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Kreymborg v Sunshine Coast Regional Council[2016] QLC 33

Kreymborg v Sunshine Coast Regional Council[2016] QLC 33

LAND COURT OF QUEENSLAND

CITATION:

Kreymborg & Anor v Sunshine Coast Regional Council [2016] QLC 33

PARTIES:

A W Kreymborg & R L Cork

(applicants)

v

Sunshine Coast Regional Council

(respondent)

FILE NOs:

LGR 510-14

DIVISION:

General Division

PROCEEDING:

An appeal against a categorisation decision for differential general rates

DELIVERED ON:

1 June 2016

DELIVERED AT:

Brisbane

HEARD ON:

24 March 2015

HEARD AT:

Brisbane

MEMBER:

WL Cochrane

ORDERS:

  1. Application for determination of preliminary point allowed.
  2. The court finds:
    1. a)
      The appeal is incompetent.
    2. b)
      There is no basis upon which this Court has statutory jurisdiction to consider an appeal in the form brought by the applicants.
    3. c)
      There has been no decision on a proper objection by the applicants to the rating categories applying to the subject land, there having been no proper objection made.
  3. Appeal dismissed.

CATCHWORDS:

Categorisation of and for differential rating – land use codes – use of the land – Local Government Regulation 2012 (s 92) – preliminary point – competency of appeal – whether objection actually made.  Whether decision by Chief Executive actually made.  Time for bringing of appeal.

APPEARANCES:

Ms R Cork, self-represented for the applicants.

Mr Mark Cowan, Solicitor, in-house legal unit at Sunshine Coast Regional Council.

Background

  1. [1]
    This is the decision in respect of a preliminary point raised by the respondents to an appeal against a categorisation of land located in the local government area of the Sunshine Coast Regional Council.
  2. [2]
    On 27 November 2014 the applicants A W Kreymborg and R L Cork filed a notice of appeal against a categorisation decision said to be pursuant to s 92 of the Local Government Regulation 2012 (‘the LGR’).
  3. [3]
    That section provides as follows:

“92 Land owner’s appeal against decision

 (1) This section applies if the owner of rateable land wants to appeal against a decision of—

 (a) the local government not to allow a longer period for giving an objection notice; or

 (b) the chief executive officer on the owner’s objection to the rating category for the land.

 (2) The owner may appeal by filing an appeal notice in the Land Court registry, within 42 days after the day when the owner received notice of the decision.

 (3) The appeal notice must be in the form approved by the Land Court.

 (4) The owner must give a copy of the filed appeal notice to the local government, within 7 days after the appeal notice was filed.

 (5) If the owner fails to do so, it does not affect the making of the appeal, or the jurisdiction of the Land Court to decide the appeal, but the court may award costs against the owner for any adjournment that is caused by the owner’s failure.”

  1. [4]
    This appeal is in respect of land which is described as Lot A AP17519 Plan PO232001 Parish of Bribie, has an area of 8,935 m2 and is otherwise located at Fraser Road Landsborough. 
  2. [5]
    It is located in an area controlled, at the relevant time, by the Sunshine Coast Regional Council. 

The History of the Land

  1. [6]
    In order to understand the substance of this appeal and the importance of the preliminary point it is necessary to outline the background history of the holding of land by each of Mr Kreymborg and Ms Cork. 
  2. [7]
    As set out later in these reasons, the applicants attached to their Notice of Appeal a letter dated 25 November 2014 setting out what they said was the basis of their appeal.
  3. [8]
    In that letter of 25 November 2014 there is reference to correspondence sent to the respondent Local Government dated 4 June 2014.  A copy of that letter is attached to the appeal documentation and it sets out something of the history of the land holdings. 
  4. [9]
    Some of the material filed in affidavit form seems to contradict what is evidenced by some of the documents exhibited to other affidavits. 
  5. [10]
    A good example of that is that in correspondence to the Council dated 4 June 2014 attached to her appeal documentation Ms Cork says:

“That on 18/10/2008 DNRM (Department of Natural Resources and Mines) granted a Permit to Occupy.”

