UAGC Neil Construction v NSCC
-
Upload
george-wood -
Category
Documents
-
view
224 -
download
0
Transcript of UAGC Neil Construction v NSCC
-
8/20/2019 UAGC Neil Construction v NSCC
1/35
c
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
IN THE MATTER
BETWEEN
J
AND
AND
Dates of Hearing:
Counsel:
Judgment:
M.9901473-CO, M9901474X0, M.9901475-CO.,
M.9901476~CO., M.9901867~CO., M.9901868-CO.,
M.19-SDOO, M.20-SDOO., M.107-SDOO., M.lOS-SDOO.
of the Rating Valuations Rules 1998
NEIL CONSTRUCTION LTD
WEITI VIEWS LTD
ELAN PROPERTIES LTD
A G DRYDEN LTD
CABRA HOLDINGS LTD
UNIVERSAL HOMES LTD and
FLETCHER HOMES LTD
Plaintiffs
NORTH SHORE CITY COUNCIL
RODNEY DISTRICT COUNCIL and
WAITAKERE CITY COUNCIL
First Defendants
THE VALUER-GENERAL
Second Defendant
28 August 2000 - 1 September 2000
4,5 and 6 October 2000
R Asher QC, A Brown and R Bartlett for all Plaintiffs
A Galbraith QC and G Palmer for North Shore City Council and
Rodney District Council
K Berman and S Manalo for Waitakere City Council
H S Hancock and E Fitzgerald for Valuer-General
November 20Q0
RESERVED JUDGMENT OF MORRIS J AND I.W. LYALL
Solicitors:
Ellis Gould, DX CP22003, Auckland for Plaintiffs
Simpson Grierson, DX CX10092 Auckland, for Defendants except Waitakere City
Kensington Swan, DX CP2200 1 Auckland for Waitakere City
Crown Law Office, DX SP20208 Wellington for Valuer-General
Counsel Appearing:
R Asher QC., P 0 Box 4338 Auckland
A R Galbraith QC, P 0 Box 4338 Auckland
-
8/20/2019 UAGC Neil Construction v NSCC
2/35
2
Introduction
111
The plaintiffs are the owners of unsold subdivided land in North Shore City,
Waitakere City and Rodney District. On 1 July 1998 the Rating Valuation Act 1998
(RVA) came into force. It repealed the Valuation of Land Act 1951 (VLA). Under
the RVA, Local Authorities are now responsible for the preparing and maintaining of
District Valtations Rolls. These Rolls are the basis for the striking of rates in each
Territorial District. The Local Authority is also the Body responsible for the striking
of rates in its District and the recipient of these rates. Under the VLA the Valuer
General was responsible for the preparing and maintaining of the Valuation Roll and
of making any necessary valuations. Under the RVA the Valuer General has become
the auditor of valuation practice and is empowered by the Act to make rules
governing various aspects of this practice. Pursuant to the Act he made the Rating
Valuations Rules (RVR) on 3 1 July 1998.
PI
Under the VLA and up until early 1999 unsold subdivided land comprising
multiple certificates of title held by the one owner was valued as one landholding in
a single assessment.
In accordance with the then accepted valuation practice a block
discount factor was applied to the aggregate value of the individual lots to assess the
market value of the owner’s interest in the land. As a consequence of the single
valuation assessment a single rates assessment was then issued by the appropriate
Council for the land block. Further, because the developers’ landholding was entered
in the Roll as one separate property, only one set of Uniform Annual Charge “UAC”
were charged on the land. On the sale of any lot/lots to a third party the land value
for the remaining land held (in block) was then adjusted to take account of the sale.
PI
During 1998 the defendant Councils, and we understand others, considered
and then decided each unsold separately titled lot in a subdivision would be
individually valued and an assessment issued for each titled lot. The valuations were
carried out. No block discount was allowed, each titled lot being valued
individually. The Council’s Valuation Rolls were amended. In 1999 separate
assessments were issued with the consequent assessment of rates.
-
8/20/2019 UAGC Neil Construction v NSCC
3/35
3
PI
The plaintiffs objected to the assessments. Their objections have been
transferred by the Land Valuation Court for determination by this Court. By
consent, proceedings issued by the plaintiffs seeking various declarations from this
Court under its general jurisdiction have been heard in conjunction with the
objection hearing. A separate judgment covers these issues; the factual position is
identical in both lots of proceedings.
PI
The plaintiffs contend:-
*
[al
The issue of individual valuation assessments in 1999 for each
separately titled lot, thereby resulting in separate entries in the District
Valuation Roll for each such lot, was unreasonable in all the
circumstances. Each area of subdivided land should have been
assessed as one block holding.
PI
The Councils had no power to alter the Roll in the manner they did.
[cl
The value ascribed to each lot has been assessed incorrectly and, in
particular, has failed to take into account a block discount factor.
VI
A separate assessment for a lot in a subdivision cannot be generated
until a certificate of title for such lot has been issued. Assessments
cannot be based upon lots which appear on a plan deposited with
Land Information New Zealand “LINZ” but in respect of which no
certificate of title has been issued.
El
A consideration of these issues have involved a consideration of the Rating
Valuation Rules issued by the Valuer General which the plaintiffs contend are ultra
vires his powers.
[71
The Councils contend:
[al
The issue of the individual assessments was valid pursuant to s.7(2)
of the RVA. No issue of reasonableness arises.
-
8/20/2019 UAGC Neil Construction v NSCC
4/35
PI
[cl
WI
4
The alterations to the Roll were validly made. They rely particularly
on s.14 of the RVA and Rule 4.1 of the Valuation Rules.
The values were reached in accordance with practice, no discount is
appropriate or required. We should not interfere with them.
