Marchesi v Noosa Council[2017] QLC 19

LAND COURT OF QUEENSLAND

1. [1]
   The 199 residential units which constitute the Viridian Noosa Community Titles Scheme are located at 5 Morwong Drive at Noosa Heads.

2. [2]
   Mr Marchesi is or was the owner of Lot 5101 Reference 231125 with an area of 291m², Lot 7204 Reference 231202 with an area of 101m², Lot 7503 Reference 231145 with an area of 136m² and Lot 9415 Reference 231283 with an area of 68m².

3. [3]
   Mr Marchesi entered into contracts to purchase those lots in 2007 (presumably being purchases “off the plan”) and final settlement took place in November 2010.

4. [4]
   Lots 7204, 7503 and 9415 are all categorised as High-rise Units (not PPR) and Lot 5101 is categorised as Residential (not PPR).

5. [5]
   Those properties were all lots on Plan SP190823 County of March, Parish of Weyba.

6. [6]
   Lots 7204 and 7503 were sold by Mr Marchesi on 20 June 2012 but he remains the registered proprietor of Lot 5101 and Lot 9415.^[1]

7. [7]
   In his response to the respondent’s outline of argument Mr Marchesi clarifies the position with respect to ownership of lots 7503 and 7204 where he says:^[2]

“With respect to (xv) and (xvi), since the time of my selling of Lots 7503 and 7204 mid 2012, I have up until today’s date continued to receive rent from these lots.

The leases that were in place with the letting agent Outrigger before the lots were sold remain in place today in my name. Mantra has since taken over as the new letting agent however the leases remained unaltered and were simply transferred from Outrigger to Mantra.

I have leased Lots 7503 and 7204 from the current owners since the day of their purchase of these lots. In effect I have sub-leased these lots to the letting agent since the date of sale and purchase settlement between myself and the current owners.”

8. [8]
   In that correspondence Mr Marchesi drew the Court’s attention to the definition in the Local Government Act 2009 (‘the Act’) of owner which provides that:^[3]

owner of land –

(a) means –

(xv) another person who is entitled to receive rent for the land.

9. [9]
   For the purposes of this decision I am willing to assume that Mr Marchesi, as the lessee of the two lots which he has now sold, continues to enjoy the benefit of the definition of owner.

10. [10]
    There has been an ongoing disagreement between Mr Marchesi and the Noosa Council about the rating categorisation of all of those lots both those still owned by him and those formerly owned by him.

11. [11]
    There is also disagreement between Mr Marchesi and the Noosa Council about the use of the descriptor “residential units” because, as Mr Marchesi points out, the “scheme” (the Noosa Plan) contains accommodation units comprising of dwelling units and accommodation units as well as some commercial lots and some common property.

12. [12]
    The background history to the categorisation of the various lots in the Viridian complex seems not to be in dispute.

13. [13]
    Historically, having regard to the various rating category statements for the Noosa Council and its predecessor Sunshine Coast Regional Council, the land was categorised for the purposes of the respondent levying rates as “High Rise Units (not Principal Place of Residence)” which was Category 27 in the Noosa Shire Council Revenue Statement 2014-2015 (Revenue Statement).

14. [14]
    In order to make clear the legislative background which underlies this appeal by Mr Marchesi it is necessary to refer in some detail the Local Government Regulation 2012 (‘the LGR’).

15. [15]
    A starting point is in section 80 of that Regulation which provides that a local government may levy general rates that differ for different categories of rateable land in the local government area.

16. [16]
    Section 80(6) provides that “a differential general rate may be made and levied on a lot under a community titles Act as if it were a parcel of rateable land” (which is the case with Viridian).

17. [17]
    Section 81 of the LGR identifies the processes by which a local government may identify different rating categories of rateable land within its local government area.

18. [18]
    Included in those processes is the identification of rating categories which must be a decision by resolution of the local government which resolution must state:

(a) the rating categories of rateable land in the local government area; and

(b) a description of each of the rating categories.

19. [19]
    Consistent with current legislative practice that section contains examples to demonstrate how land might be categorised for different differential general rates.

