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Kilcoy Shire Council v Brisbane City Council [1971] HCA 19; (1971) 124 CLR 60 (25 May 1971)

CATCHWORDS

HEARING

DECISION

2. On 27th June 1963 the Governor proclaimed 30th June 1964 "as the date on and after which the third valuation made by the Valuer-General" i.e. that made in 1963 "of all lands in the area of the Shire of Kilcoy shall, subject to objection or appeal, be the valuation of all lands required by the said Acts" (the Valuation Acts) "to be valued in that area" (see s. 11 (1) (ii)). (at p62)

3. The land on which the Somerset Dam is formed is included in the area of the Shire. It includes approximately 23,000 acres which was predominantly "Alluvial flat, grazing land or farm land"; that land was rated by the Shire before its inundation. It was divided into parcels (see definition s. 5), and remains so though it is now vested in the Brisbane City Council by virtue of The City of Brisbane (Water Supply) Act of 1959 (Q.). At all relevant times these lands remained ratable lands and though some were leased, the Brisbane City Council is ratable in respect of them. See The City of Brisbane (Water Supply) Act and Ex parte Kilcoy Shire Council ; Re Brisbane City Council (1967) QWN 26 ; 14 LGRA 59 . Some of these parcels of land are wholly submerged whilst others are only partly submerged. (at p62)

4. In making his assessment in 1963 of the value of all the land in the Shire the Valuer-General treated the wholly submerged lands as not part of the area in which he had to value all lands and did not assign any value to at least some of the parcels which were partly submerged. Further, until 1967 the Brisbane City Council had taken the stand that the lessees of land vested in it by The City of Brisbane (Water Supply) Act were the ratable owners of the leased lands. In fact some of the lessees had paid the rates levied in respect of the leased lands up until 1967. (at p62)

5. However in that year the Supreme Court in the case to which I have referred decided that all the lands forming the Somerset Dam were to be valued on the usual basis for assessing unimproved capital value and that the Brisbane City Council was the ratable owner of all these lands, including those leased. (at p62)

6. Having regard to this decision of the Supreme Court and official advice which he received as to its implications, the Valuer-General formed the opinion that the valuation resulting from his assessment and the proclamation of the Governor was erroneous in that some parcels of land in the area had not been included in the valuation and others had been erroneously entered as of no value. Consequently, in purported exercise of his powers under s. 13 (2) (h) of the Valuation Acts, he made a fresh assessment of the unimproved capital value of the lands forming the Somerset Dam, assigning to all the parcels, with the exception of nine, a value or a different value, that is to say, he valued parcels not formerly valued and assigned to others a higher value than was formerly assigned to them in the 1964 valuation. The Valuer-General in purported exercise of the power given to him by s. 11 (2) (iii) of the Valuation Acts fixed 30th June 1964 as the date upon which the amendments of the valuation should become effective. In making this reassessment of value and in fixing the operative date for his amended valuation, the Valuer-General was of opinion that the amended values were the values which the respective lands had at the date as at which he had made the 1963 valuation, i.e. 31st March 1963. (at p63)

7. Pursuant to the Valuation Acts and regulations made thereunder a valuation roll is kept in which particulars of the valuations are recorded. Provision is made in this record for the "date values take effect in valuation rolls" as well as for the "date of valuation" and for the date "valuation notice issued." See s. 17 in the Valuation Acts, reg. 7 and form V.G. 7 in the schedule to the regulation. Section 18 of the Valuation Acts requires the valuation roll to be amended wherever an amended valuation pursuant to s. 13 is made. (at p63)

8. Part VI of the Valuation Acts provides for notice of valuation, objections and appeals. Notice of valuation in the prescribed form is to be given to the land owner ; that notice being notice of entry in the valuation rolls of the notified values includes a statement of the date as on and after which the valuation is effective, expressed as the date the value "takes effect in the valuation rolls". Section 20 gives an owner "dissatisfied with the valuation made by the Valuer-General under this Act" a right of objection "against the valuation". The Valuer-General is to consider the objection and to notify his decision thereon. If the owner is not satisfied with the Valuer-General's decision he may appeal to the Land Court, the appeal being limited to the notified grounds of objection (see s. 21). The Land Court may make such order as it thinks fit and may confirm, reduce, or increase the valuation. (at p63)

