BWP Management Limited v Ipswich City Council; W & V Nominees Pty Ltd as Tte for the Elton Family Trust No.3 v Ipswich City Council [2018] QLC 14

LAND COURT OF QUEENSLAND CITATION: BWP Management Limited v Ipswich City Council; W & V Nominees Pty Ltd as Tte for the Elton Family Trust No.3 v Ipswich City Council [2018] QLC 14 PARTIES: BWP Management Limited ACN 082 856 424 (appellant) v Ipswich City Council (respondent) FILE NO: LGR282-16 PARTIES: FILE NO: W & V Nominees Pty Ltd as Trustee for the Elton Family Trust No.3 (appellant) v Ipswich City Council (respondent) LGR283-16 DIVISION: General Division PROCEEDING: Appeal against categorisation decision DELIVERED ON: 13 June 2018 DELIVERED AT: Brisbane HEARD ON: 18 October 2017 Evidence closed 13 December 2017 HEARD AT: Brisbane MEMBER: PA Smith ORDERS: In the matter of LGR282-16: 1. The appeal is allowed. 2. The rating category for the West Ipswich Bunnings is changed from Category 52a to Category 44b. -- 1 of 44 -- 2 In the matter of LGR283-16: 1. The appeal is allowed. 2. The rating category for the Springfield Bunnings is changed from Category 52a to Category 44b. CATCHWORDS: REAL PROPERTY – RATES AND CHARGES – rating of land – categories of land – more than one applicable category RATES – RATING – differential general rates – appeal by land owners against decision of local authority on the land owners objection to a rating category for the land STATUTES – subordinate legislation – construction – relevant principles – ordinary and grammatical construction – purpose and subject matter – whether construction favouring taxpayer appropriate – liberal construction – where more than one definition applies – consideration of absurd results INTERPRETATION – general rules of construction of instruments – Acts Interpretation Act Acts Interpretation Act 1954 s 14A Local Government Regulation 2012 s 92, s 93 Retail Shop Leases Regulation 2006 s 9 Statutory Instruments Act 1992 s 7 AAD Design Pty Ltd v Brisbane City Council [2013] 1 Qd R 1, applied Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, followed APT Petroleum Pipelines Pty Limited v Wester Downs Regional Council [2014] QLC 18, considered Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378, followed Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400, followed Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, followed Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305, followed Schokman v Brisbane City Council [2001] QLC 40, followed South Australian National Football League Inc v City of Charles Sturt (1998) 97 LGERA 293, followed Yu & Leung v Brisbane City Council & Anor [2006] QPELR 102, not followed APPEARANCES: ANS Skoien with D Jones (instructed by Lander & Rogers) for the appellants MF Johnston (instructed by Colin Biggers & Paisley) for the respondent -- 2 of 44 -- 3 Background [1] There are two very closely related matters before the Court. The appellant in the first matter (LGR282-16) is BWP Management Limited (BWP),1 while the appellant in the second matter (LGR283-16) is W & V Nominees Pty Ltd as Trustee for the Elton Family Trust No.3 (W&V). The respondent in each case is the Ipswich City Council (ICC). [2] Both appeals concern the categorisation for rating purposes by the ICC of retail outlets known as Bunnings. The first store, owned by BWP is located in West Ipswich, Queensland (West Ipswich Bunnings). The second store is owned by W&V and is located in Springfield Central, Queensland (Springfield Bunnings). [3] Both Bunnings have been categorised by the ICC as being a Category 52a Drive-In Shopping Centre (Category 52a). This was conveyed to both appellants via rates notices each dated 18 January 2016. Both BWP and W&V claim that the correct categorisation is the commercial rating Category 44b Commercial (Category 44b).2 Accordingly, on 22 April 2016 they both objected to the ICC’s categorisation. [4] On 1 June 2016 the ICC rejected both objections and confirmed the West Ipswich Bunnings and the Springfield Bunnings as Category 52a. Subsequently, on 20 July 2016, BWP filed its appeal against the ICC’s decision in the Land Court, as did W&V. [5] Each appeal was filed pursuant to s 92 of the Local Government Regulation 2012 (LGR). The hearing [6] Although both matters were set down together for hearing over two days commencing 18 October 2017, the hearing was significantly truncated because the parties agreed that there was no contest on the facts, and neither party required any witness for cross- examination. As the filed affidavit material was lengthy and there were challenges in the written submissions to some of the evidence, the parties were directed to supply the Court with an agreed statement of facts. 1 The appeal was commenced in the name of ‘BWP Management Pty Ltd, as Trustee for the BWP Trust’, this, however, was not the correct name of the landholder. The name was changed by an Order of the Land Court on 11 June 2018, by consent, pursuant to r 4 of the Land Court Rules 2000 and rr 375(1), 375(3) of the Uniform Civil Procedure Rules 1999. 2 Agreed Statement of Facts, page 2–7. -- 3 of 44 -- 4 [7] Unfortunately, this direction proved to be more difficult than contemplated by the parties, and it was not until 13 December 2017 (after intervention by the Court) that the Agreed Statement of Facts was filed. Surprisingly, the Agreed Statement of Facts is extensive. Nevertheless, either or both parties believe that at least some, or indeed all, of the agreed facts are essential for a proper understanding of this matter. Consequently, the Agreed Statement of Facts is attachment A to these reasons, and all of the facts contained therein are incorporated into these reasons. [8] The hearing commenced with a site inspection of both Bunnings stores, as well as other properties which the parties considered relevant. Following the site inspection, the parties provided oral submissions to the Court in Brisbane to supplement the written submissions that they had already filed. [9] During the hearing, 14 exhibits were tendered by consent. The Agreed Statement of Facts is Exhibit 15. [10] BWP and W&V were both represented by Mr ANS Skoien and Mr D Jones of Counsel, instructed by Lander and Rogers, Lawyers. The ICC was represented by Mr MF Johnston of Counsel, instructed by Colin Biggers & Paisley, Lawyers. The statutory regime [11] Chapter 4 of the LGR relates to rates and charges, with Part 5 dealing specifically with differential general rates. In essence, a local government (of which the ICC is one) may, pursuant to ss 80(1) and (2) of the LGR, levy general rates that differ for different categories of rateable land in the local government area. [12] Before a local authority levies differential general rates, it must decide by resolution the different categories (each a rating category) of rateable land (s 81(1)), with such resolution being made at the local government’s budget meeting (s 81(2)). The resolution, pursuant to s 81(3) of the LGR, must state the rating categories of rateable land and a description of each of the rating categories. After the rating categories and descriptions have been decided, the local authority must identify the rating category in which each parcel of rateable land in the local government area belongs (s 81(4)), and may do so in any way it considers appropriate (s 81(5)). [13] If a local authority decides to levy differential general rates, a relevant rates notice must be accompanied by, or include, a rating category statement (s 88). The land -- 4 of 44 -- 5 owner may object to a rating category (s 90), and if an objection is made, the local authority must make a decision on the objection pursuant to s 91 of the LGR. [14] As already mentioned, the land owner may appeal the decision on the objection (s 92). The appeal is to this Court. The Land Court may decide to either change the rating category of the land, or not allow the appeal (s 93(3)(b)). If the Land Court decides to change the rating category, s 93(4) of the LGR provides that the rating category is taken to have been changed from the start of the period of the rates notice. The 2015/16 ICC Budget [15] The 2015/16 ICC Budget (the Budget) is Exhibit 5. It contains a resolution to the effect that differential general rates be adopted. The differential general rates are set out in Part 2 of the Budget. [16] Part 2.2 of the Budget sets out definitions; Table 1 details Differential General Rating Categories (DGRC); Table 3B sets out Primary Council Land Use Codes (PCLUC) applicable to rating categories 41 to 50; and Table 3C sets out the PCLUC’s for categories 51A to 53D. [17] The ICC contends that each Bunnings falls within DGRC 52a (Category 52a).3 Category 52a provides as follows: Column 1 Rating category of rateable land Column 2 Description of rating category 52a Land used for a drive-in shopping centre with a GLA of 10,000m2 to less than 20,000m2 and a land area of less than 200,000m2. Land which meets all of the following criteria: (a) has any of the Primary Council Land Use Codes for this rating category; (b) is primarily for a drive-in shopping centre with a GLA of 10,000m2 to less than 20,000m2; (c) has a land area of less than 200,000m2. [18] The only PCLUC for Category 52a is number 16 Drive-In Shopping Centre. Drive- In Shopping Centre is defined in part 2.2 of the Budget as follows: “drive-in shopping centre means a premises or a cluster of premises that: (a) is used wholly or predominately for carrying out a retail business; and (b) is contained within one or more buildings or structures on one or more levels; and (c) provides off-street parking for customer vehicles.” 