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Moneybourne Pty Ltd v Commissioner of Queensland Fire & Emergency Services

 

[2018] QSC 150

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Moneybourne Pty Ltd v Commissioner of Queensland Fire & Emergency Services [2018] QSC 150

PARTIES:

MONEYBOURNE PTY LTD ACN 011 044 072 as trustee for THE LOGAN FAMILY TRUST

(Applicant)

v

COMMISSIONER OF QUEENSLAND FIRE AND EMERGENCY SERVICES

(Respondent)

FILE NO:

SC No 11629 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application for a statutory order of review

DELIVERED ON:

22 June 2018, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

22 June 2018

JUDGE:

Bowskill J

ORDER:

1.  The application for a statutory order of review is dismissed.

2. Direct that in the event the applicant lodges a further appeal against the levy notice, under s 113(1) of the Fire and Emergency Services Act 1990, on the ground that the prescribed property should be within a category (namely, category 9, item 9.09) other than the category on which the local government based its determination, the Commissioner should consider that appeal.

3. The applicant pay the respondent’s costs of the application.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW –IRRELEVANT CONSIDERATIONS – Where the applicant operates a self-storage facility on land it owns – where the applicant challenged the local government’s categorisation of its property under the Fire and Emergency Services Regulation 2011, for the purposes of calculating the applicant’s contribution to the Emergency Management Fund under the Fire and Emergency Services Act 1990 – where the applicant contended that its property ought to have been categorised as a “mini storage unit” under the Regulation – whether, on appeal from the local government’s decision, the Commissioner erred in law in deciding that the applicant’s property did not fall within the meaning of a “mini storage unit” – whether the making of the Commissioner’s decision was an improper exercise of power, as a result of taking into account irrelevant considerations, namely the definition of “lot” under the Regulation and the description of the use of the property by the local government

Fire and Emergency Services Act 1990 (Qld)

Fire and Emergency Services Regulation 2011 (Qld)

Judicial Review Act 1991 (Qld)

COUNSEL:

K W Wylie for the applicant

S Anderson for the respondent

SOLICITORS:

P & E Law for the applicant

Crown Law for the respondent

  1. [1]
    Under the Fire and Emergency Services Act 1990, owners of prescribed properties are liable to make an annual contribution to the Emergency Management Fund established under that Act (see ss 20 and 107 of the Act).  The amount of the contribution to be paid is prescribed by the Fire and Emergency Services Regulation 2011, by categorising prescribed properties on the bases stated in the Regulation (see s 108 of the Act).
  2. [2]
    The annual contributions are collected by the local government, which is required to give each owner a levy notice, either as part of their rates or as a separate notice setting out the amount of the contribution (see ss 111, 112 and 114 of the Act).
  3. [3]
    A property owner who receives a levy notice may appeal to the Commissioner of the Queensland Fire and Emergency Services, inter alia, on the ground that the local government has incorrectly categorised the property or that the prescribed property should be taken to be within a category other than the category on which the local government based its determination (see s 113(1)(c)). 
  4. [4]
    The applicant operates a self-storage facility on land which it owns at 78-80 Rene Street, Noosaville, described as Lot 279 on Crown Plan 865180.  It is uncontroversial that this is “prescribed property” for the purposes of the Act.  The applicant was issued with a half-yearly rates notice for the property on 18 July 2017 which included a charge for the “State Emergency Management Levy Class A Group 10” of $27,525.20, of which half was payable, namely, $13,762.60. 
  5. [5]
    On 14 August 2017, the applicant appealed to the Commissioner under s 113 of the Act, on the ground that there had been an error in categorising the property in levy group 10.  No complaint is made about class A.  As to that, s 8 of the Regulation explains that the class is determined by the scale, in terms of the number of full time fire officers, of the fire station available in a particular district.
  6. [6]
    Although not stated on the rates notice itself, it is apparent from the material that the property has been categorised as within item 10.05 of group 10 as “industry (light, service or offensive) (gross floor area of more than 7,500 m2)”.  The applicant requested that the property be reclassified as being in levy group 3, in particular, under item 3.15 as a “mini storage unit (gross floor area of more than 85 m2)”. 
  7. [7]
    The Commissioner rejected the appeal.  The reasons for the Commissioner’s decision are set out in her letter to the applicant’s solicitor dated 6 October 2017 and, further, in the affidavit of the Commissioner, Ms Carroll, at paragraphs 9 to 14. 
  8. [8]
    The applicant seeks a statutory order of review of the Commissioner’s decision, contending, insofar as pressed in the written submissions, that:
    1. The making of the decision was an improper exercise of the power conferred by the Act, because it was made taking into account irrelevant considerations.  These are said to be the definition of “lot” in the Regulation and the local government’s planning scheme use definitions when determining the contribution category to be applied to the land;  and
    2. The decision involved an error of law, in that the Commissioner did not apply the correct meaning of the term “mini storage unit” in the Regulation.
  9. [9]
    The applicant seeks an order setting aside the decision and directing the respondent to reconsider its decision according to law. 
  10. [10]
    It is not in issue that the decision is one to which the Judicial Review Act 1991 applies, and that the applicant is a person aggrieved by the decision.
  11. [11]
    This application turns on the proper construction of the phrase “mini storage unit” in schedule 5 of the Regulation. 
  12. [12]
    Section 9(1) of the Regulation provides:

“Schedule 2 states the categories that apply to prescribed properties according to the purposes for which the properties are used.” 

  1. [13]
    Section 12(1) of the Regulation provides:

“A category in schedule 2 described as ‘industry’ followed by the word ‘light’, ‘service’, ‘offensive’ or ‘heavy’ applies to a prescribed property if the property is used for an industry of a type ordinarily described, by the local government in whose area the property is situated, by that word.”

  1. [14]
    Schedule 2 sets out the “annual contributions of owners of prescribed properties” by reference to categories ranging from levy group 1 to levy group 16. 
  2. [15]
    Levy group 3 includes, at item 3.15, “mini storage unit” with a gross floor area of more than 85 m2; and, at item 3.12, “industry (light, service or offensive)” with a gross floor area of 51–500 m2, for each of which the annual contribution, in class A, is $510.00.
  3. [16]
    Levy group 10 includes, at item 10.05, “industry (light, service or offensive)”, with a gross floor area of more than 7,500 m2, for which the annual contribution, in class A, is $27,525.20. 
  4. [17]
    Prior to the rates notice issued on 18 July 2017, the applicant had been issued with a half-yearly rates notice for the property on 17 January 2017, which included a charge for the “State Emergency Management Levy Class A Group 6”, in an amount of $1,460.60, being half the annual contribution.  Levy group 6 includes, at item 6.06, “industry (light service or offensive)”, with a gross floor area of 2,001–3,000 m2, for which the annual contribution, in class A, is $3,023.40.
  5. [18]
    Relevant definitions in schedule 5 of the Regulation include:

gross floor area, of a prescribed property, a part of a prescribed property, or a level of a building on a prescribed property, means the total of the floor areas (including all walls, columns and balconies), having a ceiling or roof, of the property, the part of the property or the level.”

lot means a lot included in a community titles scheme under the Body Corporate and Community Management Act 1997.”

mini storage unit means a lot that, under a lease of the lot, can not be used for a purpose other than storage.”