  1. [11]
    In the affidavit of Mr Cowan he exhibits a Permit to Occupy which is in fact 10 December 2007.  Possibly nothing turns upon those discrepancies but they are indicative of some of the confusion which has been attached to the dialogue between the parties in this matter.
  2. [12]
    On 10 December 2007 the Department of Natural Resources and Mines granted to Ross Lenore Cork as permittee a permit to occupy land described as Lot A on Crown Plan AP17519 County of Canning, Parish of Bribie within the Local Government Area of the Sunshine Coast Regional Council and having an area of about 0.8935 ha. 
  3. [13]
    A plan of Lot A attached to exhibit MDC1 to the affidavit of Mr Mark Cowan sworn 16 February 2015[1] shows that the Permit to Occupy is over land otherwise described as Hardwood Road. 
  4. [14]
    Adjoining Hardwood Road to the west is Lot 3 on RP 183314 which is owned by Ms Cork and Mr Kreymborg and has an area of 2.023ha.[2] 
  5. [15]
    The purpose for which that permit to occupy was granted was described as “Grazing – Reserve, Road or Stock Route”.  The permit to occupy was described as beginning on 3 December 2007.[3] 
  6. [16]
    The permit to occupy identified no particular term for the period of the permit to occupy.
  7. [17]
    On a date uncertain (but presumably at or about October 2009) Forestry Plantations Queensland, pursuant to the Forestry Act 1959 and the Forestry Regulations 1998 (Reprint 7A) granted a stock grazing permit to Rossi Lenore Cork.  On 18 December 2008 Forestry Plantations Queensland (FPQ) granted a Stock-Grazing Permit No. 08/0089 561FTY1655 to Ms Cork.[4] 
  8. [18]
    The picture is further confused because at Exhibit MDC-2[5] there is exhibited stock grazing permit 09/0155 in the FPQ supply zone of Beerburrum and related to land described as part of SF 561-CPT 16A Blue Gum and had an area of approximately 3.49 ha.  So the confusion may relate to the date upon which notification was received and the Stock Grazing Permit was actually issued.
  9. [19]
    The expression ‘Blue Gum’ I take to be indicative of the nature of the vegetation on the land.  Nothing however turns on that particular point.
  10. [20]
    The Stock-Grazing Permit is exhibited to the affidavit of Mark Damien Cowan[6] and describes the area over which the Stock-Grazing Permit was issued as being “an area of about 3 hectares, being the part of State Plantation Forest No 561 as shown on plan AP09/0155”.
  11. [21]
    A plan attached to that Stock-Grazing Permit shows that the area over which the Permit was issued is to the east of and adjoining Hardwood Road (the area over which the Permit to Occupy had been issued).
  12. [22]
    That map shows the area as actually being 3.49 ha although, in the event, nothing turns upon that precise area. 
  13. [23]
    According to the letter from Ms Cork of 4 June 2014, on or about 17 February 2009 the Department of Natural Resources and Mines amalgamated the Stock-Grazing Permit and the Permit to Occupy for the purpose of issuing a valuation notice. 
  14. [24]
    That assertion conflicts with what is contained in the affidavit of Mr Cowan who deposes[7] that:

“On or about 3 September 2013 a new Permit to Occupy was issued to Ms R L Cork and Mr A W Kreymborg.  At this time the new Permit to Occupy was amalgamated by the Department of Natural Resources with Lot 3 for valuation purposes and became Property No. 241915.”

  1. [25]
    Any discrepancy between the affidavit of Mr Cowan and the letter sent by Ms Cork is resolved by a paragraph in the letter of 4 June 2014 from Ms Cork which says:

“August 2010 the billing changed to Property No. 167502 Property Description – 561 FTY 1655 A AP 17519.”

Whereas Mr Cowan’s affidavit says that:[8]

“On or about 20 July 2010, rates notices were issued by the Respondent for Property No 167502 and 167065 for the period of July to December 2010.  The notice for 167502 referred to Rating Category 21.”

  1. [26]
    As can be seen from the matters set out above there is an abundant opportunity for confusion as to the precise descriptors which attached to each of the Freehold Land, the Stock-Grazing Permit and the Permit to Occupy.  The inconsistencies relate to the various stages by which the properties were amalgamated into one single descriptor for the purpose of valuation and consequently for the purpose of the assessment of rates.
  2. [27]
    It is undisputed that on or about August 2010 Forestry Plantation Queensland terminated the Stock-Grazing Permit. 
  3. [28]
    According to Ms Cork’s correspondence, she and Mr Kreymborg continued to receive rates notices for Property 167502 being described as being in General Rate Category 21.
  4. [29]
    In February 2012 they received a rates notice for Property 167502 on which the General Rate – Category 21 had been changed to General Rate – Category 1.
  5. [30]
    She asserts that she contacted the Council regarding that change in category and advised of the cancellation of the Stock-Grazing Permit and requested an adjustment to the billing.[9]
  6. [31]
    The affidavit of Mr Cowan[10] exhibits a copy of the notification from Forestry Plantation Queensland to the Sunshine Coast Regional Council advising that the Stock-Grazing Permit had been terminated as from 30 September 2010.
  7. [32]
    Further Mr Cowan’s affidavit exhibits a rates notice which shows the following:[11]

“Opening Balance       $567.33

General Rate – Category 1 30/09/10 – 31/12/10  $230.48

General Rate – Category 21  30/09/10 – 31/12/10  $12.36-

General Rate – Category 21  30/09/10 – 31/12/10  $50.18-

Total       $735.27”