Once a plan is deposited, although no certificate of title is issued,
individual assessments may be issued for properties which can be
l
separately identified.
PI
The Valuer General broadly adopts the submissions of the Councils. He
submits that in a residential subdivision each separate lot which has its own
individual certificate of title is for rating valuation purposes a separate property.
The
owner’s interest in each separate residential section and its certificate of title should
be individually valued. He does not however agree the mere inclusion of a lot on a
subdivisional deposited plan is sufficient to have the lot entered on the District
Valuation Roll as separate property.
Background
PI
The plaintiffs are urban land developers and/or house building companies.
They are the owners of the subdivisions which are the subject of these proceedings.
The 1999 change in the valuation process has brought about a marked increase in the
rates payable by them on unsold sections held by them. In most cases the land
involved is vacant land, unoccupied and with no amenities built on it. In the case of
housing companies as opposed to pure land developers, in some case a ‘spec’ house
has been constructed on a site before its sale as a housing package to the purchaser.
In most cases the sites when purchased were in rural areas adjoining urban
boundaries. Having purchased the land the developer proceeded through the
resource consent procedure and developed the land for subdivision.
Financial
contributions have been made to Councils and roads formed. In every case the
developer has constructed the wastewater, water sewerage and other works necessary
to connect the ultimate users of the property to the existing Council infrastructure.
-
8/20/2019 UAGC Neil Construction v NSCC
5/35
5
Although any costs incurred are built into the price of lots, the sale process may
extend over years.
[lo] The proceedings which involve Rodney District Council are the proceedings
by Weiti Views Limited, Elan Properties Limited, A G Dryden Limited and Cabra
Holdings Limited. These proceedings by Weiti Views Limited and Elan Properties
Limited relate to the Weiti Views and Manly Estate Subdivisions at Whangaparaoa
which are undertakings by a joint venture between Hopper Developments Limited
and members of the Boocock family who also operate Cabra Holdings Limited and
Mr J.D. Hamilton. In both cases as part of the general revaluation in the Rodney
District as at 1 September 1998 a single Notice of General Revaluation was issued
for each subdivision. In February 1999 the Rodney Council issued new separate
assessments for each separately titled lot in these subdivisions.
The evidence
establishes no further subdivision, that is subdivision of the land by the issue of new
certificates of titles, occurred following the General Revaluation and before Rodney
issued the separate assessments in February 1999. Stages in the subdivisions have a
projected sale bound period of up to 8 years.
[l l] The A G Dryden proceedings relate to a subdivision called Omaha Point and
is located on the Hibiscus Coast. In September 1998 the subdivision, including
issues of titles, had been completed and the holding was valued in a single
assessment. In May 1999 separate re-assessments were issued for each separately
titled lot. Part of this subdivided land is not being currently marketed.
[ 121 The Cabra Holdings proceedings relate to a subdivision on the Hibiscus
Coast known as The Grange. Separate value assessments were issued by the Council
after the land had been subdivided as part of the process of vesting land for public
works.
[13] The proceedings which involve North Shore are brought by Neil
Construction Limited and concern two subdivisions known as Glenvar Heights and
Unsworth Heights. In both cases the subdivisions have been valued in a series of
single assessments following the subdivision of the land by the latest stage of
-
8/20/2019 UAGC Neil Construction v NSCC
6/35
6
subdivision. The subdivision had previously been assessed in block on 1 September
1996 being the previous revaluation date in the North Shore District.
[14] The proceedings against Waitakere are brought by Universal Homes Limited
and Fletcher Homes Limited. They involve subdivisions at Woodbury Park in New
Lynn, and Braeburn at Henderson. In both cases the partially subdivided land was
valued as a single block assessment as part of the 1998 general revaluation. During
the course of 1999 individual assessments were issued for each unsold separately
titled lot, bath of previously subdivided land as well as land which had previously
been assessed without taking into account the issue of title.
[15] In all cases the plaintiffs have given evidence of the impact of the new
practice resulting in an increase in both the value based rates and uniform annual
charges. The increases are significant and clearly of concern to the plaintiffs. They
accept if the subdivided land could be sold, the effect of the change in method may
be minimal but their evidence establishes much of the subdivided land will continue
to be held for prolonged periods of time during which it will remain vacant and
unused, receiving no benefit from the Council services and placing little, if any,
demand on the infrastructure.
[ 161 Small wonder the plaintiffs have taken steps to minimise the impact of the
new practice. New certificates of title are issued only on application by or with the
consent of the registered proprietor of land. A plan of subdivision may therefore be
deposited with LINZ for approval as to survey, but no request made for the issue of
titles in the subdivision shown on the plan. At Stage 4A of its Grange subdivision
Cabra Holdings Limited requested 29 separate certificates of title. The remaining
lots on the relevant deposited plan were held in one certificate of title. Neil
Construction, at its Lincoln Park subdivision, drew down individual lots in batches
or one by one as lots were sold, the remaining lots dn the deposited plan continuing
to be held under the original head title. Notwithstanding, no titles have been issued
for each separate lot on the deposited plan of the subdivisions with LINZ, Rodney, in
the case of Cabra Holdings, and Waitakere, in the case of Neil Construction, have
issued separate valuation assessments in respect of each separate lot as shown on the
plan.
-
8/20/2019 UAGC Neil Construction v NSCC
7/35
7
The Individual Assessment Issue
[ 171 Section 7 of the RVA provides:
7 TERRITORIAL AUTHORITIES TO PREPARE AND
MAINTAIN DISTRICT VALUATION ROLLS--
(1)
Each territorial authority must prepare and maintain a district
valuation roll for its own district in accordance with rules made under
this Act.
(2) *
Each roll must contain such information in respect of each
separate property within the district as is required by the rules,
whether or not that information relates to the method of rating
adopted at the time by the territorial authority.