20. [20]
    Section 82 ‘Later categorisation’ permits categorisation of land to be changed in some circumstances.

21. [21]
    This is a proceeding brought pursuant to the LGR which relevantly provides at s 92:

99 Land owner’s appeal against decision

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

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

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

1. (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.

22. [22]
    Section 88 of the LGR provides for notice to be given to an owner of land of the categorisation.

23. [23]
    In particular s 88(2) provides:

88 Notice to owner of categorisation

3. (2)
   The local government must ensure each of the following rate notices (a relevant rate notice) is accompanied by, or contains, a rating category statement—

1. (a)
   the first rate notice for the financial year given to the owner of the land;

2. (b)
   a later rate notice for the financial year if—

1. (i)
   the owner of the land has changed since the first rate notice for the financial year was issued; or

2. (ii)
   the rating category for the land has changed since the first rate notice for the financial year was issued.

3. (3)
   However, a rating category statement may also accompany, or be contained in, a rate notice other than a relevant rate notice.

3. (4)
   The rating category statement is a document stating—

1. (a)
   the rating categories for land in the local government area, and a description of each of the rating categories; and

2. (b)
   the rating category for the land (the owner’s land) described in the rate notice accompanying or containing the rating category statement; and

3. (c)
   that the owner may object to the categorisation of the owner’s land only on the ground that the rating category is wrong in reference to the local government’s descriptions of the rating categories; and

4. (d)
   that the owner may object by giving the local government an objection notice within—

1. (i)
   30 days after the date when the first rate notice was issued; or

2. (ii)
   a longer period that the local government allows; and

5. (e)
   that the owner is liable to pay the amount in the rate notice even if the owner gives an objection notice; and

6. (f)
   that, if the rating category of the owner’s land is changed because of the objection, the rates will be adjusted at that time.

24. [24]
    Division 4 of Chapter 4 ‘Rates and Charges’ of the LGR contains provisions permitting objections to be made to a rates category.

25. [25]
    Section 90 of the Regulation provides as follows:

90 Land owner’s objection to rates category

1. (1)
   This section applies if an owner of rateable land wants to object to the rating category for the land that is stated in a rate notice for the land.
2. (2)
   The only ground for objecting is that the owner considers the land should belong to a different rating category.
3. (3)
   The owner may object by giving the local government an objection notice.
4. (4)
   An objection notice is a document, in a form approved by the local government, stating—

1. (a)
   the rating category that the owner claims the land should belong to; and

2. (b)
   the facts and circumstances on which the owner makes that claim.

3. (5)
   The owner must give the objection notice within—

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

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

26. [26]
    It might be noted, as an aside, that Mr Marchesi’s objection to the rates category was not made within the 30 day period after the rate notice was issued but the respondent local government does not take issue with that matter.

27. [27]
    I infer by the response of the respondent that they do not object to a longer period being allowed to Mr Marchesi to object to his rates category in order to achieve a resolution of this long-standing dispute.

28. [28]
    Section 91 requires a decision to be made on a land owner’s objection by the chief executive and provides for only two options as a result of that consideration of the objections.

29. [29]
    The two options are to change the rating category of the land to either the rating category to which the owner claims in the objection notice that the land should belong or to another rating category or, as a second option, the chief executive can decide not to allow the objection.

30. [30]
    In either case the chief executive must, pursuant to s 92(3), give the owner notice of the decision and reasons for the decision.

31. [31]
    That notice must be given within 60 days after the objection was made.

32. [32]
    Section 92 of the regulation provides the land owner with the opportunity to appeal to the Land Court against the decision of the chief executive officer on the owner’s objection to the rating category for the land.

33. [33]
    That is what Mr Marchesi has done in the instant case.

34. [34]
    Section 93 deals with the decision of this Court which sets out that the Court has the power either to change the rating category for the land in respect of which the appeal was brought or to not allow the appeal.

35. [35]
    Section 93(4) provides that if the Land Court decides to change the rating category for the land the rating category is taken to have been changed from the start of the period of the rate notice.

