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- Appeal Determined (QCA)
Ipswich City Council v BWP Management Limited QLAC 1
LAND APPEAL COURT OF QUEENSLAND
Ipswich City Council v BWP Management Limited & Anor  QLAC 1
Ipswich City Council
BWP Management Limited ACN 082 856 424(first respondent)
W & V Nominees Pty Ltd as Tte for the Elton Family Trust No. 3
ACN 606 755 239
Land Court No LGR282-16, LGR283-16
Land Appeal Court of Queensland
Appeal from the Land Court of Queensland
Land Court of Queensland
21 June 2019
26 February 2019
FY Kingham, President of the Land Court
APPEAL AND NEW TRIAL – APPEAL – ERROR OF LAW – INTERPRETATION – REFERENCE TO CONTEXT – where dispute at first instance about which rating category applied to the land – where the Member found that two rating categories applied and decided the rating category that imposed the lesser burden was the correct rating category for the land – where the Court found that, interpreted in context, only one rating category could apply
REAL PROPERTY – RATES AND CHARGES – RATING OF LAND – categories of land – where appellant decided the correct category was 52a Drive-In Shopping Centre – where the respondent contended the correct rating category was 44b Shop – Single – where it was decided the correct category was 52a Drive-In Shopping Centre
Local Government Regulation 2012 s 80, s 81, s 93
AAD Design Pty Ltd v Brisbane City Council  1 Qd R 1;  QCA 44, applied
Allesch v Maunz (2000) 203 CLR 172;  HCA 40, cited
Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355;  HCA 28, applied
BWP Management Limited v Ipswich City Council; W & V Nominees Pty Ltd as Tte for the Elton Family Trust No. 3 v Ipswich City Council  QLC 14, considered
Commercial Radio Coffs Harbour Ltd v Fuller (1986) 161 CLR 47;  HCA 42, cited
De Tournouer v Chief Executive, Department of Environment and Resource Management  1 Qd R 200;  QCA 395, cited
Mahoney & Ors v Chief Executive, Department of Transport and Main Roads (2014) 206 LGERA 302;  QCA 356, cited
Refrigerated Express Lines (A’Asia) Pty Ltd v Australian Meat and Live-stock Corp (1980) 29 ALR 333;  FCA 45, cited
RN Traves QC, with MR Wilkinson of Counsel (instructed by Colin Biggers & Paisley) for the appellant
ANS Skoien of Counsel, with DW Jones of Counsel (instructed by Lander & Rogers) for the respondents
- MULLINS J: I agree with President Kingham.
- PRESIDENT KINGHAM: Owners of land in Ipswich pay rates to the Ipswich City Council under a differential rating system. Under that system, the Council levies rates according to the category applied to the land. This appeal concerns the correct rating category for two parcels of land used for Bunnings stores, in West Ipswich and Springfield Central.
- The Council decided the correct category is 52a. The owners, BWP Management Limited and W & V Nominees Pty Ltd, appealed to the Land Court and contended 44b is the correct rating category for the land. The Land Court upheld the owners’ appeal and changed the rating category to 44b.
- The Council has appealed that decision. An appeal to the Land Appeal Court is by way of re-hearing. To succeed, the Council must establish a legal, factual, or discretionary error in the decision below. The parties agreed on the relevant facts for the appeal below. The sole dispute was which category applied to the land. The Court’s function was to decide whether the Council had correctly categorised the land and, if not, to change the category.
- The Council asserts errors in the learned Member’s process of reasoning and in his conclusions. In terms of his reasoning, the primary argument is that his Honour did not properly interpret the rating categories in the context of the scheme as a whole, to avoid any inconsistency or conflict in the scheme. The Council argues this led to the learned Member wrongly concluding both categories applied to the land, and that he faced a “deadlock” that had to “be separated,” which he resolved by imposing an outcome with the least impact on the owners. Properly interpreted, the Council argues only one rating category applies.
- Although the owners agree with the Council on this point, they did not concede any error in his Honour’s reasoning or conclusions. They assert category 44b is the correct category, but for reasons rejected by his Honour. Nevertheless, if the Court accepts Council’s primary argument, the owners agree this Court should decide the correct category for the land.
- These reasons address two questions:
- Did the learned Member err in reasoning to the conclusion that both categories 52a and 44b apply to the land?
