14 October 2018

Queensland Land Court dismisses an appeal challenging the rating categorisations of the Council

The Court dismissed the appeal, as it was satisfied that the rating categorisations of the Council were appropriate.
Australia Real Estate and Construction
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In brief

The case of Marchesi v Noosa Council [2017] QLC 19 involved an appeal to the Land Court by a landowner against the inclusion by the Council of lots within rating categories.

In particular the landowner argued as follows:

  • Lot 5101 be changed from Residential (not Principal Place of Residence) to Low-rise Units (not Principal Place of Residence);
  • Lot 7204 be changed from High-rise Units (not Principal Place of Residence) to Commercial and Industrial;
  • Lot 7503 be changed from High-rise Units (not Principal Place of Residence) to Residential (not Principal Place of Residence);
  • Lot 9415 be changed from High-rise Units (not Principal Place of Residence) to Residential/Other.

The Court dismissed the appeal on the basis that its task was limited to determining whether the rating categorisations were appropriate by reference to the specific definitions contained in the Council's Revenue Statement.

The landowner's main issue relating to Lot 5101 was that the landowner should be repaid for overpayments made since the purchase settlement, due to the incorrect categorisation. The Council had re-categorised Lot 5101 from High-rise Units (not Principal Place of Residence) to Residential not Principal Place of Residence prior to the proceedings being commenced in the Court. Given that the re-categorisation had already been achieved, the Court could take the matter no further as its jurisdiction was limited to determining whether the rating categorisations were appropriate.

When does a building constitute a High-rise Unit

The landowner contended that Lots 9415, 7503 and 7204, which were categorised as High-rise Units (not Principal Place of Residence), should be re-categorised as Low Rise, Commercial Industrial or Residential (not Principal Place of Residence) and other.

The Court initially noted that the landowner had failed to establish on the other evidence why the alternatives were more appropriate than the category assigned by the Council. The Court stated that the landowner was required to demonstrate on the evidence why the category imposed by the Council was inappropriate, rather than simply arguing that the Council's categorisation was wrong and offering a variety of alternatives.

The Court considered the definition of "High-rise Unit" under to the Revenue Statement which relevantly stated "all strata units within a complex as defined under the Body Corporate and Community Management Act 1997 where the complex contains a building greater than 4 storeys above the ground".

The Council tendered a report which demonstrated that Lot 9415 was located in a four storey building and that Lots 7204 and 7503 were located in a five storey building. The Court applied a literal interpretation of the Council's Revenue Statement and held that the units within the complex should be categorised as High-rise Units by reference to the definition of High-rise Units contained in the Revenue Statement.

The definition of Complex

The landowner argued that the word "complex" within the definition of High-rise "should be used in the sense of it being a building rather than a number of buildings within the Community Titles Scheme..." [at 112].

The Court applied a literal interpretation approach, and relied upon the Macquarie Dictionary definition of "complex" being [at 117]:

"1. composed of interconnected parts, compound. 2. Characterised by an involved combination of parts."

The Court then referred to the English decision of Dixon (Inspector of Taxes) v Fitches Garage Ltd [1975] 3 ALL ER 455, which was a case that involved a determination of whether a canopy erected over the forecourt of a petroleum station was plant for the purpose of trade. In particular, the Court referred to the discussion of Brightman J who relevantly stated [at 118]:

"A 'complex' is, I think, modern jargon for something which is capable as being regarded as an integer or unit though composed of independent or semi- independent parts. My understanding of the reasoning of the General Commissioners is that they took the view that the canopy was a part of a unit of which the petrol pumps were the principal components, and that as the petrol pumps were clearly plant (with which I agree) therefor the canopy, has an integrated component, was also plant."

In applying the literal interpretation approach and in reliance on the decision in Dixon, the Court concluded that the use of the term "complex" in the definition of "High-Rise Unit (not Principal Place of Residence)" lead to the conclusion that the categorisation did not contemplate individual buildings and was intended to mean a number of buildings.

While the Court accepted that there were categorisations that contemplated individual buildings, "High-rise Units (not Principal Place of Residence)" was not one of them. As such, the Court was satisfied that the categorisation was appropriate.

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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