Australia: No Council resolution required to incorporate other information into rating categories

In brief

The case of Ugarin Pty Ltd v Lockyer Valley Regional Council [2017] QSC 122 concerned an application for judicial review of two decisions made by the Council relating to rating categories for the calculation of differential general rates.

The relevant decisions were as follows:

  • The Council's decision to adopt different categories of rateable land and different rates for each category.
  • The Council's decision to apply differential general rates category 8 as the category applying to the Applicant's land, being the Plainland Shopping Centre.

In particular, the Council had adopted different rating categories by reference to "land use codes", being codes conceived by the Department of Natural Resources and Mines (DNRM) and used for the State-wide database of Queensland Valuation and Sales Information (QVAS).

Council adopts the 2015/2016 budget

At the Council's 2015/2016 budget meeting held on 28 July 2015 (Budget Meeting), the Council adopted the Corporate and Community Services Report dated 23 July 2015. Included in the report was a resolution that the Council adopt different categories of rateable land. A description of each category of rateable land was contained in table 1.

In table 1, the categories of rateable land were described by reference to certain land use codes and the descriptions included certain land use codes and excluded others. Relevantly, table 1 described categories 4, 6 and 8 on the following terms [our emphasis]:

  • Category 4, being Commercial > $2 Million – "Land used for commercial purposes, other than primary production, with a rateable value greater than $2 million, other than land included in category 5 to 10, 17 to 20, 37 to 39 or 43 to 45. Includes land with the following land use codes: 10 to 46 and as otherwise identified by the Chief Executive Officer."
  • Category 6, being Supermarkets > $1 Million – "Land used for a Supermarket, with a rateable value greater than $1 million. Includes land with the following land use codes: 10-15, 17-27 and as otherwise identified by the Chief Executive Officer but does not include any land with land use code 16."
  • Category 8, being Shopping Centres > 7,000 square metres – "Land used or capable of being used for a Shopping Centre that has a property land area greater than 7000 sq metres, or more than 120 onsite carparking spaces. Includes all land of the relevant size with land use code 16 and as otherwise identified by the Chief Executive Officer."

The relevant definition of "land use codes" was "those land use codes approved by the Lockyer Valley Regional Council effective from 1 July 2015".

Council applies category 8 to the Plainland Shopping Centre

The Council applied category 8 in levying the general rates payable by the Applicant in respect of the Plainland Shopping Centre. The Council conceded that there was no document setting out all of the land use codes before it adopted the different categories of rateable land at the Budget Meeting. The Council also conceded that the decision to apply category 8 was not made at a Council meeting.

First ground for review – it was unlawful for the Council to refer to the land use codes in the category descriptions and the land use codes were required to be approved by Council resolution

After receiving the rate notice for the Plainland Shopping Centre, the Applicant requested a list of all the land use codes and their corresponding uses. The Council provided the land use codes published by the DNRM and explained that "[f]or the purposes of assisting to identify the ratings category to which particular parcels of rateable land belong, where relevant, Council has approved the Land Use codes provided by the Department of Natural Resources and Mines (DNRM) and recorded in the Department's property files in the Integrated Valuation and Sales system".

The Council's manager of finance and customer services gave evidence further explaining the use of land use codes. The officer explained that the Council's rating system is linked to the QVAS, which is maintained by the DNRM. Included in the QVAS information are land use codes and every property in Queensland is allocated a code. The officer explained that the land use code is the initial identifier of land use used by the Council for determining the applicable rating category but this can be changed where the actual use is different to the assigned land use code.

The Court found that the Local Government Regulation 2012 was unambiguous on its terms, in that it required the Council to pass a resolution identifying the different categories of rateable land. The Court was satisfied this requirement was discharged at the Budget Meeting.

Further, the Court held that the Council could identify the different categories in any way it considered appropriate. The Applicant had argued that the mere fact that the Council incorporates the QVAS land use codes into its land records did not amount to "approval" as required by the definition of "land use code" and that the definition should be interpreted as requiring an approval by a Council resolution. The Court was satisfied that, whilst the definition of "land use code" contemplated a separate approval process by the Council, there was no requirement for approval by a Council resolution. The Court commented that the Council could have been more precise about the source of the land use codes or that each relevant land use code was already recorded in the Council's land records, however it was satisfied that no separate Council resolution was required approving the use of the QVAS land use codes.

In addition, the Court also considered it relevant that an owner or potential purchaser could search the Council's land records to determine the applicable land use code and as such there was no potential disadvantage to be suffered.

The Court therefore held that the category descriptions were lawful and the first ground of review failed.

Second ground for review – category 8 should not have been applied to the Plainland Shopping Centre

The Court had no difficulty in classifying the Plainland Shopping Centre as belonging in category 8.

The Court therefore dismissed the application for judicial review and ordered that the Applicant pay the Council's costs.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Ian Wright
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