- If he did, and the decision appealed is set aside, what is the correct rating category for the land?
Did the learned Member err in reasoning to the conclusion that both categories 52a and 44b apply to the land?
- The potential overlap in the application of categories 52a and 44b was the crux of the appeal. It is common ground before this Court that only one rating category applies. In the original hearing, the owners posed as a “critical question” what was the proper ratings category if the use of the land satisfied the criteria for both categories. This framing of the issues may have led the learned Member into error by inadvertently inviting his Honour to conclude that both categories, properly interpreted, could apply.
- The learned Member correctly identified the relevant principles, quoting the seminal passages from the judgment of McHugh, Gummow, Kirby, and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority, which restate orthodox principles of statutory interpretation.
- In summary, their Honours endorsed an approach to statutory interpretation:
- that is consistent with the language and purpose of the statute as a whole;
- which begins by examining the context of the provision being construed;
- which is made on the prima facie basis that the provisions of a legislative instrument are intended to give effect to harmonious goals; and
- that adjusts the meaning of apparently competing provisions to best give effect to the purpose and language of those provisions, while maintaining the unity of all the provisions.
- His Honour correctly, in my view, observed that it was not a case of finding which category was the “best fit” to the facts. Specifically, he referred to the observations of Chesterman JA in AAD Design Pty Ltd v Brisbane City Council that in applying (in that case) a planning scheme to a development proposal:
“the result that several definitions may be satisfied by the one proposal with different or inconsistent consequences may be a powerful reason for construing the definitions to avoid the inconsistency or conflict. The construction must however occur in accordance with orthodox legal principles…”
- In Blue Sky, their Honours acknowledged that, in many cases, the only way to give effect to the purpose and language of apparently competing provisions, while maintaining the unity of all the provisions, is to determine a hierarchy of provisions, identifying the leading provision and the subordinate provision, which must give way to the other.
- The Council contends the learned Member did not apply those principles in interpreting the categories. Had he done so, he could not have concluded both categories applied and would not have faced a deadlock.
- Respectfully to the learned Member, I accept that submission. His Honour noted the facts, which were uncontroversial, applied each category to those facts, and concluded that both categories applied. However, he did not first consider whether he could construe the apparently conflicting or overlapping categories to avoid inconsistency or conflict. I am satisfied that reasoning reveals an error of law and the decision below should be set aside. As the facts are not in dispute, this Court can determine the matter afresh. That is what the parties anticipate the Court will do.
- Although the Council raised other grounds of appeal, given the outcome on its primary argument, it is not necessary to deal with those grounds.
What is the correct rating category for the land?
- The Court must construe the categories in the context of the scheme as a whole.
- Part 2 of the Budget specifies the scheme. Table 1 states 55 categories of rateable land in column 1 and, in column 2, identifies a number of criteria, all of which must be met for land to be rated under that category. One criterion in each category is one, or more than one, Primary Council Land Use Code.
- A PCLUC is a description of a type of land use. The appeal record does not reveal how or when the Council adopted the PCLUCs referred to in the Budget.
- The rating categories and the PCLUCs are not equivalent. A single PCLUC may be a qualifying factor for more than one category of rates. For example, both PCLUC 16 Drive-In Shopping Centre and PCLUC 11 Shop – Single apply to multiple rating categories. Further, a rating category may have only one PCLUC or many. The only PCLUC for category 52a is 16 Drive-In Shopping Centre. In contrast, PCLUC 11 Shop – Single is only one of 31 PCLUCs that may qualify land for rating under category 44b.
- As well as the PCLUC, factors such as Secondary Land Use Codes, the intensity of the primary land use, the area of land, its location, and its rateable value may determine the correct category. The other qualifying aspects of the two categories are not in dispute. The sole question is how to interpret the categories given the PCLUCs that might encompass the use of land for a Bunnings Store.
- The Budget contains this definition for “Drive-In Shopping Centre”:
“drive-in shopping centre means a premises or a cluster of premises that:
- (a)is used wholly or predominantly for carrying out a retail business; and
- (b)is contained within one or more buildings or structure on one or more levels; and
- (c)provides off-street parking for customer vehicles.”
