Arana Hills Property Pty Ltd v Townsville City Council [1995] QSC 13

IN THE SUPREME COURT OF QUEENSLAND DISTRICT REGISTRY No. 881 of 1994 BETWEEN: ARANA HILLS PROPERTY PTY LTD (ACN008 524 570) Applicant AND: TOWNSVILLE CITY COUNCIL Respondent JUDGMENT - MOYNIHAN J Delivered the 24th day of February, 1995 Counsel: Mr Freeburn for the Applicant Mr Cooke QC for the Respondent Solicitors: Minter Ellison for the Applicant Mr Licciardello for the Respondent Hearing date(s): 30.1.95 -- 1 of 8 -- IN THE SUPREME COURT OF QUEENSLAND DISTRICT REGISTRY No. 881 of 1994 BETWEEN ARANA HILLS PROPERTY PTY LTD (ACN008 524 570) Applicant AND TOWNSVILLE CITY COUNCIL Respondent JUDGMENT - MOYNIHAN J Delivered the 24th day of February, 1995 On 4 August 1994 a special meeting of the Respondent Council resolved to adopt the budget for the 1994-95 financial year. The budget included provision for the making and levying of differential general rates in terms of six categories from A to F. The combined effect of S. 559(1)(a) and 561 of the Local Government Act 1993 (the Act) is to permit the Respondent Council to make and levy differential rates for a particular financial year. By S. 562(1) of the Act, before a differential rate is made and levied, rateable land is to be categorised into two or more categories. Section 573 is to the effect that a local government, before making and levying a differential general rate for a financial year, must resolve as to the categories into which the rateable land is categorised and as to; -- 2 of 8 -- 2 "(b) the criteria by which land is to be categorised." S. 574 provides for the identification of categories, while S. 575 deals with their specification. The sections are in the following terms:- 574.(1) After the categories and criteria have been decided, all rateable land in the local government's area must be categorised by — (a) the local government identifying the category in which each parcel of rateable land is included; or (b) the valuation authority, at the local government's request, identifying the category in which each parcel of rateable land is included. (2) If the valuation authority identifies the category in which a parcel of rateable land is included, the valuation authority must give written notice to the local government of the category of the parcel. (3) If the valuation authority cannot identify the category in which a parcel of rateable land is included, the valuation authority must give written notice to the local government. (4) The category in which a parcel of rateable land is included may be identified in any way the valuation authority or local government considers appropriate. 575.(1) If a local government resolves to make and levy a differential general rate, the resolution must specify the categories in which rateable land is to be included. (2) The rateable land included in a category may be identified in any way the local government considers appropriate. (3) The accidental omission from categorisation of parcels of rateable land does not prevent the making and levying of the differential general rate. I should mention that there is no complaint concerning the appropriateness of the processes or procedures followed by the Respondent Council in putting in place a differential rating system for the 1994/95 year. The Council resolved on six categories of rateable land in terms of the categories specified in column 1 of Table A of the resolution it adopted. It further resolved that the criteria adopted for each category be that set out in column 2 of the Table and "that such criteria be based on the Valuer- -- 3 of 8 -- 3 General's Land Use Codes" which are then specified. The category in issue here is category F which provides:- " Column 1 Column 2 Category Criteria F Large regional shopping centres within Land Use Code 16 - drive-in shopping centre; Property Number Name and address of property 134920 Castletown Centre 35-47 Kings Road Pimlico 179180 Stockland Centre 310-330 Ross River Road Aitkenvale 198750 K-Mart Plaza 339 Ross River Road Cranbrook" It may be noted that none of the other categories specified particular properties and that the rate specified by Category F land is 4.252¢ in the dollar compared to 2.686¢ in the dollar for the next highest category. It may further be noted that by S.580 of the Act an owner may object to the categorisation of land; "on the sole ground that having regard to the criteria decided by the local government by which rateable land is categorised the land mass should have been included ... in another rating category ..." An owner aggrieved by the fate of an objection may appeal to the Land Court. The Applicant is the owner of one of the properties specified as being in Category F. It has applied pursuant to the Judicial Review Act 1991 for a review of the Respondent Council's decision to create Category F, particularly by reference to the three specific properties, on the ground that the decision was not authorised by the -- 4 of 8 -- 4 Local Government Act as it constituted an improper exercise of the power conferred under the Act, being the exercise for a purpose other than the one for which the power is conferred. Further, it is said that the decision involved an error of law. The Applicant also seeks an order that the Respondent provide an additional statement of particulars of the reasons for the decisions to create category F and for including the Applicant's land in it. The Respondent Council brought an application to dismiss the Applicant's application for a statutory order for review. The matter presently for determination is the latter application, and in the event of it failing, the Applicant's application for reasons. The Respondent Council's application for dismissal of the review application is founded on a submission that the decision challenged by the Applicant is not a decision of an administrative character