  1. [33]
    The rates notice then contains an advice that a discount is available if the rates were paid by 17 December 2010.
  2. [34]
    A careful reading the correspondence from Ms Cork to the Sunshine Coast Regional Council of 4 June 2014 reveals that there were, according to her, inconsistencies in the rate notices delivered to them between 2010 and at least August 2012.
  3. [35]
    At one point she says she was told by the Sunshine Coast Regional Council to contact the Department of Natural Resources and Mines as Council base their rates assessment on information received from that department.
  4. [36]
    Finally in March 2013, again according to the correspondence of 4 June 2014, Ms Cork was advised that the documentation for the Stock-Grazing Permit and the Permit to Occupy should have been in both her name and that of Mr Kreymborg.  Consequently she applied for a new Permit to Occupy which was issued by the Department of Natural Resources and Mines in September 2013 in both names.[12] 

The Current Appeal

  1. [37]
    The two page attachment to the Notice of Appeal contains the following:

“We would like to appeal against the Sunshine Council’s decision to reject our request for a change in the category of the Permit to Occupy issued by the DNRM from category 1 to category 21 for the period Sept 2010 to Sept 2013.

The attached correspondence from the Sunshine Coast Council adequately explains the circumstances leading up to this appeal.

The reasons we are lodging this appeal are as stated in our letter to the Sunshine Coast Council dated 04.06.2014 (a copy of the whole letter is attached)

  • that the initial classification of the Permit to Occupy was General Rate – Category 21,
  • that the Permit to Occupy is a permit for stock grazing only and according to the Differential General Rates Category 21 “This criterion will apply where the land is a. classified by council to be subject to a Stock Grazing Permit;”
  • that the rates currently being charged by the council are equivalent to paying more than 2% per year of the DNRM valuation ($41,500) and seem to be far in excess of reasonable
  • that the Sunshine Coast Council and the DNRM acknowledge that both names A.W. Kreymborg and R.L. Cork should have been on the original documents and that this information was not made known to us until March 2013.
  • Section 24 of the Local Government (Finance, Plans and Reporting) Regulation 2010 appears to allow for this type of adjustment.

The Sunshine Coast Council’s assertion is that the Permit to Occupy “has no relevance to the definition applied to category 21 for the differential general rates”.  This is where we believe a lack of flexibility and fairness has occurred.

The Permit to Occupy issued by the DNRM states that the land use is for the purpose of Stock Grazing only.  We would like to suggest that this Permit to Occupy has equivalent land usage as a Stock Grazing Permit and we believe should be rated as such.

Perhaps in our circumstances a clarification of the definition of “a Stock Grazing Permit” is appropriate as our Permit to Occupy land usage is limited to Stock Grazing.

We realize that our situation is unusual therefore for your information we have also attached our previous correspondence to the Sunshine Coast Council.

We hope that you can resolve this matter in our favour as we believe that this request is reasonable in light of the whole situation.”

  1. [38]
    On the second return date for directions to be made in this matter (the first return date on 9 December 2014 having been adjourned until 22 January 2015) the respondent intimated an inclination to bring an application in respect of a preliminary point.
  2. [39]
    Appropriate orders were made to deal with that matter including the filing, by each of the parties, of material upon which they propose to rely. 

The Preliminary Point

  1. [40]
    Consequent upon those orders being made the respondent filed an application raising a preliminary point.
  2. [41]
    The following orders or relief were sought:

“1. [An order] dismissing the Appeal as incompetent and without jurisdiction.

  2. [An order for] costs.

  3. Such further or other orders as the Court considered appropriate.”

  1. [42]
    Within that application the respondent identified the following grounds upon which they relied in bringing the application:
  1. “(1)
    The competency of the Appeal and the jurisdiction of the Land Court rely upon their [sic] being:

 (a) a decision by the chief executive officer of the Respondent on a proper objection by the appellant to the rating category for the land under the Local Government Regulation 2012 (Regulation); and

 (b) an appeal from such a decision filed within the required time under the Regulation.

  1. (2)
    There has been no decision on a proper objection by the Appellant to the rating category of the relevant land under the Regulation, and no proper objection has been made by the Appellant.

Particulars

 (a) The complaint(s) of the Appellant do not satisfy section 90 or 91(1) of the Regulation because they:

i. were not made in the approved form;

ii. were not identified as objections under the Regulation;

iii. were substantially beyond the mandatory 30 day time period for making an objection from the issue of the relevant rates notice, and no request has been made or granted by the Respondent for an extension of time;

iv. related to rating periods prior to the last rates notice or in the previous financial year; and further or in the alternative

v. were repetitive or constituted attempts to re-agitate or change earlier complaints which had already been decided.

 (b) The Respondent, did not make, and had no power to make, a decision under section 91 of the Regulation on a complaint which was not a proper objection. 