(3)
Where the boundaries of the district of a territorial authority
are altered, or a new district is constituted, the relevant territorial
authorities must prepare such new rolls or make such alterations in
existing rolls as may be necessary to give effect to the provisions of
this Act.
(4)
For the purposes of this section any land that is capable of
separate occupation may, if in the circumstances of the case it is
reasonable to do so, and in accordance with any rules made under this
Act, be treated as separate property whether or not it is separately
occupied.
[18] Its precursor was s.7 of the Valuation of Land Act 1925 which was re-
enacted as s.8 of the Valuation of Land Act 1951 (VLA). Section 7(4) of the RVA
first appeared as s.8(2) of the VLA. The Valuer General has told us this subsection
was added in 1981 to make it clear ownership of flats were able to be valued
separately in the Roll.
[19] Section 7 of the 1925 Act was considered in Walters v Supreme Court
Registrar andManukau City [1936] NZLR 546. Concerning the correct meaning of
the phrase “each separate property” Ostler J said at p 550:
As to the meaning of the term, I agree with the learned Judge in the
Court below that in the absence of a statutory definition the words
must be construed in their popular sense. I should construe the words
“each separate property” as each separate “continuous area of land
occupied and used as one holding”.
-
8/20/2019 UAGC Neil Construction v NSCC
8/35
8
[20] In Valuer General v Arfrd Kahn Fumify Trust (1990) LVC 867 the Court
said at p 870:
What we think is essential in the preparation of the district roll is, first
of all, to identiQ the separate properties.
That phrase is not defined but it must be the case that separate
occupation is one aspect of that. Subsection (2) necessarily implies
that separate occupation and the capability of separate occupation are
two of the ways in which the separate property can be identified.
Other.matters which the appellant submits, we think correctly, to be
among criteria for that identification include separate ownership,
different or distinct land tenure, separate land use and the availability
of separate title.
[2 13 In Attorney General v Rodney District Council & Ors (CA) 3 1’ July 2000,
CA 274/99 Keith J said, at para 24:
The ordinary meaning of “separate property” in that context would be
the distinct pieces of land identified as such through the land transfer
system and in particular by the relevant certificate of title.
And in para 57:
In our opinion the expression “separate property” in s.8(1) of the
VLA meant a property as defined by certificate of title. That follows
from the plain meaning of the words in their particular statutory
context and from their wider land law context and the valuation
purpose of the expression.
Of major importance in support of that conclusion are the many indications in the
WA that a “separate property can have more than one occupier, use or user”.
[22] It is now settled therefore, in all cases where a certificate of title is issued for
a lot in a subdivision, such lot/land is a separate property for the purposes of s.7(2)
and must appear as such in the Roll with the consequential liability for payment of
rates.
[23] The Rodney District Council Court of Appeal judgment was delivered while
these proceedings were being heard. Originally Mr Asher had submitted that the
appropriate basis for assessing and treating unsold subdivided land in the District
-
8/20/2019 UAGC Neil Construction v NSCC
9/35
9
Valuation Roll pursuant to s.7 of the RVA was in a single assessment of the
developers landholding in each subdivision applying the historical block deduction
applicable for block assessments. He now accepts, as we understand it and we think
rightly so, where a title has been issued for a lot in a subdivision it is a separate
property within the neaning of s.7. He submits however, in such a situation the
Territorial Authority has an overall discretion as to whether to so assess such
property as a separate property. We do not agree. In our judgment once a property
falls within the legal definition of separate property it must be considered as a
separate prop&-ty and entered as such in the District Valuation Roll.
[24] Mr Asher further submits notwithstanding a property falls within s.7(2), the
Council is required by virtue of s.7(4) to consider whether it is reasonable in the
circumstances of each case to so treat it as separate property. And the Council
should in an appropriate case not do so.
He submitted under s.7(4) the controlling
and overriding requirement for land capable of separate occupation to be treated as
separate property is one of reasonableness and he submitted where land is not in fact
occupied by different legal persons there is an obligation under s.7(4) for a
Territorial Authority to exercise this discretion and in fact considers whether it is
reasonable to do so. He advanced in considerable detail a number of grounds which
in the circumstances of each case are required to be taken into account by the
Council. In view of the decision we have reached and set out below on this point,
we do not find it necessary to cover these matters in this judgment.
[25] We are of the clear view s.7(4) was introduced to catch property which might
otherwise fall through the s.7(2) net. It was not introduced to allow a property
caught by s.7(2) to escape the consequences of such subsection.
Section 7(4)
empowers a Council to treat land which does not fall within s.7(2) as if it were
separate property. It is a deeming section.
It potentially extends the category of
separate property. It does not potentially reduce it.
[26] Mr Asher has referred us to passages in the Rodney District Council
judgment which he submits supports his contention. At paragraph 55 the Court said:
Counsel for the appellants questioned whether this provision [s.8(2)
V.L.A.] could be used in respect of a single separate property - that is
-
8/20/2019 UAGC Neil Construction v NSCC
10/35
10
in a disaggregating way, as well as in an aggregating way which
counsel agreed was available.
On its face the subsection is not
limited in that sense. Many provisions of the legislation contemplate
the separate occupation of a part of a separate property. And the
related amendment made in the same amending statute in 1981 to
s.24D(6) appears to be capable of operating only in that disaggregated
way in the context of that provision.
He referred also to paragraph 58 where the Court said:
We should add that it was possible for land to be treated under s.8(2),
as a separate property if that was reasonable in the circumstances.
Because of the relatively abstract way in which this case has
proceeded however we, like Fisher J, have no basis for questioning
the decisions, if any, which the Valuer-General made under that
provision relating to the particular properties in issue in this case.