in terms of S. 4 of the Judicial Review Act 1991 but rather is a decision of a legislative character. In Commonwealth -v- Gaunseit (1943) 67 C.L.R. 58 at 82 Latham CJ drew a general distinction between legislative and administrative functions in terms:- "Legislation determines the content of a law as a rule of conduct or a declaration as to power of right or duty whereas executive authority applies the law to the particular case." In Hamblin -v- Duffy (1981) 34 A.L.R. 333 Lockhart J considered the phrase "decision of an administrative character" in the Administrative Decisions (Judicial Review) Act 1984 (Commonwealth). While remarking on the inappropriateness of attempting an exhaustive definition Lockhart J contrasted "legislative" and "judicial" powers in these terms:- "Legislative acts usually involve the formation of new rules of law having general -- 5 of 8 -- 5 application; judicial acts generally entail determination of questions of law and fact in relation to disputes susceptible to determination by reference to established rules or practices." On the other hand, administrative decisions characteristically involve the "application of the general to the particular" of "managing executing, putting into effect"; Burns -v- Australian National University (1982) 40 A.L.R. 707. In Council of the Shire of Noosa -v- Resort Management Services Ltd 1994 Q.L.R. 435, the Court of Appeal adopted what it described as the "orthodox trichotomy" between legislative, executive (administrative) and judicial decisions. Noosa Shire and other cases to which it refers support a conclusion that the requirement for judicial review that a decision be of "an administrative character" should not be given a narrow or technical construction. In Noosa Shire the Court thought that the determination in issue involved the implementation or application of a policy and was "quintessentially administrative in character." In Aerolineas Argentinas -v- Federal Airports Corporation 118 A.L.R. 635 a determination under S. 56 of the Federal Airports Corporation Act (1986) (Commonwealth) was held to be of an administrative character in that it "executed or put into operation power (given by statute)". The case provides a valuable review of the authorities. It is arguable that the whole of the process of the implementation of the power given to Councils to implement a system of differential rating is administrative in character. This on the basis that it puts in operation the power given by the Act in the circumstances of the particular Council. A contrary view is that down to "drive-in shopping centre" the category F criteria are legislative in character constituting a "general classification, prescription, power, -- 6 of 8 -- 6 right or duty." I am inclined, on reflection, to reject this argument on the basis that the identification of categories by the table puts into effect the general power given by the Act, it is the determination, implementation or application of the power given by the Act but it is unnecessary for present purposes to resolve the point. In any event the specification of a particular property in so far as it reflects the application of criteria to the property, seems clearly a decision which is administrative in character. Moreover, it seems to me at least fairly arguable that the specification of a particular property is not the specification of the "criteria by which land is to be categorised." It is no answer to point to the reference in S. 574 and 575 particularly, 575(2) to identification. Specific identification is not the provision of criteria by which land is to be categorised. Put shortly then, the specification of particular property, or this approach, is not the proper exercise of a power to include particular pieces of land in categories by the application of criteria. I should mention that the construction and application of category F is not without difficulty. Presumably it is intended that, if the use of rateable land other than that specified satisfies the criteria of constituting a large regional shopping centre within the land use code, that land is within category F. This rather than an intent that the category be confined to the specified centres. On the other hand should one of the properties specified cease to be used as a shopping centre of any kind and be devoted to some other purpose, it would apparently nevertheless remain within the category. This seems anomalous and undesirable. In my view it follows that it is at least fairly arguable that the adoption of category F and the specification of the particular blocks is either administrative in character or is not a valid exercise of a power to specify criteria by which to determine the -- 7 of 8 -- 7 classification of land for purposes of differential rating and to include land in categories by applying such criteria. For present purposes it is unnecessary to resolve these issues further. I therefore dismiss the Respondent Council's application to strike out the application for review. So far as the giving of reasons is concerned, the Respondent Council submits that the decision in contention is exempted from that requirement since it comes within Item 12 of Schedule 2 of the Act. Item 12 provides:- "Decisions relating to the exercise of the power of local government authorities — (a) to make and levy rates; or (b) to impose fees, charges, fares, rents and dues." By S. 31 of the Act a decision included in a class of decisions set out in Schedule 2, it is not a decision to which Part 4 of the Act applies. A request for reasons pursuant to S. 32(1) of the Act may only be made in respect of decisions to which Part 4 does apply. It seems to me difficult to avoid the conclusion that the decisions the Applicant seeks to attack, assuming them to be a valid exercise of power, come within (a) or (b). I therefore dismiss the application. -- 8 of 8 --