3 Respondent’s submissions, page 8. -- 5 of 44 -- 6 [19] BWP and W&V contend that both Bunnings should be under DGRC 44b (Category 44b).4 Category 44b provides as follows: Column 1 Rating category of rateable land Column 2 Description of rating category 44b Land used for a commercial purpose with a rateable value of $5,000,000 or greater. Land which meets all of the following criteria: (a) has any of the Primary Council Land Use Codes for this rating category; (b) is primarily for a commercial use; (c) has a rateable value of $5,000,000 or greater [20] There are 31 PCLUC’s which apply to Category 44b. One of these is number 11 Shop-Single. Shop-Single is not defined. [21] Another important area of the ICC Budget is Part 14 – Revenue Policy. The Policy Statement set out in 3.1 of Part 14 includes the following: “It is an intended outcome of the Financial Plan that Council remains in a sound financial position at all times… To achieve this outcome the Council will seek to ensure that its revenues (after concessions on rates and charges) are sufficient to cover its costs having regard to year-to-year variations in revenues. The Council has adopted a set of principles relating to the levying of rates and charges, granting concessions for rates and charges, recovering overdue rates and charges and cost-recovery methods. The Council will take account of the principles of equity, economic efficiency and simplicity in levying rates and charges and granting concessions for rates and charges.” [22] Differential general rates are specifically referred to in 3.2.2 of Part 14: “The Council specifically intends to levy differential general rates on all rateable land in the local government area. It is recognised that a single rate applied to all rateable land in the local government area would result in a substantial disparity in the general rates contributed by each rating category of rateable land. For rateable land that is used for residential purposes or is used for commercial activities a higher rate may be applied than that applied to rateable land that has no capacity to produce revenue such as rateable land used for a residential purpose which is occupied by the land owner. This reflects the revenue-producing capacity of rateable land that may be rented or is used for commercial activities. Differential general rating categories, described in the Revenue Statement, are reviewed each financial year in order to maintain a rating structure that is clear, cost effective and simple to administer. 4 Appellant’s submissions, page 2. -- 6 of 44 -- 7 Differential general rates will be set at levels: (a) to generate revenue sufficient to meet the difference between the outlays of the Council’s business activities less any ordinary business or trading income, grants, subsidies or contributions received in respect of those programs and any internal financial accommodation arranged; (b) that recognise the different revenue-producing capacity of rateable land within the local government area; and (c) that recognise the differing level of benefits that rateable land in different rating categories receive from the Council’s services and facilities.” [23] The ICC Budget is a statutory instrument. Put briefly, this is because s 7(1) of the Acts Interpretation Act 1954 (AIA) provides that in an Act (which includes the AIA), a reference to a law “includes a reference to the statutory instruments made or in force under the law or provision”. In turn, s 7 of the Statutory Instruments Act 1992 (SIA) outlines what is a statutory instrument. The ICC Budget satisfies subsections 7(2) and (3) of the SIA because it was made under a power conferred by the Local Government Act 2009 (LGA) and the LGR (s 7(2)(c) of the SIA) and because it is an “instrument of a public nature by which the entity making the instrument unilaterally affects a right or liability of another entity” (s 7(3) of the SIA). Accordingly, the Budget is a statutory instrument. Principles of interpretation of a statutory instrument [24] The starting point for any consideration of statutory interpretation, including that of a statutory instrument, begins with some well-known principles of statutory construction. I set those principles out in my recent decision of GPT RE Limited v Valuer-General (No 2)5 and, given the focus of the submissions on the proper interpretation of the ICC Budget, it is appropriate to again do so here. [25] I begin with the oft quoted case of Project Blue Sky Inc v Australian Broadcasting Authority6 where Justices McHugh, Gummow, Kirby and Hayne have this to say at pages 381 and 382: “The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with 5 [2018] QLC 9 [232]–[237]. 6 (1998) 194 CLR 355. -- 7 of 44 -- 8 which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.” (citations omitted) [26] Their Honour’s continue on at page 384 of Project Blue Sky as follows: “…the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. In Statutory Interpretation, Mr Francis Bennion points out: “The distinction between literal and legal meaning lies at the heart of the problem of statutory interpretation. An enactment 110 (1998) 194 CLR 355. 69 consists of a verbal formula. Unless defectively worded, this has a grammatical meaning in itself. The unwary reader of this formula (particularly if not a lawyer) may mistakenly conclude that the grammatical meaning is all that is of concern. If that were right, there would be little need for books on statutory interpretation. Indeed, so far as concerns law embodied in statute, there would scarcely be a need for law books of any kind. Unhappily this state of being able to rely on grammatical meaning does not prevail in the realm of statute law; nor is it likely to. In some cases the grammatical meaning, when applied to the facts of the instant case, is ambiguous. Furthermore there needs to be brought to the grammatical meaning of an enactment due consideration of the relevant matters drawn from the context (using that term in its widest sense). Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict -- 8 of 44 -- 9 with the fact that this does not remedy the mischief that Parliament intended to deal with.”” (citations omitted) [27] It is also relevant to examine the High Court’s considerations in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue. Justices Hayne, Heydon, Crennan and Kiefel had this to say: “This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”7 (citations omitted) [28] Next, the comments made by Chief Justice French and Justice Hayne in Certain Lloyd’s Underwriters v Cross are important. They stated as follows: “Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative “intention” is to use a metaphor. Use of that metaphor must not mislead. “[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have (emphasis added)”.”8 (citations omitted) [29] French CJ and Hayne J then went on to quote from Project Blue Sky and Lacey v Attorney-General (Qld).9 They then continued as follows: “The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention. A second and not unrelated danger that must be avoided in identifying a statute’s purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra-curially, correctly said: “Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. 7 (2009) 239 CLR 27, 46–7. 8 (2012) 248 CLR 378, 389. 9 (2011) 242 CLR 573. -- 9 of 44 -- 10 It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case.” (emphasis added) And as the plurality said in Australian Education Union v Department of Education and Children's Services: “In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.””10 (citations omitted) [30] I should of course also point out that s 14A of the AIA says that a construction which will best achieve the purpose of an act is to be preferred to any other interpretation, and that s 14B of the AIA allows for the use of extrinsic material capable of assisting in the interpretation of a statute. [31] I also adopt what Member Isdale of this court had to say (save for the observations on “best fit”) in the rating categorisation matter of APT Petroleum Pipelines Pty Limited v Wester Downs Regional Council.11 His Honour was in that case of course specifically considering how the principles of statutory interpretation were to be applied to statutory instruments such as a local authority budget. [32] Member Isdale notes that, in cases of a dispute over the applicable rating category, the correct approach was said by Debelle J in South Australian National Football League Inc v City of Charles Sturt to be: “The task of determining the nature of a land use will obviously require an examination of the manner in which the land is being used and, if it has been improved, an examination of the nature of the buildings or improvements or other development on the land and the use which is made of them. If there is more than one use, it is necessary to determine the predominant use of the land: (s176(3)). Given that the enquiry is to determine the nature of the land use, the principles of planning law as to the process involved when determining the nature of a proposed development provide some assistance. The enquiry should not involve a meticulous examination of the details of the likely activities being conducted on the land or any precise cataloguing of them but, instead, should be an enquiry as to what, according to its ordinary terminology, is the appropriate designation of the use of the land and any buildings thereon: see Stephen J in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 at 507-508; 44 LGRA 346 at 362-363. Generally speaking, that will often be a useful approach. Of course, each case must be considered according to its own facts and circumstances. It is essential to remember that the purpose of the enquiry is limited to a determination of the nature of the land use. However, some assistance may be gained from examining the activities in which the owner or occupier of 10 (2012) 248 CLR 378, 390. 11 [2014] QLC 18 [8]–[11]. -- 10 of 44 -- 11 the land is engaged since they might provide an understanding of the nature of the use of the land. However, care must be taken to ensure that the nature of the activities of the owner or occupier do not distract one from the real question, which, as I have said, is to determine the nature of the use of the land. The fact that land is being used by a commercial enterprise does not necessarily mean that the land is being used for commercial purposes. A commercial enterprise might use a particular parcel of land for a purpose quite divorced from its usual commercial activities, for example, it might use a particular parcel for charitable purposes only. In other words, a commercial organisation and a non-commercial organisation might use land in the same way. Thus, the essential task is to determine the nature of the land use. In the final analysis, it might often be a question of fact and degree whether the use is for a commercial purpose or some other purpose: Lizzio v Ryde Municipal Council (1983) 155 CLR 211 at 217; 51 LGRA 114 at 117; Penrith City Council v Waste Management Authority (1990) 71 LGRA 376 at 384.”12 [33] Member Isdale also referred to Royal Agricultural Society of New South Wales v Sydney City Council, where McHugh JA, with whom Hope and Samuels JJA agreed, said: “Accordingly, a test has been devised which requires the purpose of the use of land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. Thus the test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. But it is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc as a class have made of the land.”13 [34] His Honour went on in APT to note what Preston J said in Chamwell Pty Ltd v Strathfield Council: “The characterisation of the purpose of development must also be done in a common sense and practical way.”14 [35] Member Isdale concluded with what the Planning and Environment Court said in Yu & Leung v Brisbane City Council & Anor: “[16] In determining the description which is applicable, the Court must undertake its task of characterisation in a practical and common sense way to determine the appropriate genus which best describes the activities in question. Where there are two or more defined purposes which are apt to cover a particular proposal, a ‘best fit’ approach is appropriate. What must be characterised is the proposal the subject of the application, rather than some further or other application which might be made at another time.”15 (citations omitted) 12 (1998) 97 LGERA 293, 298. 