36. [36]
    In his notice of appeal filed in the Court on 11 June 2015 Mr Marchesi maintained the rating categories should be the same as those contended for in his review application and set out in paragraph 7 above, namely:

1. Lot 5101 Categorisation 29 Low-rise units – not principal place of residence;

2. Lot 7204 Category 2 Commercial and Industrial - $0 to $175,000 RV;

3. Lot 7503 Category 16 Residential – not principal place of residence – $0 to $420,000 RV;

4. Lot 9415 Category 6 Residential/Other – $0 to $280,000 RV.

37. [37]
    His appeal is in respect of a decision about a rate notice issued pursuant to the Revenue Statement. Any resultant change in categorisation relates only to that particular rating period and not to matters or rates which have been struck and charged at some time in the past.

38. [38]
    Mr Marchesi in his attachment to the notice of appeal raises issue with respect to conduct of the Sunshine Coast Regional Council between the years 2010 and 2014 and categorisations which date back to 2008. He is clearly not entitled to do this.

39. [39]
    As well as referring to the LGR to provide a legislative background to this appeal it is necessary also to refer to the definition contained within the town planning scheme for the Noosa area, which is entitled “The Noosa Plan”, and also the definitions contained within the Revenue Statement.

40. [40]
    Within the town planning scheme, the following definitions are relevant:

“basement means a space where the ceiling height projects no more than one metre above both the natural ground surface and the finished ground level, and where access to the basement is limited to one opening a maximum of 6m wide.

building means a fixed structure that is wholly or partly enclosed by walls and is roofed, and includes any part of a building.

building height in metres means the vertical height of a building measured from the finished ground level and the natural ground surface to the top of the roof or parapet at any point.

building height in storeys means the number of storeys in a building measured vertically at any point, provided that a basement shall not count as a storey.”

41. [41]
    Pursuant to the rating categorisation scheme, Table 1 in the Revenue Statement identifies general and specific criteria pertinent to the categorisation. With respect to Categories 27 and 29 those general and specific criteria are as follows:

42. [42]
    Further within Table 1 – Rating Categories and Descriptions – Category 27 High-rise Units (not PPR) is described as “land which is a high-rise unit used for residential purposes other than as the owner’s principal place of residence”.

43. [43]
    Similarly, Category 29 Low-rise Units (not PPR) is described as “land which is a low-rise unit used for residential purposes other than as the owner’s principal place of residence”.

44. [44]
    Table 1 also contains a column which is headed identification (guidance only) which refers to land use codes. Category 27 High-rise Units (not PPR) has a guidance in the following terms, “Land within the following land use codes: 08 or 09 or as otherwise identified by the CEO”.

45. [45]
    Similarly Category 29 Low-rise Units (not PPR) has identical identification guidance.

46. [46]
    Land use code 08 is “Community title scheme unit(s), not used for residential purposes or vacant land” and land use code 09 is for “Group title multi dwelling not used for residential purposes or vacant land”.

47. [47]
    In my view one has to turn to the specific criteria in Table 1 to appropriately categorise land given that both Category 27 and Category 29 contemplate land use codes 08 and 09 as likely to contain high rise or low rise units as described in the Categories.

48. [48]
    Similarly, regard must be had to some of the definition contained within the Revenue Statement, including the following:

“community title scheme: premises situated on land in respect of which a Community Title Scheme has been and remains registered pursuant to the Body Corporate and Community Management Act 1997.

differential general rates table: means Table 1 (page 16) and Table 2 (page 23) in this revenue statement.

dwelling house: a separate building that is used or is adapted to be used for principal residential purposes.

dwelling unit: a room or group of rooms that is used or is adapted to be used for principal residential purposes.

group title single dwelling: land with 09 Land Use Code which contains a single dwelling house only.

high-rise unit: all strata units within a complex as defined under the Body Corporate and Community Management Act 1997 where the complex contains a building greater than 4 storeys above the ground.

low-rise unit: all strata units within a complex defined under the Body Corporate and Community Management Act 1997 containing a maximum of 4 storeys above the ground.

owner: for purposes of the differential general rates table and associated provisions means;

1. (a)
   the ‘registered proprietor’;