  1. [19]
    The applicant first obtained a development permit for a material change of use of the land, described as “Modification to Scheme Provisions (Car Parking and On-Site Manoeuvring for Self-Storage Units)” on 25 September 2003.  The approved plans depict stages 1, 2 and 3 of the development of the “proposed storage facility” (see page 20 of Ms Logan’s affidavit).  According to Ms Logan’s affidavit at paragraph 5, this was approval for self-storage units with a net lettable area of 4,878 m2.
  2. [20]
    The applicant obtained a further development permit on 1 September 2005, this time for a material change of use described as “general industry”, in the decision notice, and “general industry (storage sheds)” in the covering letter.  The approved plans depict the already approved development and stage 4 of the proposed development, adding a further net lettable area of 2,090 m2 (see page 31 of Ms Logan’s affidavit).
  3. [21]
    The self-storage facility has been constructed, in accordance with the development approvals, and has an overall net lettable area of approximately 6,970 m2.  It is not clear whether this equates to the “gross floor area” as that term is defined in the Regulation.  The facility comprises some hundreds of storage spaces within the overall self-storage facility, which are available to be used by third parties to store things under licence from the applicant. 
  4. [22]
    The applicant contends that its property ought to be categorised as a “mini storage unit” under levy group 3 of the Regulation.  The respondent disputes that on the basis that the applicant’s property does not fall within the definition of “mini storage unit” in the Regulation. 
  5. [23]
    The applicant does not dispute that its property is not a “lot” within the meaning of that term in the Regulation, as it is not a lot included in a community titles scheme, but rather is a freehold parcel owned by the applicant.  However, the applicant argues that notwithstanding the definition of “lot” in the Regulation, in construing the definition of “mini storage unit”, the word “lot” should not be given that meaning, but should rather be given its “ordinary and orthodox meaning similar to that prescribed by the Land Title Act 1994.”  In that Act, “lot” means a separate, distinct parcel of land created on the registration of a plan of subdivision or the recording of particulars in an instrument. 
  6. [24]
    It seems to me that even if one were to proceed on that basis, the definition of “mini storage unit” still would not apply to the applicant’s property.  It is not a lot (even as defined in the Land Title Act 1994) “that, under a lease of the lot, can not be used for a purpose other than storage”.  It is a freehold parcel of some 10,920 m2 in area, which presumably could be used for all kinds of purposes, subject to the relevant planning scheme.  It has been developed by the applicant for the purpose of operating a self-storage facility on the land, but that does not mean that is the only purpose for which the land can be used, whether under a lease or otherwise.
  7. [25]
    But there are a number of other reasons, in any event, why the applicant’s argument lacks merit. 
  8. [26]
    First, I am unable to discern any justification for disregarding the specific definition of “lot” in the Regulation when construing the term “mini storage unit”.  The starting point is that definitions in an Act or Regulation apply, except so far as the context or subject matter otherwise indicates or requires (see s 32A of the Acts Interpretation Act 1954). 
  9. [27]
    It is apparent that the word “lot”, as it is specifically defined in the Regulation, is used consistently, and deliberately, throughout the Regulation.  For example, levy group 2 includes, at item 2.11, “residential flats or units that are not lots (not more than two flats or units)” and at item 2.12, “residential unit [noting the singular] that is a lot” – suggesting a distinction between a unit that is included in a community title scheme, and unit or units that are not.  That distinction is continued with each of  levy groups 3, 4, 6, 7, 8 and 9 including items referring to residential flats or units, of various sizes (in terms of number of units and levels) that are “not lots”. 
  10. [28]
    Where the legislature has included a specific definition, there needs to be something which supports a view that it was not intended that that definition would apply consistently.  For example, that application of the definition gives rise to linguistic, logical or grammatical infelicities (see Commissioner of Police v Kennedy [2007] NSWCA 328 at [44] per Basten JA, and SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 at [30] per Allsop CJ, Buchanan and Griffiths JJ), or as s 32A provides, that the context or subject matter indicates otherwise. 
  11. [29]
    That is not the case here.  Applying the definition of “lot” to the definition of the phrase “mini storage unit” does not give rise to any such difficulties.  On the contrary, it makes sense.  “Mini storage unit”, taking into account the definition of “lot”, may be taken to refer to a storage unit or area within a community title scheme, such as may be available to the owner of another lot or unit in the community title scheme, in the basement or car parking area, for example, for storage purposes.
  12. [30]
    Next, the focus of the Act and the Regulation, for the purposes of identifying the relevant categories, is on the “prescribed property” to which it applies.  It is not in issue that the applicant’s property, being lot 279 on CP 865180, is “prescribed property” as defined in s 105(1) of the Act.  But relevantly, that definition includes the following. 

“(1) In this part …

prescribed property means real property, whether or not occupied by any person, that is within a levy district and that is –

  1. (a)
    a parcel of land separately held by an owner …
  1. (2)
    To avoid doubt, it is declared that, for the definition of prescribed property, paragraph (a) –

parcel of land includes a lot under the Land Title Act 1994 that is also a lot included in a community titles scheme under the Body Corporate and Community Management Act 1997.”