13 (1987) 61 LGRA 305, 310. 14 (2007) 151 LGERA 400, 408 [45]. 15 [2006] QPELR 102, 104 [16]. -- 11 of 44 -- 12 [36] All parties in their written submissions have referred to the relatively recent decision of the Court of Appeal in AAD Design Pty Ltd v Brisbane City Council,16 referring specifically to the decision of Chesterman JA as regards the applicability of the “best fit” concept as a principle of statutory construction. Chesterman JA was in the minority in AAD, but his observations regarding “best fit” were specifically referred to by Philippides J with whom Margaret Wilson AJA agreed. Philippides J had this to say: “There are a number of long established principles of construction recognised by the courts and I endorse the reservation expressed by Chesterman JA about the validity of the best fit test as a recognised canon of construction falling within that category. The applicant submitted before this Court that, in construing the provisions of the City Plan, the established principles and canons of statutory construction should be applied. I agree with that submission.”17 [37] Returning now to the observations of Chesterman JA in AAD, it is appropriate to quote from paragraph 45 to part way through paragraph 49 as I consider the majority in AAD to be in agreement with Chesterman JA to that extent: “[45] It is not strictly necessary to consider the legitimacy of the “best fit” as a canon of construction but this Court should, I think, express considerable doubt about its validity. It appears to have been first mentioned in a judgment of the P & E Court, Livingstone Shire Council v Brian Hooper & M3 Architecture and Others [2004] QPELR 308. Addressing the difficulty which arises when a development proposal might fit a number of definitions in a planning scheme the solution was proposed that one should search for the definition which best fits the proposal. The court expressed the view (at 315): “… a “best fit” approach appears … appropriate where … there are two defined uses (or more) each of which is apt to cover the proposal.” [46] This particular canon of construction appears unique to the Queensland P & E Court. While it may have practical attractions it offends the legal principle applicable to statutory construction pronounced by courts of the highest authority, and facilitates planning appeals by reference to intuitive judgments by those who specialise in that jurisdiction rather than by an objective and logical examination of the words of the statutory instruments in question, according to established legal doctrine. All statutes in all jurisdictions should be construed according to the same established legal principles. 16 [2013] 1 Qd R 1. 17 Ibid [73]. -- 12 of 44 -- 13 [47] Planning schemes confer rights and obligations; on the public, developers and local authorities. When a question arises as to the extent of a right or obligation it is to be answered by the application of legal principle to the construction of the instrument the words of which give rise to the rights and obligations. It is not to be determined by judicial intuition, even where the judge is a member of a specialist court. [48] If a proposed development satisfies two definitions, the rights and obligations which would follow from the conclusion that both definitions apply, are not to be abrogated because the judge has a preference for one result over another, or thinks that the local authority which drafted the planning scheme might have preferred the other. If two or more definitions are satisfied then the legal consequence set out in the planning scheme for a proposal which meets those definitions will all apply, and the developer may follow the path which suits its purposes best. [49] The result that several definitions may be satisfied by the one proposal with different or inconsistent consequences may be a powerful reason for construing the definitions to avoid the inconsistency or conflict. The construction must however occur in accordance with orthodox legal principles…” The key facts [38] Despite the length of the Agreed Statement of Facts set out in Attachment A, there are a small number of key facts which should be emphasised. [39] Apart from inconsequential “sausage sizzles” used as fundraising events for community groups, each Bunnings is a single commercial retail outlet which sells a variety of goods, such as hardware, home improvement and gardening but also coffee and snacks. Importantly, any transaction can be paid for at any register. There is an office for store staff at each Bunnings. They both also have significant car parks on site, as well as storage areas and advertising hoardings.18 [40] Neither Bunnings shares any buildings, car parking, business facilities or other amenities with any neighbouring or other business; they are standalone operations. [41] In simple terms, each Bunnings is a large, standalone, commercial retail outlet with significant off-street parking. 18 These statements are not meant to depart from what the ICC has submitted in paragraph 3 of its submissions, but merely shorten such statements. -- 13 of 44 -- 14 Does Category 44b apply? [42] There are a number of factors to consider in deciding if the factual circumstances of each Bunnings meet the requirements of Category 44b. A number of parts are self- evident. Each Bunnings has a rateable value of $5,000,000 or greater. Each is undoubtedly used for a commercial purpose. That then leaves one criterion to meet – the PCLUC’s. [43] In order to fall within Category 44b, the land must have any of the PCLUC’s for that Category. On the facts, as agreed, quite a number of PCLUC’s may apply. Those being PCLUC’s 11 Shop-Single; 17 Restaurant; 22 Car Park; 24 Sales Area (Outdoor); 25 Offices; 33 Outdoor Storage Area; 38 Advertising Hoarding; and 44 Nursery. [44] Although any of these PCLUC’s may apply and thus complete the requirements for Category 44b, it must be remembered that PCLUC’s are primary land use codes (emphasis added). Therefore, while a number of land use codes are carried out at each Bunnings, the primary one – and therefore the most applicable PCLUC as regards Category 44b – is PCLUC 11 Shop-Single. [45] The ICC has been very dismissive of any argument put to it that could see the Bunnings stores fall within Category 44b. Relevantly, the ICC’s submissions include the following: “Notwithstanding these uncontroversial facts (the massive retail areas, the very high number of off-street car parks, the diverse range of goods that are sold, and the large variety of distinct areas), the Appellants contend that each of the subject Bunnings ought to be categorised for rating purposes as a “Shop-Single”. To follow this through to its logical conclusion, the consequence of the Appellants’ contentions are that the Bunnings should be categorised for rating purposes in the exact same way as a local hairdresser, baker, Chinese take-away, local newsagent, local butcher, and the local corner convenience store. That would, with respect, be an absurd and anomalous outcome, and it is not the result on the proper construction of the Respondent’s Budget 2015-2016 (the Budget) The appellants’ contentions are akin to seeking to fit the square peg of a large box retail centre with massive retail areas and high numbers of off-street car parks into the round hole of a single shop that would apply to the local corner store.”19 “…It is the fact of the massive retail size of the Bunnings and the very high numbers of off-street car parks which means they cannot be a single shop.”20 19 Respondent’s submissions, para 4. 20 Ibid para 29. -- 14 of 44 -- 15 “This is important because, if the Appellant’s contentions are correct, each of the subject Bunnings would be categorised as a “Shop – Single” in the exact same way as a local corner store, bakery, newsagent, or butcher, notwithstanding the subject Bunnings both have around 15,000 sqm of GLA and over 300 off-street car parks. Clearly, the revenue-producing capacity of the subject rateable land is enormous and far-exceeds that of a local single shop.”21 “[T]he categorisation of each of the subject Bunnings as a “drive-in shopping centre” gives effect to harmonious goals and the avoidance of absurd outcomes, It could not have been the objective intention of the drafters of the Budget to allow a retail business in the nature of the subject Bunnings to be treated in the same way for rating purposes as a local corner store, bakery, newsagent, hairdresser, or butcher, given: (a) the massive retail size of the Bunnings; (b) the very high numbers of off-street parking; (c) the significant revenue-producing capacity of the land; (d) the significant benefit that the subject land receives from Council services and facilities (as evidenced by the high number of car parks and the custom that the Bunnings must attract).”22 [46] As persuasive as the ICC submissions try to be, they miss a fundamental point. A proper reading of the ICC Budget shows that inclusion of either Bunnings in Category 44b does not place it in the same category as the local newsagent or butcher shop, unless, that newsagent and/or butcher shop is on very valuable land. [47] There are, of course, six categories in the ICC Budget that the local newsagent or butcher shop could fall under. The determining factor is the rateable value of the land. Exactly the same PCLUC’s apply to categories 43a–d and 44a as apply to 44b. [48] It would indeed be a surprise if the local suburban newsagent or butcher shop, operating as a single business on its own small block of land, was located on rateable land valued at anything more than $500,000 – which would mean that they fall either within category 43a (rateable value of less than $200,000) or category 43b (rateable value of $200,000 to less than $500,000). [49] Further, even if the local newsagent or butcher shop was located on very valuable land, there are 3 more categories that apply (43c, 43d and 44a) before you get to Category 44b. 21 Ibid para 43. 