9. Section 21 of The Local Government Acts, 1936 to 1970 (Q.) (the Local Government Acts) gives the Shire Council, which is a local authority within the meaning of those Acts (see s. 3 and Pt III) power to make and levy rates on the ratable value of land, rates on other bases and to impose, amongst other things, charges in respect of any property or service. These rates or charges include a general rate and "water rates and/or charges". A general rate shall be made and levied in each year equally upon the ratable value of land in the Shire's area (see s. 21 (1)). (at p64)

10. Section 24 states what is ratable land. The ratable value of any ratable land granted by the Crown in fee simple is to be the valuation of the unimproved value of the land made by the Valuer-General in pursuance of the Valuation Acts (see s. 24 (2)). Every valuation of the ratable value of ratable land is to be transcribed in a valuation register or list in a form provided by the Act (s. 24 (9)). No provision is made in that form for recording the date as on or after which the valuation has become effective. No power of alteration of an entry in the valuation register or list is given to the council (cf. s. 24 (10)) : but in so far as every valuation made by the Valuer-General must be entered, the register or list is thus kept up to date. (at p64)

11. Section 26 of the Local Government Acts requires a rate book to be kept by the council in a form provided by that section. This form includes the value of the parcel of land and the rate. Section 26 (2) imposes upon the authorized officer of the council the duty of amending the rate book from time to time by, amongst other things, "making such other amendments therein as will make any valuation or rate conformable to" the Local Government Acts. The "valuation list" and the rate book are prima facie evidence of their contents and of the due making of the valuation or rate in proceedings to recover rates (s. 52 (27)). Finally, s. 25 (4) (iii) requires the council to "observe . . . and as nearly as may be balance" its annual budget. (at p64)

12. In July of each of the years 1964, 1965, 1966 and 1967 the Shire Council resolved upon a general rate for the ensuing years. At the 1967 meeting of the Shire Council held on the 26th July, it resolved upon a water charge for 1967 - 1968 at $9.00 per unit and a .5c rate in the dollar on land within the country benefited area. Two parcels of land vested in the Brisbane City Council are within the gazetted area of the township of Kilcoy and apparently not within the country benefited area and are assessable for a water charge. Consequently these are assessable for water charges though not for the water rate. (at p64)

13. The valuation roll under the Valuation Acts was amended to accord with the amending valuation of 1967 and the amended roll was proved in evidence. The Shire Council received from the Valuer-General notice of the amendment of the valuation of those lands a few days after 26th July 1967. By that time the Shire Council had determined its budget and struck its rates. Having received the notice from the Valuer-General, the Shire Council included the amended valuation in its valuation list and amended its rate book appropriately to accord with the amended valuation: both documents are proved in evidence. (at p65)

14. So as to attract the provisions of Pt VI, the amended assessment is said to be itself a valuation (see concluding paragraph of s. 13 (2)): but s. 11 (2) (iii) which embraces an alteration of a valuation in terms would appear to effect the same result. (at p65)

15. No objection or appeal was made to or against the amended valuation. After the time for objection had expired the Shire Council duly issued and duly served upon the Brisbane City Council rate notices claiming amounts of rates based upon the valuation as amended pursuant to the Valuer-General's notice. Not receiving any part of the total amount claimed by these rate notices, the Shire Council commenced this action in the Supreme Court of Queensland on 21st July 1968 to recover from the Brisbane City Council a total sum of $76,047.59. This sum is made up of an unpaid balance of general rates at the appropriate rate for each of the years 1964, 1965, 1966 and 1967 calculated upon the unimproved capital values of the lands vested in the Brisbane City Council as assessed and notified by the Valuer-General in his valuation of July 1967 and an amount for water charges, water rates and fees for licensed gates. (at p65)

16. The Brisbane City Council by its amended defence put the Shire Council to proof of all the essentials of its cause of action and in addition raised the defence that the amending valuation had never become effective because the Valuer-General had no authority in 1967 to fix the 30th June 1964 as the date on and after which his valuation should be effective: therefore no date had been validly fixed and the valuation of 1964 without amendment remained operative. (at p65)

17. The trial judge accepted this defence and rejected the submission of the Shire Council that a challenge to the effectiveness of the valuation was not competent in these proceedings, as an objection or appeal against the valuation is the only means by which such challenge could be made. The learned trial judge gave judgment for a sum in respect of the general rates upon the nine parcels of land of which the value had not been changed by the amending valuation but rejected the Shire Council's claim for water charges and fees for licensed gates for lack of precise proof. (at p65)