[27] These parts of the Court’s judgment must be read in the context of the real
issue before the Court which was interpretation of the words “each separate
property” and arising in the factual situation established by the evidence before it.
There is nothing in the passages to indicate the Court had the benefit of full
submissions as we have had on the interpretation of s.7(2).
[28] We are, therefore, of the view that Councils correctly assessed the individual
lots where tit les were issued as separate property under s.7(2) of the RVA. They
were not required, having determined the lots were separate property, to consider the
reasonableness of their decision under ss (4) or otherwise. They in fact did not.
Reasonableness did not enter into their considerations.
[29] It is convenient at this stage to deal with the position of assessments which
have been issued for lots depicted on a’ deposited land in respect of which no
separate and individual certificate of title is issued. The contention for the plaintiffs
supported by the Valuer General, is the absence of a separate issued certificate of
title means that there is no separate property for the purpose of s.7 of the RVA.
The
Councils submit the absence of an issued separate of certificate of title makes no
difference and the properties are stil l separate properties in terms of s.7(2) of the
RVA or, alternatively, can properly be treated as separate properties in terms of
s.7(4). They submit each lot is legally defined by reference to a lot number and
-
8/20/2019 UAGC Neil Construction v NSCC
11/35
11
deposited plan, is identifiable by survey as shown on the plan and the lots may be
separately sold, mortgaged, leased or caveated.
[30] In this country the process of land subdivision is governed by the Resource
Management Act 1991 (RMA) and the Land Transfer Act 1952 (LTA). The RMA
defines
“subdivision of land”
and governs the process relating to the issue of
resource consent by Council and the completion of the work and conditions
approved in such consent. The provisions of the LTA then govern the deposit of a
survey plan of subdivision with Land Information New Zealand (LINZ) and the legal
division of such land by the issue of a new certificate of title to replace the previous
title.
[3 l] For the plaintiffs it is submitted the effect of the provisions in the RMA and
LTA is that a subdivision of land is not completed until application for title has been
made. No “separate property” can be identified for purposes of s.7. Such is not the
position in our view. The evidence establishes once a plan has been deposited the
issue of title is purely an administrative step requiring nothing more than the
signature of the registered owner, their agent or their solicitor. All the District Land
Registrar must be satisfied of is that the plan has been deposited. The evidence also
establishes the absence of a separate certificate of title for a particular lot on the
deposit of a survey plan is no impediment to dealing with such lot as a separate
property. Specifically, dealings may be registered in respect of an individual lot and
a transfer, lease or mortgage can be registered. Mr Chapman has confirmed the issue
of a title has not proved a pre-requisite of such registration. We are satisfied from
the evidence once a plan has been deposited each lot thereon is clearly identifiable as
being separate and distinct from every other lot on the plan. From a practical point
of view all the certificate of title does by way of description of the property is to
record by reference to the deposited plan the area, the lot number and deposited plan
number together with the boundary measurement dimensions, what is shown on the
deposited plan. In our judgment separateness for the purpose of s.7 arises when the
plan has been deposited and before the title is issued. This is consistent with the
decision in Valuer General v Alfred Kohn Family Trust (Supra) where it was
recognised the availability of a separate title rather than the existence of a separate
title was the relevant issue. It accords also with the decision in Walters (Supra).
-
8/20/2019 UAGC Neil Construction v NSCC
12/35
12
Under the RVA identification of property is the issue, not the nature of ownership.
While we understand the Valuer General’s desire to have consistency and therefore
ease of management, the statute has not seen fit to make the issue of a title - the
ultimate test (compare Australian legislation). No doubt this has been done for good
reason as the circumstances under which a property can be regarded as a separate
property will vary considerably.
[32] Mr Asher submitted to conclude the property becomes a separate property
before a title has been issued would be contrary to all existing authority and in
particular the Court of Appeal decision in the Rodney District Council case. We do
not agree. The Rodney case did not deal with the situation we are faced with here. It
was concerned with the contention occupancy was sufficient criteria of a separate
property itself and a means of defining the property. The Court preferred the
certificate of title test. In our view an individual lot described on a deposited plan
fulfils the criteria of definition as required by s.7(2).
[33] We therefore reject this objection.
Alteration of the Rolls
[34] Section 14 of the RVA provides as follows:
14
ALTERATIONS DURING CURRENCY OF ROLLS--
(1)
A territorial authority may at any time, of its own motion or
on the application of the owner or occupier of land appearing on the
roll, make alterations to its current district valuation roll in order to
readjust and correct valuations and entries and bring them up to date -
(a)
In the manner and circumstances specified in rules made
under this Act; and
Co>
In accordance with any procedure specified in the rules.
(2)
Any change in the valuation of a property under this section--
@>
Must preserve uniformity with existing roll values of
comparable parcels of land; and
-
8/20/2019 UAGC Neil Construction v NSCC
13/35
13
w
Must be notified to the affected owner or occupier under
section 17, and is subject to objection under section 32.
(3)
A territorial authority that alters its district valuation roll under
subsection (I) must as soon as is reasonably practicable notify that
alteration to all other local authorities that use the roll for rating
purposes.
Rule 4.1 of the Rules sets out the circumstances as follows:
4.1 ALTERATIONS DURING THE CURRENCY OF THE
DISTRICT VALUATION ROLL
The District Valuation Roll may only be altered as result of one or
more of the following:
l
any improvements being added to or removed from the land; or
l any change in the ownership or occupancy of the land; or
l any new valuation made in accordance with section 16 of the Act; or
l any land being omitted from the roll, or any errors in the roll; or
l any subdivision, amalgamation or resurvey of the land; or
l any change in the provision of an operative district plan; or
l
any extraordinary event affecting property values; or
l any change of use or changes of a minor or clerical nature which do
not change the values.