22 Ibid para 45. -- 15 of 44 -- 16 [50] Although the value of the land does not necessarily equate to the size of the land, the Agreed Statement of Facts [120] shows that the West Ipswich Bunnings only just falls into Category 44b by having a valuation of $5,000,000; the lowest possible value to be in Category 44b. The Springfield Bunnings valuation is only in the order of 50% higher, at $7,621,204. Each Bunnings is on land with an area of less than 200,000 m2. Clearly, premises can be on land valued much higher (and therefore likely to be much larger) than either Bunnings and still be in Category 44b. [51] The ICC Budget in categories 43a–d and 44a–b have clearly envisaged single shops ranging in size from the small to the very large, on land ranging from cheap to ultra expensive. [52] I am in no doubt that the facts relevant to each Bunnings means that they fall squarely within all the elements of Category 44b, PCLUC 11 Shop-Single. Does Category 52a apply? [53] Having considered Category 44b, I now turn to Category 52a. Do the facts, as agreed, meet the requirements of that Category? [54] Just as there were for Category 44b, there are a number of essential elements to Category 52a. Firstly, the land has to meet any of the PCLUC’s for this rating Category. In this case, there is only one PCLUC, that being PCLUC 16 Drive-In Shopping Centre. I will consider the concept of Drive-In Shopping Centre in my detailed examination of that phrase further below. [55] The next criterion is that the land is to be used primarily as a Drive-In Shopping Centre. That of course involves the same considerations as PCLUC 16. [56] It is also a requirement of Category 52a that the Drive-In Shopping Centre has a GLA of 10,000 m2 to less than 20,000 m2 and that the land has an area of less than 200,000 m2. There is no dispute between the parties that the GLA requirement and land area for each Bunnings satisfies those criteria of Category 52a. That then leaves for consideration the crucial phrase “Drive-In Shopping Centre”. [57] As already noted, Drive-In Shopping Centre is defined in 2.2 of the ICC Budget. It is necessary to consider each element of that definition. -- 16 of 44 -- 17 [58] The definition refers to “a premises or a cluster of premises”. The ICC contends that each Bunnings is comprised of “a premises” as it is a singular term. BWP and W&V contend that, even if that is so, Category 44b is more specifically applicable to each Bunnings than all elements of the definition of Drive-In Shopping Centre. [59] Butterworths Australian Legal Dictionary (1997) defines premises, in part, as follows: “At common law, any place or land exclusively used or occupied by any person or business for whatever purpose. Premises may consist solely of land or buildings, or may encompass partly land and partly buildings. Houses or land recited in deeds will constitute premises at common law: Mowling v Justices of Hawthorn (1891) 17 VLR 150.” [60] Although elements of the law dictionary definition give a suggestion of multiple buildings, ‘any place or land’ strongly suggests the singular tense. A singular tense is strengthened by the use of the singular word ‘a’ before premises in the ICC definition. Even though the wording ‘a premises’ may be an unusual or infrequent English usage (the more usual being ‘the premises’), I am satisfied of the intent of the ICC Budget for Drive-In Shopping Centre to include a single business. [61] For completeness, I should note that although referring to a single business as a ‘shopping centre’ runs counter to the ordinary day-to-day meaning of shopping centre as a grouping together of a variety of shops to form one ‘centre’, that common usage is irrelevant due to the specific definition of Drive-In Shopping Centre contained in the ICC Budget. [62] The next element of the definition of Drive-In Shopping Centre is that the premises must be wholly or predominantly used for carrying out a retail business. Retail Business is defined in 2.2 of the ICC Budget as having the meaning in the Retail Shop Leases Regulation 2006 (RSLR 2006). Although the RSLR 2006 was repealed in 2016,23 it was current at the time of the ICC Budget for 2015/16. [63] Section 9 of the RSLR 2006 provided as follows: (1) A business is a retail business if— (a) it is a business mentioned in the schedule; or (b) its whole or predominant activity is, or is a combination of, the sale, hire or supply of goods or services mentioned in the schedule. (2) The wholesale sale of goods is not a retail business. 23 The RSLR 2006 was repealed on 2 December 2016 and replaced by the Retail Shop Leases Regulation 2016. -- 17 of 44 -- 18 [64] It is common ground from the facts that neither Bunnings is a wholesale operation and that both Bunnings comfortably fall within s 9(1) of the RSLR 2006. [65] The next element is that the premises is contained within one or more buildings or structures on one or more levels. That is clearly the case from the facts. [66] Finally, there is a requirement that the premises provide off-street parking for customer vehicles. It should be noted that the definition does not require a large or a massive amount of off-street parking for customer vehicles. [67] I am satisfied that there is no doubt that each Bunnings falls within Category 52a. What is the correct position when 2 categories can apply? [68] As the authorities referred to earlier show, it is not uncommon for two categories to apply to the one business, or for two legislative provisions to appear to be in conflict. [69] As AAD makes clear, in situations where this occurs there is no such principle as the “best fit” to determine which provision (category) should apply. What must be applied are orthodox legal principles. [70] The first principle to turn to is the intent of the legislation. What is the policy of the ICC Budget? I have already quoted the key elements of the ICC Budget in this regard at paragraph 21 of these reasons. Of course, the area in the ICC Budget relating to differential general rates as set out at paragraph 22 of these reasons must also be taken into account. [71] The ICC in its submissions refers to the ICC Budget and contends that the differential general rates principles demonstrate an express recognition, as a relevant principle to be applied in levying rates, of different revenue-producing capacity of land, and also recognition of the different level of benefits that rateable land in different rating categories receive from the ICC’s services and facilities. That however is only part of the story. [72] The ICC Budget clearly sets out in 3.2.2 that it intends to specifically levy differential general rates on all rateable land so as to avoid a substantial disparity in the general rates contributed by each rating category of rateable land. This favours the Bunnings stores falling under either Category 44b or 52a. 44b is but one of six like categories to which PCLUC 11 Shop-Single applies. -- 18 of 44 -- 19 [73] Applying the principles of the ICC Budget, each Shop-Single should be differentially rated based on the value of the rateable land on which they operate, resulting in a Shop-Single on highly valuable land contributing more to the ICC by way of rates than a Shop-Single on less valuable land. [74] Of course, exactly the same can be said of the various categories that refer to PCLUC 16 Drive-In Shopping Centre, except that the lowest PCLUC 16 category is more rigid than the lowest PCLUC 11 category. The cheapest level of Drive-In Shopping Centre is a rateable value of less than $3,000,000 and a GLA of less than 10,000 m2, meaning that a drive-in shopping centre on much less valuable land with a GLA much smaller than 10,000 m2 would be levied the same amount for rates as a potentially much larger premises. It should be remembered that the only distinction between PCLUC 16 as it applies to category 51a and 52a (potentially as the ICC contends a very small drive-in shopping centre and a massive Bunnings) is the GLA being under or over 10,000 m2. Or perhaps the “massive” (using the ICC’s words) Bunnings is not necessarily so massive after all, given that PCLUC 16 extends up to category 53d which applies to premises with a GLA of 45,000 m2 or greater and a land area of 200,000 m2 or greater. On the facts of this case, each Bunnings appears relatively small compared to the massive size of the premises contemplated in category 53d. [75] There is of course judicial authority as to the purpose of categorisation subordinate legislation. Land Court Member Divett in the categorisation case of Schokman v Brisbane City Council had this to say: “(20) …I note also that the purpose of the categorisation process is to equitably direct the appropriate liability of the appellants for rating purposes.”24 [76] In my view, Dr Divett’s words from Schokman remain true for the relevant considerations of the ICC Budget. The harmonious goals of the ICC Budget and the orthodox application of the principles of construction, as examined to date, continue to apply with equal force for a categorisation of each Bunnings as either 44b or 52a. Avoiding absurd outcomes [77] I have already quoted some of the submissions of the ICC where it submits that to categorise each Bunnings as 44b instead of 52a would lead to absurd outcomes. I will 24 [2001] QLC 40. -- 19 of 44 -- 20 not repeat the shortfalls in the ICC’s argument which I have already detailed in this regard. There is, however, a further point that needs to be made concerning absurd outcomes. [78] As part of the hearing process, the Court viewed two properties (in the presence of, and at the request of, the parties) in addition to the two Bunnings sites. Those additional sites are known as the Ipswich Home Base and the Green Street Shops. Paragraphs 135 to 137 of the Agreed Statement of Facts relate specifically to those two properties. Those paragraphs state as follows: “Ipswich Home Base and Green Street Shops 135. The Ipswich Home Base in item 8 of Table 1: (a) was occupied by a variety of predominantly retail businesses during the 2015-2016 financial year; (b) was identified in drive-in shopping centre rating category 51b for the whole of the 2015-2016 financial year; and (c) has an approximate GLA of 13,000m2. 