De Agostini v Babinda Swamp Drainage Board [1990] QLC 1

LAND COURT, BRISBANE. 2nd February, 1990 Re: In the matter of an appeal by Tisiano Benedetto De Agostini and Joan Mary Louise De Agostini against Rate assessment No. 493 of the Babinda Swamp Drainage Board by notice dated 20th July, 1989. (A89-60) Tisiano Bendetto and Joan Mary Louise De Agostini - v - Babinda Swamp Drainage Board D E C I S I O N (Hearing at Innisfail) On 20th July, 1989 Babinda Swamp Drainage Board gave notice to the appellants here of the assessment of a rate totalling $134.82 for the period of six (6) months ending 31st January, 1990 together with a claim for arrears and interest in respect of certain lands owned by them. They have exercised their rights under Section 28 (7) of the Water Act 1926 (as amended) and lodged an appeal to the Land Court against the amount of the rate assessed. The grounds of appeal set forth in the Notice of Appeal are as follows:- "1.Neither the assigned land nor the unassigned land receives any benefit from the works established by the Babinda Swamp Drainage Board. 2.In the alternative the benefit, if any, received from the works established by the Babinda Swamp Drainage Board is so small that any assessment of rates should be in a nominal amount only." Evidence was given by Mr. De Agostini in support of his grounds of appeal emphasising that he received no benefit from the drainage works and that the works actually caused damage to his land. Evidence was given by Mr. Bruce P. Gaydon, the District Engineer, Innisfail with the Water Resources Commission who is to become the Government Representative on the Babinda Swamp Drainage Board. He makes reference to the Order-in-Council of 18th February, 1978 containing the approval of the scheme and also to the by-law known as By-law No. 2 - Rates and Charges, gazetted on 8th March, 1986. He says that at the meeting of the Board held on 4th January, 1989 it was resolved that the half yearly rating for the period 1.8.89 to 31.1.90 [1990] QLC 1 -- 1 of 4 -- - Page 2 - pursuant to By-law No. 2 remain as follows:- . Category A - $5.00 per ha . Category B - $2.50 per ha . Category C - $1.25 per ha The Board then issued a half yearly notice to the rate payers within the scheme and this appeal has resulted. This appeal is no more nor less than a repeat of an appeal which came before me in Innisfail in 1982. This appeal is reported in 1981/82 8 Q.L.C.R. 171. I can do nothing better than to refer to that decision and as it may be that with the passage of time a copy of that decision is not now available to the parties I repeat hereunder what was said there:- "A drainage board was constituted for the Babinda Swamp Drainage Area under the name Babinda Swamp Drainage Board by Order in Council published in the Government Gazette of 18th February, 1978, at pages 632 to 634. The Board was to take over existing works of drainage and maintain, administer and extend such works. The lands owned by the appellants are within the area subject to rating. Section 28 (1) of the Water Act authorizes a Board to make and levy assessments on lands in its constituted area for the purpose of raising an amount sufficient to defray whether in whole or in part principal moneys or interest or rent or any other payment required to be made by law together with all costs, charges, and expenses in and about maintenance, repair, management and control of the works constructed by it or placed under its control under the Act and in and about the management of the business of the Board and the administration of the Act. The various bases of rating that may be adopted by a Board are set forth in sections 29, 29A, 29B, 29C and 29D of the Act. Here the Board has seen fit to use section 29C of the Act to arrive at a method of rating. This subsection reads:- "29C. Other methods of rating. In lieu of making and levying rates in accordance with the provisions of sections 29, 29A and 29B of this Act, a Board may make and levy rates in respect of any land within the area which is subject to rating under this Act on such basis or such several bases as the Board may by by-law determine for the purposes of defraying the interest and redemption charges of any loan liability incurred by the Board and the cost of operating, maintaining and managing its works." (My underlining). The Board duly resolved and obtained the approval of His Excellency the Governor in Council that By-law No. 2 shall be in force within the Babinda Swamp Drainage Area as from the date of publication of the By-law in the Government Gazette. (This date is 14th July, 1979.) The By-law reads:- "1.The Board may fix rates and charges on the following several bases:- (a)on land assigned for sugar cane growing purposes (which land is called Category A); (b)on cleared unassigned land (which land is called Category B) a rate per hectare half that for Category A; (c)on uncleared unassigned land (which land is -- 2 of 4 -- - Page 3 - called Category C) a rate per hectare half that for Category B. The separate Categories are more particularly shown in the Rate Book of the Babinda Swamp Drainage Board. 