2. (b)
   a resident Life Tenant, nominated as such by the terms of a will or Family/Supreme Court Order, and having been specifically given responsibility for payment of all Rates and Charges;

3. (c)
   a resident lessee of an Auction Perpetual Lease,  the terms of any such lease must provide for the lessee to be responsible for the payment of rates and charges and the lessee must be granted title to the land in fee simple at the conclusion of the lease.

principal place of residence: a single dwelling house or dwelling unit that is the place of residence at which at least one natural person who constitutes the owner/s of the land predominantly resides, or a multi dwelling house or multi dwelling unit where at least one owner is a pensioner who complies with the eligibility criteria contained in the Queensland Government’s Rate Subsidy Scheme. In establishing principal place of residence council may consider, but not be limited to, the owner’s declared address for electoral, taxation, government social security or national health registration purposes, or any other form of evidence deemed acceptable by the council.

The following cases do not comply with the definition of a principal place of residence namely a single dwelling house or a single dwelling unit that is;

1. (a)
   not occupied by at least one person/s who constitutes the owner/s, but occupied by any other person/s, whether in return for rent or remuneration or not, including members of the owner’s family; or

2. (b)
   not occupied, whether permanently or temporarily (for more than 120 days of the financial year), including for the purposes of renovation or redevelopment, except in the case where;

1. (i)
   a premises being renovated remains the registered principal place of residence for the purposes specified above and that the owner/s do not own any other property which they claim to be their principal place of residence; and

2. (ii)
   a property is vacant for a period longer than 120 continuous days of the financial year due to the owner/s  absence on an extended holiday, provided that the property remains vacant for the entire period of their absence.

3. (iii)
   a property is occupied by the owner/s less than 120 days of the financial year due to the owner/s absence due to work commitments, provided that the absence is confirmed by the employer and the property remains vacant or is occupied by immediate family members only during the period of their absence.

4. (iv)
   the owner is absent due to medical reasons of the owner or a close relative and this is confirmed by a health professional or a Commonwealth Carer’ Pension.

3. (c)
   Not owned by a natural person e.g. owned by a company, excepting where the ratepayer resides at the property as their principal place of residence.”

49. [49]
    The decision of 30 April 2015, from which Mr Marchesi exercised his right to appeal, contains a very useful précis of the background and also a useful summary articulation of the complaint issues.

50. [50]
    With respect to a précis of the background, that internal review report stated as follows:

“A request was made by Mr John Marchesi to Noosa Council (NC), CEO, Brett de Chastel, on 11 February 2015 for an internal review to be conducted in accordance with NC’s Administrative Action Complaints Policy. The CEO appointed Ms Debra Iezzi, Executive Manager and Ms Narelle Reid as Acting Executive Manager to undertake and finalise the following internal review.

The complaint alleges that NC has previously overcharged rates to Mr Marchesi for the properties outlined below:

1. Viridian Noosa 9415/5 Morwong Drive Noosa Heads (Property 1);

2. Viridian Noosa 7204/5 Morwong Drive Noosa Heads (Property 2);

3. Viridian Noosa 7503/5 Morwong Drive Noosa Heads (Property 3); and

4. Viridian Noosa 5101/5 Morwong Drive Noosa Heads (Property 4).

Whilst Mr Marchesi previously owned all of the abovementioned properties, which he purchased on 15 October 2010, he subsequently sold properties 2 and 3 on 20 June 2012. He remains the current owner of properties 1 and 4.

…

NC re-categorised Property 4 from ‘High rise Units Not PPR’ to ‘Residential not PPR’ on 4 December 2014 in response to a review requested by Mr Marchesi. The property was re-categorised on the basis that whilst Property 4 is within a CTS and technically fits within the ‘high-rise unit’ definition provided in the NC Revenue Statement, in light of the fact that the ‘low rise-unit’ definition contains an exception for units which are detached separately, this exception must also apply to ‘high-rise unit’. Accordingly, as the property 4 is detached separately, it does not fit into either unit category.

NC refunded Mr Marchesi the difference between the two categories for the July 2014 rates notice.”

