Brown v Johnstone Shire Council [2005] QLC 37

LAND COURT OF QUEENSLAND CITATION: Brown v Johnstone Shire Council [2005] QLC 37 PARTIES: James William and Robyn Ann Brown (appellants) v. Johnstone Shire Council (respondent) FILE NO: VC2004/0135 DIVISION: Land Court of Queensland PROCEEDING: Appeal against a categorisation decision under the Local Government Act 1993 DELIVERED ON: 6 July 2005 DELIVERED AT: Brisbane HEARD AT: Innisfail MEMBER: Mr RS Jones ORDER: Appeal dismissed. CATCHWORDS: Categorisation of land for differential rating - Local Government Act 1993 APPEARANCES: Mr JW Brown in person for the appellants Mr M Skipworth, Solicitor, for the respondent Background [1] This matter relates to an appeal by James and Robyn Brown (the appellants) against the categorisation of their land by the Johnstone Shire Council (the respondent). [2] The subject parcels of land ("the subject land") consists of two lots located on the Palmerston Highway Stotters Hill1, a small residential development on the outskirts of Innisfail. The subject land is more properly described as Lot 1 on Registered Plan 1 Other spelling for this area includes "Stoters Hill" and "Stoter's Hill". I have adopted the most used spelling. -- 1 of 6 -- 2 718590 and Lot 5 on Registered Plan 716707, Parish of Johnstone. The area of each parcel of land is some 4,000 m². Stotters Hill is located approximately 9 km from the centre of Innisfail and some 2.5 to 3 km further from Innisfail than another residential area known as Belvedere. More will be said about Belvedere later. [3] At the relevant time the subject land was classified "Category G - residential - Stoters Hill". The appellants argued that the land ought to fall into "Category E - Innisfail Residential", being the same category in which the lots in Belvedere are classified. The subject land had previously been given a Category D classification but, after objection by the appellants, had been placed into Category G. [4] Mr McGoldrick, the Manager Corporate Services, employed by the respondent gave evidence that the respondent had for many years a differential rating system and as part of that system had established criteria and categories for differential general rates within the Shire. [5] Mr McGoldrick also gave evidence that on 14 July 2004 the following occurred. First, the respondent at its budget meeting resolved to levy a differential general rate within the Shire for the 2004/2005 financial year. Second, the respondent resolved to adopt specific categories to be used for making and levying differential general rates. [6] At page 3 of the Revenue Statement 2004-2005 of the respondent2 the rating categories were identified in the following terms: "Rating Categories In accordance with Sections 520, 965 and 966 of the Local Government Act Council resolves to make and levy a differential general rate for the 2004-2005 financial year. In accordance (with) Part 3 of the Local Government Act and in particular with Section 977, 978 and 979 Council resolves that the following categories are to be used for making and levying the differential general rate:- Category Description Land Use Code Category A Properties in the following suburbs * Mission Beach * Bingil Bay * Garners Beach 01, 02, 03, 04, 05, 06, 08, 09, 72, 94 Category B Properties in the following suburbs * Cowley Beach * Kurrimine Beach * Coquette Point * Flying fish Point * Etty Bay * Mourilyan Harbour 01, 02, 03, 04, 05, 06, 08, 09, 72, 94 Category C Primary Production 60 to 90, 93 Category D All residential properties outside the areas listed in category A, B, E, F, G 01, 02, 03, 04, 05, 06, 08, 09, 72, 94 2 Ex 6, "Schedule 1". -- 2 of 6 -- 3 Category E Innisfail Residential including:- * Belvedere * Goondi * Cullinane * East Innisfail * Innisfail Estate * Mighell 01, 02, 03, 04, 05, 06, 08, 09, 72, 94 Category F Small Townships including:- * South Johnstone * Wangan * Silkwood * Mourilyan * El Arish 01, 02, 03, 04, 05, 06, 08, 09, 72, 94 Category G Properties in the following suburbs: * Mundoo * Martyville * Garradunga * Daradgee * Boogan * Moresby * Mena Creek * Japoonvale * East Palmerston * Sundown * Eubenangee 01, 02, 03, 04, 05, 06, 08, 09, 72, 94 Category H Commercial - CBD only 07, 10 to 59, 91, 92, 96, 97, 99 Category I Processing of Sugar Cane Category J Meat Processing; Heavy foundry & Sugar Terminal purposes Category K Commercial - not in CBD area 07, 10 to 59, 91, 92, 96, 97, 99 The different categories and descriptions included in the said revenue statement were substantially repeated in a brochure3 titled "Rates & Charges Information". As I understand it, this brochure is generally available to the public. [7] There was no suggestion at any stage of the proceedings that there had been, on the part of the respondent, any failure to comply with the relevant provisions of the Local Government Act 1993 and in particular Parts 2 and 3 of that Act, which might render the relevant resolutions and decisions of the respondent invalid. The Grounds of Appeal and Case of the Appellants [8] In their Notice of Appeal, the appellants identified the following matters as being the grounds of appeal: "Exorbitant rate increase as a result of recategorisation. Absolutely no more services offered than in areas paying much less rates. …" [9] These grounds were expanded on in a letter by the appellants to the respondent dated 19 August 2004, a copy of which was attached to the Notice of Appeal. As