[35]
In all cases which are the subject of these proceedings the first individual
assessments for each lot were issued between General Revaluations in all three
Territorial Districts. In the case of Rodney and Waitakere the first new assessments
issued between 4 and 7 months after certificates of the General Revaluation.
In the
case of North Shore the first new assessment was issued in the’ last year of the
current 3-year roll period.
[36] The factual circumstances of each subdivision and which we have referred to
earlier appear to form three separate groupings:
In the case of the individual assessments issued to Weiti Views
Limited, Elan Properties Limited and Neil Construction Limited the
-
8/20/2019 UAGC Neil Construction v NSCC
14/35
14
subdivided land had previously been valued
in
single block
assessments and there was no further subdivision of the land before
the issue of the amended assessments in February and March 1999.
PI
The Dryden subdivision at Omaha Point and the Fletcher subdivision
at Braeburn and the Universal subdivision at Woodbury Park were
each previously valued as partly subdivided land in single block
assessments in the 1998 General Revaluations of Rodney and
l Waitakere. Some further subdivision then occurred within that land
requiring the Council to alter the land value in the Roll entry when
titles on a new stage of subdivision had issued in order to bring the
Roll entries up to date. Individual assessments for all the unsold lots
were issued in May and June 1999.
[cl
In the case of Cabra Holdings Limited following the 1998 General
Revaluation certified in October 1998, new Notices of Valuation
assessing each individual titled lot were issued in May and June 1999.
No further subdivision of the land had occurred at that time.
Subsequently one of the undeveloped titles was further revalued as 6
titles as part of the exercise of transferring land for roading and
reserve purposes. The lots required further subdivision and
development before sale as part of the subdivision. Some alteration
of value was required at that time.
[37] The plaintiffs contend that in the subdivisions referred to in 36[a] above there
was no applicable ground under s. 14 and Rule 4.1 for altering the Roll by issuing the
new individual valuations. In the subdivision referred to in 36[b] and [cl, while
some further act of subdivision occurred giving the Council grounds to alter the land
value to take into account the issue of title in the new area of development, the
principle of comparabilities set out in s.14(2) in Rule 4.1 required such alterations
during the relevant Roll period should have been carried out on the basis of a single
assessment of the total land holding consistently with the single block assessments of
subdivided land which had been carried out during the General Revaluation of the
District.
-
8/20/2019 UAGC Neil Construction v NSCC
15/35
15
[38]
The Councils contend the valuations of subdivided land in the Districts
carried out for many years previously were errors or omissions in the Roll which the
Councils were required to remedy in order to comply with either what the Councils
had previously said were the requirements in Rule 3.6 of the Rules or what they now
say are the requirements of s.7(2) of the RVA.
[39]
Mr Asher submits the amending provisions envisage alterations for minor
errors or omissions, the correction of slips and the alterations resulting from a
successful objection. He cites
New Zealand Land Development Co Ltd v Valuer-
General [1986] 2 NZLR 362 where the Court of Appeal considered the statutory
scheme in the VLA and in particular the considerations governing alteration of the
Roll during the currency of a rating period. At page 363 Richardson J said:
The legislation proceeds on the premise, understandable in the
interests of order and certainty, that once any objections have been
determined the valuations entered on the roll are to stand until the
next roll revision unless there are any circumstances requiring or
justifying review.
McMullin J expressed a similar opinion.
[40] Mr Asher points out the amendments were the result of a policy change
following a decision to depart from the earlier and then accepted method of
valuation. He submits the entries now amended were entries made deliberately after
consideration and in accordance with the accepted practice of valuers at the time. In
making the original entries he points out the Roll was being completed in a manner
adopted over many years. We accept these factual submissions.
[41] North Shore and Waitakere accept their actions amount to an alteration of the
Roll during its currency. They claim the earlier entries of valuation were on an
aggregated block basis and were therefore not in accordance with s.7(2) of the
RVA/RVR despite any certification by the Valuer General. They were therefore, so
the Council argument goes, clearly made in error and the errors have been passed on
to the Roll. Accordingly the valuations are able to be altered under s. 14 of the RVA
and the fourth bullet point of Rule 4.1 of the RVR.
They claim the effect of the
changes was to preserve uniformity with existing roll values of comparable parcels
-
8/20/2019 UAGC Neil Construction v NSCC
16/35
16
of land as required by s.4. They submit if the course which they have taken had not
been followed, the Councils would be in breach of their statutory obligation to
preserve uniformity within the Roll Valuation and in accordance with the principle
of compatability New Zealand Land Development v Valuer General (supra). They
submit if the Rolls had not been altered it would be unfair to other ratepayers and
would leave the Council open to challenge.
[42] As an alternative source of authority the Council rely on s.13 of the
Interpretation Act. It provides:
13 POWER TO CORRECT ERRORS--
The power to make an appointment or do any other act or thing may
be exercised to correct an error or omission in a previous exercise of
the power even though the power is not generally capable of being
exercised more than once.
[43] We accept the word “error” is broad enough to encompass something which
is done inadvertently as well as something which is done intentionally and
deliberately. Provided we are correct in my determination of the s.7 issue the
Councils, clearly in the broad sense, have acted erroneously. The issue is not
however, whether they got it wrong, or right for that matter, but whether the actions
they took by issuing the fresh assessments were within their statutory powers to
correct an error.
[44] The original entries followed valuations made in accordance with the then
recognised and accepted valuation of land principles. Valuations accepted by both
the Council and the landowners. The entries did not result from any “error” such as,
in our judgment, is envisaged by the legislation or the rules. The Section is clearly
aimed at spelling out precisely the powers of the Council which, of course, means as
has been said by Court of Appeal in New Zealand Land Development v Valuer-
General (Supra) that this ensures certainty for the period of at least 3 years.