  1. (3)
    Further, or in the alternative, the Appeal in the Land Court has been filed outside of the mandatory time of 42 days required for an appeal pursuant to section 92(2) of the Regulation.
  1. [43]
    In addition to s 92 set out above, s 91 of the LGR 2012 relevantly provides:

“91 Decision on a land owner’s objection

 (1) This section applies if the owner of rateable land properly objects to the rating category for the land.

 (2) The chief executive officer must consider the objection and decide—

 (a) to change the rating category for the land—

 (i) to the rating category to which the owner claims in the objection notice the land should belong; or

 (ii)  to another rating category; or

 (b) not to allow the objection.

 (3) The chief executive officer must give the owner notice of—

 (a) the decision; and

 (b) the reasons for the decision.

 (4) The chief executive officer must give the notice within 60 days after the objection was made.

 (5) If the chief executive officer decides to change the rating category of the land, the rating category is taken to have been changed from the start of the period of the rate notice.”

  1. [44]
    A careful perusal of the grounds relied upon by the respondent in identifying the preliminary point reveals that the following matters require consideration:
  1. (a)
    Was there a proper objection by the appellant to the rating category for the land Local Government Regulation 2012?
  2. (b)
    Was there a decision by the Chief-Executive Officer of the respondent?
  3. (c)
    If the answer to the first two questions is in the affirmative, has there been an appeal against the decision identified in (b) above which was filed within the required time under the Regulation?
  1. [45]
    As a consequential and somewhat ancillary issue, if there was an objection lodged by the applicants, was such an objection (or objections) impermissibly related to categorisations during previous rating periods?
  2. [46]
    Further, if there was a proper objection under any heading filed or made by the applicants was such an objection made within the statutory time limits? 
  3. [47]
    In their outline of argument the respondent asserts that to decide the matters relevant to this preliminary point the Court is required to consider:
  1. (a)
    The requirements which apply under the Local Government Regulation 2012 (Regulation) to an objection to the categorisation of land and a subsequent appeal;
  2. (b)
    Whether there has been non-compliance with these requirements by the applicants (in the event the applicants dispute such matters); and
  3. (c)
    Whether, as a matter of law, such non-compliance has the effect of making the appeal incompetent and the Land Court without jurisdiction (i.e. the requirements are mandatory rather than procedural, and cannot otherwise be excused in some way).
  1. [48]
    It is pertinent at this point to refer to the notice of appeal filed by the applicants and to observe that they do not identify a particular rate notice in respect of which they wish to lodge an objection pursuant to the provisions of s 90 of the Local Government Regulation 2012,
  2. [49]
    Their grounds of appeal in section 6 of the Court approved form for a Notice of Appeal against a Categorisation Decision simply says “Please see attached letter of appeal (2 pages)”.
  3. [50]
    The letter of 4 June 2014 referred to in the correspondence attached to the notice of appeal refers as follows:

“We are writing to you in the hope that the Sunshine Coast Council CEO will recognize (as per quote) the confusion surrounding the circumstances involved in the charges levied for rates for the property 167502 with regards to the Stock Grazing Permit and the Permit to Occupy.”

  1. [51]
    The document then sets out a raft of correspondence that dates between 18 December 2008 (mistakenly noted as 18 October 2008) and 9 April 2014. 
  2. [52]
    The last rate notice issued prior to that letter of 4 June 2014 was a rates notice issued on 21 January 2014 in respect of Property 241915 which required payment of a total of $9,937.39 by 21 February 2014. 
  3. [53]
    A subsequent rate notice in respect of the same property number was issued on 20 July 2014 requiring payment of $9,716.84 by 22 August 2014.
  4. [54]
    Both of those rate notices were issued in respect of land located in the general rates category of Category 6.
  5. [55]
    It is appropriate to consider in detail the contents of the correspondence from the applicants to the respondent dated 4 June 2014.
  6. [56]
    That letter, seemingly, accurately recounts the history of the property to date.  I have mentioned this above.
  7. [57]
    The letter refers historically to correspondence dating back to 2008.
  8. [58]
    It says:

“August 2012 we received a rates notice for property 167502 property description – Lot A P 17519.  The outstanding balance of which was $313.04. 

RL Cork rang the Council asking why we were being charged so much after the adjustments to the last bill.  As far as we were aware property 167502 which included the Stock Grazing Permit and the Permit to Occupy were originally classified as general rate – Category 21 and there had been no change to the Permit to Occupy.  The only change was that the Stock Grazing Permit had been cancelled.  R.L. Cork was informed that as the Council based their assessment on information received from DNRM we should contact the DNRM regarding the matter.”

  1. [59]
    The letter goes on to recite other aspects of the history of the correspondence between the applicants and the respondent.
  2. [60]
    Towards the end of the letter the applicants say:

“We are not disputing the rateable value of the Permit to Occupy as stated in s 8(1) Local Government (Finance, Plans and Reporting) Regulation 2010 – a Local Government must calculate the rates for land by using the rateable value of the land.” 