- Although the Budget does not contain a definition for “Shop – Single,” it provides that, unless the context or subject matter otherwise indicates or requires, a term not defined is to have a meaning given to it by the following:
“(a)the Local Government Act 2009 and that Act’s subordinate legislation;
- (b)if not defined by the Local Government Act 2009 and that Act’s subordinate legislation the Macquarie Dictionary;
- (c)if not defined by the Macquarie Dictionary, the Oxford English Dictionary.”
- The parties agree the Bunnings Store on each parcel of land operates as a single retail business. The Council now accepts the learned Member’s finding that Shop – Single could be a single shop ranging from the very small to very large. Respectfully, I agree with his Honour.
- The owners contend a use is only a Drive-In Shopping Centre if there is more than one business, while a shop-single is, necessarily, only one shop. The Council argues the definition of drive-in shopping centre contemplates a use of land involving a single shop or business. It refers to “a premises” that is “used wholly or predominantly for carrying out a retail business.” It argues that encapsulates a use of land that is a single shop. On this point, it adopts the finding of the learned Member who rejected the owner’s argument at the original hearing. Respectfully, I agree with his Honour’s finding on this point as well.
- There is a potential conflict between the two categories, depending on how they are construed. Both PCLUCs could possibly encompass a single retail operation, such as a Bunnings Store. However, there are other features of the Budget as a whole, and the definition of Drive-In Shopping Centre, that allow the Court to interpret the categories to avoid conflict and to give each category a field of operation within a consistent and harmonious differential rating scheme.
- The Budget assumes only one category will apply to each parcel of land. That is not in dispute. The parties also agree a more general provision should give way to a more specific provision. I consider category 52a is the more specific category and category 44b, the more general, for the following reasons.
- The Budget gives particular prominence to rating Drive-In Shopping Centres. There are ten rating categories for this single and discrete use. The only points of distinction between the ten categories are the gross lettable area and the land area. For category 52a, the land must have a gross lettable area of 10,000m2 to 20,000m2 and a land area of less than 200,000m2.
- In contrast, the Council can rate land under category 44b if it falls within one of the 31 PCLUCs identified for that category, provided the use is primarily commercial and the land has a rateable value of $2,500,000 to less than $5,000,000.
- The Budget includes a definition of Drive-In Shopping Centre, but does not define a Shop – Single. That, in itself, indicates a special focus on this use in the scheme.
- The owners argue the definition of Drive-In Shopping Centre is more general than Shop – Single, because a Drive-In Shopping Centre could include more than one business, on more than one parcel of land, whereas a Shop – Single could only ever mean a single shop.
- That might be so, but that does not make category 44b more specific than category 52a. Nor does it make the definition of Drive-In Shopping Centre more general than Shop – Single. To the contrary, a use must meet a number of criteria before it falls within the definition of a Drive-In Shopping Centre. The obvious point of distinction between the two uses is the requirement for off-street car parking. A single shop can only be a Drive-In Shopping Centre as defined, if it provides off-street parking for customer vehicles.
- The ordinary meaning of the word shop invokes the building and the activity conducted within it, not the arrangements made for parking. For example, the primary meaning of shop in the Macquarie Dictionary is:
“noun 1. A building where goods are sold retail.”
- The requirement for off-street parking in the definition of Drive-In Shopping Centre is reflected in the name of the use and is an additional and specific requirement that makes the definition more particular than the meaning of Shop – Single.
- In summary, category 44b can apply to a number of different uses. The Budget gives emphasis to Drive-In Shopping Centres by specifically defining the use and establishing ten rating categories relating only to that use. The definition of Drive-In Shopping Centre includes a distinctive feature not invoked by the ordinary meaning of shop. Properly construed, category 44b is the more general and must give way to the more specific category 52a. I would make the following orders:
- The appeal is allowed.
- The decision and orders made on 13 June 2018 by the Land Court in LGR282-16 and LGR 283-16 are set aside and substituted by the following orders:
- a.The rating category for the rateable land known as West Ipswich Bunnings for the rating period from 1 January 2016 to 30 June 2016 under the City of Ipswich Budget 2015-2016 is Category 52a.
- b.The rating category for the rateable land known as Springfield Bunnings for the rating period from 1 January 2016 to 30 June 2016 under the City of Ipswich Budget 2015-2016 is Category 52a.
- 3.Unless either party provides written submissions within 14 days seeking different orders, costs follow the event.
