Blair v Upper Hutt City Council HC Wellington CIV-2005-485-1961 - [2007] NZHC 1726

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2005-485-1961

UNDER the Land Valuation Proceedings Act 1948

IN THE MATTER OF a decision of the Land Valuation Tribunal at Wellington dated 9 September 2005

BETWEEN NEVILLE ALBERT BLAIR Appellant

AND UPPER HUTT CITY COUNCIL Respondent

Hearing: 30 October 2006

Coram: Clifford J
Mr Peter Young (Lay Member)

Appearances: G D S Taylor for Appellant
N Levy for Respondent

Judgment: 8 May 2007 at 10 am8 May 2007 at 10.00 am

JUDGMENT OF THE COURT

This judgment was delivered by Justice Clifford on 8 May 2007 at 10 am, pursuant to
r 540(4) of the High Court Rules

Registrar/Deputy Registrar
Date: 8 May 2007

Counsel: G D S Taylor P O Box 5294, 6145 Wellington 6011 for the Appellant
N Levy P O Box 10433 The Terrace Wellington for the Respondent

Copies To: John Gwilliam and Co P O Box 40457 Upper Hutt Wellington
B R Dodson City Solicitor Upper Hutt City Council Private Bag 907
Upper Hutt

BLAIR V UPPER HUTT CITY COUNCIL HC WN CIV-2005-485-1961 8 May 2007

[1] This is an appeal from a decision of the Land Valuation Tribunal (“the Tribunal”). The appellant, Mr Blair, is a trustee and beneficiary of the family trust (“the Nibbles Family Trust” or “the Trust”) that owns a large, Chapman Taylor house in Upper Hutt known as Brentwood Manor. Brentwood Manor is, in fact, Mr Blair’s permanent home and is described by him and other members of his family as “the family home”. Mr Blair also runs a home stay operation at Brentwood Manor.

[2] References in this decision to Mr Blair are generally to him acting as a trustee, and for and on behalf of his fellow trustees.

Background

[3] On 10 September 2001 the Upper Hutt City Council (“the Council”) wrote to Mr Blair advising him that it had decided that Brentwood Manor was to be rated in the “commercial category” of the Council’s differential rating system. At the time, that system had no such category. This was apparently a reference to the Business Category of that system. This decision was described as being “due to the change of use”, reflecting the fact that Mr Blair had recently been granted certain resource consents relating to Brentwood Manor. Our understanding is that this decision would have resulted, at the time, in an increase of approximately $2,800 in Brentwood Manor’s annual rates bill, from $1,600 to $4,400. The correctness or otherwise of that understanding is not relevant to our decision.

[4] Mr Blair objected, by a letter dated 28 September 2001, in general terms to that decision. He wrote subsequently, formally objecting under s 116(e) of the Rating Powers Act 1988 to the rating classification to which the property had been allocated. At the same time, he pointed to s 105(4) of that Act. Mr Blair said that s 105 required an apportionment of the rateable value of Brentwood Manor and that the Council could not charge a business…

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.

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Details

AGLC: Blair v Upper Hutt City Council HC Wellington CIV-2005-485-1961 [2007] NZHC 1726
Case: [2007] NZHC 1726
Decision Date: 8 May 2007

CaseChat Overview and Summary

In Blair v Upper Hutt City Council, the High Court considered an appeal against a decision of the Land Valuation Tribunal, which had upheld an apportionment decision by Quotable Value. The case involved a property, Brentwood Manor, owned by Mr Neville Blair, who had been subject to a differential rating system implemented by the Upper Hutt City Council. The dispute centered on the allocation of the property to a commercial category and the subsequent apportionment of the rateable value between business and residential uses.

The court examined the statutory framework governing differential rating and apportionment under both the Rating Powers Act 1988 and the Local Government (Rating) Act 2002. It concluded that the Tribunal had erred in conducting the apportionment inquiry as the allocation of the property to multiple differentials was not authorized under the scheme in place at the time. The court quashed the Tribunal's apportionment decision, but upheld the Council's original allocation decision, leaving the matter of the validity of the allocation to be resolved in the Review Proceedings. The court also noted that its decision did not provide the desired resolution for either party, and thus costs were awarded to lie where they fell.

Orders