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E Cocco & Sons Investments Pty Ltd v Gold Coast City Council

 

[2014] QSC 10

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

E Cocco & Sons Investments Pty Ltd v Gold Coast City Council [2014] QSC 10

PARTIES:

E COCCO & SONS INVESTMENTS PTY LTD
ACN 001 336 769
(applicant)
v
GOLD COAST CITY COUNCIL
(respondent)

FILE NO:

BS 8963 of 2011

DIVISION:

Trial Division

PROCEEDING:

Application for judicial review

DELIVERED ON:

14 February 2014

DELIVERED AT:

Brisbane 

HEARING DATE:

23 and 24 September 2013

JUDGE:

Margaret Wilson J

ORDER:

  1. The decision of the respondent dated 24 June 2011, whereby the respondent resolved to make and levy a special charge for the year 2011/2012 pursuant to section 94 of the Local Government Act 2009 (Qld) on rateable land described as Lot 1, RP192926 and situated at 73 Nerang Street, Nerang, in the sum of $2,157,268, is invalid and of no effect.
  2. The rates notice issued by the respondent dated 5 September 2011, so far as it seeks to levy the said special charge, be set aside.
  3. The respondent pay the applicant’s costs of and incidental to the application to be assessed on the standard basis.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the applicant was the owner of land forming the tip of a peninsula, on which it operated a caravan park – where a bridge had been constructed in the 1970s, providing access to the land – where the bridge fell into disrepair and was closed – where the respondent undertook to rebuild the bridge, and to recover the costs by levying a “special charge” on the applicant under s 94 of the Local Government Act 2009 (Qld) (“the Act”) and s 28 of the Local Government (Finance, Plans and Reporting) Regulation 2010 (Qld) (“the Regulation”) – where the applicant sought judicial review of the respondent’s decision to make and levy the charge – where the applicant alleged that the decision was not authorised by the Act and the Regulation – where the applicant alleged that the respondent had not adopted an “overall plan” prior to undertaking the work the subject of the special charge, as required by s 28 of the Regulation – whether an “overall plan” had been adopted – where the applicant alleged that the respondent had not adopted an “annual implementation plan” for each financial year of the overall plan as required by s 28 of the Regulation – whether an “annual implementation plan” was required – where the respondent submitted that non-compliance with the Regulation should not result in invalidity – whether it was a purpose of the legislation that an act done in breach of the Regulation should be invalid – whether relief should be refused on discretionary grounds

Judicial Review Act 1991 (Qld) s 30

Local Government Act 2009 (Qld) s 3, s 4, s 91, s 92, s 94, s 96, s 270

Local Government Act 1993 (Qld) s 971

Local Government (Finance, Plans and Reporting) Regulation 2010 (Qld) s 28

Collector of Customs v Agfa-Gevaert Limited (1995-1996) 186 CLR 389 at 398, cited

Craig v South Australia (1994-1995) 184 CLR 163, considered

Lacey v Attorney-General (Qld) (2011) 242 CLR 573, cited

Marrickville Metro Shopping Centre Pty Limited v Marrickville Council (2010) 174 LGERA 67, considered

Myer Queenstown Garden Plaza Pty Ltd v City of Port Adelaide (1975) 11 SASR 504, cited

One.Tel Ltd v Australian Communications Authority (2001) 110 FCR 125, considered

Project Blue Sky Inc v Australian Broadcasting Authority (1997-1998) 194 CLR 355, considered

Whiting v Somerset Regional Council [2010] QSC 200, considered

COUNSEL:

GJ Gibson QC and DP O’Brien for the applicant

SP Fynes-Clinton for the respondent 

SOLICITORS:

TVP Law for the applicant

King & Company for the respondent

Introduction

  1. The applicant is the registered proprietor of 4.703 hectares of land at 73 Nerang Street, Nerang on which it operates a caravan park (“the land”).
  1. The land is shaped like a peninsula, surrounded on three sides by water. Mooyumbin Creek flows along one side of the land, and the Nerang River along the opposite side.  The two watercourses meet along the short protruding end of the peninsula (“the top of the peninsula”). The far end of the peninsula (“the bottom of the peninsula”) adjoins a residential subdivision.
  1. The land is close to the central area of Nerang, but separated from it by Mooyumbin Creek. Sometime in the 1970s a bridge over the creek was constructed, providing access to the land from Nerang Street.
  1. Since about 1983 there has also been a narrow lane at the bottom of the peninsula, providing access to the land from Nerang River Drive (which is in the residential subdivision area).
  1. The bridge over the creek fell into disrepair, and was closed in early 2007. The respondent replaced it with a new bridge, which was opened early in 2010.
  1. To recoup the cost of constructing the new bridge, on 24 June 2011 the respondent resolved to impose a “special charge” on the land, in the amount of $2,157,268, pursuant to s 94 of the Local Government Act 2009 (Qld) (“the LGA 2009”) and s 28 of the Local Government (Finance, Plans and Reporting) Regulation 2010 (Qld) (“the Regulation”).
  1. The applicant seeks judicial review of that decision on three grounds –
  1. that the decision was not authorised by the LGA 2009 and the Regulation;
  2. that the decision involved an error of law; and
  3. that the making of the decision was an improper exercise of the power conferred by the Act, in that the respondent failed to take a relevant consideration into account – namely, that on its proper construction, s 28 of the Regulation did not authorise the making of the decision.

Counsel for the applicant submitted that each of these grounds turns on whether an “overall plan” within the meaning of s 28 of the Regulation was adopted by the respondent prior to undertaking the work the subject of the special charge, and whether, if there was an overall plan, an “annual implementation plan” was adopted by the respondent for each year of the overall plan.

The legislation

  1. Sections 3 and 4 of the LGA 2009 provide –

3 Purpose of this Act

The purpose of this Act is to provide for—

(a)the way in which a local government is constituted and the nature and extent of its responsibilities and powers; and

(b)a system of local government in Queensland that is accountable, effective, efficient and sustainable.

Note

The system of local government consists of a number of local governments. See the Constitution of Queensland 2001, section 70 (System of local government).

4 Local government principles underpin this Act

(1)To ensure the system of local government is accountable, effective, efficient and sustainable, Parliament requires—

(a)anyone who is performing a responsibility under this Act to do so in accordance with the local government principles; and

(b)any action that is taken under this Act to be taken in a way that—

(i)is consistent with the local government principles; and

(ii)provides results that are consistent with the local government principles, in as far as the results are within the control of the person who is taking the action.

(2) The local government principles are—

(a)transparent and effective processes, and decision-making in the public interest; and

(b)sustainable development and management of assets and infrastructure, and delivery of effective services; and

(c)democratic representation, social inclusion and meaningful community engagement; and

(d)good governance of, and by, local government; and

(e)ethical and legal behaviour of councillors and local government employees.”

  1. The respondent is a local government within the meaning of the LGA 2009.[1]
  1. Chapter 4 Part 1 of the LGA 2009 deals with rates and charges. Relevantly, it provides in s 91(2) –

“(2) Rates and charges are levies that a local government imposes—

(a)on land; and

(b)for a service, facility or activity that is supplied or undertaken by—

(i)the local government; or

(ii)someone on behalf of the local government (including a garbage collection contractor, for example).”

  1. By s 92, that there are four types of rates and charges, including “special rates and charges”. Section 92(3) provides –

(3)Special rates and charges are for services, facilities and activities that have a special association with particular land because—

(a) the land or its occupier—

(i) specially benefits from the service, facility or activity; or

(ii) has or will have special access to the service, facility or activity; or

(b)the land is or will be used in a way that specially contributes to the need for the service, facility or activity; or

(c)the occupier of the land specially contributes to the need for the service, facility or activity.

Examples

Special rates and charges could be levied—

for the cost of maintaining a road in an industrial area that is regularly used by heavy vehicles

for the cost of replacing the drainage system in only part of the local government area

on land that is used only by businesses that would benefit from the promotion of tourism in the local government area.”

The power to levy rates and charges is conferred by s 94, which provides (relevantly) –

94  Power to levy rates and charges

(1)Each local government—

(b) may levy—

(i)special rates and charges; and

(ii)utility charges; and

(iii)separate rates and charges.

(2)A local government must decide, by resolution at the local government’s budget meeting for a financial year, what rates and charges are to be levied for that financial year.”

  1. The Regulation was subordinate legislation made under the LGA 2009.[2] A general regulation-making power was conferred on the Governor in Council by s 270, and a non-exhaustive list of matters that a regulation for rates and charges might provide for was contained in s 96 –

96  Regulations for rates and charges

A regulation may provide for any matter connected with rates and charges, including for example—

(a)concessions; and

(b)the categorisation of land for rates and charges; and

(c)the process for recovering overdue rates and charges, including by the sale of the land to which the rates and charges relate.”