[45] In our judgment this was not an error which the Council had power to correct
under s.14.
-
8/20/2019 UAGC Neil Construction v NSCC
17/35
17
[46] Nor do we consider s. 13 of the Interpretation Act assists the Council, for the
following reasons:
[al
Section 13 is in similar terms to s.256) of the Acts Interpretation Act
1924, but the new provision applies by reason of s.4(1) of the Act.
Cbl
The Councils submit as the original notices of valuation on the block
basis was incorrect and unlawful because they did not comply with
.
s.7(2) of the RVA (as I have ruled) the Councils were therefore able
to re-exercise the statutory powers of carrying out fresh valuations
and sending out fresh notices of valuation in order to correct the error
of law or to achieve the consistency required by the RVA with
equivalent separate properties.
[47] Section 13 is to correct an “error or omission”. For the reasons we have
given we do not consider the entries were errors within this section. Furthermore,
s.25 of the Acts Interpretation Act expressly provides this section only applies
“unless the context requires”. Section 4 of the Interpretation Act 1999 contains a
provision to like effect.
[48]
We are, therefore, of the view that where the RVA and the Rules contain
express and detailed provisions relating to the correction of the roll, the express
provisions prevent the more general provisions of the Interpretation Act applying in
this case.
[49]
Rodney District Council also submits s.14 of the RVA does not apply to it as
the valuations in issue were made as part of the process of compiling the new district
valuation roll to be used as from 1 July 1999. The valuations made were accordingly
not valuations appearing on the “current” valuation roll. It submits that at the time in
question, namely March 1999, the “current” valuation roll remained unchanged and
was continuing to be used for rating purposes up until 30 June 1999 when it would
be replaced by the new valuation roll. The new valuations sent out in March 1999
were not therefore “alterations to the current valuation roll” in terms of s. 14 of the
new RVA. Rather, the Council was in the process of compiling its new valuation
-
8/20/2019 UAGC Neil Construction v NSCC
18/35
18
roll which would only be “current” as from 1 July 1999. Counsel submits therefore,
s.14 is not relevant and instead the Council was entitled to issue the fresh notice of
valuation in terms of s.13 of the Interpretation Act in order to correct the initial
notices which wrongly aggregated the subdivided lots. In our view, looking at the
actions of the Council in the context of the process of compiling the new district
valuation roll, this argument is without merit. This ground of objection is
accordingly upheld.
Valuations 6f the Properties
[50] This is simply a valuation issue. The question raised is, if each lot is separate
property as we have ruled, what value should be attributed to each lot.
WI
“Land value” is defined by s.2 of the RVA and refers to “the owner’s estate
or interest in the land”. The task of the valuer is to assess what the owner’s estate or
interest without improvements would realise if offered for sale on reasonable terms
and conditions. Constraints on alienability must be considered Valuer-General v
Mangatu Znc [1997] 3 NZLR 641.
[52] The plaintiffs claim even if the lots were properly individually assessed the
valuations were incorrect as they did not take into account a number of factors
including:
[al
PI
M
The possibility that the hypothetical purchaser would wish to acquire
additional adjoining lots from the vendor on sale of the land, i.e. the
possibility of a sale of a number or all of the lots to a single purchaser
with the consequent deduction in the value of the property sold;
The occasion of a large number of vacant unsold sections in one
locality with the consequential effect on the value as a result of the
oversupply of the market; and
Allowance for profit and risk interest and holding costs arising from
the fact that the sections would be sold down over a period of time.
-
8/20/2019 UAGC Neil Construction v NSCC
19/35
19
[53] They submit that if each separate titled lot is to be entered as a separate
property in the valuation roll then the assessment of the owner’s interest in that
property must take into account not only such factors as just outlined, but also
factors relating to an owner’s block holding of land in a subdivision in the same way
that these would be taken into account if a single assessment were to be completed.
Thus an oversupply of the market should be considered along with the other matters
referred to.
[54] Such*an approach, it seems, is no more than an attempt by the plaintiffs to
obtain the same advantage as they would have obtained from a block assessment
with an overall reduction. It misconceives, in our view, the requirement to value the
owner’s interest. Contrary to the underlying claim by the plaintiffs, what is to be
valued is not the whole block but each separate property once identified as such. In
each case where a title is issued this will be the full freehold interest subject to such
limitations as fencing covenants etc. In the case of a lot identified as a separate
property on a plan, this again will be for the full freehold interest less, no doubt,
some allowance, minimal though it may be, for the fact that title has not yet been
formally obtained. This valuation problem is a matter which any competent valuer
would be capable of resolving.
[55] We heard from a number of witnesses on this aspect. We are satisfied the
correct approach as to the value in respect of each lot has been adopted.
The Rating Valuation Rules
[56] These rules are a form of delegated legislation. They are therefore
reviewable and can be declared ultra vires if found to be outside the terms of
statutory delegation Brader v Ministry of Transport [ 198 l] 1 NZLR 73.