18. There is no challenge in this appeal to the decision of the Supreme Court in Ex parte Kilcoy Shire Council; Re Brisbane City Council (1967) QWN 26; 14 LGRA 59 holding the Brisbane City Council liable for rates upon the lands vested in it by The City of Brisbane (Water Supply) Act and the lands submerged or partly submerged by the Somerset Dam to have a rateable value according to the usual formula for ascertaining the unimproved capital value of land. Nor is there any challenge to the decision of the Full Court of the Supreme Court in Reinke v. Banana Shire Council (1) that the validity of a valuation made under the Valuation Acts can only be attacked by objection and appeal under Pt VI of the Valuation Acts. The trial judge however took the view that the date on and after which the valuation is effective is not part of the valuation nor an element in its validity and that the last mentioned decision of the Supreme Court did not preclude him from deciding in these proceedings, as he did, that the amending valuation had never become effective because there was no power in the Valuer-General to fix a past date as the operative date for the amended valuation. The basis of his Honour's reasoning was that the "validity" of the valuation was separate from its effectiveness as a valuation, the latter in this case turning wholly upon the valid fixation of a date pursuant to s. 11 (2) (iii) of the Valuation Acts. Consequently in his Honours' view, the decision of the Supreme Court in Reinke v. Banana Shire Council (1968) Qd R 453; 18 LGRA 136 did not reach as far as to say that a challenge to the fixing by the Valuer-General of the operative date could only be made by objection or appeal under Pt VI of the Valuation Acts. (at p66)

19. The first question to be resolved in this appeal is whether his Honour was correct in this conclusion. Although I can appreciate the apparent logical tidiness of his Honour's view, I have myself come to the conclusion that it cannot stem from a proper construction of the Valuation Acts. In my opinion, the evident purpose of Pt VI of those Acts is to provide an exclusive means by which the relevant activities of the Valuer-General may be reviewed by an authority specially qualified, at least by experience if not by training, to deal with such a specialized matter as the ascertainment of the unimproved capital value of freehold land. When that value is to be used for the purpose of rating or taxing the fixation both of the date as at which the value is to be assessed and the date as on and after which the value will be the basis of action or liability is also a matter requiring particular knowledge and calling for the exercise of specialized judgment. Thus, the specific language of the Valuation Acts apart, I have been unable to discover any reason why Pt VI should not encompass those dates as well as the amount of the value assigned to the land. Indeed, the general nature and purpose of the Acts, requiring both certainty and finality of and in respect to the land owner's liability to pay rates would seem to require the objection or appeal to cover all matters which are within the discretion of the Valuer-General under those Acts in relation to the elements of liability to pay rates or tax in respect of land. The result of the decision under appeal, namely, that at any time the validity of a local government rate can be brought into question in the ordinary courts without limit of time by a challenge to the propriety of the exercise by the Valuer-General of his discretion to fix the operative date for the values he has assessed, therefore seems to me incongruous. But, of course, the construction of the language of the statutes remains a question though what I have said so far must be borne in mind when interpreting that language. (at p67)

20. I have come to think that the key to the meaning of Pt VI in relation to the ambit of objection and appeal is to be found in the assignment of precise meaning to the words "the valuation" there used. As often occurs in the statutes, the definition of "valuation" in the definition section of the Valuation Acts adds nothing to knowledge or understanding. Valuation is there said to mean, subject to context, "Valuation under this Act". One could not hope for less enlightenment. The Valuer-General is required to "make a valuation of the unimproved value of" parcels of land. See s. 11 (1). Here the word "valuation" covers both the activity of assessing value and the reduction of that assessment to written form. That operation is expressed as a valuation: but it is not at that stage the valuation of the land for the purposes of the Valuation Acts or those of the Local Government Acts. Only after a date on or after which the assessment may be acted upon does the activity of the Valuer-General become the valuation. The Governor-in-Council is to proclaim a date on or after which the Valuer-General's quinquennial valuation shall be the valuation of the lands in the valuation district. Section 11 (2) (iii) of the Valuation Acts requires the Valuer-General to fix the operative date of his amendment where it is not otherwise fixed by or under the Act so that on or after that date the amended value will be "the valuation". When in either case an operative date has been fixed what the Valuer-General has done becomes the valuation for the purposes of the Acts to which I have referred. (at p67)

21. Again, the Valuer-General may in the defined circumstances alter "the valuation". By this time "the valuation" has been entered in the valuation roll and in the valuation lists of the local authority under the Local Government Acts. There the operative date of "the valuation" is recorded. (at p67)

