 112 |
Orders | On the application determined by Deputy President, Judge Parry on 20 August 2015, it is ordered that:,1. Pursuant to s 91(1) of the State Administrative Tribunal Act 2004 (WA), the Tribunal declares that the Ardross East Underground Power Project Area Service Charge imposed by the respondent on 24 June 2014 for the 20142015 financial year was imposed in accordance with the Local Government Act 1995 (WA). |
Summary | The applicants brought proceedings in the Tribunal to contest the validity of the imposition of a service charge for undergrounding power in the area in which they own a property. The service charge was imposed by the respondent on 24 June 2014 for the 'community contribution' to the undergrounding of power in the relevant area during the 20142015 financial year.,At the time when the service charge was imposed, the applicants' property did not exist as a separate property, but formed part of a larger property that they owned and were in the process of subdividing. The applicants' property came into existence as the rear property in a battleaxe subdivision of their original property on 8 July 2014.,On 21 July 2014, the respondent issued an assessment for payment of the service charge in respect of the original property. Having received notice of the subdivision, the respondent, in effect, withdrew that assessment and issued separate assessments for the payment of service charges in respect of the front property and the rear property. The applicants paid the assessment in respect of the front property in order for settlement of the sale of that property to proceed. However, they contested their liability to pay the service charge in respect of the rear property.,The applicants contended that the service charge was not imposed in accordance with the Local Government Act 1995 (WA) for various reasons. Most significantly, they argued that the service charge cannot lawfully be imposed in relation to properties that did not exist when the service charge was imposed, but came into existence during the financial year for which the service charge was imposed.,The Tribunal determined that the service charge was imposed in accordance with the Local Government Act 1995. In particular, the Tribunal determined that, on its proper interpretation, s 6.38(1) of the Local Government Act 1995 requires that the owners or occupiers of land within the district or a defined part of the district upon whom a service charge is imposed to meet the cost to the local government in the provision of a prescribed work, service or facility (such as underground power) in relation to the land, must be owners or occupiers of land within the district or a defined part of the district within the financial year for which the service charge is imposed. The provision does not require that the property must exist at the time when the service charge is imposed. This accords with the grammatical meaning of the provision. Furthermore, the owners or occupiers of a property, such as the applicants' property, that comes into existence during the financial year for which the service charge was imposed, will benefit from the power infrastructure in respect of which the service charge was imposed.,The Tribunal made a declaration that the service charge was imposed in accordance with the Local Government Act 1995. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : LOCAL GOVERNMENT ACT 1995 (WA) CITATION : WOODWARD and CITY OF MELVILLE [2015] WASAT 90 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 20 AUGUST 2015 FILE NO/S : DR 128 of 2015 BETWEEN : GREGORY BRUCE WOODWARD
- BEVERLEY ANNE FARREN
Applicants
AND
CITY OF MELVILLE
Respondent
Catchwords:
Local government Service charge Underground power Question of general interest as to whether service charge was imposed in accordance with the Local Government Act 1995 (WA) Whether service charge can lawfully be imposed in relation to properties that did not exist when service charge was imposed but came into existence during financial year for which service charge was imposed
Legislation:
Local Government Act 1995 (WA), s 6.32(1)(c), s 6.38, s 6.82(1), s 6.82(3)
Local Government (Financial Management) Regulations 1996 (WA), reg 54(c)
State Administrative Tribunal Act 2004 (WA), s 91(1)
Result:
Declaration made that the Ardross East Underground Power Project Area Service Charge imposed by the respondent on 24 June 2014 for the 20142015 financial year was imposed in accordance with the Local Government Act 1995 (WA)
Summary of Tribunal's decision:
The applicants brought proceedings in the Tribunal to contest the validity of the imposition of a service charge for undergrounding power in the area in which they own a property. The service charge was imposed by the respondent on 24 June 2014 for the 'community contribution' to the undergrounding of power in the relevant area during the 20142015 financial year.
At the time when the service charge was imposed, the applicants' property did not exist as a separate property, but formed part of a larger property that they owned and were in the process of subdividing. The applicants' property came into existence as the rear property in a battleaxe subdivision of their original property on 8 July 2014.
On 21 July 2014, the respondent issued an assessment for payment of the service charge in respect of the original property. Having received notice of the subdivision, the respondent, in effect, withdrew that assessment and issued separate assessments for the payment of service charges in respect of the front property and the rear property. The applicants paid the assessment in respect of the front property in order for settlement of the sale of that property to proceed. However, they contested their liability to pay the service charge in respect of the rear property.