  1. [61]
    It further goes on to say:

“We are requesting that for the period 30/09/10 to 03/09/2014 the rating category is assigned to the property 167502 be classified as General Rate – Category 21.”

  1. [62]
    The letter contains the following reasons (which were reflected in the grounds of appeal) for that request:
  • that the initial classification of the Permit to Occupy was General Rate – Category 21,
  • that the Permit to Occupy is a permit for stock grazing only and according to the Differential General Rates Category 21 “This criterion will apply where the land is a. classified by council to be subject to a Stock Grazing Permit;”
  • that the rates currently being charged by the council are equivalent to paying more than 2% per year of the DNRM valuation ($41,500) and seem to be far in excess of reasonable
  • that the Sunshine Coast Council and the DNRM acknowledge that both names A.W. Kreymborg and R.L. Cork should have been on the original documents and that this information was not made known to us until March 2013.
  • Section 24 of the Local Government (Finance, Plans and Reporting) Regulation 2010 appears to allow for this type of adjustment.
  1. [63]
    On any fair reading of that correspondence the request is in respect of rates levied on the property possibly as far back as October 2008.
  2. [64]
    Certainly at page 1 of that correspondence it complains about the General Rate – Category 21 being changed to General Rate – Category 1 in February 2012.
  3. [65]
    Bearing in mind that that correspondence was written in June 2014 it is apposite to comment upon the reference in the second last dot point to s 24 of the Local Government (Finance, Plans and Reporting) Regulation 2010.
  4. [66]
    The Local Government Regulation 2012 repealed the Local Government (Finance, Plans and Reporting) Regulation 2010 on 14 December 2012 and in its place enacted, inter-alia, ss 89 – 93 of Chapter 4 – Rates and Charges – Part IV – Differential General Rates.
  5. [67]
    Despite the repeal, s 90 of the Local Government Regulation 2012 is a perfect replication of s 24 of the Local Government (Finance, Plans and Reporting) Regulation 2010.
  6. [68]
    As pointed out above, on 3 September 2013 the permit to occupy Lot A on CP AP17519 was issued in the names of Ross Lenore Cork and Allan William Kreymborg.[13] 
  7. [69]
    It is said in the affidavit of Ms Cork[14] that as at 3 September 2013 the permit to occupy was amalgamated by the Department of Natural Resources with Lot 3 for valuation purposes and became Property Number 241915 but there is no documentary material which evidences that amalgamation or the reason for it, although it is not disputed that it occurred. 
  8. [70]
    What is clear is that from at least 20 July 2010 the Sunshine Coast Regional Council delivered rate notices in respect of the combined permit to occupy and stock grazing permit which described the property as 561 FTY 1655 A AB 17519.  Separate rate notices from that date, at least, were also delivered to Cork and Kreymborg in respect of Lot 3 on RP183314.
  9. [71]
    An exhibit to the affidavit of Mr Cowan makes clear that from 30 September 2010 the stock grazing permit 09/0155 in State Planation Forest 561 at Beerwah on Plan FTY 1655 had been terminated.[15]
  10. [72]
    For some time after that date the Sunshine Coast Regional Council continued to render rate notices to Ms Cork as lessee for both the permit to occupy land and the stock grazing permit land.[16]
  11. [73]
    It was not until the issue of a rates notice on 22 May 2012 and due for payment on 22 June 2012 – some two years after the termination of the stock grazing permit – that a rates notice issued which recorded “Lease to Cork terminated 30/9/2010”, which seemed to reflect recognition of that change in status in respect of the stock grazing permit.[17]
  12. [74]
    At the same time as Ms Cork and Mr Kreymborg were embroiled in disputes about the amount of rates charged and allegedly payable in respect of the permit to occupy and stock grazing land, there were also issues which arose in respect of their freehold land Lot 3 on RP183314.
  13. [75]
    It appears, from the material exhibited to the affidavit of Mr Cowan, that that particular rate account for the Lot 3 land which was identified with Property No. 167065 fell into arrears.[18] 
  14. [76]
    In the Revenue Statement for the 2013/14 Sunshine Coast Council Budget the following appears:

“3.2.3 Objecting to a Differential General Rate Category

In accordance with Section 90(2) of the Local Government Regulation 2012 the only ground for objecting is that the owner considers the land should belong to a different rate category.

In accordance with Section 90(3) of the Local Government Regulation 2012 the owner may object by giving the local government an objection notice. Section 90(4) of the Local Government Regulation 2012 details the form an objection notice should take.

Section 90(5) of the Local Government Regulation 2012 specifies that the owner must give the objection notice within:

 (a) 30 days after the day when the rate notice was issued; or

 (b) a longer period that the local government allows.