  1. [31]
    It is noteworthy that the Act, in s 105, distinguishes between lots within the meaning of the Building Units and Group Titles Act 1980 (compare paragraphs (a) and (c) of the definition of “prescribed property”), a lot under the Land Title Act 1994 and a lot included in a community title scheme under the Body Corporate and Community Management Act 1997 (see the definition of “parcel of land” in s 105(2)).   It can be seen that there is, again, a deliberate use of the word “lot” in various senses.  This also militates against any argument that it is open to disregard the definition of “lot” in the Regulation made under the Act when construing the term “mini storage unit”.  But apart from this, it is important to keep in mind that the category applies to the whole of the property.
  2. [32]
    Thirdly, the categories that apply to prescribed properties are determined according to the purposes for which the property is used (see s 9(1) of the Regulation).  The purpose for which the applicant’s property is used is to operate a self-storage facility, comprising multiple storage units which are licensed to third parties to use.  It is not appropriately described as a “mini storage unit”.  It is not to the point to say that it is not common or practical to structure a self-storage facility as a community titles scheme, with separate lots and lot entitlements for each of the storage areas.  If they were, each lot may be captured by the “mini storage unit” definition.  The point remains that the purpose for which the whole of the applicant’s property is used is not a “mini storage unit”, it is a self-storage facility, providing multiple (mini or otherwise) storage units available for use by third parties. 
  3. [33]
    The limited reference to “mini storage unit” in schedule 2 of the Regulation also supports this conclusion.  It is only referred to in levy group 2 at item 2.06, with a gross floor area no more than 85 m2, and levy group 3, at item 3.15, with a gross floor area of more than 85 m2.  This is in contrast to the broad range of increasing gross floor areas for other uses, such as light industry, from item 3.12, with an area of 51–500 m2, to item 10.04, with an area of 3,001–7,500 m2.  If “mini storage unit” was intended to refer to a much larger facility, it would be expected the Regulation would, consistently, refer relevantly to the varying size of such facilities.  Rather, “mini storage unit” is a singular term referring to a mini storage unit, not referring to a facility comprising many storage units.
  4. [34]
    Fourthly, s 12(1) of the Regulation provides that a category in schedule 2 described as “industry” followed by the descriptors there referred to, applies to a prescribed property if the property is used for an industry of a type ordinarily described by the local government by that word.  Here, it would seem from the development permit granted in September 2005, that the local government describes the use as “general industry” or “general industry storage sheds”, which is consistent with the identification of the property as within the category described as “industry”, light et cetera.
  5. [35]
    Insofar as the applicant contends the Commissioner took into account irrelevant considerations, namely, the definition of “lot” in the Regulation and the Council’s planning scheme use definitions, in my view, this argument is untenable.  It cannot be regarded as an irrelevant consideration for a decision-maker making a decision under an enactment to take into account the definition of a term in that very enactment.  Further, s 12(1) of the Regulation plainly makes it relevant for the Commissioner to consider the description of the use of the property used by the local government.
  6. [36]
    Insofar as the applicant contends the Commissioner erred in law, in her construction of the term “mini storage unit”, for the reasons I have articulated, I do not accept that argument.  In my view, the Commissioner’s decision that the applicant’s property does not fall within the meaning of “mini storage unit” in the regulation has not been shown to be affected by an error of law.  In the circumstances, I will order that the application for a statutory order of a review be dismissed. 
  7. [37]
    One matter that occurred to me in considering this matter, but which was not raised on the appeal to the Commissioner, or by the applicant on this application, is whether the applicant’s property is properly included within item 10.05 in levy group 10, or whether it should be in item 9.09 in levy group 9.  Item 9.09 refers to “industry”, light et cetera, with a gross floor area of 5,501–7,500 m2.  I wondered whether the applicant’s property ought to be categorised under item 9.09, given that it has a net lettable area of some 6,970 m2.  Having said that, the net lettable area may not be the same as the “gross floor area”, as that term is defined in the Regulation.  This is not a matter able to be dealt with by the Court on this application, it not having been a matter raised on the appeal to the Commissioner, therefore not dealt with by the Commissioner, nor the subject of this application, or of clear evidence before me in any event.  It is a matter, however, that both parties may wish to consider further.  Having regard to s 113(5) of the Act, which provides that the Commissioner need not consider a further appeal against a levy notice, essentially on the same ground (that is, that the property has been incorrectly categorised), in order to prevent any prejudice to the applicant, I will also direct that in the event the applicant lodges a further appeal against the levy notice under s 113(1), on the ground that the prescribed property should be within a category (namely, category 9, item 9.09) other than the category on which the local government based its determination, the Commissioner should consider that appeal.
  8. [38]
    Accordingly, the orders of the court are:
    1. The application for a statutory order of review is dismissed.
    2. I direct that in the event the applicant lodges a further appeal against the levy notice under s 113(1), on the ground that the prescribed property should be within a category (namely, category 9, item 9.09) other than the category on which the local government based its determination, the Commissioner should consider that appeal.
    3. The applicant pay the respondent’s costs of the application.

Editorial Notes

  • Published Case Name:

    Moneybourne Pty Ltd v Commissioner of Queensland Fire & Emergency Services

  • Shortened Case Name:

    Moneybourne Pty Ltd v Commissioner of Queensland Fire & Emergency Services

  • MNC:

    [2018] QSC 150

  • Court:

    QSC

  • Judge(s):

    Bowskill J

  • Date:

    22 Jun 2018

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment [2018] QSC 150 22 Jun 2018 Application for statutory order of review dismissed: Bowskill J.

Appeal Status

No Status