Fielden v The Brisbane City Council [1994] QLC 204 (1994-1995) 15 QLCR 102

LAND COURT, BRISBANE 9 February, 1994 Re: Appeal against determination on objection to the categorisation of land for rating purposes City of Brisbane Act 1924 (VC93-580) Joshua Anthony Fielden v. The Brisbane City Council D E C I S I O N This is an appeal against the determination of Brisbane City Council disallowing an objection by the owner/appellant to the categorisation of his land situated at 283 Bowen Terrace, New Farm, for rating purposes. The relevant rate notice which issued on 9th July, 1993, showed the land as being included in Category B. The objection was made on grounds that the land should be included in Category E. Under the City of Brisbane Act 1924 (the Act) the relevant part (Part 3 - Rates and Charges) provides that for a financial year the council may, inter alia, make and levy a general or differential rate. Before a differential general rate is made and levied, rateable land must be categorised into two or more categories under Division 4 of that part of the Act. Categories are determined by resolution of the Council and the criteria by which land is to be categorised. For the purposes of the 1993/1994 financial year, five categories were determined (Categories A - E) and criteria adopted for each category. The determination of each category is accompanied in the resolution by a statement of general intent in respect of the category and a list of the criteria adopted for the purpose of determining whether land should be included in that category. Paragraph A of the document provides, inter alia, that the Council hereby - "(d) directs that in applying the criteria so set out in relation to any parcel of rateable land regard shall be had to the general intent applicable to the [1994] QLC 204 -- 1 of 4 -- 2 particular category of land." In the subject case, Categories B and E are relevant. The statement of general intent in respect of these categories and the relevant criteria (land use code) are as follows - "CATEGORY GENERAL INTENT CRITERIA B In general terms is intended to 07 - guesthouse cover all commercial and industrial private hotel properties where the dominant purpose for which the land is used or intended for use is other than residential purposes. In the case of land on which there is erected a building or buildings used or intended for use for a purpose other than single unit domestic dwelling, multiple dwelling, residential institution (non-medical care) or agricultural purpose where the visual economic and spacious aspects are normal to that of a commercial or industrial usage the land falls within this category. Vacant land falls within this category where it is not residential zoned land. E Specifically covers land which is 03 - multiple dwelling used for multiple dwelling (flats) (flats) or residential institutions (non- medical) purposes. It also covers land on which duplex dwellings and more than one dwelling exist and a lot on a group title or building units plan which is divided into and used as flats." Situated upon the subject land is a building containing on the ground floor, ten bedrooms, storeroom, laundry, shower room and two WC's. The upper level is divided into two self contained flats, one of which is occupied by the owner. The other is let at a rent of $65 per week. The charge for the ten rooms on the ground floor is $65 each per -- 2 of 4 -- 3 week. In terms of floor space, the area is equally divided between flats as that term is commonly understood and guest house or boarding house purposes. However in terms of income from the property the dominant use lies in the ground floor level. The appellant who is concerned with rate increases over the past three years (which he says will have to be passed on and reflected in the rent/charges as he is running a business) believes that the property should be placed in Category E for reasons of fairness in that his lodgers are aged, have remained in residence for years and if not accommodated on these premises (at moderate rates) could (by implication) become a burden to the community. Although accepting that the property may appropriately be described as a boarding house, he would not prefer the term "guesthouse" as that term, on his reasoning, should only apply to a "superior boarding house" (OED). In his submission, fairness in the rating system will apply if the establishment is categorised as multiple dwellings as it is totally used for residential purposes. The particular land use code (03) is qualified by the word "flats" which the appellant submits, correctly in my opinion, is there to serve as an example and is not meant to be exhaustive of the type of structure (use) intended to be included in the category. This is clarified in the definition of the respective primary land use codes determined by the Chief Executive, Valuations. These definitions are as follows - "03 Multiple Dwelling (Flats) The use of a parcel of land for two or more self-contained residential flats including groups of units held by single companies but not group or strata title. The secondary use should contain the number of flats (units includes flats). 07 Guest House/Private Hotel An accommodation building where room only or room and meals are provided and having shared facilities (not a motel)." These definitions may be followed by Macquarie which defines questhouse as - "a house for the accommodation of paying guests; boarding house; hotel." and flat as - "a suite of rooms, usu. on one floor only, forming a complete residence, and usu. rented." -- 3 of 4 -- 4 It may be seen that the terms guesthouse and boarding house are interchangeable and that no good purpose can be served by attempting to distinguish them in this case as quite clearly under the definitions adopted for the purpose that part of the building at ground floor on the subject land falls neatly within code 07, whilst the upper level may appropriately fit within code 03 (flats). These are primary (dominant) land use codes. In a case where use is divided the Council has resolved and the Court has held that the primary use is the determining factor, see Bolitho v. The Valuer General VC91- 1025/6 (16 April, 1992) unreported. An application of the principle finds statutory expression in the Valuation of Land Act 1944 - s 11 (10) although in different context. The appellant agrees that the land is used for business purposes. On the evidence before the Court the greater return is received from the area put to guesthouse purposes. In the circumstances the appeal must be disallowed. Accordingly, the appeal is disallowed. President of the Land Court -- 4 of 4 --