51. [51]
    In my view, the prime motivation of Mr Marchesi’s complaints and allegations about the inappropriate categorisation of the units owned or controlled by him is driven by a desire to place those units in a category which might attract a lower level of annual rates from the local government.

52. [52]
    Further he is also driven by a desire to recoup what he sees as rates paid by him on the basis of a categorisation which he says was inappropriate. That attempt to regather those rates is related not only to the current period under review but to all periods of rate notices delivered to him (and presumably paid by him) since the date upon which he acquired ownership of the four units. As indicated above, this Court has no power to do this.

53. [53]
    It is significant, in my view, that the powers given to this Court in what I colloquially refer to as categorisation appeals do not include a power to create new categories for the purpose of the gathering of local government rates.

54. [54]
    Rather the task is to assess whether, having regard to the definitions in, and the provisions of, the various revenue statements, the category into which any particular lot is placed is the appropriate one.

55. [55]
    Moreover, the provisions of the local government regulation relate only to the categorisation appropriate to a particular rate notice where an application for review is made within the statutory period or where the local government, in its unfettered discretion, allows a longer time. The history of the site and categorisations that may have applied in previous rating periods are, unless good reason can be shown why regard should be had to them, largely irrelevant.

56. [56]
    In the present case the lots subject of dispute have been created at a time when a differently constituted local government had responsibility for the area in which the lots are located. Subsequently there had been a de-amalgamation of local government areas so that the local government area relevant to the subject lots became a much smaller area known as the Noosa Council.

57. [57]
    I am also bound to observe that I can find no authority that permits me to go behind the making of a resolution by a local government. That is to say I am not entitled, as a matter of law, to come to a view that a resolution was either inappropriately formulated or incorrectly voted on.

58. [58]
    Once a matter has been resolved by resolution of the council as required by the various provisions of the Act and any regulations made pursuant to it, it is, in a sense, cast in stone. It becomes a matter of looking at a regulation and determining where land of a particular description fits within a provision.

59. [59]
    Some of the material proffered by Mr Marchesi seems to seek to go behind, or investigate machinations prior to, the making of a resolution. I reject that I am entitled to do so.

60. [60]
    If there are administrative decisions taken by a local government which some party wishes to challenge that is a matter for judicial review and not a matter within the ambit of the statutory jurisdiction of this Court. Alternatively it may be a matter which is susceptible to some intervention by the Queensland Ombudsman – an opportunity which has been embraced by Mr Marchesi but apparently without a result satisfactory to him.

61. [61]
    In a similar vein, if a party wishes to assert that over-payment has been made to a local authority that, again, is a matter beyond the statutory jurisdiction of this Court. It may be that it founds a civil action for monies paid under a mistake of fact or something along those lines. I do not as the Member constituting this Court have power to direct a local government to refund monies which may have been incorrectly calculated or which were mistakenly paid in excess of the obligations of a ratepayer. That is, I repeat, a civil matter.

62. [62]
    Mr Marchesi in his amended statement to the Court says, “I am claiming that the associated financial adjustment (refund) of rates charges overpaid should have been made for all of the prior rating periods backdating to the time of my purchase settlement; Noosa Council maintains that it was only obliged to make an adjustment for the rating period in which the re-categorisation was made”.^[4]

63. [63]
    The matters of complaint raised by Mr Marchesi really appear to fall into two categories.

64. [64]
    The first of those categories is with respect to what is described as Lot 5101 which is currently categorised as residential, it being a single detached dwelling within the Viridian complex.

65. [65]
    While his original statement filed 15 December 2015 focuses on his desire to obtain a refund for periods other than the rating period in which the re-categorisation was achieved as a result of a complaint by him, he asserts that the lot should also be re-categorised if his claims for re-categorisation of the other lots is found to be substantiated by the Court.

66. [66]
    Unfortunately he does not, anywhere in his material, make clear the basis upon which that further re-categorisation ought to occur.

67. [67]
    The second aspect of Mr Marchesi’s claims is that Lots 7503, 7204 and 9415 do not belong in the high-rise unit category but should be categorised in the non-residential category.

