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The central question in this case was the scope of the council’s power to create rating categories for the purpose of levying differential general rates. The appellant contended, that the decision to adopt rating categories that depended upon whether land was rented to a “permanent resident” or an “itinerant” was invalid because whether the user was a “permanent resident” or itinerant was not an attribute or characteristic of the rateable land. In rejecting the appellant’s argument, the Court of Appeal held that, having regard to s 94(1A) of the Local Government Act 2009, which commenced in 2014, “use of land in one way or another may be selected as a basis for a rating category”.
McMurdo JA and Boddice and Jackson JJ
12 February 2021
Section 94(1) of the Local Government Act 2009 (“LGA”) requires a council to levy general rates. Regulation 80 of the Local Government Regulation 2012 (“LGR”) permits the levying of differential general rates. By regn 81 of the LGR a council may, by resolution, decide different categories of rateable land for the purpose of levying differential general rates. Furthermore, s 94(1A) of the LGA, which commenced in 2014, permits a council to decide differential rating categories “according to whether or not the land is the principal place of residence of the owner”. –, .
Pursuant to these powers, the respondent created two rating categories, “Category 2T” and “Category 3T”. Both categories concerned residential lots used to provide rental accommodation – Category 2T where such accommodation was provided to “permanent residents” and Category 3T where such accommodation was provided to “itinerants”. . At first instance, the appellant unsuccessfully challenged these categories as improper exercises of the power to decide rating categories under regn 81 of the LGR and to levy differential general rates under s 94 of the LGA. .
On appeal, the appellant contended that the respondent, in establishing Categories 2T and 3T, had taken “into account that rateable land is used to provide rental accommodation to an occupying person of one class or another, being a permanent resident or itinerant, and that was an irrelevant consideration”. . The Court of Appeal (Jackson J, with whom McMurdo JA and Boddice J agreed) dismissed the appeal.
The Xstrata argument
Central to the appeal was the appellant’s argument that the decision in Xstrata Coal Qld Pty Ltd v Council of the Shire of Bowen  QCA 170 supported its submission that the rating categories in question impermissibly relied upon “‘the ‘personal characteristics’ of the occupier and not on any inherent attribute or quality of the rateable land or its improvements”. .
Justice Jackson observed that “[t]he central principle of Xstrata [was] that it must be some ‘attribute of the land’ that forms the basis of the determination of a rating category to which a differential general rate applies”. . However, Jackson J concluded that Xstrata was not “binding authority requiring that a rating category must be decided by reference only to an attribute of the land”. .
The rating categories in question were not invalid
In his Honour’s view, the presence since 2014 of s 94(1A) of the LGA was “a strong contextual indication that [the rating categories were] not invalid because they [turned] on the nature of the occupation of residential land”. . Section 94(1A) was introduced after the decision in Paton v Mackay Regional Council  QSC 75 which held that rating categories based upon whether or not the land was used as a principal place of residence were precluded by Xstrata. , –.
Justice Jackson held that the introduction of s 94(1A) revealed the true meaning of s 94(1). . Subject to exceptions, “it should be accepted that … use of land in one way or another may be selected as a basis for a rating category, including a category that distinguishes between a non-business use and a business use or one that distinguishes between one non-business use and another non-business use by reference to factors going to intensity or duration of use”. (emphasis added). . It followed that “ … the selection of whether residential land is used to provide rental accommodation for permanent residents for one rating category and to itinerants for another rating category is not outside the scope of the legislative power conferred … ” .
His Honour also rejected a “possible exception” to this principle based upon the definition of “permanent resident” applicable to Category 2T. –.
Availability of judicial review under the Judicial Review Act 1991
Although not deciding the issue, Jackson J also questioned the assumption that resolutions to levy differential general rates are decisions “of an administrative character” within the scope of the Judicial Review Act 1991. However, if they were not, the Court could make a declaration that the levy was invalid. –.
In the result, the appeal was dismissed with costs. .