Talking about a resolution: Supreme Court invalidates three years of Council rates

A recent decision by the Supreme Court of Queensland has invalidated three years’ worth of rates and charges levied by one local government, with possible implications for others.

On 6 November 2017, the Supreme Court delivered judgment in the case of Linville Holdings Pty Ltd (Linville) v Fraser Coast Regional Council (Council) [2017] QSC 252.The case concerned a legal challenge to the validity of rates and charges levied by Council for the 2014/15, 2015/16 and 2016/17 financial years.

In a decision that may have troubling implications for other local governments, the Supreme Court upheld the legal challenge, and invalidated the Council’s rates for those financial years.

The facts of the case

Linville owned land in the Council’s local government area, and was levied with Council rates and charges for each of the 2014/15, 2015/16 and 2016/17 financial years.

In this case, Linville challenged the validity of these rates and charges on various grounds. However, Linville’s key argument was that the rates and charges were invalid because the Council had failed to properly comply with legislative requirements regarding the making of resolutions to support the rates and charges.

This argument focussed on two legal provisions – sections 94(2) and 107A of the Local Government Act 2009 (Qld) (LGA). In summary, these provisions require a local government to do the following, for each financial year:

• decide, by resolution, the rates and charges for that year (LGA, s.94(2)); and

• adopt, by resolution, a budget for that year (LGA, s.107A).

For each of the 2014/15, 2015/16 and 2016/17 financial years, the Council made resolutions adopting budgets, each of which included a schedule of rates and charges proposed to be levied for that year.

However, the Council did not make separate resolutions for each year formally deciding the rates and charges for that year.

Linville argued that the Council’s failure to make these separate resolutions means that the Council had only complied with section 107A of the LGA (by adopting a budget), and had not complied with section 94(2) (by formally deciding the rates and charges).

In response, the Council argued that its resolution adopting the budget was sufficient to comply with both section 94(2) and section 107A, and that separate resolutions were unnecessary.

The decision

The Court upheld Linville’s challenge and invalidated the Council’s rates and charges, holding that separate resolutions were required.

In reaching this conclusion, the Court emphasised that, among the LGA’s objectives, are promoting an “accountable, effective, efficient and sustainable system of local government” and “transparent and effective processes, and decision-making in the public interest”. The Court considered that these objectives were supported by a requirement for separate resolutions.[1]

The Court also referred to previous case law in which it had been held that the legislative requirements for making and levying rates and charges should be interpreted strictly, given that they result in the imposition of financial liabilities on ratepayers.[2]

The implications

In recent years, the Supreme Court has adopted a relatively flexible approach in relation to some aspects of how local governments levy differential rates.[3] The Court has given local governments a wide discretion to decide the amounts of rates applying to different categories of land. For example, the Court has upheld different rates that apply disproportionately to particular uses, compared with other similar uses.[4] The basis for this approach is that such issues are ultimately matters of political judgment, rather than legal matters subject to Court oversight.

However, the outcome in the Linville case shows that, despite its flexibility in some areas, the Supreme Court may adopt a more strict approach in relation to procedural requirements.

The outcome in this case will be particularly concerning for local governments because it resulted in the Council’s rates for three financial years being invalidated in their entirety. It is possible that other local governments may have taken a similar approach to the Council in this case, in which case their rates and charges could also be at risk of invalidity. Given the Court’s reasoning, other local governments may now need to review their rates and charges to determine whether they are also at risk.

Moving forward, the key lesson from this case for local governments is that if legislation requires a matter to be done by resolution, it will be safest to address the matter in its own specific resolution, rather than combining it in a resolution that also deals with other matters. While potentially inconvenient, this will assist in reducing the risk of legal challenge.