68. [68]
    Alternatively he says that if that claim fails he believes “there is… a a strong claim that these Lots should be correctly categorised as Low-rise Units”.^[5]

69. [69]
    In his response to the respondent’s outline of argument Mr Marchesi goes on to say:

“Three categories were actually proposed by myself as being possibly correct or more appropriate than ‘High-rise Units’ category.

They are the ‘Non-Residential’ (formally [sic] named ‘Commercial’) category, the ‘Low-rise Units’ category or the ‘Residential (PPR) and Other’ category.”

70. [70]
    Given that the units are in a complex providing accommodation it is difficult to see how they could possibly be categorised into a ‘Non-Residential’ category.

71. [71]
    Indeed, Mr Marchesi does not advance any evidence to support a view that the units owned by him are commercial in nature.

72. [72]
    All of the four categories of non-residential land refer to land which is used or intended to be used for non-residential purposes. Clearly that is in conflict with the use made of the subject units.

73. [73]
    The ‘Residential (PPR) and Other’ category refers to properties which are used for residential purposes as the owner’s principal place of residence. As I point out later in this decision, there is apparently a covenant in respect of these Viridian units which precludes their being used for permanent residency as a principal place of residence.

74. [74]
    As to the category for low-rise units, the definition for that category refers to a complex containing a maximum of four stories above ground level. That is an inappropriate categorisation, given the conclusions that I reach in this decision about the maximum number of storeys in a number of the buildings which comprise the Viridian complex.

75. [75]
    Thus it seems clear that Mr Marchesi does not actually contend for a particular categorisation but, in a sense, alleges that the existing categorisations are wrong and that there are a number of alternatives which this Court should consider before selecting one of those.

76. [76]
    The task before this Court is to have regard to the schedule of categories and having regard to the nature of the land in respect of which the appeal lies identify into which category that land best fits.

77. [77]
    That task is informed by the specific definitions which are to be found in the statute and the documentation associated with the rating categories.

78. [78]
    At the hearing of this matter Mr Marchesi, after some confusion caused by delivering multiple copies of slightly amended documents to the Court, was able to identify to the Court three documents which constituted the written material which became his evidence before the Court.

79. [79]
    Those documents were:

1. (a)
   Supplementary statement of 14 December 2015 (Exhibit 1);

2. (b)
   Mr Marchesi’s outline summary of argument of 14 January 2016 (Exhibit 2);

3. (c)
   Mr Marchesi’s response to the respondent of outline argument dated 4 March 2016 (Exhibit 3).

80. [80]
    The respondent tendered a bundle of documents together with a certificate under s 251 of the Act which certificate was signed by Mr Martin Drydale, the Acting Chief Executive Officer of the respondent.

81. [81]
    The documents certified in that way were as follows:

1. (a)
   Email from Appellant dated 2 October 2014

2. (b)
   NSC email to Appellant dated 4 December 2014

3. (c)
   Emails from Appellant received 11 February 2015

4. (d)
   Internal Review by NSC and covering letter to Appellant dated 30 April 2015

5. (e)
   Rates Notices for periods from 1 July 2010 to 31 December 2015

6. (f)
   Decision Notices dated 15 February 2007, 19 April 2007, 27 February 2008, 27 January 2009, and 30 November 2009.

7. (g)
   Community Management Statement registered 28 May 2010

8. (h)
   Historical Title Searches

1. (i)
   Minutes of Special Meeting of 26 June 2014

10. (j)
    NSC Revenue Statement for 2014/2015

10. (k)
    The Noosa Plan – Part 2 Interpretation

82. [82]
    None of those documents were challenged by Mr Marchesi.

83. [83]
    The respondent local government also obtained an expert report from David Eagle, a surveyor in the employ of JFP Urban Consultants Pty Ltd. Mr Eagle holds qualifications in both land surveying and business studies. A copy of his curriculum vitae was attached to the report prepared by him and exhibited to an affidavit sworn by him.

84. [84]
    Having regard to Mr Eagle’s professional qualifications, professional memberships and work experience since 1977, I am satisfied that Mr Eagle is sufficiently qualified to be able to provide an expert opinion to this Court.