  1. Section 28 of the Regulation[3]  provided –

28 Levying special rates or charges

(1)This section applies if a local government decides to levy special rates or charges.

Note

See the Act, section 92(3) (Types of rates and charges), definition special rates and charges.

(2)For levying rates under subsection (1), the local government may fix a minimum amount of the rates.

(3)The local government’s resolution to levy special rates or charges must identify—

(a)the rateable land to which the special rates or charges apply; and

(b)the overall plan for the service, facility or activity to which the special rates or charges apply.

(4)The overall plan is a document that—

(a)describes the service, facility or activity; and

(b)identifies the rateable land to which the special rates or charges apply; and

(c)states the estimated cost of carrying out the overall plan; and

(d)states the estimated time for carrying out the overall plan.

(5)The local government must adopt the overall plan before, or at the same time as, the local government first resolves to levy the special rates or charges.

(6)Under an overall plan, special rates or charges may be levied for 1 or more years before any of the special rates or charges are spent in carrying out the overall plan.

(7)If an overall plan is for more than 1 year, the local government must also adopt an annual implementation plan for each year.

(8)An annual implementation plan for a financial year is a document setting out the actions or processes that are to be carried out in the financial year for the service, facility or activity to which the special rates or charges apply.

(9)The local government must adopt the annual implementation plan before or at the budget meeting for each year of the period for carrying out the overall plan.

(10)The local government may at any time, by resolution, amend—

(a) an overall plan; or

(b) an annual implementation plan.

(11)To remove any doubt, it is declared that a local government may make and levy a special rate or charge for a service, facility or activity whether or not supplied or undertaken by the local government itself, including a service, facility or activity supplied or undertaken by another local government—

(a)in the other local government’s local government area; and

(b)conducted as a joint government activity by the local governments.”

 

Earlier legislation

  1. The LGA 2009 repealed the Local Government Act 1993 (Qld) (“the 1993 Act”). Provisions having similar effect to ss 92 and 94 of the LGA 2009 and the Regulation had been introduced in 1999 by amendment of s 971 of the 1993 Act. According to the Explanatory Notes relating to the amendment bill –

“The intention of introducing an overall plan is twofold, namely:

to provide transparency and accountability commensurate with the broadened taxation powers introduced by these amendments; and

to articulate the basis/information on which council has formed its opinion under subsection (1)(b) concerning benefit, access or contribution”.

(Emphasis added.)

The second of these referred to an amendment to the precursor to s 92(3) of the LGA 2009.

  1. The LGA 2009 was shorter than the 1993 Act, and, relevantly, some of the provisions in the amended s 971 of the 1993 Act found their way into the LGA 2009 and some into the Regulation. According to the Explanatory Notes relating to the bill for the LGA 2009 –

“The streamlined size of the Bill is primarily due to a number of provisions being incorporated into other, more relevant statutes or being omitted altogether due to redundancy or duplication. The Bill will be supplemented by regulations that govern essential but subordinate operational and administrative issues.”

The facts

  1. When the bridge across the creek ceased to be trafficable, caravan park residents began using the lane at the bottom of the peninsula as the sole entry and exit point for vehicles travelling to and from the caravan park. Local residents complained to the respondent about the substantial increase in traffic on Nerang River Drive.
  1. After trying unsuccessfully to have the applicant repair or replace the bridge, the respondent considered itself constructing the bridge and recovering the costs from the applicant through a special charge.
  1. On 5 August 2008 one of the respondent’s officers provided a report (“the report”) to the Engineering Services Committee (“the ES Committee”). In paragraph 5.2 of the report, he proposed that the respondent allocate funds “to construct a new bridge to access the Caravan Park from Nerang Street”, and that it seek to recover costs from the caravan park owner through a special charge. He continued –

“For this to occur, it is necessary for the design, approvals and construction to take place.  For a normal capital works project these phases occur in series over a number of years.  Given the length of time that the current bridge has been closed, it is proposed to complete these works within 12 months

Initial investigations suggest the following:

  • Approvals to damage marine plants will be required;
  • Negotiations with NRW are required to arrange the land owner’s consent;
  • Design work can start immediately following Council resolution but this will impact on the existing works program and will delay the Syndicate Rd project;
  • Initial estimates for the cost of works range from $400,000 to $700,000 dependent on the requirements of the caravan park and the scope of design; and
  • Further design work is required to provide more robust cost estimates.  This is most appropriately done following the Council resolution.”[4]

(Emphasis added.)

Later in the report, he wrote –

10BUDGET/FUNDING

Funding of $400,000 is available to undertake the design and construction of bridge access to the Nerang Caravan Park from Nerang Street.  Should Council resolve to proceed with these works funding is available from within Bridge and Culvert Replacement (R623) in Major Roadworks (cost centre 257 function 6893).  Once the detailed design is completed, additional funding will be allocated.

A more detailed estimate of construction costs will be available after further design work is undertaken.”

12TIMING

It is proposed that the owner of the Nerang Caravan Park be advised of the Council decision immediately following the Council decision.

Removal of the existing bridge and the approvals, design and construction of its replacement is expected to take at least 12 months.”

(Emphasis added.)

The report concluded with a recommendation that the respondent resolve as follows –

“1That the Council notes the owner’s delay and unwillingness to   perform bridge replacement or repair work.

  1. That initial funding of $400,000 be allocated from Bridge and Culvert Replacement (project R623) within Major Roadworks (cost centre 357 function 6893) to undertake the design and construction of bridge access to the Nerang Caravan Park from Nerang Street.  If additional funding is required it can be allocated from within the same cost centre and function.
  2. That Council recoup all relevant expenditure from the benefited lands (the Nerang Caravan Park) through a special charge in line with Section 971 of the Local Government Act 1993 (Chapter 14, Division 2, Part 2).
  3. That the Director Engineering Services notify the residents of Nerang River Drive of Council’s decision to construct a new bridge, and outline the expected timeframe for the bridge to be completed.”
  1. The ES Committee met on 27 August 2008, when it considered (inter alia) the report. Relevantly, the committee recommended –

“1That Council notes the owner’s delay and unwillingness to perform bridge replacement or repair work.

  1. That initial funding of $400,000 be allocated from Bridge and Culvert Replacement (project R623) within Major Roadworks (cost centre 357 function 6893) to undertake the design and construction of bridge access to the Nerang Caravan Park from Nerang Street.  If additional funding is required it can be allocated from within the same cost centre and function.
  2. That Council recoups all relevant expenditure from the benefited lands (Lot 1 RP 192926, 73 Nerang Street, Nerang), including interest charges, through a special charge in line with Section 971 of the Local Government Act 1993 (Chapter 14, Division 2, Part 2), within a four year period or upon redevelopment, whichever comes first.
  3. That the Director Engineering Services notifies the residents of Nerang River Drive of Council’s decision to construct a new bridge, and outlines the expected timeframe for the bridge to be completed.
  4. That the City Solicitor seek Supreme Court determination of Council’s ability to recover funds through the mechanisms outlined in Point 3 of the recommendation and a report on this be brought back to Council.
  5. That the CEO take whatever action necessary to achieve restricted access through Nerang River Drive following construction of the new bridge.
  6. That the Corporate Communications Branch be asked to put an information leaflet together and that they be involved in this on an ongoing basis to ensure a good level of communication with the residents of Nerang River Drive.”

(Recommendation ES08.0827.008)

  1. There was a Council meeting on 1 September 2008, when one agenda item was “ 9 - Reception & Consideration of Committee Reports”. The Council passed two resolutions, numbered G08.0901.013 and G08.0901.014, in these terms –

G08.0901.013

“1That Council notes the owner’s delay and unwillingness to perform bridge replacement or repair work.

  1. That initial funding of $400,000 be allocated from Bridge and Culvert Replacement (project R623) within Major Roadworks (cost centre 357 function 6893) to undertake the design and construction of bridge access to the Nerang Caravan Park from Nerang Street.  If additional funding is required it can be allocated from within the same cost centre and function.
  2. That Council recoups all relevant expenditure from the benefited lands (Lot 1 RP 192926, 73 Nerang Street, Nerang), including interest charges, through a special charge in line with Section 971 of the Local Government Act 1993 (Chapter 14, Division 2, Part 2), within a four year period or upon redevelopment, whichever comes first.
  3. That the Director Engineering Services notifies the residents of Nerang River Drive of Council’s decision to construct a new bridge, and outlines the expected timeframe for the bridge to be completed.
  4. That the City Solicitor provide legal advice in relation to Council’s ability to recover funds from the landowners who benefit from such works and report back to Council prior to any construction taking place.
  5. That the CEO take whatever action necessary to achieve restricted access through Nerang River Drive following construction of the new bridge.
  6. That the Corporate Communications Branch be asked to put an information leaflet together and that they be involved in this on an ongoing basis to ensure a good level of communication with the residents of Nerang River Drive.”

