Parramatta City Council v Pestell [1972] HCA 59;

Parramatta City Council v Pestell [1972] HCA 59; - HCA 1972 case summary — Zoe

[22]

14. In this connexion, the meaning of special benefit must be resolved. It may mean a benefit which no other land in the council's area would enjoy: or it may mean a benefit which is not necessarily enjoyed by all the land in the local government area. I prefer the latter view which, to my mind, is more consonant with the scheme of local government rating which the Act contains. In my opinion, a portion may derive special benefit from the execution of works or services though it is not the only part of the local government area which does obtain that benefit therefrom. In other words, the special benefit of which the section speaks is a benefit which some other parts of the area may not enjoy, a benefit particular to the land selected though not exclusively so. The concept of special benefit in connexion with local government works and services is somewhat nebulous. The nature of a special benefit, as well as the choice of a portion to be subject to a local rate, are both matters apt to be committed to the opinion of the local government authority. In this connexion, it must be borne in mind that the council is a representative body of limited tenure of office. The question whether or not the given works or services are of special benefit to a portion of the local government area is very much a matter of opinion probably involving many imponderables and a great deal of local knowledge. The purpose of the legislature in committing the selection of the portion in respect of which a local rate is to be levied to the opinion of the local council reflects such considerations. On the other hand, it is no doubt contemplated that the burden of a local rate should be distributed over all the land which might reasonably be thought especially to benefit by the performance of the works or the rendering of the services. But the selection of the land to carry that burden is left, in my opinion, to the opinion of the local government body. But, of course, the council must in fact have the necessary opinion that the portion it has chosen will derive special benefit. Whether or not it in fact holds the opinion may be challenged in the courts; but, if the necessary opinion is in fact held, the correctness of the council's view in selecting the portion cannot be reviewed by the courts. (at p313)

[33]

3. The claim of the plaintiff is that the Council was not competent to form the opinion expressed in this resolution in relation to the portion described in the schedule and the resolution was therefore not effective to make and levy the local rate, as intended by the Council. The works mentioned in the resolution were to be carried out at certain locations in streets within the Rydalmere Industrial Area. The metes and bounds enumerated in the schedule annexed to the resolution define an area extensive enough to include all those locations. (The word "road" in the Act includes "street": s. 4.) The area inside the metes and bounds was zoned for industrial use. A long stretch of a street called Victoria Road is the northern boundary of such area. The buildings and premises fronting the streets within the area are, in the main, factories and other industrial premises. There are also some houses used as homes in the area. Their number is small. It appears that these houses were built before the land was zoned. Because the metes and bounds enumerated in the schedule were designed to encompass the locations where the work referred to in the resolution was to be carried out the land defined in outline by the schedule included the land used, or waiting to be used, for industrial purposes and also the much lesser area of land occupied by the dwelling-houses. The latter did not form a continuous frontage to any street. They were to be found here and there within the area. In the section of Victoria Road, which is its northern boundary, there are two such houses, east of Subiaco Creek and two more west of the creek. The plan of the area does not enable one to say that work done in locations in streets on the eastern side of the creek would be of real advantage to any dwelling-house in the south-western locality of the area, or vice versa. In the locality where the western and southern sides of the area meet there appear to be only two dwelling-houses, each of which is in a different street. (at p317)

[36]