Sunshine Regional Coast Council will only accept objections to rates category within the current financial year in which the rates were levied.

In accordance with Section 91(5) of the Local Government Regulation 2012 if the Chief Executive Officer decides to change the rating category of the land, the rating category is taken to have been changed from the start of the period of the rate notice.

No objections for rates levied in previous financial years will be accepted; consequently no adjustments for rates levied in previous financial years will be made on the basis of incorrectly categorised land.”

  1. [77]
    All of the foregoing really involves allegations that rates payable by the applicants to the respondents had been inappropriately calculated based upon the valuations produced by the Department of Natural Resources and Mines. 
  2. [78]
    Part of that difficulty arose from the termination of the Stock Grazing Permit in September 2010 and the incorporation of the Permit to Occupy into the valuation for the freehold property. 
  3. [79]
    There was also an issue with respect to not having the original ownership and Permit to Occupy documents in both names namely Kreymborg and Cork.  The dialogue between the parties had been ongoing.
  4. [80]
    There is exhibited to the affidavit of Mark Damien Cowan[19] a copy of the official form for a Differential General Rate Objection adopted by the Sunshine Coast Regional Council for the purposes of s 90 of the Local Government Regulation 2012. 
  5. [81]
    That form makes clear that a Notice of Objection must be given within 30 days after the date of issue of the relevant rate notice and to that extent reflected the provisions of the Local Government Regulation 2012. 
  6. [82]
    That form was available on the website to anybody who cared to look for it.
  7. [83]
    Section 90(5) of the Local Government Regulation 2012 provides:

“The owner must give the objection notice within –

(a) 30 days after the day when the rate notice was issued; or

(b) a longer period that the local government will allow.”

  1. [84]
    That provision s 90(5) itself is susceptible to two differing interpretations.
  2. [85]
    The first of those is that when formulating their forms and requirements for ratepayers to make objection the local government may promulgate a period longer than the 30 days set down by the regulation.
  3. [86]
    The alternative interpretation of that is that when an objection is made later than 30 days after the day when the rate notice was issued a local government may allow that objection to be treated as having been properly made within the period. 
  4. [87]
    In the present case I have come to the view that it is not necessary for me to address those alternative interpretations.
  5. [88]
    The rate notice for the period 1 January 2014 to 30 June 2014 was issued by the Sunshine Coast Regional Council on 21 January 2014.[20]
  6. [89]
    As Mr Cowan points out in his affidavit[21] that rate notice issued on 21 January 2014 related to General Rate for Category 6 land.
  7. [90]
    Category 6 in the General Rate Category refers to Residential / Other land with a value from $0 to $250,000 UCV.[22]
  8. [91]
    What transpired following the issuing of that rates notice can be gleaned from the affidavit material filed by Ms Cork as well as from the affidavit material of Mr Cowan. 
  9. [92]
    The first response to the rates notice of January 2014 appears to have been a telephone call from Ms Cork to Councillor Baberowski.[23]
  10. [93]
    That generated a written response from the Sunshine Coast Regional Council over the signature of Kerri Rodgers the Councillor Support Officer for Division 1 (Cr Baberowski).
  11. [94]
    That correspondence stated as follows:[24]

“Following our telephone conversation in early March, I made enquiries on behalf of Cr Baberowski to Council’s Rating department to discuss your category rating and your request to have your rates backdated to a lesser category.

As it was explained to me, the Department of Natural Resources and Mines (DNRM) had always issued two separate Valuations for each of your properties, due to the Permit to Occupy being in a different name to the freehold land and that these two Lots were only valued together with DNRM from 3/09/2013.

Our officers contacted Col McKay from the DNRM on your behalf, however were advised that the DNRM is not prepared to backdate any documentation as the Permit to Occupy was previously only in one name.

This therefore resulted in separate Valuations and Rate Notices being issued up to the date the DNRM amalgamated the two properties following your advice to have the Title changed to both names on the Permit to Occupy.

Unfortunately Council cannot backdate your rates and charges as in accordance with section 8(1) of the Local Government (Finance, Plans and Reporting) Regulation 2010 a local government must calculate the rates by using the rateable valuations for each individual property as determined by Department of Natural Resources and Mines (DNRM).

Thank you for bringing this to our attention and I trust this explains Council’s position in regard to your situation.”

  1. [95]
    It seems clear to me that that letter explains why the Council’s hands were tied by the valuations applied by the Department of Natural Resources and Mines.
  2. [96]
    Ms Cork in her affidavit[25] says that she again contacted Cr Baberowski’s office via telephone after receiving the letter of 9 April 2014 and spoke to Kerri Rodgers the Councillor Support Officer who advised her:

“To write a letter to the CEO (Chief Executive Officer of the Sunshine Coast Council) as the best way to appeal to the Sunshine Coast Council to address the request to have the rates in question backdated to a lessor category (i.e. from Category 1 [sic] to Category 21 where there is no minimum to the rates charged).”