(Emphasis added.)

In other words, resolution G08.0901.013 was in terms of the ES Committee’s recommendation, subject to an amendment to paragraph 5 as to instructions to the City Solicitor.

G08.0901.014

“That the Report of the Engineering Services Committee’s Recommendations of Wednesday, 27 August 2008, numbered ES08.0827.001 to ES08.0827.009, be adopted with the exception of:

Recommendation NumbersES08.0827.005 and

ES08.0827.008

which were specifically resolved.”

In the minutes, resolution G08.0901.014 is preceded by the subheading “Adoption of the Engineering Services Committee Report”. (Emphasis added.)

  1. The minutes of the Council meeting appear several times in the material before the Court on this application – as exhibit 26 to Mr Cocco’s affidavit, as exhibit JEM-19 to Mr McGrath’s affidavit and at pages 31-38 of Exhibit 1 (which was tendered by the respondent).
  1. The relevant pages of Exhibit 1 all bear the header –

“495th Council Meeting 1 September 2008

Engineering Services Committee Meeting 27 August 2008                         Adopted Report

ITEM 8 ENGINEERING ASSETS & PLANNING

BRIDGE THAT PROVIDES ACCESS TO NERANG CARAVAN PARK

PN147378/16/-(P1); RD132810/16/-(P2)

(Emphasis added.)

The material reproduced there seems to be a compilation of apparently relevant material – the officer’s report of 5 August 2008, ES Committee recommendation ES08.0827.008 under the subheading “Committee Recommendation Changed at Council 1 September 2008 – Changed Recommendation”, and Council resolution G08.0901.013 under the subheading “Changed at Council 1 September 2008.”

  1. The exhibit to Mr Cocco’s affidavit contains the report and the ES Committee recommendation (pages 134-141) under a header similar to that in Exhibit 1, except that it, in the second line, “Report” rather than “Adopted Report” appears. The page numbering in the top right hand corner is also different. The Council’s resolutions G08.0901.013 and G08.0901.014 are reproduced at pages 142-143 under the header –

“9 RECEPTION & CONSIDERATION OF COMMITTEE REPORTS

9.3 ENGINEERING SERVICES

ITEM 8

BRIDGE THAT PROVIDES ACCESS TO NERANG CARAVAN PARK

PN14378/16/-(P1); RD 132810/16/-(P2)”

  1. The exhibit to Mr McGrath’s affidavit contains only two pages, which are the same as pages 142-143 of the exhibit to Mr Cocco’s affidavit.
  1. It is anomalous that the header to the material in Exhibit 1 contains “Adopted Report”, while the header to the corresponding exhibit to Mr Cocco’s affidavit contains only “Report”. This was unexplained. The pages in Exhibit 1 may be the product of sequential reproduction by means of a word processing program after the minutes of the Council meeting on 1 September 2008 had been adopted at a subsequent Council meeting – but that is speculation. Suffice it to say, the anomaly provides good reason not to take the header into account in the interpretation of the resolutions. 
  1. In November 2008 the respondent’s Technical Services Branch prepared a Concept Options Report (“COR”), in which the advantages and disadvantages and estimated costs of three different types of bridge[5] were considered, as well as those associated with strengthening and repairing the existing structure. The costings for these options ranged from $715,000 to $1,060,000. The COR was finalised by February 2009. Its authors recommended a new two-span bridge with a single vehicle lane (Option 1B), at an estimated construction cost of approximately $840,000 including GST for the bridge alone, or $1.2 million including road approaches. There was no estimated time frame for the work included in the COR.
  1. On 18 February 2009 the respondent’s Corporate Governance and Financial Service Committee recommended that Option 1B be implemented, subject to the City Solicitor considering that course to be appropriate. At the Council meeting on 23 February 2009 the respondent resolved to treat the report as a confidential document, noted the report, and noted that the Engineering Services branch was proceeding with construction.
  1. In its budget for the financial year 2009-2010 the respondent allocated an additional $900,000 to the project.
  1. According to the respondent’s Senior Project Manager, Mr Rootes, design plans were issued for construction on 24 July 2009, and construction commenced on-site in late July 2009.
  1. On 31 August 2009 the respondent reallocated a further $300,000 from other projects. The material placed before the Council meeting noted that design had commenced in the 2008-2009 financial year and that the project had been fast-tracked to be completed in the 2009-2010 financial year.
  1. At the Council meeting on 14 September 2009 the respondent adopted the following recommendation of the Engineering Services Committee –

“1That the 2009/2010 Capital Works Programme – Approvals, included in the report, be adopted by Council and construction of those works with estimates in excess of the preliminary allocations, be authorised.

2That Council note that those projects having estimates within the preliminary allocations have been issued for construction.”

(Recommendation ES09.0909.001)

Those approvals included the bridge replacement and associated works, for which $1,598,000 was recorded as both the “preliminary allocation” and the “final estimate”.

  1. The work was practically complete by approximately February/March 2010, and the bridge was opened to traffic. There were some minor ongoing issues concerning bank revegetation, but nothing occurred on-site for about 12 months after practical completion, until funding for the revegetation was sourced.
  1. The final cost was $2,157,268, which included the design work, the construction of the bridge and associated works.
  1. In June 2010 the respondent resolved to levy a special charge to recoup the cost. The applicant commenced a proceeding for judicial review of that decision.
  1. At the special Council meeting on 24 June 2011 the respondent made its budget resolutions for the 2011-2012 financial year. Relevantly, it resolved to repeal the special charge levied in June 2010, and –

Nerang Caravan ParkAccess Bridge Special Charge

Council resolves to levy a special charge under section 94 of the Local Government Act and section 28 of the Finance, Plans and Reporting Regulation to be known as the Nerang Caravan Park – Access Bridge Special Charge (‘special charge’) as follows:

aCouncil directs the Chief Executive Officer to place a notification text and rates flag on the land record of lots levied with the special charge to alert both Council officers and potential purchasers undertaking due diligence of the special charge’s existence.

bCouncil makes and will levy a special charge on the rateable land described in paragraph (6) to defray the costs of removing the pre-existing bridge and replacing it with a temporary pedestrian access and more permanent replacement bridge for vehicular traffic (including design and ancillary costs), details of which are set out in the schedule.

c The rateable land to which the charge applies is the land specified and described in paragraph (6).

dThe overall plan for the supply of the facility to which the special charge applies is as per the Report adopted by Council on 1 September 2008 titled ‘Item 8 Bridge That Provides Access to Nerang Caravan Park’, amended as follows:

iThe rateable land to which the special charge applies is the land described in paragraph (6).[6]

iiThe facility for which this overall plan is made is removing the pre-existing bridge and replacing it with a temporary pedestrian access and a more permanent replacement bridge for vehicular traffic (‘the infrastructure works’), together with design work associated with the infrastructure works. A more detailed description and itemisation of the infrastructure works is set out in the schedule.

iiiThe estimated time for carrying out the overall plan is from 1 September 2008 until 1 September 2012. The facility was effectively established by February 2010, and minor bank restoration works are to be carried out until September 2012. (The cost of such future works have [sic] already been incurred, and are included in the schedule.)

ivThe cost of the overall plan is $2,157,268.

eThe land identified in paragraph (6) has special access to the facility and is the only land that does.

fA special charge in the amount specified in the following table is made, and is to be levied on the rateable land specified in the table for the year 2011-12:

Nerang Bridge Special Charge

Lot Description

Special Charge

Lot 1 RP 192926 at

73 Nerang St 

Nerang

$2,157,268

5 Annual Implementation Plan

aCouncil resolves to adopt the following annual implementation plan for the financial year 2011-2012:

Most works are complete. Bank restoration works will be carried out through the course of the financial year.”

  1. On 5 September 2011 the respondent issued a rates notice which included the amount of the special charge.

The applicant was informed

  1. Under cover of a letter dated 18 September 2008, the City Solicitor gave the applicant’s solicitors a copy of the report presented to the ES Committee meeting on 27 August 2008 and a copy of the Council resolution of 1 September 2008.
  1. On 14 January 2009 the City Solicitor provided the applicant’s solicitors with a copy of the COR. He advised that the respondent had decided to proceed with Option 1B, but invited the applicant to enter into a dialogue about some different form of construction which might better suit its long term plans. The applicant’s solicitors responded by asking the respondent to proceed with the selected option “at its earliest”.
  1. In July 2009 the respondent gave the applicant notice of when work would commence and the then current estimated construction time.