6. The need for carrying out the work which each one of the local rates was made and levied to pay for, may be presumed to have been occasioned by the intense development of the area - the building of factories, and the growth of traffic resulting from the industrial activities in the area - rather than to the continuing residential use of some parcels of land. It seems to me that it is clearly an open question - to say the least of it - whether or not the special benefit of the works referred to would, as a practical matter of fact, accrue substantially to the land already used or waiting to be used for industrial purposes, rather than to the whole area including the lots occupied by dwelling-houses. The opinion of the Council on the question cannot be correctly described as not legitimate or grossly unreasonable or as a misuse of the discretion given by s. 121 (1). An opinion of a council arrived at for the purposes of s. 121 (1) is not subject to an appeal to a court. In a proceeding for a judicial review of such an opinion, it is not for the Court to impose its own idea of what a council ought to have decided. The question on such a review is not whether the opinion is correct or mistaken in fact. The only question is whether the Council was authorized by s. 121 (1) to use the opinion in making a rate under the sub-section. It seems to me clear, that the Council was authorized to form an opinion whether the work would be of special benefit to the portion as defined by the schedule. It was not necessary under s. 121 (1) to form the opinion in respect of the whole area inside the metes and bounds described in the schedule, or in respect of any land outside those metes and bounds within the immediate vicinity. The question what area of land gets a special benefit from any given work or service is intended by the Act to rest on the opinion of the Council, it being the local government of the area. I do not think that in exercising its discretion to determine what portion of the area would be specially benefited by the works in question that the Council was obliged as a matter of law to include all the parcels of land occupied by dwelling-houses. (at p319)

[39]

"The plaintiff in this suit is the owner of a parcel of land

within the City of Parramatta. He challenges the validity of

the action of the Council of the City of Parramatta in making

and levying upon his land a local rate for the years 1968 and

Within the city is a relatively large area known as the

Rydalmere Industrial Area. Although described in this

manner, and presumably destined ultimately for industrial

use exclusively, there was within this area in the years in

question an appreciable number of small suburban allotments

(including the plaintiff's) upon which were erected individual

dwelling houses.

Early in 1968 consideration was given by the Dundas Ward

Committee of the Council (the Rydalmere Industrial Area

being within this Ward) to the carrying out of certain roadworks

together with kerbing and guttering, footpath and

drainage work in the Rydalmere Industrial Area. The report

of the meeting of the Dundas Ward Committee on 9th April

1968, to the council includes an item:

'Rydalmere Industrial Area Local Rate - South of Victoria

Road.

Recommendation: That in an endeavour to raise $160,000

over three years, for urgent works in this area a local rate

of one cent in the dollar be made and the Town Clerk

prepare a Schedule by metes and bounds to exclude as

many occupied cottages as practicable.'

This report was received and adopted at the council meeting

on 16th April 1968.

On 11th July 1968, pursuant to s. 138 of the Local Government

Act, estimates of the income and expenditure referable

to that rate were advertised. This was done pursuant to a

council resolution of 8th July 1968. The introductory portion

of the advertisement is as follows:

'Rydalmere Industrial Area Local Fund

(a) Amount of proposed additional expenditure for or

towards defraying the expenses of the construction of

roads, kerbing and guttering, concrete footpaths, drainage,

and for general embellishment of the area, such

work or service being in the opinion of the Council of

special benefit to such portion of the area -

(b) The amount required to be raised by rates for such

expenditure is $44,697.

(c) The total estimated Unimproved Capital Value within

the area is $4,529,692.

It is proposed to raise the required amount by making and

levying a local rate of 1 cent in the dollar on the unimproved

capital value of all rateable land in the portion of Rydalmere

described in the Schedule hereunder -'

The schedule contained in the advertisement described by

metes and bounds a relatively large area, and concluded:

'Excluding out of the area above described Lots 370 and

371 Deposited Plan 14244 and also the following land and

premises Numbers 5, 7 and 9 Alan Street, numbers 43, 45,

47, 49, 51 and 53 Brodie Street, numbers 1, 2, 4, and 6,

numbers 8 to 13 inclusive, numbers 15 to 18 inclusive and

number 21 Muriel Avenue, numbers 2, 4, 5, 7, 9 and 11,

numbers 13 to 16 inclusive, numbers 18, 19 and 20, numbers

22 to 27 inclusive, numbers 30 to 34 inclusive and numbers

36 and 43 Mary Parade, numbers 4 to 6 inclusive, numbers 8

and 11, numbers 13 to 24 inclusive, and numbers 28, 30, 34

and 36 Bridge Street, numbers 2, 3, 4, 6, 8, 13, 15 and 17

Clyde Street, numbers 5, 9 and 17 Euston Street, number 50

Antoine Street, number 92 South Street and numbers 221,

223, 271 and 273 Victoria Road.'