  1. [97]
    I do not understand the reference to Category 1 and believe it to be a mistake which should have referred to Category 6.
  2. [98]
    That resulted in the correspondence dated 4 June 2014 which seems to be relied upon by Ms Cork as being her objection to categorisation.
  3. [99]
    It may be that the reference to Category 1 harkens back to rates notices received in February 2012.  Whatever the true position the rates notice issued in 2014 related to Category 6. 
  4. [100]
    In terms of the response of the Sunshine Coast Council to the correspondence of 4 June 2014 the Council wrote to the applicants on two occasions: on 1 August 2014 and 6 August 2014.[26]
  5. [101]
    Fairly read, the correspondence of August 2014 reveals that, not unreasonably, the Council focused upon the compendious request to change the Category for the period 30 September 2010 to 3 September 2013. 
  6. [102]
    It seems to me that the Council had little option but to deal with the correspondence covering the period 2010 to 2013 in the terms that it did because, having regard to s 90(5) which requires that any objection notice must be given within 30 days after the day when the rate notice was issued, there was no way that the Council could have regarded the long passage of correspondence between themselves and the applicants as a continuing but uncompleted objection going back to sometime in 2012.
  7. [103]
    None of that earlier correspondence clearly identifies that it ought be construed as an objection made pursuant to the Local Government Regulation 2012. 
  8. [104]
    Further there was no intimation that the applicants recognised that they were out of time to comply with s 90(5)(a) and therefore required the local government to allow a longer period.  (If that be a proper construction of s 3.2.3 of the Respondent’s Revenue Statement and s 90(5)(b) of the Local Government Regulation 2012.
  9. [105]
    In fact no longer period has been granted.
  10. [106]
    All of the foregoing really involves allegations that rates payable by the applicants to the respondents had been inappropriately calculated based upon the valuations produced by the Department of Natural Resources and Mines. 
  11. [107]
    Part of that difficulty arose from the termination of the Stock-Grazing Permit in September 2010 and the incorporation of the Permit to Occupy into the valuation for the freehold property. 
  12. [108]
    There was also an issue with respect to not having the original ownership and Permit to Occupy documents in both names namely Kreymborg and Cork.
  13. [109]
    Having considered all of the matters which are set out above it is appropriate now to consider the consequences of the interaction between the factual matrix recited at great length above and the legal provisions contained within the Local Government Regulation 2012.
  14. [110]
    I am bound to observe that part of the difficulties which have surrounded the dialogue between the applicants and the respondents in this case stem from a number of factors namely:

a) the confusion surrounding the various tenures and the appropriate names in which those tenures should have been held;

b) the tenor of the correspondence from Ms Cork which, in my view, lacked precision and did not set out, early in the peace the various bases for her concerns and;

c) the failure of the respondent in the various pieces of correspondence written by it to fully address the matters raised by Ms Cork and to provide proper and clear advice to her about the need to use the official form.

  1. [111]
    There is also unfortunately, an element of naivety on the part of Ms Cork as to the statutory obligations and powers of the respondent Regional Councils. 
  2. [112]
    It is beyond the statutory power of this Court to determine disputes between local governments and ratepayers as to the amount of rates which have or ought to have been paid in respect of individual blocks of land.  Similarly it is also beyond the statutory power of this Court (being a court of statutory jurisdiction) to determine disputes about past matters relating to the calculation of rates.
  3. [113]
    The respondent has submitted in its written outline of argument as follows:[27]

“(28) A line of authority in the Land Court has stressed that its jurisdiction is granted and strictly limited by Statute, and that sections 7 and 55 of the Land Court Act do not grant power to the Court to extend, or excuse a want of, its jurisdiction.  (see Hope v Brisbane City Council [2012] QLAC 9, Mentech Resources Pty Ltd v MCG Resources Pty Ltd (In Liq) & Ors [2012] QLAC 001, Cox v Commissioner of Water Resources (1992) 14 QCLR 304 and Stanfield v Brisbane City Council [1990] 70 LGRA 392).  As stated in Stranfield [sic] at 296 by the Land Appeal Court:

The Land Court and the Land Appeal Court are courts of statutory creation and their jurisdiction depends entirely upon the conferral of power by statute.  These courts cannot assume a jurisdiction which they do not possess, convenient though it may sometimes seems [sic] to be.