The applicants contended that the service charge was not imposed in accordance with the Local Government Act 1995 (WA) for various reasons. Most significantly, they argued that the service charge cannot lawfully be imposed in relation to properties that did not exist when the service charge was imposed, but came into existence during the financial year for which the service charge was imposed.
The Tribunal determined that the service charge was imposed in accordance with the Local Government Act 1995. In particular, the Tribunal determined that, on its proper interpretation, s 6.38(1) of the Local Government Act 1995 requires that the owners or occupiers of land within the district or a defined part of the district upon whom a service charge is imposed to meet the cost to the local government in the provision of a prescribed work, service or facility (such as underground power) in relation to the land, must be owners or occupiers of land within the district or a defined part of the district within the financial year for which the service charge is imposed. The provision does not require that the property must exist at the time when the service charge is imposed. This accords with the grammatical meaning of the provision. Furthermore, the owners or occupiers of a property, such as the applicants' property, that comes into existence during the financial year for which the service charge was imposed, will benefit from the power infrastructure in respect of which the service charge was imposed.
The Tribunal made a declaration that the service charge was imposed in accordance with the Local Government Act 1995.
Category: B
Representation:
Counsel:
Applicants : In Person
Respondent : Mr L Hitchcock (Public Sector Employee)
Solicitors:
Applicants : N/A
Respondent : N/A
Case(s) referred to in decision(s):
City of Kwinana v Lamont [2014] WASCA 112
Background
1 Mr Gregory Bruce Woodward and Ms Beverley Anne Farren (applicants) contest their liability to pay the network charge of $4,250 under the Ardross East Underground Power Project Area Service Charge (service charge) in relation to their residential property at No 34A Riseley Street, Ardross. This property is located within the Ardross East Underground Power Project Area (project area). The City of Melville (respondent) imposed the service charge, including a 'Network Charge per property $4,250', by a resolution made on 24 June 2014 for the 20142015 financial year to meet the cost to the respondent of the 'community contribution' to the undergrounding of power within the project area as part of the State Underground Power Project (SUPP).
2 The SUPP involves the undergrounding of power transmission infrastructure, with the aim of providing areas with a more safe and more reliable power supply. Under a funding agreement between the respondent, Western Power and the State Government, the respondent is required to contribute a 'community contribution' of 50% of the cost of the project. In particular, the $4,250 per property network charge part of the service charge is intended to generate the 'community contribution' for the undergrounding of the power infrastructure that supplies power to the Ardross East area, including the cabling along the streets, and removal of overhead infrastructure and the transformer and switchgear cabinets, and the installation of new street lights.
3 No 34A Riseley Street, Ardross did not exist as a separate property when, on 24 June 2014, the respondent resolved to impose the service charge. No 34A Riseley Street, Ardross came into existence as a property when, on 8 July 2014, Landgate approved Deposited Plan 75525 showing the battleaxe subdivision of the applicants' former residential property (Lot 168 on Deposited Plan 5059) (original property) into a front lot (Lot 300 on Deposited Plan 75525, now known as No 34 Riseley Street, Ardross) (front property) and a battleaxe lot (Lot 301 on Deposited Plan 75525, now known as No 34A Riseley Street, Ardross) (rear property). (Certificates of title were issued on 5 November 2014 to the applicants' purchasers in respect of the front property and to the applicants in respect of the rear property).
4 On 21 July 2014, the respondent issued rate notice assessment no 574137 to the applicants for payment of the network charge component of the service charge in the amount of $4,250 less State Government rebates of $276.42 in relation to the original property. The rate notice stated that payment of the service charge was due by 25 August 2014.
5 The applicants did not pay the service charge. Rather, on 28 August 2014, they wrote to the respondent, in effect, objecting to having to pay the service charge on the ground that they had subdivided their property and, in the process, had included underground power to both lots.
6 The applicants did not receive a response to their objection. However, having received notice of the subdivision, the respondent, in effect, withdrew rate notice assessment no 574137 by issuing a fresh assessment in relation to the original property (which no longer existed) showing a nil amount due. Furthermore, the respondent reassessed liability to pay the network charge component of the service charge in relation to the land which had been the subject of assessment no 574137 and issued separate rate notice assessments to the applicants in relation to the front property (assessment no 588566), requiring them to pay the network charge component of the service charge of $4,250 less $276.42 State Government rebates for that property, and in relation to the rear property (assessment no 588574), requiring them to pay the network charge component of the service charge of $4,250 for that property.