The issues

  1. By s 28(3) of the Regulation, a local government’s resolution to levy a special charge had to identify the rateable land and the “overall plan” for the facility to which the special charge applied. It was common ground that the local government had to adopt the overall plan before commencing work on the facility.[7] And it was common ground that a special charge could be levied in respect of work already carried out.[8]
  1. In this case, the bridge that was ultimately constructed was a “facility” within the meaning of the LGA 2009 and the Regulation. The critical issue is whether an overall plan was adopted before the work was carried out.
  1. The respondent identified the overall plan for the facility in paragraph 3(d) of the resolution of 24 June 2011 in these terms –

“as per the Report adopted by Council on 1 September 2008 titled ‘Item 8 Bridge That Provides Access to Nerang Caravan Park’, amended …”

  1. Senior counsel for the applicant submitted –
  1. The special charge which the respondent resolved to levy on 24 June 2011 was invalid by reason of the respondent’s non-compliance with the requirement to adopt an overall plan before the work commenced.
  1. The respondent did not adopt the report of the ES Committee at its meeting on 1 September 2008, but merely that committee’s recommendations.
  1. Even if the respondent did adopt the report at that meeting, it was not an “overall plan”.

a.The resolution made no reference to the adoption of an “overall plan”.

b.There was no specification of the facility or work actually to be undertaken as required by s 28(4)(a): something more than a bland description of design and construction of bridge access was required.[9]

c.There was no statement in the resolutions of the estimated costs of carrying out the overall plan as required by s 28(4)(c), which was not surprising because the respondent did not obtain the draft COR with costings for the various options until two months later.

d.There was no estimated time for carrying out the overall plan as required by s 28(4)(d).

  1. The objects of transparency and accountability would not be met by a conclusion that the resolution of 1 September 2008 constituted or adopted an overall plan, because of the vagaries and uncertainties of the proposal as it then stood.
  1. Work commenced no later than November 2008, with work on the first COR, which was before an overall plan was adopted.[10]
  1. The resolution of 14 September 2009 did not amend an overall plan previously adopted.
  1. The resolution of 24 June 2011 did not refer to the resolution of 14 September 2009 as required by s 28(3).
  1. Even if the resolution of 14 September 2009 could be construed as amending the purported overall plan of 1 September 2008, the amendments would have had the effect of bringing an overall plan into existence after the works had been substantially completed
  1. The resolution of 24 June 2011 could not be relied on as an overall plan on which to base the special charge because it was made 19 months after the work was finished.
  1. The resolution of 24 June 2011 was an ineffectual attempt to bring the resolution of 1 September 2008 within the net of an overall plan. The amendment of the estimated time for carrying out the overall plan was an artifice: the work had been completed by February 2010, and there could not be an amendment of an overall plan in respect of work already completed.
  1. Counsel for the respondent submitted –
  1. The respondent adopted the report of the ES Committee at its meeting on 1 September 2008.
  1. The report of the ES Committee was an overall plan within the meaning of s 28.
  1. The overall plan was amended by the resolutions of 14 September 2009 and 24 June 2011.
  1. Alternatively, the overall plan was comprised of the separate resolutions made on 1 September 2008 and 14 September 2009, and it was amended by the resolution on 24 June 2011.
  1. The respondent was able to amend the overall plan on 24 June 2011 because at that time the work was only substantially complete, but not wholly so.
  1. Even if the respondent did not adopt an overall plan before the work commenced, the special charge the respondent resolved to levy on 24 June 2011 was not invalid by reason of the non-compliance with the requirement to adopt an overall plan before the work commenced.
  1. By s 28(7) of the Regulation, if an overall plan was for more than one year, the local government also had to adopt an “annual implementation plan” for each year.
  1. Counsel for the applicant submitted –
  1. The respondent did not adopt an annual implementation plan for any of the financial years 2008-2009, 2009-2010 or 2010-2011.
  1. The special charge was invalid by reason of the non-compliance with the requirement to adopt annual implementation plans.
  1. Counsel for the respondent submitted –
  1. The requirement to adopt an annual implementation plan arose only when a special charge had been levied.
  1. Even if there was a requirement to adopt an annual implementation plan for any of those financial years and the respondent did not comply with that requirement, the special charge the respondent resolved to levy on 24 June 2011 was not invalid by reason of that non-compliance.
  1. Finally, counsel for the respondent submitted that relief should be refused on discretionary grounds.

Overall plan

  1. The parties are at odds as to whether the respondent Council adopted “the Report … titled Item 8 Bridge that Provides Access to Nerang Caravan Park” on 1 September 2008, and whether that report satisfied the requirements of an “overall plan” as prescribed in s 28.
  1. Counsel for the applicant submitted that the respondent did not adopt the report at its meeting on 1 September 2008, but merely the ES Committee’s Recommendation ES08.0827.008, albeit with the amendment to paragraph 5 as to instructions to the City Solicitor. They submitted that the respondent’s resolution G08.0901.013 did not amount to the adoption of an overall plan, for the following reasons:

(i)The resolution made no reference to the adoption of an overall plan, and did not adopt any other document as constituting the overall plan. The respondent conceded that express reference to the adoption of an overall plan was not critical in the determination of whether one was adopted.

(ii)The resolution did not contain a description of the facility or work to be undertaken that met the requirement in s 28(4)(a).

(iii)The resolution did not state the estimated cost of carrying out the overall plan as required by s 28(4)(c).

(iv)The resolution did not state the estimated time for carrying out the overall plan as required by s 28(4)(d).

  1. Further, counsel for the applicant submitted, even if the respondent did adopt the report at that meeting, it was not an “overall plan”. They submitted that it contained nothing more than a mere proposal, and that something more specific was required for it to be a “plan”. It could not be more than a proposal at least until the respondent considered a COR, and probably not until later. They made the following submissions.

(i)While conceding that the bridge ultimately constructed was a “facility” within the meaning of the LGA 2009 and the Regulation, they submitted that the report did not “describe the … facility” as required by s 28(4)(a). It referred merely to “a new bridge to access the Caravan Park from Nerang Street”; indeed, it could have done no more because it was putting forward no more than a broad concept which did not amount to a “facility”.

(ii)“The estimated cost of carrying out the overall plan” was not stated as required by s 28(4)(c). They pointed to statements in the report that initial estimates for the cost of works ranged from $400,000 to $700,000 dependent on the requirements of the caravan park and the scope of design, that further design work was required to provide more robust cost estimates, and that a more detailed estimate of construction costs would be available after further design work was undertaken as indicating that there was no estimate of the cost of carrying out any overall plan. The figure of $400,000 was no more than a shot in the dark, as shown by the costings in the first COR ranging from $715,000 to $1,060,000.

(iii)“The estimated time for carrying out the overall plan” was not stated as required by s 28(4)(d). In paragraph 5.2 it was proposed to complete works “within 12 months’, while in paragraph 12 this was expected to take “at least 12 months”.

  1. Counsel for the respondent submitted that a “realistic approach” ought to be taken to the respondent’s resolution of 1 September 2008. In his submission the Council officer put forward a proposal to construct a bridge, and then the ES Committee recommended to the Council that it take up that proposal as its own. The Council’s decision was, he submitted, to take up and act upon what was contained in the report; it decided to build a bridge – the bridge referred to in the report, on the basis set out in the report. He drew attention to paragraphs 2 and 4 of resolution G08.0901.013: the allocation of initial funding for the design and construction of a bridge, and notification to residents of Nerang River Drive of Council’s decision to construct a new bridge and the expected timeframe for it to be completed. In his submission that constituted adoption of the report.
  1. Counsel for the respondent submitted that, in considering whether the report constituted an overall plan as defined in s 28(4), the Court should look at the substance of what was adopted. He made the following submissions.

(i)“A new bridge to access the Caravan Park from Nerang Street” described the facility within the meaning of s 28(4)(a). Those words identified sufficient qualitative characteristics of the proposed facility to indicate what it was and what it did. It would be wrong to read into s 28(4)(a) a need for some level of specification going beyond a qualitative description when the legislature had provided no guide on how far it was necessary to go.

(ii)The statement in the report that initial estimates for the cost of works ranged from $400,000 to $700,000 was sufficient to satisfy the requirement in s 28(4)(c) that it state “the estimated cost” of carrying out the overall plan. An estimate is a judgment or opinion formed in advance of knowing what something will actually be. It would be wrong to read into s 28(4)(c) some extra quality of the estimate, such as that it be a final estimate, or a reliable estimate or an advanced estimate, when the legislature had provided no guide on the degree of advancement or reliability required.