22. Part VI requires notice of valuation to be given to the land owner. In my opinion, it is notice of "the valuation" which must be given. Notwithstanding the terms of the second paragraph of s. 19 of the Valuation Acts, in my opinion, the notice can only be given when the operative date has been fixed either by some provision of the Act or by the Governor-in-Council or by the Valuer-General himself as the case may be. The notice will, in my opinion, in the latter case, include the operative date, which is of course a matter of concern to the landowner. (at p68)

23. Against this background s. 20 (1) says that the dissatisfied owner may lodge an objection against the valuation. In any subsequent appeal, the appellate body is not limited to the confirmation, reduction, or increase of the valuation but may make such order as it thinks fit which, in my opinion, may include an order expunging the entry in the valuation roll for want of validity on any ground taken in the notice of objection. Both the date as at which the value of the land was assessed and the date as on and from which that value became operative are, in my opinion, part of "the valuation" against which objection may be raised. Of course, in the case of operative dates fixed by the statute or by the proclamation of the Governor-in-Council there can be no valid objection to the date itself. But that does not involve the conclusion that there can be no objection to the date fixed by the Valuer-General either in point of validity in the sense that no authority existed for its fixation or in point of propriety in the sense that some other date was more appropriate to the circumstances. I am therefore of opinion that upon the authority of Reinke v. Banana Shire Council (1968) Qd R 453; 18 LGRA 136 his Honour was in error in holding that it was open to him to decide in the proceedings before him that the Valuer-General's purported fixing in 1967 of the date 30th June 1964 was beyond power. In my opinion that date could not be challenged in this action nor could the effectiveness of the valuation entered on to the valuation roll. That means that proof of the rate book in this case established at least prima facie the liability of the Brisbane City Council for the general and water rates for which it was sued. (at p68)

24. This conclusion therefore is sufficient to dispose of this appeal except as to the amount of the water charges and fees for licensed gates claimed by the Shire Council. I would mention, however, that it was submitted that the Valuer-General may not amend "the valuation" by assessing values to parcels of land which had not theretofor been valued and that he may not properly fix as the operative date, the date on which the original valuation became "the valuation". I am far from convinced by the respondent on either of these matters. Indeed, where the amended values are the values which the respective lands actually had at the date of the original valuation, there would seem every reason to select that date in a case where it was necessary to specify an operative date for the amendment. However, I have no need to decide these points in this case. (at p69)

25. Also some point was sought to be made by the circumstance that having balanced its budget in July 1967 by striking a general rate adequate to contribute to that result when applied to the then existing valuation, the Shire, after receipt of notice of the amending valuation, applied its rate to the higher values thus producing an unbalanced budget. But in my opinion there is no substance in the point. The provisions of s. 25 (4) (iii) are directory and breach of them cannot affect the validity of the Shire's claim to recover the rates which it may be said caused that breach. (at p69)

26. I now turn to the question of the water rates and fees for licensed gates. The resolutions of the Shire Council in relation to these rates and charges were all duly proved, as was the rate book. There was evidence that the parcels referred to in assessment no. 143 were outside the country benefited area and thus liable to the water charge fixed by the Council's resolution. Consequently, in my opinion, the Shire Council should succeed as to the amount of the water charge, which in respect of the year 1967-1968 was $36.00. There thus remains a sum of $17.00 claimed for fees for licensed gates. The fee is one dollar per year per gate and the claim relates to two gates. These are gates on enclosed roads. The evidence as to these gates is sketchy but the resolutions fixing the charge are proved and there seems to have been no substantial contest as to whether the Brisbane City Council was liable to the charge in respect of the two gates. In my opinion, sufficient was proved to justify the inclusion of the sum claimed for fees for licensed gates in the amount recoverable by the Shire Council. (at p69)

27. Accordingly, in my opinion, the appeal should be allowed and judgment entered for the plaintiff in the action for the amount claimed. (at p69)

McTIERNAN J. By a proclamation dated 27th June 1963 the Administrator of the Government of Queensland fixed 30th June 1964 as the date on and after which a valuation made in 1963 by the Valuer-General of all lands in the Shire of Kilcoy should, subject to objection or appeal under the Valuation of Lands Acts, 1944 to 1959 (Q.) ("the Act"), be the valuation of all land required by that Act to be valued by the Valuer-General in the Shire of Kilcoy. (at p70)