136. The Ipswich Home Base in item 8 of Table 1 was identified in rating category 51b for the whole of the 2015-2016 financial year apparently due to an administrative error, given that the land has a GLA greater than 10,000m2. 137. The Green Street Shops in item 9 of Table 1: (a) was occupied by several small scale retail or similar businesses during the 2015-2016 financial year; (b) was identified in commercial purpose rating category 43d for the whole of the 2015-2016 financial year; (c) has an approximate GLA of 1,500m2; and (d) has off-street car parking for customer vehicles.” [79] I certainly agree with the ICC that there are synergies between both Bunnings and the Ipswich Home Base. However, I also agree with BWP and W&V that there are important considerations that come into play as regards the Green Street Shops. [80] The ICC has made much of what it calls the huge number of off-street car parks as a key feature for each Bunnings to be properly classified as Category 52a. The definition relating to PCLUC 16 however makes no reference to the size of the off- street car parking facilities being in any way relevant. [81] Applying then the ICC’s reasoning to the categorisation of the Green Street Shops, those premises can be seen to meet every requirement of either category 51a or b (depending on the valuation of the land), which is of course in the same rating family -- 20 of 44 -- 21 as Category 52a. Why then, it can be asked, has the ICC applied category 43d? Could it be that a harmonious approach means that to classify the Green Street Shops as a Drive-In Shopping Centre is not consistent with the purposes of the ICC Budget regarding PCLUC 16? If that is the ICC’s reasoning, I tend to agree. However, that is not what the ICC submits. Relevantly, at [33] of its submissions the ICC says that the use of the land for a large format25 Bunnings do come within the letter of “drive-in shopping centre”, making Category 52a the relevant category. Looked at that way, PCLUC 16 should also strictly apply to the Green Street Shops. Clearly, strict compliance with PCLUC 16 is not the determinative factor for the proper categorisation of land. To do so would clearly lead to an “absurd” result for the Green Street Shops. Section 14A of the AIA [82] It is now necessary to consider s 14A of the AIA. It provides as follows: 14A Interpretation best achieving Act’s purpose (1) In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. (2) Subsection (1) does not create or extend criminal liability, but applies whether or not the Act’s purpose is expressly stated in the Act. (3) To remove any doubt, it is declared that this section applies to an Act passed after 30 June 1991 despite any presumption or rule of interpretation. Example— There is judicial authority for a rule of interpretation that taxing legislation is to be interpreted strictly and in a taxpayer’s favour (for example, see Partington v AG (1869) LR 4 HL 100 at 122). Despite such a possible rule, this section requires a provision imposing taxation to be interpreted in the way that best achieves the Act’s purpose, whether or not to do so would be in a taxpayer’s favour. [83] The ICC strongly contends that s 14A has the result that it is not appropriate to apply any common law principle that taxing legislation (which the ICC Budget clearly is) should be interpreted strictly and in the taxpayer’s favour.26 BWP and W&V strongly submit that such an interpretation takes the operation of s 14A too far.27 I agree. 25 As regards the use by the ICC of the words ‘large format’, those words do not fall within the letter of PCLUC 16 and categories 51a and 53d. The GLA can be any size less than 10,000 m2, the value of the land any amount less than $3,000,000, and/or the size of the land anything less than 200,000 m2. 26 Respondent’s submissions, paras 17–8. 27 T 1-19, line 13 to T 1-20 line 16. -- 21 of 44 -- 22 [84] What s 14A of the AIA clearly does is to say that the interpretation that best suits the purpose of the act is to be preferred to any other interpretation. The application of the orthodox principles of construction are to apply to the process of evaluation as referred to in AAD and cases such as Project Blue Sky. [85] I have applied the orthodox principles of statutory interpretation. Notwithstanding that application of the orthodox principles, either Category 44b or Category 52a could apply. The clear purpose of the ICC Budget is to equitably direct the appropriate liability of ratepayers for rating purposes. Either Category satisfies that, and under either Category BWP and W&V will make a significant contribution to the ICC rates base, with either Category applying a far greater burden on each Bunnings than applies to the corner butcher shop. [86] How, then, can this deadlock be separated? The simple answer is at this point, after having exhausted the orthodox principles, to apply an outcome that has the least impact on the taxpayer. As Dr Divett put it in Schokman: “In seeking guidance on the appropriate alternative strategies for categorising the subject land, I am directed by Mr Jones to directions in respect of matters as they relate to legislation dealing with taxing regimes. … The key principle of such a scenario rests upon the principle that areas of doubt should be resolved in the appellants' favour.”28 [87] In case it is said that Schokman relates to the City of Brisbane Act 1924 and therefore to an act passed prior to 30 June 1991, that is not the case. Just as is the case in the matter at hand, the relevant provision is to be found in subordinate legislation, being a local authority budget – see Schokman at [15]. I note also that Dr Divett made specific reference to s 14A of the AIA – at [25]. [88] Such an outcome is also consistent with the Land Court decision of Member Isdale in BWP Management Limited v Valuer-General,29 under the Land Valuation Act 2010, where this Court referred to doubts being determined in the taxpayers favour. 28 [2001] QLC 40 [20]. 29 [2014] QLC 3 [52]–[53]. -- 22 of 44 -- 23 Conclusion [89] Accordingly, with respect to both the West Ipswich Bunnings and the Springfield Bunnings, it is appropriate that the rating category for each property be changed from Category 52a to Category 44b. ORDERS: In the matter of LGR282-16: 1. The appeal is allowed. 2. The rating category for the West Ipswich Bunnings is changed from Category 52a to Category 44b. In the matter of LGR283-16: 1. The appeal is allowed. 2. The rating category for the Springfield Bunnings is changed from Category 52a to Category 44b. PA SMITH MEMBER OF THE LAND COURT -- 23 of 44 -- 24 “A” Agreed Statement of Facts Preliminary 1. This Agreed Statement of Facts contains the following sections: (a) Background to the appeals (b) Council's 2015-2016 Budget (c) Bunnings generally (d) West Ipswich Bunnings (e) Springfield Bunnings (f) Examples of other rateable land Background to the appeals West Ipswich Property 2. The proceeding bearing number LGR282/2016 concerns the rates levied by the Ipswich City Council (Council) in relation to a property with a street address of 6 Clay Street, West Ipswich, Queensland (West Ipswich Property). 3. The West Ipswich Property is properly described as Lot 1 on SP272667 being the whole of the land comprised in the title reference 50977247 which is derived from title 50908612. Historically, the property bearing title reference 50908612 was part of Lot 1 on SP169053. 4. By notice of assessment no. 177660 dated 18 January 2016 and sent to BWP Management, the Council levied rates relating to the West Ipswich Property for the period 1 January to 31 March 2016 (West Ipswich January 2016 Rates Notice). 5. The West Ipswich January 2016 Rates Notice identified the West Ipswich Property as being within rating category 52a. 6. By letter dated and sent by email on 22 April 2016 from Mr Raymond Berryman, Director of Fitzroys Pty Ltd (Fitzroys), BWP Management lodged a notice of objection to the West Ipswich January 2016 Rates Notice with the Council, on the -- 24 of 44 -- 25 basis that the West Ipswich Property should properly be identified in rating category 44b. Springfield Property 7. The proceeding bearing number LGR283/2016 concerns the rates levied in relation to a property with a street address of 75 Southern Cross Circuit, Springfield Central, Queensland (Springfield Property) for the period 1 January 2016 to 31 March 2016 8. The Springfield Property is properly described as Lot 771 on SP266512 being the whole of the land comprised in the title reference 50931893. 9. By notice of assessment no. 174873 dated 18 January 2016, the Council levied rates relating to the Springfield Property for the period 1 January to 31 March 2016 (Springfield January 2016 Rates Notice). 10. The Springfield January 2016 Rates Notice identified the Springfield Property as being within rating category 52a. 11. The Springfield January 2016 Rates Notice was issued to Bunnings Properties, the previous owner of the Springfield Property, and posted to the address of Bunnings Support Office at Rosehill in New South Wales. 12. By letter dated and sent by email on 22 April 2016 from Fitzroys, W & V Nominees lodged a notice of objection to the Springfield January 2016 Rates Notice with the Council, on the basis that the Springfield Property should properly be identified within rating category 44b. Council’s Decision on Objections 13. On 8 June 2016, Mr Berryman received a notice from the Council (dated 1 June 2016) in reply to the objection letters sent by Fitzroys (dated 22 April 2016) in relation to both the Springfield and West Ipswich Properties informing the objections were rejected. Council’s 2016-2016 Budget -- 25 of 44 -- 26 14. Each year the Council prepares and adopts a budget which sets out, amongst other things, the differential rating categories and applicable rates to be levied for that financial year. 15. The City of Ipswich Budget 2015-2016 (2015-2016 Budget) is the relevant budget document for the rates notices the subject of these appeals, which was adopted by the Council at its budget meeting on 30 June 2015. 16. The differential rating categories that apply for the 2015-2016 financial year are set out in Table 1 in Part 2 of the 2015-2016 Budget, which lists a total of 55 differential rating categories. 