[57] The empowering provisions for the making of the rules is s.5 of the RVA. It
provides:
-
8/20/2019 UAGC Neil Construction v NSCC
20/35
20
5 VALUER-GENERAL MAY MAKE RULES SETTING
REQUIREMENTS IN RELATION TO VALUATIONS AND
DISTRICT VALUATION ROLLS--
(1)
The Valuer-General may from time to time make rules for all
or any of the following purposes:
G-9
Prescribing standards, specifications, and methodologies for
the rating valuation process, including--
(9
The data which must be gathered and the form in which it is
gathered:
(ii) a
The processes which must be followed in gathering the data:
(iii) The processes for forwarding that data to the Valuer-General:
(w
Prescribing who may carry out valuations or provide valuation
services for the purposes of this Act:
(4
Prescribing rules as to the maintenance and content of district
valuation rolls:
(4
Providing for the auditing and monitoring of general
revaluations, and of alterations during the currency of a roll:
(e>
Providing for the auditing and monitoring of equalisation
adjustments and special rating areas:
(0
Requiring the provision of information to the Valuer-General
or any other person or body specified by the Valuer-General relating
to valuations, general revaluations, equalisation adjustments, special
rating areas, and alterations during the currency of a roll by territorial
authorities:
(g>
Providing for the manner in which any valuation is to be
reviewed by a territorial authority as a result of an objection:
o-0
Providing for such other matters relating to valuations and
valuation services as are contemplated by or necessary for giving full
effect to the provision of this Act or as may be necessary or desirable
to allow the Valuer-General to perform his or her functions under this
Act or any related Act.
(2)
Any such rules may--
(4
Provide for when any valuation is to take effect:
09
Apply generally throughout New Zealand, or only to such
local authority or authorities or such district or districts as may be
specified in the rules:
-
8/20/2019 UAGC Neil Construction v NSCC
21/35
21
(c)
Exempt from their application any territorial authority which
has commenced a general revaluation until the completion of that
general revaluation.
(3)
Before making any rules under this section, the Valuer-
General must--
@>
Publish a notice of his or her intention to make the rules in
daily newspapers published in Auckland, Wellington, Christchurch,
and Dunedin, respectively, and also publish the notice in the Gazette;
and
. {Editorial Note: For notice of intention to make Rating
Valuations Rules see Gazette 2000, p 659.)
@I
Give interested persons a reasonable time, which must be
specified in the notice, to make submissions on the proposed rules;
and
(4
Consult with such persons or groups representative of valuers,
local authorities, and other interested persons as the Valuer-General
thinks appropriate having regard in each case to the content and effect
of the proposed rules.
(4)
As soon as practicable after making any rules under this
section, the Valuer-General must notify their making in the Gazette.
{Editorial Note: For notice of Rating Valuations Rules coming
into force from 7 July 2000, with effect from 1 July 2000, see Gazette
2000, p 1351.)
(5)
The Gazette notice must specify where copies of the rules may
be inspected and obtained.
(6)
Any rules made under this section are to be treated for the
purposes of the Regulations Disallowance Act 1989 (but not for the
purposes of the Acts and Regulations Publication Act 1989) as if they
were regulations within the meaning of that Act.
[58] Rule 3.6 states
3.6 SEPARATE PROPERTY
For the purposes of assessing land and capital value under section 7
of the Act, any property for which there is a certificate of title under
the Land Transfer Act 1952 may be treated as a separate property.
Where one parcel of land is held in more than one certificate of title,
each title will be treated as a separate property except in the case of
fractional interest, timeshare and leasehold titles.
-
8/20/2019 UAGC Neil Construction v NSCC
22/35
22
Section 7(4) of the Act provides that Rules may be made to determine
the circumstances where land capable of separate occupation may be
treated as separate property.
In the following cases, land should be treated as separate property:
l
properties held under cross lease or unit title should be valued as
separate properties.
l where contiguous land is used as one farming operation the property
may be entered on the roll in one assessment provided there are not
different owners. Severance by a road, railway or river does not affect
contiguity. However, in the case of a farm or other large property
consisting of more than one block in different ownerships, separate
assessments are necessary even though there may be common use and
occupation;
l
where a substantial building straddles land in different ownerships a
single assessment may be made with apportionments to show the
values of the differently owned parts;
l reserves and other large holdings such as airports, harbours,
waterfronts etc may be assessed as one property; and,
l a property split by a local authority boundary will have to be shown
on the roll as separate properties even though it may not meet the
normal criteria. In this situation the land should not be valued as
separately saleable but as an appropriate proportion of the value of the
whole.
In the following cases, land should not be treated as separate property:
l commercial tenancies (e.g. in office blocks or shopping malls) must
not be valued separately;
. where there are separate titles for freehold and leasehold interests
other than cross leased properties a single valuation of the fee simple
interest is required;
.
where there are separate titles for undivided interests with no
defined areas of exclusive occupation a single valuation of the land is
required;
l residential premises and commercial floors held under a company
shareholding structure, where the company is the legal occupier and
ratepayer, are not capable of separate assessment; and,
l retirement villages will normally be treated as one property, unless
the ownership arrangements require unit owners to pay their own
rates.
-
8/20/2019 UAGC Neil Construction v NSCC
23/35
23
[59]
The plaintiffs contend neither s.5 nor s.7 of the RVA authorise the Valuer
General to make rules for which, in effect, describe the circumstances in which a
Territorial Authority is to treat a property capable of separate occupation as a
separate property in the roll (see pleadings in the Statement of Claims).
[60] The Valuer General contends the valuation rolls need to be nationally
consistent and submits Rule 3.6 sets out general rules consistent with the RVA that
each parcel of land held in a separate certificate of title is a separate property.
l
[61] That is, the rules provide the context within which the discretion applies and
then provide a guideline as to how the discretion under s.7(4) RVA is to be applied
in order to provide a nationally consistent valuation database.
[62] We accept the Valuer General’s submissions. In our view the rules are doing
no more than indicating in a general manner how applications involving s.7(4)
should be considered. It does not direct a manner in which a property must be
considered nor does it direct that a property within the description of the rules must
be deemed a separate property. Such a suggestion as we so interpret the rules is well
within the powers of the Valuer General and within his statutory obligation. The
Valuer General is not limited from making procedural rules.
[63] The rules are therefore intra vires in our judgment. We point out in view of
our earlier ruling as to the effect of s.7(2), strictly speaking it was unnecessary for us
to express any opinion in respect of these rules.