7 The applicants paid the amount required by assessment no 588566 in relation to the front property in order for settlement of the sale of that property to be able to proceed. However, the applicants have not paid the amount required by assessment no 588574 in relation to the rear property. Rather, on 2 December 2014, they wrote to the respondent objecting to the overall assessments of the network charge service charge by the respondent in relation to the land that comprised the original property. The applicants subsequently made a submission to the Ombudsman regarding these assessments.
Application to SAT
8 The applicants commenced this proceeding under s 6.82(1) of the Local Government Act 1995 (WA) (LG Act) contesting the validity of the imposition of the service charge under the LG Act. Section 6.82(1) of the LG Act enables any person to refer 'a question of general interest as to whether a rate or service charge was imposed in accordance with [the LG] Act' to the Tribunal to have it resolved. Section 6.82(3) of the LG Act confers power on the Tribunal, when dealing with a matter referred to it under s 6.82(1), to 'make an order quashing a rate or service charge which in its opinion has been improperly made or imposed'. Furthermore, s 91(1) of the State Administrative Tribunal Act 2004 (WA) confers power on the Tribunal, when constituted by a judicial member, to 'make a declaration concerning any matter in a proceeding instead of any orders it could make, or in addition to any orders it makes, in the proceeding'.
9 The applicants contend that the service charge network charge for undergrounding power in the project area was not imposed in accordance with the LG Act for various reasons summarised below. Most significantly, the applicants argue that the service charge cannot lawfully be imposed in relation to properties, such as the rear property, that did not exist when the service charge was imposed by the respondent, but came into existence during the financial year for which the service charge was imposed.
Legislative provisions
10 Section 6.32(1)(c) of the LG Act states as follows:
When adopting the annual budget, a local government
…
(c) may impose* a service charge on land within its district.
- The asterisks note to this provision indicates that an absolute majority of the members of the local government is required in order to impose a service charge.
11 Section 6.38 of the LG Act contains detailed provisions in relation to service charges as follows:
(1) A local government may impose on
(a) owners; or
(b) occupiers,
of land within the district or a defined part of the district a service charge for a financial year to meet the cost to the local government in the provision of a prescribed work, service or facility in relation to the land.
(2) A local government is required to
(a) use the money from a service charge in the financial year in which the charge is imposed; or
(b) to place it in a reserve account established under section 6.11 for the purpose of that work, service or facility.
(3) Where money has been placed in a reserve account under subsection (2)(b), the local government is not to
(a) change the purpose of the reserve account; or
(b) use the money in the reserve account for a purpose other than the work, service or facility for which the charge was imposed,
and subsections (2), (3) and (4) of section 6.11 do not apply to such a reserve account.
(4) A local government may only use the money raised from a service charge
(a) to meet the cost of providing the specific service for which the work, service or facility charge was imposed; or
(b) to repay money borrowed for anything referred to in paragraph (a) and interest on that money.
(5) If a local government receives more money than it requires from the service charge imposed under subsection (1)(a) it
(a) may, and if so requested by the owner of the land, is required to, make a refund to the owner of the land which is proportionate to the contributions received by the local government; or
(b) is required to allow a credit of an amount proportionate to the contribution received by the local government in relation to any land on which the service charge was imposed against future liabilities for rates or service charges in respect of that land.
(6) If a local government receives more money than it requires from the service charge imposed under subsection (1)(b) it is required to make a refund to the person who paid the service charge which is proportionate to the contributions received by the local government.
(7) This section applies in respect of a prescribed work, service or facility even if the work, service or facility is not provided, or not wholly provided, by a local government if the local government has facilitated or participated in the provision of the work, service or facility.
(8) Where
(a) before the coming into operation of the Local Government Amendment Act 2012 Part 2 Division 5, a service charge was imposed, or purportedly imposed, under this section by a local government for the purpose of the provision of underground electricity; and
(b) the underground electricity was not, or will not, be provided, or not wholly provided, by the local government,
the charge is, and is taken always to have been, as validly imposed under this section as it would have been if, at the time of the imposition of the charge, the amendments effected by Local Government Amendment Act 2012 Part 2 Division 5 had been in effect and the provision of underground electricity had been a prescribed work.
Applicants' submissions
13 The applicants expressed their position as follows:
In summary we object to the service charges for Lot 300 (34 Riseley Street) & Lot 301 (34A Riseley Street) under s.6.82 of the Local Government Act on the basis that these properties did not exist under separate title at the time of assessment of the distribution of costs of [the Ardross East Underground Power Project] to rate payers by the City of Melville making these service charges a duplicate of charges which have been improperly imposed and contravened the Local Government Act.