17. The Council's revenue policy for the 2015-2016 financial year is contained in Part 14 (Revenue Policy) of the 2015-2016 Budget, which states: (a) at section 3.1 (General policy statement): "The Council has adopted a set of principles relating to the levying of rates and charges … The Council will take account of the principles of equity, economic efficiency and simplicity in levying rates and charges and granting concessions for rates and charges." (b) at section 3.2.2 (Differential general rates); "… It is recognised that a single rate applied to all rateable land in the local government area would result in a substantial disparity in the general rates contributed by each rating category for rateable land. For rateable land that is used for residential purposes or is used for commercial activities a higher rate may be applied than that applied to rateable land that has no capacity to produce revenue such as rateable land used for a residential purpose which is occupied by the land owner. This reflects the revenue-producing capacity of rateable land that may be rented or is used for commercial activities. … Differential general rates will be set at levels: (a) to generate revenue sufficient to meet the difference between the outlays of the Council's business activities less any ordinary business -- 26 of 44 -- 27 or trading income, grants, subsidies or contributions received in respect of those programs and any internal financial accommodation arranged; (b) that recognise the different revenue-producing capacity of rateable land within the local government area; and (c) that recognise the differing level of benefits that rateable land in different rating categories receive from the Council's services and facilities."s 18. Section 3.2.4 (Minimum amount of general rates and special rates and charges) of the Council's revenue policy in Part 14 of the 2015-2016 Budget states: "The Council has determined that due to the cost of providing a minimum service to rateable land, an equitable contribution per rateable land is to apply in relation to the funding of the Council's services and facilities and that this contribution is to be made irrespective of where the rateable land is located or its valuation. The Council has also determined that rateable land in certain rating categories may have a different minimum amount of general rates to that applying to other rating categories." 19. The 2015-2016 Budget employs various different criteria, sometimes alone, but often in combination, to identify the applicable rating category for rateable land, including: (a) whether land is vacant; (b) the location of the land; (c) the nature of the title and/or occupancy or potential occupancy of the land; (d) the nature of any primary use of the land; (e) the nature of any secondary use of the land; (f) the land area; (g) the rateable value of the land; (h) the number of dwellings on the land; and (i) the gross lettable area of the use Commercial purpose rating categories 43a to 44b 20. Rating categories 43a through to 44b apply to land used for a commercial purpose. -- 27 of 44 -- 28 21. The criteria for rateable land for the commercial purpose rating categories include that the land: (a) has its principal use as any of the Primary Council Land Use Codes (PCLUC) for the rating category; and (b) is primarily used for commercial purposes. 22. A total of 31 PCLUCs apply to all 6 of the commercial purpose rating categories, including "11 Shop - Single". 23. The commercial purpose rating categories also differentiate between rateable land based on the rateable value of the land, ranging from a rateable value of less than $200,000 (category 43a) through to a rateable value of greater than $5,000,000 (category 44b) 24. The 2015-2016 Budget does not define: (a) PCLUC "11 Shop - Single"; (b) the term "shop"; (c) the term "single"; (d) the term "shop-single"; or (e) the term "commercial use". 25. The 2015-2016 Budget does not impose any limitation upon: (a) the size or scale of a “shop” or a “shop-single” or a “commercial use”; or (b) the area of land upon which a “shop” or “shop-single” or “commercial use” may be located. 26. The 2015-2016 Budget does not specify that a “shop-single” must be the only use of land for rating categories 43a to 44b, but only that that use must be the principal use of that land. 27. Under the 2015-2016 Budget the differential general rate levied on the rateable value of rateable land in each of the commercial purpose rating categories ranged from 1.7542 cents in the dollar (category 43a) to 2.3682 cents in the dollar (category 44b). 28. Commercial purpose rating category 43a fixed a minimum general rate of $1,186. No other commercial purpose rating category fixed a minimum amount of general rates. -- 28 of 44 -- 29 Drive-in shopping centre rating categories 51a to 53d 29. Rating categories 51a to 53d apply to land used for a drive-in shopping centre. 30. The criteria for rateable land to be identified in drive-in shopping centre rating categories 51a through to 53d include that the land: (a) has its principal use that is any of the PCLUCs for the rating category (for which the only PCLUC is PCLUC “16 Drive-in Shopping Centre”); and (b) is primarily for a drive-in shopping centre. 31. Rating categories 51a and 51b also differentiate between rateable land based on the rateable value of the land ranging from a rateable value of less than $3,000,000 (category 51a) to a rateable value of $3,000,000 or greater (category 51b). 32. Rating categories 52a to 53d do not differentiate between rateable land based on the rateable value of the land. 33. Rating categories 51a to 53d also differentiate between rateable land based on the scale of the "Drive-in Shopping Centre" use by reference to the gross lettable area (GLA) of that use specified in each category, ranging from a GLA of less than 10,000m2 (category 51a) to a GLA of 45,000m2 or greater (category 53d). 34. Rating categories 52a to 53d also differentiate between rateable land based on land area, ranging from a land area of less than 200,000m2 (categories 52a, 52b, 52c and 52d) to a land area of 200,000m2 or greater (categories 53a, 53b, 53c and 53d). 35. The drive-in shopping centre rating categories are the only rating categories that differentiate between rateable land based on the scale of the use by reference to the GLA of the specific rateable land Drive-in Shopping Centre use. 36. The multi residential rating categories (categories 22a through to 22h): (a) also do not differentiate between rateable land based on the rateable value of the land; and (b) differentiate between rateable land, but based on the number of dwellings comprising the specific Multi Residential Dwelling use. -- 29 of 44 -- 30 37. There is only one PCLUC which applies to land in the drive-in shopping centre rating categories, being "16 Drive-in Shopping Centre". 38. PCLUC "16 Drive-in Shopping Centre" is the only PCLUC defined in section 2.2 (Definitions) in Part 2 of the 2015-2016 Budget, which states: "Drive-in shopping centre means a premises or a cluster of premises that: (a) is used wholly or predominately for carrying out a retail business; and (b) is contained within one or more buildings or structures on one or more levels; and (c) provides off-street parking for customer vehicles." 39. Unlike rating categoriy 45 under the 2015-2016 Budget, ratings categories 43a to 44b (the commercial purpose rating categories) and rating categories 51a to 53d do not contain exclusions based upon the operation of other rating categories. 40. Under the 2015-2016 Budget, the differential general rate levied on the rateable value of rateable land in each of the drive-in shopping centre rating categories ranged from 2.6002 cents in the dollar (category 51a) to 4.5054 cents in the dollar (category 53d). 41. Drive-in shopping centre rating categories 51a and 51b did not fix a minimum amount of general rates. 42. Drive-in shopping centre rating categories 52a to 53d fixed a minimum amount of general rates, which increases from $518,462 (category 52a) through to $2,505,347 (category 53d). Bunnings Generally 43. Bunnings operates approximately 56 warehouses and small format Bunnings. 44. Bunnings sells goods to the home improvement and outdoor living retail market as well as to project builders, commercial tradespeople and the housing industry. 45. The predominant use of a Bunnings is the carrying out of a retail business. 46. Bunnings' retail operations comprise a network of Bunnings in a variety of formats. The most typical Bunnings formats are: (a) Bunnings large format, of which there are 36; -- 30 of 44 -- 31 (b) Bunnings small format, of which there are 13 in Queensland; (c) Bunnings trade centres, of which there are 7 in Queensland. 47. The Bunnings at West Ipswich and Springfield are large format Bunnings. 48. A large format Bunnings involves retail sales to members of the public, including trade customers (who may obtain a further discount on the retail price as a result of their role in the building and construction industry). 49. A large format Bunnings operates as a single warehouse with various product categories (with different parts of the warehouse displaying different categories of product). The differing product categories are either in the same area (identifiable by different aisles and shelves) or in different parts of the Bunnings (for instance, in the nursery or timber yard) but they are all part of the one retail business. 50. The Council levied differential general rates for each of the West Ipswich Property and Springfield Property the subject of these proceedings by applying differential general rating category 52a on the basis that the principal use of each property is a "drive-in shopping centre " as defined by the Council's 2015-2016 Budget. 51. Each of the Bunnings located at West Ipswich and Springfield are standalone Bunnings that share no buildings, car parking, business facilities or other amenities with any neighbouring or other businesses. 52. No other business operates within either of the Bunnings. 53. The only third party activity within each of the Bunnings is a charitable activity, by way of a "sausage sizzle" that Bunnings allows non-profit community groups to conduct on weekends. 54. Bunnings operates each of its warehouses as a destination for customers from the local community to fulfil all of their home improvement and outdoor needs at a single business location. 