(iii)While the report did not state the estimated time for carrying out the overall plan in those terms, it said that it was proposed to complete “these works” (design, approvals and construction) “within 12 months” and that removal of the existing bridge and the approvals, design and construction of its replacement was expected to take “at least 12 months”. On any ordinary reading, it was saying that the estimated time for the project was 12 months.

Discussion

  1. The objective of statutory construction is to give the words of a statutory provision the meaning which the Legislature is taken to have intended them to have.[11] By s 14A of the Acts Interpretation Act 1954 (Qld), the interpretation that will best achieve the purpose of an act is to be preferred to any other interpretation.
  1. The purpose of an act is to be gleaned from the act as a whole. The LGA 2009 contains an express statement of its purpose in s 3, and by s 4 it expressly requires any action taken under the Act to be taken in a way that is consistent with stated local government principles. Transparency and accountability are recurring themes. That one of the purposes of the Act is to provide transparency and accountability in the conduct of local government is confirmed the Explanatory Notes relating to the bill for the LGA 2009.[12]
  1. The Regulation was in force on 24 June 2011 when the respondent resolved to levy the special charge. Part 6 (ss 28-32) was headed “Special rates and charges”, and s 28 was headed “Levying special rates or charges”
  1. In Collector of Customs v Agfa-Gevaert Limited[13] the High Court said –

“The general principles relating to the interpretation of Acts of Parliament are equally applicable to the interpretation of delegated legislation.[14] To use the words of Dixon J, ‘subordinate or delegated legislation…[stands] on the same ground as an Act of Parliament and [is] governed by the same rules of construction’.”[15]

  1. More recently, in One.Tel Ltd v Australian Communications Authority[16] the Full Court of the Federal Court considered the proper approach to the validity and interpretation of regulations. Emmett J said in relation to validity –[17]

“129The objects of the Act are important in that they inform of the proper construction of the Act generally and s 147 in particular — see CIC Insurance Ltd v Bankstown Football Club Ltd.[18] The validity of the Regulations must be considered against the objects of the Act and the objects and purpose of the Regulations in achieving the objects of the Act. The power to make regulations under s 594 of the Act by reference to s 147 must be purposive. Accordingly, the power must be interpreted as being so confined that it cannot be exercised in a manner that is disproportionate to the attainment of the purpose for which it is conferred — Minister for Resources v Dover Fisheries Pty Ltd.[19]

Hill J said in relation to interpretation –[20]

“64It is not in dispute that regulations, like the enactments under which they are made, are to be construed both by reference to the context in which they appear (the word ‘context’ being used in the widest sense of that term) and by reference to the legislation under which they are enacted. Subject to any specific indication to the contrary regulations (or, at the least, regulations dealing with a common topic, for often regulations may deal with quite diverse subject matters) are to be read as a whole and in a way which promotes their purpose: CIC Insurance Ltd v Bankstown Football Club Ltd;[21] Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth).[22] A construction which produces absurdity by reference to the ‘context’ will, obviously, be rejected. The present Regulations form, together with Pt 7 of the Act pursuant to which they were proclaimed, a coherent code for the assessment of the levy dealt with in Pt 7. Without the Regulations calculation of the levy would be, if not impossible, at the least attendant with great uncertainty.”

  1. Under the LGA 2009 special rates and charges may be levied for services, facilities and activities that have a special association with particular land.[23] While there is no express definition of “facility” in the act, the word is used in one of its ordinary senses – namely, something that makes the performance of an action easier.[24] Here, a bridge over the creek would make access to the caravan park land from Nerang Street easier. Would such a broad concept be a “facility” within the meaning of the Act? Section 91(2) refers to “a… facility… that is supplied or undertaken by the local government”, and s 92(3) refers to “facilities that have a special association with particular land because the land or its occupier specially benefits from the … facility … or has or will have special access to the … facility” or the use of the land or its occupier “specially contributes to the need for the … facility.” (Emphasis added.) Rates and charges may be imposed for a facility that “is supplied or undertaken”, and a special charge may be made for a facility that “is supplied or undertaken” and that “[has] a special association with particular land”.  Consistently with the goals of transparency and accountability, and in the context in which “facility” is used in the Act, it is clear that the Legislature intended “facility” in ss 91 and 92 to mean more than a broad concept such as “a bridge over the creek” or “a new bridge to access the Caravan Park from Nerang Street”. I conclude that a “facility” within ss 91 and 92 is an amenity or service which a local government has supplied or undertaken to supply and which can be described with sufficient specificity for the local government to levy a special rate or charge to recoup its expenditure in doing so.
  1. There was no express statement of legislative purpose in s 28 of the Regulation. In divining the purpose of the Regulation, regard must be had to the purpose of the LGA 2009 under which it was made, and the principles underpinning the Act.[25] Counsel for the applicant and counsel for the respondent agreed that ensuring local governments exercised the power in s 94 of the LGA 2009 in a transparent and accountable manner was a purpose of s 28. This is confirmed by the Explanatory Notes relating to the bill for the LGA 2009, as well as the Explanatory Notes relating to the 1999 bill for the amendment of s 971 of the 1993 Act.
  1. By s 28(5) of the Regulation, a local government which decided to levy a special charge had to “adopt” an overall plan before, or at the same time as, it first resolved to levy the special charge. It was common ground that an overall plan had to be in existence, ie to have been adopted at least in its initial version, before the work commenced.[26] As Starke J said in City of Camberwell v Woolf –[27]

“Adopt is not a technical word. Any corporate act of the Council taking up and approving the scheme will suffice. But … the act of adoption must be clear and precise, and … determinate, fixed and final”.

  1. By s 28(3), the resolution to levy the special charge had to identify the rateable land to which the special charge applied and “the overall plan for the facility” to which it applied. (Emphasis added.)
  1. In its ordinary meaning, a “plan” is a scheme for accomplishing a purpose or project,[28] and an “overall plan” is one that deals with the whole process of accomplishing that purpose or project, from beginning to end.[29] As design, approvals and construction are different phases of a normal capital works project, an overall plan for such a project would include each of them.
  1. By s 28(4), the overall plan was a document that described “the … facility”, identified the rateable land to which the special charge applied, stated the estimated costs of carrying out the overall plan, and stated the estimated time for carrying out the overall plan. That cannot have been intended as an exhaustive definition of an overall plan, if only because it was in some respects circular: an overall plan was a document that stated (inter alia) the estimated cost of carrying out the overall plan and the estimated time for carrying out the overall plan. Rather it was a requirement that the overall plan be contained in a document and a requirement that certain matters be stated in that document.
  1. In its ordinary meaning, an “estimate” is an approximate calculation or opinion, formed in advance of knowing what the “actual” will be.[30]
  1. By s 28(10), the local government might amend an overall plan at any time, by resolution. It was common ground that it might do so at any time until the work was complete.[31]
  1. The Council resolution of 1 September 2008 should be construed in its factual context.[32] The old bridge was no longer trafficable, and access via the lane at the bottom of the peninsula was unsatisfactory. A Council officer had prepared a report recommending the construction of a new bridge, and the allocation of initial funding for its design and construction. The ES Committee had considered the report and made a recommendation to Council which was an amended version of the officer’s recommendation. The officer’s report and the committee’s recommendation were received and considered by the Council, which made a resolution in the same terms as the committee’s recommendation (but for paragraph 5 about instructions to the City Solicitor).
  1. The report covered matters such as advising the applicant and the residents of Nerang River Drive of the decision to construct a new bridge over the creek, having initial funding of $400,000 allocated, proposing to start design work immediately, having more robust cost estimates prepared after further design work was completed, having further funding allocated, obtaining necessary approvals, removing the old bridge and constructing the new bridge, and recouping the expenditure by a special charge on the benefited land.
  1. Although not drafted with the precision that characterises good legislative drafting, the Council resolution was in substance a decision to construct a new bridge, to allocate initial funding of $400,000 for its design and construction, and to recoup the expenditure by a special charge levied on the benefited land (which was identified). In context, the bridge referred to was that in the report. It dealt also with important ancillary matters, such as notification to residents of Nerang River Drive, and obtaining legal advice about recovering funds from landowners who benefited from the works.  Although it referred to a timeframe for completion of the bridge, it did not state what it was.
  1. The resolution covered the principal matters canvassed in the report and its recommendations. In all the circumstances, I accept counsel for the respondent’s submission that the respondent Council adopted the report.
  1. However, neither the resolution nor the report satisfied the requirements of an overall plan.
  1. At that stage what was envisaged was no more than a broad concept, and the description of it was necessarily very general. It was too early to estimate the cost of building a new bridge, because the type of bridge had not been determined: indeed, the different options had not even been explored. Similarly, it was too early to estimate how long the construction would take. Reading the requirements of s 28 of the Regulation as a whole, and in the context of ss 91 and 92 of the LGA 2009, I consider that “a new bridge to access the Caravan Park from Nerang Street” was not a description of a facility within the meaning of s 28(4)(a), and there was no “overall plan for [a] … facility” within the meaning of s 28.
  1. The rateable land to which the special charge applied was identified as “the benefited lands (the Nerang Caravan Park)”. This would have been sufficient to satisfy the requirements of s 28(4)(b) if there had been an overall plan: there would have been no need to identify it by its real property description.
  1. It was not possible to provide an estimate of the cost of carrying out an overall plan when the facility to be provided had not been determined. According to the report, the initial estimates of the cost of the work ranged from $400,000 to $700,000 dependent on the requirements of the caravan park and the scope of design. That statement reflected the fact that the facility to be constructed had not yet been determined. Further, the range was too wide to be an approximate calculation of what the actual cost would be. In short, the report did not state the estimated cost of carrying out an overall plan within the meaning of s 28(4)(c).
  1. The report was internally inconsistent about how long it would take to construct a new bridge. In paragraph 5.1 it proposed that the works be completed “within 12 months”, while in paragraph 12 the works were expected to take “at least 12 months”. The report did not state the estimate time for carrying out an overall plan within the meaning of s 28(4)(d).
  1. It may be, as counsel for the applicant submitted, that an overall plan evolved over time. In my view the evolution could not have begun until a “facility” was able to be described in consequence of the respondent’s having adopted a design option. That seems to have been in February 2009. I infer that detailed design work was undertaken between February 2009 and the end of the 2008-2009 financial year, as construction work commenced in July 2009. Work began with that detailed planning, rather than with the drawings necessary for the COR, and it continued with the physical construction work undertaken from July 2009. There was no purported adoption of an overall plan before the Council resolution of 14 September 2009. However, by then it was too late for it to be an overall plan for the purposes of s 28.[33]