2.In respect of any land within the area the Board may fix the maximum amount or the minimum amount as the case may be for each Category which is to be paid as rates by the person liable in respect of that land." The Board has by resolution fixed the amount to be charged for each category of land subject to rating. Evidence has been led by the appellants to support a case that certain parts of their land has not benefited by the works and claim the works have proved detrimental to them in causing increased flooding of lands previously used for the growing of sugar-cane. While some evidence was led by the Solicitor for the Board on the question of benefit it is his submission that the Court has no power to consider the question of benefit because the Board, by means of its By-law, has excluded the question of benefit as a rating factor. He supports his argument by referring me to a decision of a then Member of the Land Court, Mr Dodds, in G. Despot and Others v. The Silkwood Drainage Board handed down on 8th August, 1975 (not reported). The matter has also been considered by the learned President of this Court in Appeal against Water Rate Assessment, N.A.M. Graving v. The Grevillea Rural Water Supply Board 1970 37 C.L.L.R. 153. In that decision the learned President discussed at some length the provisions of section 29 of the Water Act and the various amendments which have occurred. Section 29 has remained substantially uncharged in form since its enactment in 1926. It is the only section which provides for bases of rating based on a rate per acre of the land benefited. The methods of rating available to a Board were enlarged by sections 29A and 29B inserted by amending legislation in 1957 and further amended in 1964. Sections 29C and 29D were added in 1964. These amendments have widened substantially the bases of rating, and the original concept of benefit may be departed from if a Board adopts any of the more mechanical bases specified in sections 29A to 29C. The question of which basis of rating should be adopted for any particular period is one for a Board to decide. What then is the duty of the Court upon an appeal by a rate payer against the amount of rate assessment? In the abovementioned case the learned President at page 155 said:- "When section 29 was the sole basis of rating, appeals were generally instituted and contested on the ground that the area assessed by the Board as benefited was excessive and the rate should be reduced to conform to the actual area of the property receiving benefit from the scheme. Issue was joined on this point and determination, following the evidence submitted, confirmed, increased or reduced the assessment. In short, the Court reviewed the whole process of the assessment of rating of a particular property and ensured that the basis of rating had been properly and correctly applied. The Court's duty, as I appreciate the matter, is the same at the present time and it must satisfy itself that the particular assessment has been properly made and levied according to whichever of the enlarged bases of rating the Board has adopted. The Land Court is a creature of statute. It has no inherent powers of correction in the public interest or on the grounds of equity. The wide powers given it by section 40(5) of the Land Act apply in the exercise of its jurisdiction, duty, powers or functions and do not enable it to -- 3 of 4 -- - Page 4 - assume a jurisdiction or power which it is not specifically given by statue. It is the function of a Board to determine the basis of rating and so long as that basis is one authorized by the Water Act I have no power to direct that a different basis apply in the case of the assessment appealed against. The possession of such a power by this Court - and the consequent uncertainty as to which bases the Court might adopt - would lead to chaos in the annual budgeting of a Board." I am in complete agreement with these conclusions reached by the learned President as was Mr Dodds in Despot's case. Thus my inquiry is limited to ensuring that the subject assessments have been properly levied in accordance with the provisions of the Act." The finding which I made on that occasion was "I find that the Board has adopted the basis of Section 29C of the Act for the purpose of levying the subject assessment notice. I am satisfied on the evidence that the assessment has been properly made and levied according to that basis and the appeal must fail. No good purpose can be served in discussing the evidence which has been lead on the question of benefit or detriment to the lands of the claimant". I make the same findings in this appeal which must fail. There has been no application by the Respondent for an order for costs incurred as a result of these proceedings and I will not make an order for costs. In the result the appeal is dismissed and the assessment is confirmed. President of the Land Court -- 4 of 4 --