55. The leases for each of the West Ipswich and Springfield properties respectively (exhibited at LMN6 and LMN21 to the Affidavit of Louise Marie Nixon sworn on 7 August 2017) specifies that Bunnings leases the whole of the West Ipswich and Springfield properties, including the car parking areas, for its exclusive use and -- 31 of 44 -- 32 occupation. The ingress and egress points to the Bunnings car parks and the Bunnings are for the use of Bunnings' customers only. West Ipswich Bunnings 56. Since 19 November 2014, BWP Management Ltd (ACN 082 856 424) (BWP Management) has been the registered owner of the West Ipswich Property. 57. On 20 October 2014 a lease was executed in relation to the West Ipswich Property between Bunnings Group Limited (Bunnings Group) and BWP Management Limited. The lease commenced on 12 September 2014 and expires on 11 September 2026. 58. There are terms of the West Ipswich Property lease as follows: (a) Bunnings Group leases the whole of the West Ipswich Property including all carparking areas and improvements on the land for its exclusive use; and (b) Bunnings Group will pay all council rates levied for the property. 59. The predominant use of the West Ipswich Property is to carry out a retail business by way of a large format Bunnings(West Ipswich Bunnings). 60. The West Ipswich Bunnings opened on 12 September 2014. 61. The West Ipswich Bunnings has a gross lettable area (GLA) of approximately 14,985sqm and provides a total of 375 off-street car parks for use by customers. 62. The West Ipswich Bunnings contains areas dedicated to the following categories of products as part of an integrated and comprehensive design: (a) building hardware and fixings; (b) painting and storage; (c) garden lifestyle; (d) outdoor living; (e) home furnishings; (f) electrical; (g) plumbing and kitchens; and (h) power tools and hand tools. 63. In order to accommodate the categories of above, the West Ipswich Bunnings has: -- 32 of 44 -- 33 (a) a main warehouse area; (b) outdoor storage area; (c) outdoor sales areas; (d) an outdoor nursery; (e) café; (f) offices; (g) carpark; and (h) signs/advertising hoarding. 64. The West Ipswich Bunnings also includes incidental customer-assistant services including: (a) information desk; (b) special orders counter; (c) paint tinting service; (d) playground area; and (e) do it yourself area. 65. The predominant retail space is the main warehouse that houses all categories of products, with the exception of nursery and timber products. The nursery and timber products are located in areas connected to, and accessible from, the main warehouse. 66. All areas of the West Ipswich Bunnings are accessible to customers and there is no restriction on where customers can purchase items. The retail warehouse floor operates as a standard retail floor where a customer can purchase items from any category of products and pay for them at any register located throughout the warehouse, nursery or timber area. 67. Customers can enter the West Ipswich Bunnings using a travelator located in the carpark located beneath the warehouse at which point they can elect whether to enter the main warehouse or through the nursery. Customers who wish to purchase timber products can drive to a separate entry point to collect timber products. The nursery and timber areas can also be accessed via walking from the main warehouse. 68. Stock is delivered to the West Ipswich Bunnings in two ways: (a) from distribution centres; and (b) directly by suppliers. -- 33 of 44 -- 34 69. The majority of stock received at the West Ipswich Bunnings is received directly from suppliers. Bunnings' staff then arrange for the stock to be displayed in the Bunnings. 70. All products that can be seen in the West Ipswich Bunnings, with the exception of Bunnings infrastructure, are available for purchase by customers. This includes stock at ground level and stored on shelves. 71. Bunnings manages its inventory at the West Ipswich Bunnings through invoice and by conducting stocktakes once to twice per year in accordance with the Wesfarmers' auditing requirements. 72. The areas of the West Ipswich Bunnings that have service counters and registers for completing purchases include: (a) front of Bunnings/entry area; (b) trade area; (c) special orders; (d) nursery; and (e) café. 73. In addition, there are two iPod units that enable purchases to be completed on a mobile device and a receipt printed. These are available to be used by customers paying by EFTPOS. 74. The self-service register is also only available for customers using EFTPOS to complete their transaction. 75. The registers used in each area are: (a) common throughout the rest of the West Ipswich Bunnings; and (b) facilitate the purchasing of items collected from any part of the West Ipswich Bunnings. 76. Although it is unlikely to be convenient, a customer could alternatively select an item of timber from the timber trade service area (TTS), proceed to the Hardware Section and finish at the café purchasing a coffee and their timber and hardware at the café register. -- 34 of 44 -- 35 77. In addition, the register system used by Bunnings at the West Ipswich Bunnings can save a partially completed purchase to enable the customer to collect a "forgotten" or additional item and to then locate the partially completed transaction at any other register throughout the Bunnings when it may then be finalised (or cancelled). 78. The West Ipswich Bunnings is designed to enable the customer to walk through multiple sections, selecting various items and pay at any of the registers (being a staffed register, self-service register or mobile register). 79. The advertising hoarding at the West Ipswich Bunnings is solely used to advertise the location or presence of the Bunnings. It is never leased or licensed for use by any other entities to advertise. 80. The carpark at the West Ipswich Bunnings is solely for the use of Bunnings' patrons. Bunnings does not charge customers for parking on its premises. The carpark at the West Ipswich Bunnings is solely for the use of Bunnings' customers because the warehouse is not adjacent to any other businesses and it is not co-located with other businesses. There is no integration of carparking for the West Ipswich Bunnings with any other property or business. 81. As part of its commitment to the local community, charities may apply to fundraise at the West Ipswich Bunnings. The predominant activity is the operation of a sausage sizzle each Saturday and Sunday but other forms of fundraising include conducting raffles and the selling of poppies in the lead up to Remembrance Day. When charities operate the sausage sizzle, Bunnings supplies: (a) the barbeque; (b) gas for the barbeque; and (c) the gazebo. 82. During the course of a sausage sizzle, if the gas runs out, Bunnings' staff are responsible for changing the gas canister to ensure the risk to patrons and the charity is managed. 83. All proceeds from fundraising at the West Ipswich Bunnings go directly to the charity concerned. -- 35 of 44 -- 36 84. In addition to the onsite carpark, Bunnings provides other public amenities for customers visiting the West Ipswich Bunnings, including a Hardware Café and bathroom facilities. 85. The amenities are located within the Bunnings rather than outside the warehouse or in a separate building. 86. Revenue received from all products purchased at the café forms part of the revenue for the Bunnings West Ipswich Bunnings. 87. All the buildings and structures at, and the activities conducted upon, the West Ipswich Property are related only to the operation of the West Ipswich Bunnings as a standalone Bunnings. Springfield Bunnings 88. The Springfield Property was owned by Bunnings Properties Pty Ltd (ACN 008 557 622) (Bunnings Properties) but was transferred to W & V Nominees Pty Ltd (ACN 606 755 239) (W & V Nominees) by transfer to trustee registered on 15 December 2015. 89. On 2 December 2015, Bunnings Group leased the Springfield Property from Bunnings Properties. The lease commenced on 13 December 2015 and expires on 12 December 2027. 90. There are terms of the Springfield Property lease as follows: (a) Bunnings Group leases the whole of the Springfield Property including all carparking areas and improvements on the land for its exclusive use; and (b) Bunnings Group is responsible for the payment of all rates levied by the Council or to reimburse the landlord (now W & V Nominees Pty Ltd in respect of same). 91. The predominant use of the Springfield Property is to carry out a retail business by way of a large format Bunnings(Springfield Bunnings). 92. The Springfield Bunnings opened on 6 August 2015. -- 36 of 44 -- 37 93. The Sprinfield Bunnings has a GLA of approximately 15,972sqm and provides a total of 325 off-street car parks for use by customers. 94. The Springfield Bunnings contains areas dedicated to the following categories of products as part of an integrated and comprehensive design: (a) Building hardware and fixings; (b) Painting and storage; (c) Garden lifestyle; (d) Outdoor living; (e) Home furnishings; (f) Electrical; (g) Plumbing and kitchens; and (h) Power tools and hand tools. 95. In order to accommodate the categories above, the Springfield Bunnings also has: (a) A main warehouse area; (b) Outdoor storage area; (c) Outdoor sales areas; (d) An outdoor nursery; (e) Café; (f) Offices; (g) Car park; and (h) Signs/advertising hoarding. 96. The Springfield Bunnings also includes incidental customer-assistance services including: (a) Information desk; (b) Special orders counter; (c) Paint tinting service; (d) Playground area; and (e) Do It Yourself area. 97. In the same way as the West Ipswich Bunnings and other large format Bunnings, the predominant retail space at the Springfield Bunnings is the main warehouse that houses all categories of products with the exception of nursery and timber products. -- 37 of 44 -- 38 The nursery and timber products are located in areas connected to, and accessible from, the main warehouse. 98. Similarly, all areas of the Springfield Bunnings are accessible to customers and there is no restriction on where customers can purchase items. The retail warehouse floor operates as a standard retail floor where a customer can purchase items from any category of products and pay for them at any register located throughout the warehouse, nursery or timber area. 99. Customers enter the Springfield Bunnings from a car-park used solely by Bunnings' customers from where they can elect to enter the main warehouse, the nursery or timber area. Customers wishing to purchase timber products, may also drive to a separate entry to collect timber products. A customer entering the Bunnings from the nursery, has equal access to the main warehouse and timber storage area. The nursery and timber area are also accessible from the main warehouse. 