Amendments to the overall plan

  1. Having rejected counsel for the respondent’s submission that the Council adopted an overall plan on 1 September 2008, it is not necessary for me to consider his further submission that the overall plan was amended by resolution G09.0914.012 on 14 September 2009 and the resolution of 24 June 2011, which was made before the charge was actually levied.

Annual implementation plans

  1. By sub-ss (6), (7), (8) and (9) of s 28 of the Regulation

“(6)Under an overall plan, special rates or charges may be levied for 1 or more years before any of the special rates or charges are spent in carrying out the overall plan.

(7)If an overall plan is for more than 1 year, the local government must also adopt an annual implementation plan for each year.

(8) An annual implementation plan for a financial year is a document setting out the actions or processes that are to be carried out in the financial year for the service, facility or activity to which the special rates or charges apply.

(9)The local government must adopt the annual implementation plan before or at the budget meeting for each year of the period for carrying out the overall plan.”

  1. If, contrary to my view, the respondent did adopt an overall plan at the Council meeting on 1 September 2008, it did not adopt an annual implementation plan (“AIP”) for either the 2008-2009 financial year or the 2009-2010 financial year.
  1. The respondent did not resolve to levy the special charge until 24 June 2011. I shall consider the parties’ submissions upon whether it was required to adopt an AIP for the years in question, given that it did not resolve to levy any special charge in either of those years. It is convenient to begin with the submissions for the respondent.
  1. Counsel for the respondent submitted –

(i)An AIP was required when a special rate or charge was to be levied for a financial year, and the proceeds were to be expended in that financial year for part but not the whole of the facility for which the charge was made, or were to be carried forward into a future financial year.[34]

(ii)An AIP was required where a special rate or charge was to be levied for a financial year for work not yet carried out or at least not yet complete, and where the work under the overall plan would not be completed within that financial year.[35]

(iii)For s 28(8) to apply, there had to be a confluence of three factors – a particular financial year, actions or processes to be carried out in that financial year, and a service, facility or activity to which the special rates or charges applied. The third factor was absent in a financial year in which no special rate or charge existed or was to be made.[36]

(iv)Section 28(8) described an AIP as a document setting out matters to be done in a financial year for the facility “to which the special rates or charges apply”. (Emphasis added.)  It was expressed in the present tense: “apply” referred to something which then existed, or was immediately about to exist.[37]

(v)Similarly, s 28(9) required an AIP to be adopted before or at the budget meeting for each year. There would have been no point to such a requirement unless a special rate or charge was proposed to be made at that budget meeting: otherwise, neither the project nor any associated plan would be on the budget meeting agenda.[38]

(vi)The expression “to which the special rates or charges apply” appeared in s 28(3) and (4)(b), as well as in s 28(8).  In each of those three subsections, it meant a special rate or charge just about to be made.[39]

  1. Counsel for the applicant submitted –

(i)As defined in s 28(8), an AIP was not limited to details relating to the raising of the special charge. All of the “actions or processes that [were] to be carried out in the financial year for the service, facility or activity to which the special rates or charges apply” were to be set out in it.

(ii)An overall plan had to be adopted before work commenced.

(iii)The resolution to levy the special rates or charges might have been made before the work commenced, while the work was proceeding, or after it was finished.[40]

(iv)The expression “to which the special rates or charges apply” should be construed in the same way in each of s 28(3), s 28(4) and s 28(8).

(v)The use of that expression in s 28(8) cannot suggest that an AIP was required only when the local government had resolved to levy a special rate or charge.[41]

Discussion

  1. By s 91(2) of the LGA 2009, rates and charges are levies that a local government imposes on land “for a service, facility or activity”.
  1. By s 92(3) of the LGA 2009, special rates and charges are for services, facilities and activities “that have a special association with particular land”, and by s 93(1), rates (including special rates and charges) are levied on “rateable land”.
  1. By s 28 of the Regulation, the local government had to adopt an “overall plan for the service, facility or activity to which the special rates or charges apply” before it commenced work, and before or at the same time as it first resolved to levy the special rates or charges. The special rates or charges might be levied for one or more years before any of the money raised was spent in carrying out the overall plan. If an overall plan was for more than one year, the local government also had to adopt an AIP for each year, before or at the budget meeting for the relevant year. 
  1. The expression “to which the special rates or charges apply” appeared four times in s 28 of the Regulation: in s 28(3)(a) and (b), which dealt with matters which must be identified in the resolution to levy the special rates or charges; in 28(4)(b), which dealt with what must be stated in the document containing the overall plan; and in s 28(8), which defined an AIP. In s 28(3)(a), it qualified “rateable land”, while in each of the other instances it qualified “service, facility or activity”. 
  1. The “service, facility or activity” referred to in each of s 28(3)(b), s 28(4)(b) and s 28(8) was the one “to which the special rates or charges apply” – that is, the one described in the overall plan. I do not accept counsel for the respondent’s submission that the words “to which the special rates or charges apply” referred to special rates or charges that had been made or were about to be made for the relevant financial year.
  1. What was to be done toward the provision of that service, facility or activity in a particular financial year had to be set out in an AIP for that year. There is no reason to limit the obligation in s 28(7) to adopt an AIP to a year in which special rates or charges were made.
  1. In failing to adopt AIPs for the financial years 2008-2009 and 2009-2010, the respondent failed to comply with s 28 of the Regulation.

Did non-compliance with s 28 invalidate the special charge?

  1. In Project Blue Sky Inc v Australian Broadcasting Authority[42] McHugh, Gummow, Kirby and Hayne JJ said –

“91An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect.  Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition.  The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.  Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment.  The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances.  There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.”

(Emphasis added; reference omitted.)

