In brief

The case of Moreton Bay Regional Council v White & Anor [2018] QLAC 4 concerned an appeal to the Land Appeal Court against a decision of the Land Court regarding Moreton Bay Regional Council's (Council) objection to the categorisation of land for rating purposes.

The Respondents own a residential parcel of land which is 3,000 m2 and located in the Council's local government area. There are two separate residential dwellings located on the land. The second dwelling is considerably smaller than the primary dwelling. 

For rating purposes, the Respondents contended that the land should be categorised as a R1 category property. Council rejected this argument and contended that the land should be categorised as a F2 category property. The issue on appeal was whether the Land Court correctly determined that the property does not fit the requirements of either rating category.

The Land Appeal Court confirmed the Land Court's decision and held that the land did not fit the requirements of either rating category. The Court further held that the Council's rating resolution did not adequately define the F2 category. As a result, the Court accepted that the subject land fits the requirements of the O1 category and dismissed the appeal.

Council introduced a series of new rating categories on 3 June 2016

The Council resolved to adopt 255 rating categories for its local government area at a special general meeting. These categories included the R1, F2 and O1 categories.

The Respondents argued that the land should be categorised as a R1 category property. The R1 category is a residential category for land which contains a single residential dwelling, not part of a community titles scheme, and is used by the property owner or at least one of the property owners as their principal place of residence. This category has a minimal general rate of $890.

The Council argued that the land should be categorised as a F2 category property. The F2 category is a residential category for land which contains multi-residential dwellings where the number of flats on the physical land parcel is equal to two. A "flat" is defined as land that is subject to one rate assessment and contains more than one residential dwelling. This category has a minimum general rate of $2,2260. 

Land Court rejected both arguments and held that the land should be categorised as a O1 property

The Land Court rejected the Respondent's argument as the land could not be categorised as a R1 property because the subject land does not contain a single residential dwelling as required. 

The Land Court also rejected the Council's argument and held that the land could not be categorised as a F2 property. The Court found that the description was ambiguous and did not clearly define the type of residential dwellings that the Council intends to rate in this category. The Court held that ambiguity can be resolved by applying the ordinary meaning of "flat" to the term "residential dwelling". The Court found that the subject land is not a property with two flats, whether the term "flat" is used in its ordinary meaning, or as defined in the resolution.

On this basis, the Land Court determined that the correct category for the land is the O1 category. The O1 category is a category for land not contained in any other differential rating category and the rateable value of the land is less than $1,000,000. This category has a minimal general rate of $890.

Land Appeal Court confirmed the Land Court's decision that the land is a O1 category property

The Land Appeal Court accepted the Land Court's view as the land could not be categorised as a R1 property because it does not contain a single residential dwelling as required. 

The Land Appeal Court held that Council's rating resolution is not consistent with its submission that the land is a F2 property. The Land Appeal Court found that Council's explanation of the F2 rating category was unhelpful in interpreting it.

The Land Appeal Court rejected the Council's reliance on the decision of Myer Queenstown Garden Plaza Pty Ltd v City Port of Adelaide (1975) 33 LGERA 70 to argue that Council's resolution should not be construed in an overly pedantic way.

The Court distinguished the decision by finding that the Council's rating categories are not a "spur of the moment" formulation and, rather are stated in a technical document introduced as a resolution in a general meeting. For this reason the Land Appeal Court found it necessary to look at the words the Council chose to use.

The Land Appeal Court further held that the resolution's purpose is to impose rates upon residents, and is not to be construed in the favour of the Council where it does not abide by its terms. The Land Appeal Court found that the land did not clearly fall within the words "multi-residential" because it is not a property with two flats when the term "flat" is used in its ordinary meaning or as defined in the resolution. Therefore, it could not be categorised as a F2 property.

Conclusion

The Court therefore concluded that the Land Court correctly identified the subject land as an O1 category property and dismissed the appeal.

 

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal or financial advice. Please seek your own legal or financial advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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