On the basis of these facts, we believe that we should only be required to pay the [Ardross East Underground Power Project] Network Charges for the original Lot 168 (34 Riseley Street) as originally invoiced and that having already paid for [Ardross East Underground Power Project] Network Charges for Lot 300 (34 Riseley Street) that this amount should be credited to the payment of [Ardross East Underground Power Project] charges for Lot 168 (34 Riseley Street).
14 The applicants submit, further, that the calculation of the distribution of costs for the purposes of the Ardross East Underground Power Project was based on the original property prior to its subdivision and that 'there is no further cost to the council associated with the installation of underground power as a result of subsequent subdivision of this property'. The applicants submit that the fact that the calculation of the distribution of costs was based on the original property prior to subdivision 'is clearly indicated' by the rate notice assessment no 574137 issued on 21 July 2014 in relation to that property.
15 The applicants also submit that it is 'unfair and unjust that the City of Melville should be allowed to claim income further to the actual cost to supply of underground power' as calculated on the basis of the number of properties in the project area in June 2014.
16 Finally, the applicants submit that they should not have been charged a service charge for both the front property and the rear property, as the combined street frontages of these properties is the same as the neighbouring property that has been charged only once for the service charge.
Was the service charge imposed in accordance with the LG Act?
17 The respondent passed the following resolution by absolute majority at its meeting on 24 June 2014 when adopting the annual budget for the 20142015 financial year:
That by Absolute Majority Decision of Council
Properties included in the Ardross East Underground Power Project Area shall be charged in accordance with the following scale of fees.
• Network Charge per property $4,250 …
18 The service charge was therefore imposed '[w]hen adopting the annual budget' and by absolute majority of the members of the local government, in accordance with the requirements of s 6.32(1)(c) of the LG Act.
19 The front property and the rear property did not exist as separate properties at the time when the service charge was imposed on 24 June 2014. It is also an agreed fact between the parties that the network charge of $4,250 per property 'is based on the total estimated costs attributable to the network works divided by the total of the properties undergrounded as part of the Ardross East [Underground Power Project]', that is the network charge of $4,250 per property in the respondent's resolution of 24 June 2014 was determined based on the estimated costs attributable to undergrounding the network of power infrastructure that supplies power to the Ardross East area, including the cabling along the streets and removal of overhead infrastructure and the transformer and switchgear cabinets, and the installation of new street lights, divided by the total number of properties within the project area as at the date of the respondent's resolution.
20 However, in my view, on its proper interpretation, s 6.38(1) of the LG Act authorises a local government to impose a service charge for a financial year to meet the cost to the local government of the provision of a prescribed work, service or facility in relation to land within the district or a defined part of the district on the owners or occupiers of properties which do not exist at the date of the resolution imposing the service charge, but which come into existence during the financial year in respect of which the service charge is imposed.
21 In City of Kwinana v Lamont [2014] WASCA 112 at [47], the Court of Appeal said the following in relation to statutory interpretation:
The High Court of Australia has iterated, and reiterated, that the starting point and ending point for the task of statutory construction is the statutory text. The context, including legislative history and extrinsic materials, has utility only to the extent that it assists in fixing the meaning of the statutory text: Thiess v Collector of Customs [2014] HCA 12 [22] (the court); Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98, 107 [39] (the court); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46 - 47 [47] (Hayne, Heydon, Crennan & Kiefel JJ). The duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, but not universally, that meaning will correspond with the grammatical meaning of the provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [78].
22 The grammatical meaning of the text of s 6.38(1) of the LG Act requires merely that the owners or occupiers of land within the district or a defined part of the district upon whom a service charge is imposed to meet the cost to the local government in the provision of a prescribed work, service or facility (such as underground power) in relation to the land, must be owners or occupiers of land within the district or a defined part of the district within the financial year for which the service charge is imposed. The owner or occupier of a property that comes into existence during the relevant financial year for which a service charge is imposed is a person the local government may impose a service charge upon if the service charge is to meet the cost to the local government in the provision of a prescribed work, service or facility to that land in that financial year. Section 6.38(1) of the LG Act does not require that the property must exist at the time when the service charge is imposed.