85. [85]
    While the ultimate conclusion is one for me, I found his analysis of the properties the subject of this dispute and the arrangements within the Viridian Noosa Community Titles Scheme to be of great assistance to me.

86. [86]
    Mr Eagle was not required for cross examination by Mr Marchesi and accordingly his evidence comes before the Court unchallenged.

87. [87]
    I record that I have compared the observations made by Mr Eagle with the Community Titles Scheme, including all of the plans relevant to the scheme, and I am satisfied that Mr Eagle has carried out a thorough and accurate assessment of the blocks which constitute the community title properties.

88. [88]
    Mr Eagle in his report points out that the titling of the land occurred pursuant to survey plan SP190823 which defines the 202 lots (units) in the community titles scheme and he further points out that the community title scheme consists of 11 buildings which are labelled as “block A” through to “block K”.

89. [89]
    Mr Eagle has applied his analysis of the plans of each of the blocks to the definitions contained within the Noosa Plan.

90. [90]
    Because Mr Eagle’s conclusions were not challenged it is not necessary to set out in detail all of the analysis contained within Mr Eagle’s report, which became exhibit 5.

91. [91]
    He provided a summary of his observations and calculations in the following table:

92. [92]
    Mr Marchesi’s Lot 9415 is located in block I, properties 7204 and 7503 are located in block G and Lot 5101 is in block E.

93. [93]
    As can be seen from the table above, Mr Eagle’s conclusion (with which I entirely agree) shows that buildings D, G and H are greater than four storeys.

94. [94]
    That conclusion calls in to consideration the definition of a high-rise unit pursuant to the Noosa Plan which, as set out above states, “high-rise unit means a community-title complex, available for residential purposes, in which at least one building is greater than four storeys above ground”.

95. [95]
    Because Mr Marchesi’s amended statement included attachments which took the entire document to approximately three hundred pages in length I directed that he provide a summary of his case.

96. [96]
    That summary became, as indicated above, exhibit 2.

97. [97]
    Lot 5101 is a two-level building including a garage of 25m² and the plans show clearly that detached or standalone building.

98. [98]
    Mr Marchesi’s main complaint with respect to Lot 5101 seems to relate to a desire to be repaid rates as he says “with respect to the above, my argument is that adjustments should be made for overpayment of rates since purchase settlement due to this lot having been categorised incorrectly since purchase settlement”.^[6]

99. [99]
    In the course of what effectively became a discussion in the hearing, Mr Marchesi appeared to accept that I have no power to direct a local authority to refund rates for either the period under categorisation objection or for any other period.^[7]

100. [100]
     In my view the categorisation change which Mr Marchesi has already achieved has the consequence that I need pay no more attention to the categorisation of that lot and it remains for Mr Marchesi to take whatever action he may be advised in respect of rates which he says he has paid in excess of his obligation.

101. [101]
     In any event, Mr Marchesi did not adduce any evidence in support of his contention.

102. [102]
     With respect to Lots 9415, 7503 and 7204 which are categorised as “high rise units not principal place of residence (PPR)”, Mr Marchesi contends that as they are incorrectly categorised, they should be re-categorised into an alternative category such as “low rise”, “commercial industrial” or “residential not (PPR)” and “other”.

103. [103]
     As an ancillary issue Mr Marchesi contends that the changes should be backdated to the date of purchase by him and refunds for the whole of that period provided to him.

104. [104]
     The only question for me is whether the categorisation is appropriate having regard to the provisions of the Revenue Statement.

105. [105]
     Any properties within the Viridian CTS are subject to a covenant that the individual units are not to be used for permanent occupation.

106. [106]
     Mr Marchesi in his written submissions^[8] places significant weight on past events involving the Sunshine Coast Regional Council which was de-amalgamated some years ago to re-create the Noosa Council.

107. [107]
     My task in this appeal is a relatively simple one and that is, having regard to the nature of the properties owned by Mr Marchesi and having regard to the Noosa Shire Council Revenue Statement for 2014-2015 and the guidance provided therein, to determine whether the current categorisation of the lots is incorrect and whether an alternative categorisation should be applied.