100. Stock is delivered to the Springfield Bunnings in two ways: (a) From distribution centres; and (b) Directly from suppliers. 101. The majority of stock received at the Springfield Bunnings is delivered by suppliers. Bunnings' staff then arrange for the stock to be displayed in the Bunnings. 102. All products that can be seen in the Springfield Bunnings, with the exception of Bunnings infrastructure, are available for purchase by customers. This includes stock at ground level and stored on shelves. 103. Bunnings manages its inventory at the Springfield Bunnings through invoicing and by conducting stock takes once to twice per year in accordance with Wesfarmers' auditing requirements. 104. The areas of the Springfield Bunnings that have service counters and registers for completing purchases include: (a) Front of Bunnings/entry area; (b) Trade area; (c) Special orders counter; (d) Nursery; and (e) Café. -- 38 of 44 -- 39 105. In addition and consistent with the format at West Ipswich, there are two iPod units available at the Springfield Bunnings to enable customers to complete purchases on a mobile device and to have a receipt printed anywhere in the warehouse, timber area or nursery. These are available to be used by customers paying by EFTPOS. 106. The utility of the mobile device is best explained when considering a customer who attends the Springfield Bunnings to swap a gas canister. They may pay for the replacement canister without needing to enter the main warehouse or attending a register. 107. The self-service register is also only available for customers using EFTPOS to complete their transaction. 108. The registers used in each area are: (a) common throughout the whole of the Springfield Bunnings; and (b) facilitate the purchasing of items from any part of the Springfield Bunnings. 109. Although it is unlikely to be convenient, a customer may select an item of timber from the TTS, proceed to the Hardware section and finish at the café purchasing a coffee and their timber and hardware at the café register. 110. In addition, the register system used by Bunnings at the Springfield Bunnings can save a partially completed purchase to enable a customer to collect a 'forgotten' or additional item and to then locate the partially completed transaction at any other register throughout the Bunnings where it may then be finalised (or cancelled). 111. The Springfield Bunnings is designed to enable a customer to walk through multiple sections, selecting various items and pay at any staffed register, self-service register or mobile register. 112. The advertising hoarding at the Springfield Bunnings is solely used to advertise the location or presence of the Bunnings. It is never leased or licensed for use by other entities to advertise. 113. The car park at the Springfield Property is solely for the use of Bunnings' patrons. Bunnings does not charge customers for parking on its premises. The car park at the Springfield Bunnings is solely for the use of Bunnings' customers because the -- 39 of 44 -- 40 warehouse is not adjacent to any other businesses and it is not co-located with other businesses. There is no integration of car parking for the Springfield Bunnings with any other property or business. 114. As part of its commitment to the local community, charities may apply to fundraise at the Springfield Bunnings. The predominant activity is the operation of the sausage sizzle but other forms of fund-raising include conducting raffles and the selling of poppies in the lead up to Remembrance Day. When charities operate a sausage sizzle, Bunnings supplies: (a) The BBQ; (b) Gas for the BBQ; and (c) The gazebo. 115. During the course of a sausage sizzle, if the gas runs out, Bunnings' staff are responsible for changing the gas canister to ensure the risk to patrons and charity workers is managed. 116. All proceeds from fundraising at the Springfield Bunnings go to the charity concerned. 117. In addition to the on-site car park, Bunnings provides other public amenities for customers visiting the Springfield Bunnings, including the Hardware Café and bathroom facilities. The amenities are located within the Bunnings rather than outside the warehouse or in a separate building. 118. Revenue received from all products purchased at the café forms part of the revenue for the Springfield Bunnings. 119. All of the buildings and structures at, and the activities conducted upon, the Springfield Property are related only to the operation of the Springfield Bunnings as a stand-alone Bunnings. Examples of Other Rateable Land 120. The Table below identifies the rating category the Council has applied to certain land (Table 1). -- 40 of 44 -- 41 121. Table 1 identifies the rating category, GLA, rateable value and the amount of differential general rates levied for the 2015-2016 financial year in respect of the following: (a) The West Ipswich Property and Springfield Property that are the subject of these appeals (items 1 – 2); (b) Examples of other rateable land, including land used for a Bunnings or Masters (items 3 - 7); and (c) The Ipswich Home Base located at 339 Brisbane Street, West Ipswich and the Green Street Shops located at 22A Green Street, Booval (items 8 - 9). 122. The West Ipswich Property in item 1 of Table 1: (a) was identified in the drive-in shopping centre rating category 52a for each quarter of the 2015-2016 financial year; and (b) has an approximate GLA of 14,228m2. 123. The Springfield Property in item 2 of Table 1: (a) was identified in the commercial purpose rating category 44b for the first quarter of the 2015-2016 financial year; -- 41 of 44 -- 42 (b) was identified in drive-in shopping centre rating category 52a for the second, third and fourth quarters of the 2015-2016 financial year; and (c) has an approximate GLA of 15,971m2. 124. While the Council's historical rates notices provide a record of the differential rating category that rateable land was identified in at a particular point in time, the rates notices do not record the Primary Council Land Use Code (PCLUC) that applied to the land at that time. 125. Council’s rating system only records the current PCLUC applied to the land, it does not record the PCLUC that applied to the land during the 2015-2016 financial year. 126. It is unknown what PCLUC was applied by Council to the Springfield Property in the first quarter of the 2015-2016 financial year that caused it to be identified in general commercial rating category 44b. 127. The Springfield Bunnings opened in August 2015 which was during the first quarter of the 2015-2016 financial year. This suggests that the PCLUC for the Springfield Central Land at the time the rates notice for the first quarter of the 2015-2016 financial year was issued was "12 Construction Site - Commercial", which corresponds with commercial purpose rating category 44b. 128. Items 3 to 7 of Table 1 are examples of other rateable land. 129. The rateable land in item 3 of Table 1: (a) was formerly occupied by a Bunnings hardware; (b) ceased to be occupied by Bunnings prior to or soon after the opening of the new Bunnings in Bundamba; (c) was identified in drive-in shopping centre rating category 51b for the whole of the 2015-2016 financial year; and (d) has an approximate GLA of 8,500m2. 130. The rateable land in item 4 of Table 1: (a) is located adjacent to the Springfield Property (across Main Street); (b) was occupied by a Masters hardware (a former competitor of Bunnings) and co-located with a McDonalds for the whole of the 2015-2016 financial year; -- 42 of 44 -- 43 (c) was identified in drive-in shopping centre rating category 51b for the first half of the 2015-2016 financial year; (d) was identified in drive-in shopping centre rating category 52a for the second half of the 2015-2016 financial year; and (e) has an approximate GLA of 12,521m2. 131. The Masters land at 100 Hoepner Road, Bundamba in item 4 of Table 1 was identified in rating category 51b for the first half of the 2015-2016 financial year, apparently due to an administrative error given that the land has a GLA greater than 10,000m2. From a review of the Council's records it appears that the administrative error was identified and the rating category for the land was subsequently corrected to rating category 52a prior to the levying of rates for the period 1 January 2016 to 31 March 2016. 132. The rateable land in item 5 of Table 1: (a) was also occupied by a Masters hardware for the whole of the 2015- 2016 financial year; (b) was identified in drive-in shopping centre rating category 52a for the whole of the 2015-2016 financial year; - (c) has an approximate GLA of 10,558m2; and (d) has off-street car parking for customer vehicles. 133. The rateable land in item 6 of Table 1: (a) was occupied by a Coles supermarket and co-located with a Liquorland for the whole of the 2015-2016 financial year; (b) was identified in drive-in shopping centre rating category 51b for the whole of the 2015-2016 financial year; and (c) has an approximate GLA of 6,400m2. 134. The rateable land in item 7 of Table 1: (a) is commonly known as Yamanto Shopping Village; (b) was occupied by a variety of predominantly retail businesses, as well as restaurants, personal services, recreational and medical businesses during the 2015-2016 financial year; (c) was identified in drive-in shopping centre rating category 52a for the whole of the 2015-2016 financial year; and -- 43 of 44 -- 44 (d) has an approximate GLA of 11,784m2. Ipswich Home Base and Green Street Shops 135. The Ipswich Home Base in item 8 of Table 1: (a) was occupied by a variety of predominantly retail businesses during the 2015-2016 financial year; (b) was identified in drive-in shopping centre rating category 51b for the whole of the 2015-2016 financial year; and (c) has an approximate GLA of 13,000m2. 136. The Ipswich Home Base in item 8 of Table 1 was identified in rating category 51b for the whole of the 2015-2016 financial year apparently due to an administrative error, given that the land has a GLA greater than 10,000m2. 137. The Green Street Shops in item 9 of Table 1: (a) was occupied by several small scale retail or similar businesses during the 2015-2016 financial year; (b) was identified in commercial purpose rating category 43d for the whole of the 2015-2016 financial year; (c) has an approximate GLA of 1,500m2; and (d) has off-street car parking for customer vehicles. -- 44 of 44 --