  1. (29)
    There are no provisions within the Land Court Act 2000, Land Court Rules 2000, the Act or the Regulation, to excuse or overcome Appeals to the Court which are incompetent due to a failure to comply with mandatory requirements.  This can be contrasted to provisions in similar statutory schemes, such as section 440 of the Sustainable Planning Act 2009 (Qld) and section 158 of the Land Valuation Act 2010 which provides an express power to the relevant Court to overcome otherwise invalid appeals.
  1. (30)
    Without a power to excuse or overcome a failure to comply with the requirements, the Appeal is incompetent and the Land Court without jurisdiction if such requirements are found to be mandatory.”
  1. [114]
    I agree with these observations.
  2. [115]
    Having considered all the material and the various provisions and statutory arrangements set out above I am satisfied of the following:

a) No proper objection to any of the rate notices was lodged by the applicants and any objection said to have been lodged in respect of the rate notice of July 2014 was out of time pursuant to the provisions of the relevant statute.

b) Any objections made by the applicants were not on the form required.

c) Any objections made by the applicants were not within the time set out in the relevant statute.

d) There had been no decision by the chief executive on any objection (if one had been made) by the applicants.

e) No proper basis for changing the category apart from a desire to be in a less expensive category of rateable land was articulated by the applicants so there was no real basis for any consideration to be given by the chief executive to an objection (if, in fact, a proper objection had been made).

f) No proper request for an extension of time as contemplated by the Local Government Regulation 2012 s 92(1) had been made. 

  1. [116]
    In all of the circumstances of this case I find that the grounds alleged by the respondent to found a striking out application have been made out and accordingly I find:

a) The appeal is incompetent.

b) There is no basis upon which this Court has statutory jurisdiction to consider an appeal in the form brought by the applicants.

c) There has been no decision on a proper objection by the applicants to the rating categories applying to the subject land, there having been no proper objection made.

  1. [117]
    Accordingly I have no option but to dismiss the applicants’ appeal.

ORDERS

  1. Application for determination of preliminary point allowed.
  2. The court finds:
    1. a)
      The appeal is incompetent.
    2. b)
      There is no basis upon which this Court has statutory jurisdiction to consider an appeal in the form brought by the applicants.
    3. c)
      There has been no decision on a proper objection by the applicants to the rating categories applying to the subject land, there having been no proper objection made.
  3. Appeal dismissed.

WL COCHRANE

MEMBER OF THE LAND COURT

Footnotes

[1]  Exhibit 5 (Affidavit of Mark Damien Cowan – 16 February 2015) EX MDC-1, pp 9 – 13.

[2]  Exhibit 5 EX MDC-3, p 17.

[3]  Exhibit 5 EX MDC-1, p 10.

[4]  Exhibit 5 EX MDC-35, pp 90-93.

[5]  Exhibit 5 EX MDC-2, pp 14-16.

[6]  Ibid.

[7]  Exhibit 5, para 5.

[8]  Exhibit 5, para 6.

[9]  Exhibit 1 (Affidavit of Ross Lenore Cork – 3 March 2015) paras (3)–(8); Exhibit 5 EX MDC-35, p 91.

[10]  Exhibit 5, para 7; EX MDC-6, p 24.

[11]  Exhibit 5, para 8; EX MDC-7, p 25.

[12]  Exhibit 5 EX MDC-4, p 19.

[13]  Exhibit 5 EX MDC–4, p 19.

[14]  Exhibit 1, para (13).

[15]  Exhibit 5 EX MDC–6, p 24.

[16]  See for example: Exhibit 5 EX MDC-8, MDC-9, MDC-10, and MDC-14.

[17]  Exhibit 5 EX MDC–14, pp 40-41.

[18]  Exhibit 5 EX MDC–15, p 42; EX MDC–17, p 48; EX MDC–19, p 50.

[19]  Exhibit 5 EX MDC-39, p 98.

[20]  Exhibit 5 EX MDC-32, p 81.

[21]  Exhibit 5, para 33.

[22]  Exhibit 5 EX MDC-33, p 83.

[23]  Exhibit 5, para 16.

[24]  Exhibit 5 EX MDC-34, p 89.

[25]  Exhibit 1, paras (17)-(18).

[26]  Exhibit 5 EX MDC–37 & EX MDC–38, pp 96-97.

[27]  (Citations omitted).

Close

Editorial Notes

  • Published Case Name:

    Kreymborg & Anor v Sunshine Coast Regional Council

  • Shortened Case Name:

    Kreymborg v Sunshine Coast Regional Council

  • MNC:

    [2016] QLC 33

  • Court:

    QLC

  • Judge(s):

    Member Cochrane

  • Date:

    01 Jun 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Cox v Commissioner of Water Resources (1992) 14 QCLR 304
1 citation
Jump To
Cite 1 - (1992) 14 QCLR 304
Hope v Brisbane City Council [2012] QLAC 9
1 citation
Jump To
Cite 1 - [2012] QLAC 9
Mentech Resources Pty Ltd v MCG Resources Pty Ltd [2012] QLAC 1
1 citation
Jump To
Cite 1 - [2012] QLAC 1
Stanfield v Brisbane City Council (1990) 70 LGRA 392
1 citation
Jump To
Cite 1 - (1990) 70 LGRA 392

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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