108. [108]
     Mr Marchesi also places great weight upon what he sees as the inequitable imposition of rates and the level of those rates.

109. [109]
     Those are matters beyond the jurisdiction of this Court.

110. [110]
     Within that Revenue Statement is a definition of a high rise unit which is recited earlier in this decision.

111. [111]
     The key elements of that definition are the requirement that refers to “all strata units within a complex as defined under the Body Corporate and Community Management Act 1997 and a requirement that “the complex contains a building greater than four storeys above the ground”.

112. [112]
     Part of Mr Marchesi’s argument is that the word complex should be used in the sense of it being a building rather than a number of buildings within the Community Title Scheme which, again as pointed out earlier in this decision, consists of 202 units located in 11 buildings labelled block A through to block K.

113. [113]
     The best approach to statutory interpretation is by applying the literal meaning of legal provisions.

114. [114]
     This is known as the literal approach.^[9]

115. [115]
     The general proposition which underlies the literal approach to statutory interpretation is that one seeks to apply natural and ordinary meaning of what is said in an act of statute or legal provision.

116. [116]
     There can be resort to other approaches to statutory interpretation where a word or a phrase read in its textual context is ambiguous or unclear.

117. [117]
     The natural and normal meaning of the word ‘complex’ is set out in the Macquarie Dictionary^[10] as

“complex–

1. composed of interconnected parts, compound. 2. characterised by an involved combination of parts.”

118. [118]
     In an English decision involving a determination of whether a canopy erected over the forecourt of a petrol station was plant for the purposes of the trade Brightman J, considering a decision that a canopy and a facia were an integral part of the petrol pump complex, said this:^[11]  

“A ‘complex’ is, I think, modern jargon for something which is capable as being regarded as an integer or unit though composed of independent or semi-independent parts. My understanding of the reasoning of the  General Commissioners is that they took the view that the canopy was a part of a unit of which the petrol pumps were the principal components, and that as the petrol pumps were clearly plant (with which I agree) therefor the canopy, has an integrated component, was also plant”.

119. [119]
     In everyday common parlance, reference to a resort complex or a building unit complex generally refers to the building units which comprise the complex together with other facilities such as, for example, a swimming pool, a sauna or a tennis court. Clearly there are other definitions within the Revenue Statement which contemplate individual buildings but Category 27 is not one of those categories.

120. [120]
     As I indicate above I am satisfied from the analysis done by Mr Eagle that at least two of the buildings in the Viridian Complex constitute a building greater than four storeys and accordingly in my view the categorisation as 27 – High-rise Units (not PPR) is the correct one.

121. [121]
     In particular that categorisation reflects the fact that the various units within the complex are not available for permanent occupation by the owners.

122. [122]
     There is also the fact that, as I understand the totality of the evidence which was produced before me by Mr Marchesi, one single resort operator is responsible for the leasing arrangements for all of the units in all of the buildings.

123. [123]
     On that basis alone I would be satisfied that the Viridian CTS is a ‘complex’.

124. [124]
     In his written outline of submissions on behalf of the respondent, Mr Batty took issue with the standing of Mr Marchesi to bring this appeal in respect of two of the units of which he is no longer the owner.

125. [125]
     Earlier in this decision I make comment about the definition of ‘owner’ as included in the Local Government Act 2009 which is probably, but not certainly, a complete answer to the issues raised against Mr Marchesi’s capacity to have brought these appeals.

126. [126]
     He has told the Court that he continues to receive rent from two of the units which he has sold pursuant to a lease back arrangement and, accordingly, it would seem that he is entitled to be regarded as the owner for the purposes of this appeal.

127. [127]
     In any event it becomes irrelevant because of the view that I have reached that Mr Marchesi has not discharged the onus of convincing me that the categorisation of the units owned or controlled by him is inappropriate.

128. [128]
     Accordingly I dismiss the appeal in respect of each of the four lots.

Order

The appeal is dismissed.

WL COCHRANE

MEMBER OF THE LAND COURT