I understand this 3 Ex 5. -- 3 of 6 -- 4 letter, the following matters or issues were going to be relied on by the appellants in support of their appeal: (i) an unjustified increase in the rates; (ii) the inferior level of services and amenities available to the subject parcels of land when compared to those available at Belvedere; (iii) other negatives including feral pigs and odours from the meatworks. [10] During the evidence-in-chief of Mr Brown, it became quite clear to me that the appellants' main complaint was that given the inferior quality of the services and amenities available to the subject land when compared to those available to lots in Belvedere, there was no justification for them having to pay more by way of rates. Category E land, which includes Belvedere, is subject to general rates at the rate of 1.22293 cents in the dollar (with a minimum of $550), while Category G land is subject to general rates of $1.99450 cents in the dollar (with a minimum of $505).4 [11] While the evidence was not entirely clear on these issues, it seems that Belvedere and other comparable residential areas or suburbs in and near Innisfail, with a Category E classification, enjoy additional services and amenities including kerbing and channelling, parks, bikeways and street lighting. Services such as sewerage and garbage collection are the subject of charges additional to the general rates levy. The Respondent's Case [12] According to Mr McGoldrick, the respondent made significant changes to its categorisation system between the 2003/2004 and 2004/2005 financial years. The changes were intended to group similar rateable land together with the admirable intention of ensuring that the rates made and levied were "… more equitably met by all ratepayers within a category and for each category."5 [13] The thrust of the evidence of Mr McGoldrick was that the Category E land tended to include land with a more urban character comprising smaller lots (2,000 m² or less) incorporated into larger residential subdivisions with more services and amenities. By reference to the "Land Use Codes" the Belvedere lots are made up of Code 02 land which is identified as being for "single unit dwelling". These land use codes, as I understand it, are established by the Chief Executive, Department of Natural Resources and Mines and incorporated by the respondent into its rating system. [14] On the other hand, the residential lots at Stotters Hill are typically made up of land still within a rural or rural type zone and/or setting having larger lot areas (2,000 m² or more) 4 Refer to Ex 5. 5 Ex 6, para 6. -- 4 of 6 -- 5 and incorporated into a development consisting of a materially smaller number of lots and less services. According to Mr McGoldrick, at Stotters Hill, the predominant Land Use Codes are 04 and 05 which are "large homesite - vacant" and "large homesite - dwelling" respectively. [15] A comparison of lots at Stotters Hill with what I understand to be the situation at Belvedere reveals the following: Stotters Hill Belvedere Lot size 4,000 m² or larger About 800 m² Lot Numbers 35 316 Zoning "Rural" "Urban" Average unimproved value $40,000-$44,000/lot $30,000/lot Land Use Code 04 or 05 02 [16] As discussed already, another distinguishing feature is the availability of various services and amenities. The kerbing and channelling, street lighting and parks at Belvedere were provided by the developer at its cost. [17] Most of Mr McGoldrick's evidence was not seriously challenged. However, Mr McGoldrick also sought to justify the respondent's categorisation and therefore the higher general rate in the dollar by reference to services which the Council provides at Stotters Hill, which is relatively quite remote from Innisfail. These services consisted of roadside mowing, poisoning of weeds and maintenance of a bus stop and let down location. This evidence was challenged by Mr Brown. [18] While I am prepared to accept that from time to time the respondent does provide the services identified, the cross-examination of Mr McGoldrick strongly suggested that they were very minor and not carried out on any regular or routine basis. At the end of the day I do not place much weight on this part of Mr McGoldrick's evidence. However, I do accept that as a general proposition, the servicing of residential developments relatively remote from the town centre and consisting of a small number of lots is likely to involve decreasing economics of scale and inefficiencies. Conclusions [19] It is my conclusion that neither the rate in the dollar nor the total rates paid by the appellants as a consequence of the categorisation of their land are relevant considerations -- 5 of 6 -- 6 in determining this appeal. Rates are fixed by local authorities and may be varied annually by them depending on their particular fiscal needs.6 [20] Because of the material differences identified in paragraphs [15] and [16] above, I do not accept that there is any sound basis for giving to the subject land the same categorisation as that given to subdivided residential lots at Belvedere. Further, on the evidence before me, I cannot see any more appropriate category for the subject land or any other sound reason for interfering with the categorisation given by the respondent. Accordingly, the appeal must be dismissed. Order Appeal dismissed. RS JONES MEMBER OF THE LAND COURT 6 Tow v Valuer-General (1978) 5 QLCR 378 at 381 (LAC). -- 6 of 6 --