- MEMBER ISDALE: I agree with the reasons, conclusions, and the orders proposed by President Kingham.
PRESIDENT OF THE LAND COURT
MEMBER OF THE LAND COURT
De Tournouer v Chief Executive, Department of Environment and Resource Management  QCA 395 ; Mahoney & Ors v Chief Executive, Department of Transport and Main Roads  QCA 356 .
Allesch v Maunz (2000) 203 CLR 172 .
Local Government Regulation 2012 s 93(3)(b).
BWP Management Limited v Ipswich City Council; W & V Nominees Pty Ltd as Tte for the Elton Family Trust No. 3 v Ipswich City Council  QLC 14 (‘RJ’) .
 RJ –; Respondent’s Submissions filed 29 November 2018 [2.3]–[2.6].
 T 1-19, lines 21 to 23.
Local Government Regulation 2012 ss 80, 81.
 Ex 5 in the original hearing.
 Appellant’s Submissions filed 2 November 2018 ; Respondent’s Submissions filed 29 November 2018 [2.1].
 Respondent’s Submissions filed 20 September 2017 [1.12].
 (1998) 194 CLR 355, 381–2.
 RJ .
  1 Qd R 1.
 RJ –; RJ Attachment A: Agreed Statement of Facts.
 RJ –.
The Notice of Appeal filed 25 July 2018 includes “construing category 52a by reference to the Council’s categorisation of the Green Street Shops” (ground 5); and, “resolving an apparent conflict between categories 52a and 44b by applying ‘an outcome that has the least impact on the taxpayer’” (ground 6).
 Ex 5 in the original hearing, page 24–9.
 Ibid page 36, Table 3C: PCLUC 16 Drive in Shopping Centre is the PCLUC for categories 51a, 51b, 52a, 52b, 52c, 52d, 53a, 53b, 53c, and 53d; Ibid page 34, Table 3B: PCLUC 11 Shop – Single is a PCLUC for categories 43a, 43b, 43c, 43d, 44a, and 44b.
 Ibid page 36, Table 3C.
 Ibid page 34–6, Table 3B.
 Ibid page 22, part 2.2.
 Ibid page 21, part 2.2.
 Ibid page 22, part 2.2(2).
 RJ .
 Respondent’s Submissions filed 29 November 2018 [2.4]–[2.6]
 RJ –.
 Ex 5 in the original hearing, page 22, part 2.3(1)(c).
Refrigerated Express Lines (A’Asia) Pty Ltd v Australian Meat and Live-stock Corp (1980) 29 ALR 333, 346–7; Commercial Radio Coffs Harbour Ltd v Fuller (1986) 161 CLR 47, 50.
 “Shop” Macquarie Dictionary (Web Page)
- Published Case Name:
Ipswich City Council v BWP Management Limited & Anor
- Shortened Case Name:
Ipswich City Council v BWP Management Limited
 QLAC 1
Mullins J, FY Kingham P, WA Isdale
21 Jun 2019
|Event||Citation or File||Date||Notes|
|Primary Judgment||Objection Decision of Ipswich City Council||01 Jun 2016||Determination of Ipswich City Council as to categoristion of rating purposes for two parcels of land (Category 52a).|
|Primary Judgment|| QLC 14||13 Jun 2018||Appeal allowed; rating category of the relevant land changed from Category 52a to Category 44b: Member Smith.|
|Primary Judgment|| QLC 35||12 Oct 2018||Costs judgment of  QLC 14: Member Smith.|
|Primary Judgment|| QLAC 1||21 Jun 2019||Appeal allowed; decision and orders made on 13 June 2018 set aside and in lieu thereof order a different rating category for the relevant land (Category 44b changes to Category 52a): Mullins J, Kingham DCJ, and Member Isdale.|
|Primary Judgment|| QLAC 2||16 Jul 2019||Costs judgment of  QLAC 1: Mullins J, Kingham DCJ, and Member Isdale.|
|Notice of Appeal Filed||File Number: Appeal 8250/19||02 Aug 2019||-|
|Appeal Determined (QCA)|| QCA 104||19 May 2020||Application for leave to appeal granted; appeal allowed; orders made by Land Appeal Court made 21 June 2019 and 16 July 2019 set aside and in lieu thereof an order that the appeal to the Land Appeal Court be dismissed: Morrison and McMurdo JJA and Boddice J.|