23 There is no basis to read down the grammatical meaning of the words of the provision. Furthermore, the owners or occupiers of a property, such as the front lot or the rear lot, that comes into existence during the financial year to which the service charge relates, will benefit from the power infrastructure in respect of which the service charge was imposed. Indeed, without the undergrounding of the power infrastructure in the Ardross East area, it would not be possible for either the front or the rear lot to connect to, and have the benefit of, the underground power in the project area.
24 Furthermore, although the network charge of $4,250 was determined on the basis of the estimated cost of the 50% community contribution for the network works divided by the total number of properties within the project area on 24 June 2014, importantly, it was based on an estimated cost, not the final known cost. The final cost may be more or less than the estimated cost. Section 6.38(1) of the LG Act authorises the imposition of a service charge 'for a financial year to meet the cost to the local government in the provision of a prescribed work, service or facility in relation to the land' (emphasis added), not the estimated cost. If, ultimately, a local government receives more money than it requires from a service charge imposed on owners of land, to meet the cost to the local government in the provision of a prescribed work, service or facility in relation to the land, s 6.38(5) of the LG Act provides that the local government may, and if so requested by the owner of the land, 'is required to', make a refund to the owner of the land which is proportionate to the contributions received by the local government, or is required to allow a credit of an amount proportionate to the contribution received by the local government in relation to any land on which the service charge was imposed against future liabilities for rates or services charged in respect of that land.
25 Furthermore, although it appears to be correct that there is no further cost to the respondent involved in undergrounding the network as a consequence of the subdivision of the original property into the front property and the rear property, both the front property and the rear property benefit from the undergrounding of the power network in the project area.
26 Contrary to the applicants' submission, the outstanding service charge for the rear property is not 'a duplicate of charges' for the front property. The applicants paid the service charge required by assessment no 588566 in relation to the front property. They did not pay the service charge required by assessment no 574137 for the original property (putting aside the fact that the original property did not, in fact, exist as a separate property by the time that assessment was issued on 21 July 2014). The applicants are still liable to pay the service charge for the rear property which is a separate property to the front property.
27 The applicants' submission that it is 'unfair and unjust that the City of Melville should be allowed to claim income further to the actual cost of the supply of the underground power', as determined on the basis of the number of properties in existence in June 2014, does not involve a challenge to the lawfulness of the imposition of the service charge. In any case, the service charge imposed on the rear property is not 'income' to the respondent. Rather, it is a service charge to meet the cost to the respondent in the provision of underground power in the project area. Under s 6.38(4) of the LG Act, a local government may only use the money raised from a service charge 'to meet the costs of providing the specific service for which the work, service or facility charge was imposed' or to repay money borrowed for that purpose and interest on that money. It is not 'income'. Furthermore, as noted earlier, under s 6.38(5) of the LG Act, if a local government receives more money than it requires from a service charge imposed on the owners of land, it may, and if so requested by the owner of the land, is required to, make a refund which is proportionate to the contributions received from the owner or is required to allow credit of an amount proportionate to the contribution received from the owner.
28 The applicants' submission that they should not have been charged a service charge for both the front property and the rear property, as the combined frontages of these properties is the same as their neighbour's property, is not relevant to whether the service charge was imposed in accordance with the LG Act. The respondent's resolution of 24 June 2014 imposed a service charge on a 'per property' basis, irrespective of the street frontage of the property. Moreover, as noted earlier, the network charge relates to the undergrounding of power infrastructure that supplies power to the Ardross East area, not direct provision of underground power to any particular property.
29 Finally, there is no basis to now require the applicants to pay the network charge for the original property as purportedly required by the respondent in rate notice assessment no 574137 or to credit the network charge that the applicants paid under rate notice assessment no 588566 in relation to the front property to the payment of the network charge for the original property under assessment no 574137. As noted earlier, the applicants paid assessment no 588566 in relation to the front property in order for the sale of that property to proceed. They did not pay assessment no 574137 in relation to the original property. Furthermore, and in any case, the original property ceased to exist as a separate property prior to the issue of assessment no 574137 purportedly in relation to the original property.
Conclusion and order
30 The Ardross East Underground Power Project Area Service Charge imposed by the respondent on 24 June 2014 for the 20142015 financial year was imposed in accordance with the LG Act.
31 The Tribunal, therefore, makes the following declaration:
1. Pursuant to s 91(1) of the State Administrative Tribunal Act 2004 (WA), the Tribunal declares that the Ardross East Underground Power Project Area Service Charge imposed by the respondent on 24 June 2014 for the 20142015 financial year was imposed in accordance with the Local Government Act 1995 (WA).
I certify that this and the preceding [31] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT
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