2. By a notice dated 26th July 1967 the Valuer-General, acting under s. 13 (2) (h) of the Act, valued certain lands which were owned by the Brisbane City Council in the Shire of Kilcoy but had not been valued in 1963, and revalued certain other lands which were also owned by the Brisbane City Council in the Shire of Kilcoy and had been valued in 1963. The 1963 valuation had come into operation on 30th June 1964 by force of the above-mentioned proclamation. Acting under s. 11 (2) (iii) of the Act the Valuer-General fixed 30th June 1964 as the date upon which both the fresh valuations and the revaluations should come into effect. (at p70)

3. On 25th August 1967 the Kilcoy Shire Council delivered a rate notice to the Brisbane City Council in which it claimed rates with respect to the lands in question for the year ending 30th June 1968 and arrears of rates for the years ending 30th June 1965, 1966 and 1967. Together with sums for water charges and fees for licensed gates those sums were the plaintiff's original claim which amounted to $76,047.59. The plaintiff now claims in its appeal to this Court only $25,518.64, being the rates and charges for the year ending 30th June 1968. The relevant sections of the Act read as follows:

"13 (2) No alteration shall be made in the valuation of any
parcel of land during the period during which any valuation of
all lands in the Area in question is in force:-
(a) Unless such land is subdivided during such period; or
(b) Unless where two or more parcels of unoccupied land
adjoining each other valued as one portion of land and one
or more parcels of such land is or are sold or occupied
during such period; or
(c) Unless a public work, service, or undertaking is provided
during such period on account of which the Valuer-General
is of opinion the valuation of such land has altered; or
(d) Unless by reason of flood, cyclone, or some other adverse
natural cause over which the owner had no control, such
land has been permanently damaged and the
Valuer-General
is of opinion that the valuation of such land has
altered; or
(e) Unless the unimproved value of that parcel of land is
altered by the acquisition or loss during that period of a
license, assignment to a sugar mill; or other right or
privilege the value of which is deemed to form part of the
unimproved value of that land; or
(f) Unless, being land exclusively used for residential purposes
when valued, that land comes under use for industrial or
other purposes whereby the valuation thereof is, in the
opinion of the Valuer-General, altered; or
(g) Unless, in the opinion of the Valuer-General,
circumstances
affecting the valuation of the land are such as to
render an alteration necessary or desirable for preserving
or attaining uniformity in values between that valuation
and subsisting valuations of other comparable parcels of
lands; or
(h) Unless the valuation is affected by errors or omission
which the Valuer-General considers it necessary to
correct."
"11 (2) -
(iii) The Valuer-General shall fix the date on and after
which any valuation or alteration of any valuation
of any land made by him under this Act, save -
(a) A valuation of all lands in an Area; or
(b) A valuation or an alteration of a valuation the
date of the coming into force whereof is fixed,
or to be fixed, otherwise by or pursuant to this
Act,
shall, subject to objection or appeal under this Act,
be the valuation of that land and the notice of
valuation shall specify that date." (at p71)

4. With regard to the Valuer-General's notice of 26th July 1967, it is clear in my opinion that the revaluation of lands already valued was a valid exercise of his power under s. 13 (2) (h). Whether or not the Valuer-General's valuation of lands not previously valued amounted to a valid exercise of power under that subsection, I would agree, with respect, with the learned trial judge that s. 20 of the Act did not allow the City Council to challenge its validity other than by the means of objection and appeal provided by that section. (at p71)

5. In my judgment, however, s. 11 (2) (iii), on its construction, empowered the Valuer-General to fix the date that he did as the date on which both the valuations and revaluations were to come into force. While this conclusion gives a retrospective operation to the valuations in question such an operation is consistent with the nature of the power granted by the subsection. I do not consider it likely that the Act was intended to prevent the Valuer-General equalizing the dates for two parcels of land where one has been affected by error or omission. In my opinion this conclusion gains support from the long title of the Act which reads as follows:

"An Act to Make Better Provision for Determining the
Valuation of Land for Rating and Taxing Purposes, and for
Matters incidental thereto or consequent thereon."

6. I would therefore allow the appeal. (at p72)

WINDEYER J. I agree in the conclusion of the Chief Justice and in his reasons. (at p72)

2. The value of any land must obviously depend not on the date when the assessment of value is made but on the date as of which it is made. The statute makes provision for the date at which, and from which "the valuation" prescribed is to be operative for statutory purposes. The valuation here, I take it, means the contents of the document which embodies the assessment of value, including as an essential part of it the dates that are relevant to the purposes for which it was made. (at p72)

ORDER