Local Governments and landowners in Queensland may need to consider whether rates and charges levied on rateable land in the relevant Local Government area are valid following a recent decision of the Supreme Court of Queensland in Linville Holdings Pty Ltd v Fraser Coast Regional Council [2017] QSC 252.
Background
The Local Government Act 2009 (the LGA) and the Local Government Regulation 2012 (the LGR) set out requirements for Councils when determining what rates and charges are to be levied for a particular period.
In June 2014 the respondent Council held a meeting for the purpose of considering the proposed 2014/2015 budget.
The Council ultimately passed a resolution that:
"1. Council adopt the 2014/15 Budget as presented in the following:
(a) 2014/15 Operational Plan as presented (refer to Attachment 4);
(b) 2014/15 Financial Year Budget and the Ten Year Budget Estimates for 2015/16 to 2023/24 as presented (refer Attachment 1 – page 116-126, Attachment 2 – Capital Works 2014/15, and Attachment 3 – Schedule of Fees & Charges 2014/15);
(c) Revenue Policy and Statement 2014/15;
(i) The Revenue Policy in respect of the 2014/15 financial year as presented (refer Attachment 1 page 1);
(ii) The Revenue Statement in respect of the 2014/15 financial year as presented (refer Attachment 1 page 4 – 30);
(iii) The Overall Plan for Special Rates & Charges for the 2014/15 financial year as presented (refer Attachment 1 page 31);
(iv) The Schedule of Rates & Charges for the 2014/15 financial year as presented (refer Attachment 1 pages 35-42);
(v) The Schedule of Fees and Charges for 2014/15 as presented (refer Attachment 3);
(d) ...
2. Council adopt the revised Expenses and Provision of Facilities for Mayor and Councillors Policy as per Attachment 5." (emphasis added)i
Similar resolutions were passed by the Council in respect of the 2015/2016 and 2016/2017 budgets.
Issues considered by the Court
The Landowner challenged the resolutions on the basis that the resolutions did not comply with the requirements of the LGA and the LGR. In particular, the Landowner submitted that the resolutions did not comply with the relevant requirements in the following ways:
"(a) first, contrary to s 94 of the LGA and r 81 of the LGR, there was no separate resolution to levy the rates and charges from the resolution to adopt the budget for the relevant year;
(b) second, contrary to s 94 of the LGA and r 81(3) of the LGR, the challenged resolution failed to state the rating categories of rateable land for the differential general rates and a description of the rating categories;
(c) third, contrary to s 94 of the LGA and r 94 of the LGR, the challenged resolution failed to identify the rateable land to which the special rates or charges apply; and
(d) fourth, contrary to s 94 of the LGA and rr 81 and 94 of the LGR the challenged resolution is uncertain or too vague."ii
The decision of the Court
In respect of the first issue, the Court considered the requirements of the LGA and the LGR and the need for the Council to consider and pass a resolution levying rates and charges and determined that the Council had failed to comply with the relevant requirement in that the resolutions for each financial year did not decide what rates and charges were to be levied. Although the resolutions adopted the relevant budget for each financial year, the resolutions did not do enough to satisfy the requirements for a resolution to decide what rates and charges are to be levied.
The failure to satisfy the requirements invalidated the rates and charges adopted by the Council in the budget for the relevant financial years.
The substance of the Landowner's complaint in respect of the second issue was that the relevant resolution needed to include the rating categories of rateable land for the differential general rates and a description of the rating categories in the text of the resolutions. That detail was not included in the text of the resolutions but was included in Attachment 1 to the resolutions – an indexed booklet.
The Court considered the requirements of the LGA and the LGR but does not expressly address the inclusion of the detail in the indexed booklet. The Court appears to accept that including the detail in the indexed booklet was appropriate, and goes further to say that if it was not appropriate, the non-compliance did not amount to a breach of the statute that made the resolutions invalid.
The Court resolved the third issue on the same basis as the second issue and found that if the resolutions did not identify the rateable land, only because the identification was made in the cross-referenced parts of the indexed booklet, the non-compliance did not amount to a breach of the statute that made the resolutions invalid.
The Landowner's concerns raised in respect of the fourth point were rejected by the Court.
Impact of the decision
The decision may be subject to appeal, but notwithstanding that, highlights the need for Local Governments to exercise care when preparing resolutions for budgets and for rates and charges to ensure that the resolutions comply with the relevant requirements of the LGA and the LGR.
Local Governments and landowners may need to review resolutions of rates and charges to ensure that the resolutions comply with the requirements of the LGA and the LGR.
Footnotesi Linville Holdings Pty Ltd v Fraser Coast Regional Council [2017] QSC 252 at [7] and [8]
ii Linville Holdings Pty Ltd v Fraser Coast Regional Council [2017] QSC 252 at [5]
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