  1. Counsel for the applicant submitted –
  1. The special charge is invalid because the respondent did not adopt an overall plan before commencing the work.
  1. Further, it is invalid because the respondent did not adopt AIPs for the financial years 2008-2009 and 2009-2010.
  1. The same test of invalidity applies whether the provision not complied with is in a statute or a regulation. 
  1. Compliance with the requirements of s 28 for an overall plan was a prerequisite to the exercise of the power to levy a special charge. That was a strong indicator that the Legislature intended non-compliance to result in invalidity of the special charge.
  1. Each provision of s 28 had a rule-like quality which could easily be identified and applied. This indicated that it was a purpose of the Regulation that non-compliance should result in invalidity.
  1. Section 28 specified with particularity what requirements were to be satisfied in the exercise of the power. This was a further indicator that it was a purpose of the Regulation that non-compliance should result in invalidity.
  1. It is unhelpful to seek to draw a distinction between substantive and procedural provisions.
  1. It is unhelpful to seek to draw a distinction between substantial and absolute compliance.
  1. Transparency and accountability were intended to result from adherence to the requirements of the Regulation, and not from some other factual scenario that may have actually occurred.
  1. Counsel for the respondent submitted –
  1. It was not a purpose of the Regulation that any non-compliance with its provisions necessarily and inevitably result in invalidity of a special charge.
  1. The power to levy a special charge was conferred by s 94 of the LGA 2009. There was no need for the Regulation to make the power workable.
  1. The Legislature neither expressly nor impliedly required the making of the Regulation, which was concerned with the procedure for exercising that power. This was an indicator that it did not intend non-compliance with the Regulation to result in invalidity.
  1. The argument in favour of invalidity would have been stronger if what was in s 28 of the Regulation had been in the LGA 2009 rather than in subordinate legislation.
  1. It was not a purpose of the legislation that non-compliance with a regulation about procedure in the exercise of a power fully granted by the Act should result in the exercise of the power being invalid.
  1. Non-compliance, other than total non-compliance, would not necessarily have led to invalidity. It is for the Court to assess the degree of departure from the Regulation, and whether it was sufficient to lead to invalidity. The non-compliance would have been insufficient to lead to invalidity if the respondent had done everything required by the Regulation, even though not in the form or the time prescribed.
  1. In fact, the respondent provided great transparency and accountability to the applicant. It cannot have been the purpose of the legislation that a ratepayer be given a windfall benefit at public expense because of non-compliance with s 28(3) and (4) of the Regulation in circumstances where the ratepayer was actually given far more transparency and accountability than it would have been given had the respondent merely complied with s 28(3) and (4).

Discussion

  1. In Whiting v Somerset Regional Council[43] PD McMurdo J considered the validity of a local government’s resolution to impose a special charge under s 971 of the 1993 Act. The relevant work was performed without an adopted overall plan. His Honour concluded that the resolution to make the special charge did not comply with s 971(4) and (4A), which were statutory precursors of s 28(3), (4) and (5) of the Regulation in the present case. He continued –

“[32]Although the Council did not argue that its resolution could stand if there was a failure to observe these requirements, it is necessary to consider whether it was the purpose of this statute that a rate or charge imposed without compliance with these requirements should be invalid: Project Blue Sky Inc v Australian Broadcasting Authority. Sub-ss (4) to (4D) of s 971 were inserted by amendments to the LGA in 1999. It was by those amendments that this requirement for an overall plan was introduced. The intention of the amendments, according to the explanatory note, was to:

provide transparency and accountability commensurate with the broadened taxation powers introduced by these amendments; and

articulate the basis/information on which the Council has formed its opinion under sub-section (1)(b) concerning the benefit, access or contribution.

Having regard to that intention, and the broader purpose of s 971 to limit the levy of a special rate or charge according to a transparent correlation with certain work at a certain cost, the adoption of an overall plan in accordance with s 971 must be seen as a prerequisite to the validity of the rate or charge.

[33]It follows that the Council’s resolution to make these charges upon Mr Whiting’s land was invalid and he is entitled to some relief.”

(References omitted.)

  1. Counsel for the respondent stressed that in the present case s 28 of the Regulation was not part of the statutory conferral of power. He submitted that the power to levy the special charge was completely conferred by s 94 of LGA 2009, and that s 28 of the Regulation was concerned with the procedure to be adopted in exercising a power fully granted by the LGA 2009. He did not challenge PD McMurdo J’s conclusion that there had been non-compliance with the relevant provisions of s 971 of the 1993 Act. However, he urged this Court not to follow his Honour’s reasoning and conclusion as to invalidity. He was also counsel for the respondent in Whiting, and he informed the Court that his Honour did not receive detailed submissions about the consequence of non-compliance with the requirement for a prospective overall plan.
  1. In Project Blue Sky Inc the majority of the High Court formulated the test of whether it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid in the context of non-compliance with s 160(d) of the Broadcasting Services Act 1992 (Cth). By s 158(j) of that Act, a primary function of the Australian Broadcasting Authority (“ABA”) was to develop program standards relating to broadcasting in Australia. By s 122(1)(a) the ABA was required to determine standards to be observed by commercial television broadcasting licensees. Section 122(2)(b) provided that those standards were to relate to “the Australian content of programs”, and s 122(4) provided that the standards must not be inconsistent with the Act or the regulations. By s 160(d) the ABA was required to perform its functions in a manner consistent with Australia’s obligations under any agreement between Australia and a foreign country. The ABA determined an Australian Content Standard. Clause 9 of that standard was inconsistent with a protocol made under a trade agreement between Australia and New Zealand. The High Court had to consider whether the standard was invalidated by the breach of s 160(d). The majority concluded that it was not.
  1. In my view, there is no reason in principle why the same test of invalidity should not be applicable regardless of whether the provision breached is in a statute or a regulation, and no reason in principle why there should be some different approach to the application of that test according to whether it is in a statute or a regulation.
  1. In Project Blue Sky Inc the majority drew a distinction between a provision regulating the exercise of functions already conferred on the ABA and a provision imposing essential preliminaries to the exercise of its functions. Their Honours said that the fact s 160 regulated the exercise of functions already conferred strongly indicated that it was not a purpose of the Act that a breach of s 160 was intended to invalidate any act done in breach of the section.[44]
  1. In Whiting PD McMurdo J held that the adoption of an overall plan in accordance with s 971 of the 1993 Act was a prerequisite to the validity of the rate or charge.[45] In reaching that conclusion his Honour had regard to the intention of the 1999 amendments as expressed in the Explanatory Notes and “the broader purpose of s 971 to limit the levy of a special rate or charge according to a transparent correlation with certain work at a certain cost.”
  1. In the 1993 Act (as amended) provisions similar to s 92(3) of the LGA 2009 and s 28 of the Regulation were all contained in the Act, and in the same provision of the Act. I can see no reason in principle why prerequisites to the exercise of a power conferred by an act may not be contained in a regulation made pursuant to the act rather than in the act itself. Whether provisions are prerequisites to the exercise of a power must depend on their purpose rather than their location.
  1. In Project Blue Sky Inc the High Court disclaimed reliance on whether compliance with a provision is mandatory or directory and, if directory, whether there has been substantial compliance with it.[46] Nevertheless, in considering the nature of the obligations imposed by the relevant provision, the majority observed –

“Not every obligation imposed by the section has a rule-like quality which can easily be identified and applied.”[47]

  1. In the present case, sub-ss (3), (5), (7) and (9) of s 28 concerned matters to be identified in the local government’s resolution to levy special rates or charges, the adoption of an overall plan and the time for adopting it, the adoption of an AIP, and the time for adopting an AIP. They all had a rule-like quality which could easily be identified and applied. Their requirements were specified with some particularity. The consistent use of “must” in those provisions is to be contrasted with the consistent use of “may” in sub-ss (2), (6), (10) and (11) which had a facultative quality. Further, what was required to be done by the local government by sub-ss (3), (5), (7) and (9) was objectively ascertainable, and compliance or non-compliance could be objectively assessed. This can be contrasted with an obligation to act in accordance with a policy or in accordance with some international convention or agreement.[48]
  1. The legislative scheme in the present case is quite different from that considered by the New South Wales Court of Appeal in Marrickville Metro Shopping Centre Pty Limited v Marrickville Council.[49] In that case the local government had power to levy a differential rate. It failed to comply with a requirement under the relevant legislation that it give a certain form of notice about the categorisation of the land the subject of the rate. However, it gave that notice under another statutory provision, in a way that was equally efficacious. Applying the Project Blue Sky Inc test, the New South Wales Court of Appeal held that the failure to give the notice did not invalidate the categorisation of the land.[50]  It did not place reliance on the procedural, as opposed to substantive, character of the provision in question.
  1. According to the Explanatory Notes relating to the bill for the LGA 2009 the bill was to be “supplemented by regulations that govern[ed] essential but subordinate operational and administrative issues.” (Emphasis added.) The Regulation was part of an overall legislative scheme intended to provide transparency and accountability in the conduct of local government. Section 28 was expressed to apply if a local government decided to levy special rates or charges.[51] Like s 971 of the 1993 Act, it was intended to limit the levy of a special rate or charge according to a transparent correlation between certain work at a certain cost.
  1. Strict compliance with sub-ss (3), (5), (7) and (9) of s 28 was a prerequisite to the exercise of the power to levy a special rate or charge. Accordingly, I reject counsel for the respondent’s submission that non-compliance with s 28 of the Regulation would not necessarily lead to invalidity and that it was for the Court to assess the degree of non-compliance and whether it was sufficient to lead to invalidity.
  1. On the facts, the respondent went to some lengths to inform the applicant of the report proposing a new bridge that was presented to the ES Committee in late August 2008, the Council resolution of 1 September 2008, the COR, and the date for commencement of construction work. Its counsel submitted that it could not have been the Legislature’s intention that a ratepayer should receive a windfall benefit at public expense because of non-compliance with s 28, in circumstances where the ratepayer was actually given more transparency and accountability than it would have been given had the respondent done no more than comply with s 28(3) and (4). However, as counsel for the applicant submitted, transparency and accountability were intended to result from adherence to the requirements of the Regulation, not from what occurred in fact.
  1. In summary –

(a)Compliance with the requirements of s 28 of the Regulation was a prerequisite to the exercise of the power in s 94 of LGA 2009 to levy a special charge.