The evidence indicates that the great majority of the ninety

specifically excluded parcels of land were "occupied cottages"

most of them being some twenty to thirty years old, of cheap

construction, and presenting a dilapidated appearance. The

cottages were described as presenting the appearance of

requiring maintenance and being in a transitional stage such

as is at times encountered in a residential area the general

nature of which is changing to an industrial area.

On 22nd July 1968, the minutes of the Council record the

following:

'- NOTICE OF MOTION -

29711. Rydalmere Industrial Area Local Rate

Resolved on the motion of His Worship the Mayor:

That a Local Rate of one (1) cent in the $ on the Unimproved

Capital Value be made and levied for the year 1968 on all

rateable land in the portion of Dundas Ward described in the

Schedule annexed hereto, the proceeds of such rate to be

used for or towards defraying the expenses of the construction

of roads, kerbing and guttering, concrete footpaths, drainage

and the general embellishment of the area, such works and

services being in the opinion of the Council of special benefit

to such portion of the area and that such be known as the

Rydalmere Industrial Area Local Rate.'

The schedule annexed to these minutes is the same schedule

as that which was advertised, including the final paragraph

exempting the ninety specified parcels in the terms that I

have quoted above.

The plaintiff's land, No. 41 Mary Parade, although being

an occupied cottage, was not within the specified parcels of

land exempted from the area. Why his land was not exempted

is a matter of speculation; it is suggested that the fact that

he carried on for his own recreation a home workshop at the

rear of his house may have presented a superficial appearance

that he was making some industrial use of his land. The land

next door to the plaintiff on one side was excluded, as was a

block almost opposite on the other side of the road.

The plaintiff protested to the Council by letter, and did not

make payment of the 1968 local rate until threatened with

legal action. He then paid that rate under protest. In answering

his protest, the Council, by letter signed by the Town Clerk,

informed him that

'the rate was levied so that improvement works in that

particular area can be carried out. All moneys collected in

respect of this local rate must be spent in the area for which

the rate was levied.'

In the year 1969 the Dundas Ward Committee again

recommended the imposition of a local rate. The recommendation,

as recorded in its report of 31st March 1969, was:

'Recommendation: That a local rate of one cent in the

dollar be made in the same area as in 1968 with the exception

of 32 Bridge Street, 41 and 43-45 Mary Parade, occupied

cottages, that a schedule by metes and bounds and estimates

of income and expenditure be prepared and it be noted it is

foreshadowed that a similar rate is intended to be made in

1970, after which a local rate will not be considered necessary

and then discontinued.'

The reference to 41 Mary Parade in this recommendation

is to the plaintiff's land. Presumably the other three parcels

of land had also been the subject of some protest to the

Council.

The Ward Committee's recommendation was received and

adopted at the council meeting of 8th April 1969. The matter

was apparently recommitted for further consideration, and

in its report of 26th May 1969, the Ward Committee restated

its recommendation of 31st March 1969. This recommendation

came again to the Council on 2nd June 1969. The Council,

after considering the matter in committee resolved that a

local rate of one cent in the dollar be made, as in 1968. The

omission of the plaintiff's land and the other three parcels of

land was not included within the Council's resolution.

Thereafter the formal steps necessary to make and levy the

rates were carried out by the Council. The plaintiff has not

paid the local rate for 1969.

In due course the plaintiff commenced the present suit, in

which he challenges the validity of the imposition of this

local rate during the years 1968 and 1969."

At a glance

Court

Decision date

Source

Judgment (96 paragraphs)

Parramatta City Council v Pestell [1972] HCA 59; (1972) 128 CLR 305 (24 November 1972)

Parties

Cases Cited (5)