White v Moreton Bay Regional Council
[2017] QLC 51
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- Unreported Judgment
- White v Moreton Bay Regional Council[2017] QLC 51
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White v Moreton Bay Regional Council[2017] QLC 51
White v Moreton Bay Regional Council[2017] QLC 51
LAND COURT OF QUEENSLAND
CITATION: | White & Anor v Moreton Bay Regional Council [2017] QLC 51 |
PARTIES: | Michael White and Lainie White |
| (appellants) |
| v |
| Moreton Bay Regional Council |
| (respondent) |
FILE NO: | LGR167-17 |
DIVISION: | General division |
PROCEEDING: | Appeal against categorisation decision |
DELIVERED ON: | 8 September 2017 |
DELIVERED AT: | Brisbane |
HEARD ON: | 24 August 2017 |
HEARD AT: | Brisbane |
PRESIDENT: | FY Kingham |
ORDERS: |
|
CATCHWORDS: | REAL PROPERTY – RATES AND CHARGES – rating of land – categories of land – where no appropriate category exists – where the subject property contains a main house and a granny flat – whether the appropriate category is for two flats on the land parcel – where it was decided that the appropriate category is O1 Local Government Regulation 2012, s 81, s 81(5), s 90(2), s 92, s 93(2), s 93(3) |
APPEARANCES: | ME White, in person for the appellants A Conaghan (solicitor), Moreton Bay Regional Council, for the respondent |
Background
- [1]Mr and Mrs White own a property at 6-8 Scrubwren Court, Burpengary East. They live in a house on the property. Mrs White’s mother lives in another building on the property, described as a Granny Flat. The property is in the Moreton Bay Regional Council area. The Council categorised it for rates purposes as F2, which resulted in a significant increase to Mr and Mrs White’s rates. They objected to that categorisation. The chief executive officer of the Council confirmed the categorisation and Mr and Mrs White have appealed to the Land Court against that decision.[1]
- [2]The Court’s function is confined to deciding the correct rating category for the property.[2]
- [3]
- [4]Mr and Mrs White identified category R1 as being relevant, Category R1 is defined as: “land which contains a single residential dwelling, not part of a community titles scheme, and used by the property owner or at least one of the property owners as their principal place of residence.”[5] An aerial photograph of the subject land shows two separate, distinct and unconnected residential dwellings.[6] At the hearing, Mr White conceded category R1 did not fit the circumstances of their property. However, he argued there was no appropriate category for their situation, which he described as “assisted/dependant living accommodation”.[7]
- [5]The Council has assessed the property as a category F2 property. That category is defined as: multi residential where the number of flats on the physical land parcel is equal to two.[8]
- [6]Mr White argued F2 was not appropriate as there are no flats on his property. He relied on the usual meaning of the term “flat”: “a set of rooms forming an individual residence, typically on one floor and within a larger building containing a number of such residences”.[9] Applying that definition, although there are two buildings on his property they are not flats.
- [7]The descriptions and definitions for Category F are unhelpful. The title for this group of categories is Multi Residential Dwellings (flats). There is no definition of what is a Multi Residential Dwelling. The usual definition of dwelling is a house, flat or other place of residence. A Multi Residential Dwelling could mean multiple residential dwellings within a building (such as a unit[10] or a flat) or multiple separate and discrete residential dwellings on a single parcel of land, (such as two houses or a house and a studio or caretaker’s cottage).
- [8]The ambiguity in the title for the F category is not assisted by an apparent conflict between the description used for each category in this group and the definition of “flat” which applies to the F category.
- [9]There are 62 F categories, where the number of the category corresponding to the number of flats on the land. The definition of “flat” is “land that is subject to one rate assessment and contains more than one residential dwelling”.[11] That description does not clarify whether the number of residential dwellings refers to residential dwellings within a single building or separate buildings or both.
- [10]Further, the definition of flat unhelpfully focuses on the land, not on the form and structure of the dwelling. That creates a difficulty when applying the definition to the description of an F category. Category F2 is described as: “where the number of flats on the physical land parcel is equal to 2”.[12] Interpreted literally, F2 applies to a physical land parcel, whatever that means, which contains two flats; i.e. two areas of land that are subject to one rate assessment and contain more than one residential dwelling.
- [11]The definition, therefore, does not assist to determine the essential question, whether F2 is the appropriate category for land subject to one rate assessment which contains two separate and discrete residential buildings.
- [12]The Council has not clearly defined the type of residential dwellings it intends to rate under the F category. The definition of “flat”, with its focus on land, provides no assistance in interpreting the category regardless of how residential dwelling is interpreted. That ambiguity can be resolved by applying the ordinary meaning of flat to the term “residential dwelling” in category F2. Interpreted in that way, category F2 is not the appropriate category for the property.
- [13]The Court must make its decision in accordance with the existing rating categories. The Court has jurisdiction to change the rating category, not to create new rating categories for local governments.
- [14]There is another category that neither party referred to which applies in the absence of any other appropriate category. As neither R1 nor F2 is appropriate, Mr and Mrs White’s property should be assessed as a category O1 property. That is “land not contained in any other differential rating category and the rateable value of the land is less than $1,000,000”.[13]
ORDER
- [15]Therefore, the order of the Court is:
- The appeal is allowed.
- The appropriate rating category for the property at 6-8 Scrubwren Court, Burpengary East, being Lot 20 on SP 246485 is O1.
FY KINGHAM
PRESIDENT OF THE LAND COURT
Footnotes
[1] Local Government Regulation 2012 s 92(1)(b).
[2] Local Government Regulation 2012 ss 93(2) and 93(3).
[3] Statement of evidence for the respondent filed 22 August 2017, attachment 1.
[4] Statement of evidence for the respondent filed 22 August 2017, para 5.
[5] Statement of evidence for the appellant filed 11 August 2017, attachment 1 at p 40.
[6] Statement of evidence for the respondent filed 22 August 2017, attachment 2.
[7] Statement of evidence for the appellant filed 11 August 2017, p 1.
[8] Statement of evidence for the respondent filed 22 August 2017, attachment 2 at p 35.
[9] Ex 2.
[10] There is a separate group of categories for units, which would suggest that they would not be included in the F categories.
[11] Statement of evidence for the respondent filed 22 August 2017, attachment 1 at p 38.
[12] Statement of evidence for the appellant filed 11 August 2017, attachment 1 at p 35.
[13] Statement of evidence for the appellant filed 11 August 2017, attachment 1 at p 56.