(b)The respondent’s decision of 24 June 2011 to levy the special charge was not authorised by the LGA 2009 and the Regulation.

(c)It was a purpose of s 28 to invalidate the levying of a special charge when there had been non-compliance with the prerequisites to the exercise of the power to do so.

(d)The decision involved an error of law.

Discretion

  1. Section 30(1) of the Judicial Review Act 1991 (Qld) (“JR Act”) provides –

30Powers of the court in relation to applications for order of review

(1)On an application for a statutory order of review in relation to a decision, the court may make all or any of the following orders—

(a)an order quashing or setting aside the decision, or a part of the decision, with effect from—

(i)the day of the making of the order; or

(ii) if the court specifies the day of effect—the day specified by the court (which may be before or after the day of the making of the order);

(b)an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions (including the setting of time limits for the further consideration, and for preparatory steps in the further consideration) as the court determines;

(c)an order declaring the rights of the parties in relation to any matter to which the decision relates;

(d)an order directing any of the parties to do, or to refrain from doing, anything that the court considers necessary to do justice between the parties.”

  1. Counsel for the respondent submitted that, if the Court found there had been non-compliance with the requirements of s 28 of the Regulation, it should nevertheless decline to grant relief in the exercise of its discretion under s 30 of the JR Act. He submitted –

(i)Any relevant error of law did not result in a substantial miscarriage of justice as between the parties.

(ii)If there was an error, it was procedural rather than substantive in nature. All of the factual elements necessary to found an overall plan existed: the formulation of a proposal, the development of a budget and costings over time, and the evolution of the design. The error did not lie in failing to do what was required by an overall plan; it lay in failing to do it in the particular form, at the particular time and in the particular sequence required by the legislation.

(iii)The same result would have been achieved if the proper procedure had been followed.

(iv)In reality, the applicant was afforded a greater level of transparency and accountability than it would have been afforded had the respondent followed the prescribed procedure.

(v)To overturn the rating resolution and the rates notice would provide the applicant with a windfall benefit, at public expense, for infrastructure which it would otherwise have had to provide and fund itself.

(vi)By analogy with principles of restitution, the Court should conclude that the applicant would be unjustly enriched by an outcome whereby it received and retained the benefit of the bridge construction without paying anything for it.

(vii)In those circumstances, especially where the error was procedural rather than substantive in character, the Court should decline to grant relief on the ground that its refusal would do no injustice between the parties.

  1. Counsel for the applicant made the following submissions.

(i)Even if the error was procedural, its consequences were substantive.

(ii)This was a case of non-compliance with prerequisites to the exercise of the power to levy a special charge.

(iii)The principles relating to restitution are not relevant to this application, which is not concerned with merits review.

(iv)The construction work has been completed: it is too late to adopt an overall plan, and so there would be no point in sending the matter back to the decision-maker to proceed according to law.

Discussion

  1. The respondent’s submissions are premised on the error being procedural rather than substantive in character, a distinction which has been frowned upon by the High Court.
  1. I have concluded that there was non-compliance with provisions which were prerequisites to the exercise of the power to levy a special charge. It is not to the point that the same construction may have been undertaken had the respondent done what was required by s 28 of the Regulation. Nor is it to the point that the respondent may have in fact afforded the applicant a high level of transparency and accountability. 
  1. As the Court is not engaged in a merits review, there can be no meaningful analogy with principles of restitution.
  1. In short, I am unpersuaded that the Court should exercise its discretion to refuse relief.

Disposition

  1. I will hear the parties on the form of the order and on costs.

Footnotes

[1] Local Government Act 2009 (Qld) reprint no 1C, effective 8 April 2011.

[2] The Local Government (Finance, Plans and Reporting) Regulation 2010 (Qld) was repealed by the Local Government Regulation 2012 (Qld). The wording of the relevant provisions relating to special rates and charges has remained the same, but is now contained in Chapter 4 Part 6 of the 2012 Regulation.

[3] Local Government (Finance, Plans and Reporting) Regulation 2010 (Qld) reprint no 1E, effective 11 March 2011.

[4] Report of Andy Stewart dated 5 August 2008, contained in affidavit of John Edward McGrath affirmed 17 August 2012 (court doc 10), exhibit “JEM 17” at Para 5.2.

[5] There were two versions of the first option.

[6] The land referred to in the schedule in paragraph (f) – that is, the applicant’s land referred to in paragraph 1 of these reasons for judgment.

[7] See Whiting v Somerset Regional Council [2010] QSC 200 per PD McMurdo J – a decision on s 971 of the 1993 Act.

[8] T 1-22.

[9] T 1-38.

[10] T 1-47.

[11] Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at 591; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384.

[12] Acts Interpretation Act 1954 (Qld) s 14B(1)(c).

[13] (1995-1996) 186 CLR 389 at 398.

[14] Pearce, Delegated Legislation in Australia and New Zealand (1977), p 286.

[15] King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184 at 195.

[16] (2001) 110 FCR 125.

[17] Ibid at 154.

[18] (1997) 187 CLR 384 at 408.

[19] (1993) 43 FCR 565 at 582-584.

[20] One.Tel Ltd v Australian Communications Authority (2001) 110 FCR 125 at 141.

[21] (1997) 187 CLR 384.

[22] (1981) 147 CLR 297.

[23] Sections 92 and 94.

[24] Macquarie Dictionary Online (2014) Macmillan Publishers Group Australia; see also Oxford English Dictionary Online (2014) Oxford University Press.

[25] See LGA 2009 ss 3 and 4.

[26] Whiting v Somerset Regional Council [2010] QSC 200 at [29] – [31].

[27] (1932) 48 CLR 547 at 561.

[28] Macquarie Dictionary Online (2014) Macmillan Publishers Group Australia; see also Oxford English Dictionary Online (2014) Oxford University Press.

[29] “Overall” is defined in the Macquarie Dictionary as “covering or including everything”: Macquarie Dictionary Online (2014) Macmillan Publishers Group Australia; and in the Oxford English Dictionary as “operating or having effect over the whole range of components, features, or aspects; total, inclusive of all”: Oxford English Dictionary Online (2014) Oxford University Press.

[30] Macquarie Dictionary Online (2014) Macmillan Publishers Group Australia; see also Oxford English Dictionary Online (2014) Oxford University Press.

[31] T 1-54 – 1-55, 1-73.

[32] See generally Myer Queenstown Garden Plaza Pty Ltd v City of Port Adelaide (1975) 11 SASR 504 at 520-521 per Wells J.

[33] Whiting v Somerset Regional Council [2010] QSC 200 at [30]-[31].

[34] Written submissions of the respondent para 80.

[35] Written submissions of the respondent para 82.

[36] T 2-11 – 2-12

[37] Written submissions of the respondent para 78.

[38] Written submissions of the respondent para 79.

[39] T 264 – 2-65.

[40] Regulation s 28(6), Whiting v Somerset Regional Council [2010] QSC 200 at [30].

[41] Applicant’s outline of submissions para 61.

[42] (1997-1998) 194 CLR 355 at 388-389.

[43] [2010] QSC 200.

[44] Project Blue Sky Inc v Australian Broadcasting Authority (1997-1998) 194 CLR 355 at 391.

[45] [2010] QSC 200 at [32].

[46] Para [93] at page 390

[47] Project Blue Sky Inc v Australian Broadcasting Authority (1997-1998) 194 CLR 355 at 391.

[48] See Project Blue Sky Inc v Australian Broadcasting Authority (1997-1998) 194 CLR 355 at 391-392.

[49] (2010) 174 LGERA 67.

[50] See para [182], [187] – 194] per Tobias JA, para [214] – [222] per Basten JA.

[51] Regulation s 28(1).

Close

Editorial Notes

  • Published Case Name:

    E Cocco & Sons Investments Pty Ltd v Gold Coast City Council

  • Shortened Case Name:

    E Cocco & Sons Investments Pty Ltd v Gold Coast City Council

  • MNC:

    [2014] QSC 10

  • Court:

    QSC

  • Judge(s):

    M Wilson J

  • Date:

    14 Feb 2014

Litigation History

No Litigation History

Appeal Status

No Status