Result
[al
[bl
[cl
,
The issue of individual valuation assessments in 1999 for each
separate lot, thereby resulting in separate entries in the District
Valuation Roll for each lot, was valid.
The Councils had no power to alter the Roll in the manner they did.
The value ascribed to each lot has been assessed correctly.
-
8/20/2019 UAGC Neil Construction v NSCC
24/35
24
WI
A separate assessment for a lot identified on a plan deposited with
LINZ can be issued notwithstanding no certificate of title for such lot
has issued.
Judgment accordingly. In the circumstances there will be no order for costs.
Morris J
‘,
13
r
P )Ly
l
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I
I.W. Lyall
Dated this
7aL
day of uw
2000.
-
8/20/2019 UAGC Neil Construction v NSCC
25/35
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
IN THE MATTER
BETWEEN
AND
AND
Dates of Hearing:
Counsel:
Judgment:
M.9901473-CO, M9901474-CO, M.9901475CO.,
M.9901476-CO., M.9901867~CO., M.9901868~CO.,
M.19-SDOO, M.20-SDOO., M.107-SDOO., M.lOS-SDOO.
of the Rating Valuations Rules 1998
NEIL CONSTRUCTION LTD
WEITI VIEWS LTD
ELAN PROPERTIES LTD
A G DRY-DEN LTD
CABR4 HOLDINGS LTD
UNIVERSAL HOMES LTD and
FLETCHER HOMES LTD
Plaintiffs
NORTH SHORE CITY COUNCIL
RODNEY DISTRICT COUNCIL and
WAITAKERE CITY COUNCIL
First Defendants
THE VALUER-GENERAL
Second Defendant
28 August 2000 - 1 September 2000
4,5 and 6 October 2000
R Asher QC, A Brown and R Bartlett for all Plaintiffs
A Galbraith QC and G Palmer for North Shore City Council and
Rodney District Council
K Berman and S Manalo for Waitakere City Council
H S Hancock and E Fitzgerald for Valuer-General
a
November 20Q0
RESERVED JUDGMENT OF MORRIS J
Solicitors:
Ellis Gould, DX CP22003, Auckland for Plaintif fs
Simpson Grierson, DX CX10092 Auckland, for Defendants except Waitakere City
Kensington Swan, DX CP22001 Auckland for Waitakere City
Crown Law Office, DX SP20208 Wellington for Valuer-General
Counsel Appearing:
R Asher QC., P 0 Box 4338 Auckland
A R Galbraith QC, P 0 Box 4338 Auckland
-
8/20/2019 UAGC Neil Construction v NSCC
26/35
HI
These proceedings have been heard in conjunction with the objection
proceedings issued by the applicants and this judgment should be read in conjunction
with the judgment delivered therein.
The Claims
PI
The plaintiffs seek declarations that:
.
A.
Section 23 of the Rating Powers Act (RPA) applies to their
subdivisions;
B. If s.23 of the RPA does not apply, whether the actions taken by the
Rodney District Council and the North Shore City Council under s.21
of the RPA were valid and, in any event, a declaration detailing the
criteria which Councils should take into account in making any
decision under s.2 1 of the RPA.
C. The process followed by the Councils on review of the objections
filed was in breach of the statutory process set out in s.34 of the
Rating Valuations Act 1998 (RVA).
As to A:
PI
Section 23 of the RPA sets out the circumstances in which two or more
separate rateable properties are deemed to be one property for the purposes of
levying uniform annual general charges under s.19 of the Act or any separate
uniform annual charge under s.20 of the
Act.
PI
It provides:
23 UNIFORM ANNUAL CHARGES ON PROPERTIES IN
COMMON OWNERSHIP--
-
8/20/2019 UAGC Neil Construction v NSCC
27/35
3
Where any 2 or more separately rateable properties are--
(a)
Occupied by the same ratepayer; and
@I
Used jointly as a single property; and
(4
Contiguous or separated only by road, railway, drain, water
race, river, or stream,--
they shall be deemed to be one property for the purposes of making
and levying any uniform annual general charge made under section 19
of this Act or any separate uniform annual charge under section 20 of
this Act.
.
There are therefore three limits to the application of s.23 and all must be satisfied.
There is no dispute between the parties; limitations (a) and (c) apply in the present
proceedings. The issue before me is whether limitation (b) applies. The plaintiffs’
position is each individual unsold lot is “used jointly as a single property” with the
others. The Council’s position is the word “used” requires that the land is not
merely owned or occupied by the same ratepayer but there must in addition be a
particular utilisation of the land.
PI
It is clear from the evidence the land comprised in the various subdivisions is
effectively, and practically speaking, vacant land. Some is being actively marketed,
some is being held as passive land. Some sections may eventually be sold
individually, others in blocks. There is no recognised activity as such on any of the
blocks.
I31
Councils are required to recover part of the rating revenue by levy of a
uniform annual general charge under
s.19
of the
WA
and (or) a uniform annual
charge under s.20 of the same Act. Section 23 makes no provision for a separate
discretion based on fairness. I do not find it necessary therefore, to determine or
discuss the conflicting and extensive submissions on the “fairness” or
“reasonableness” of the Council’s actions under s.23 (see the provisions of s.21).
PI
In my view joint use in the context of s.23 requires some activity which joins
in that use what are otherwise separate properties so as it can truly be said they are
being used as a single property. So a farming activity, an industry-like activity such
as pulp mill, a hotel with its associated facilities, a residential house with a tennis
-
8/20/2019 UAGC Neil Construction v NSCC
28/35
4
court may all be active uses carried out over a number of separate properties which
justify a conclusion of joint use as a single property.
PI
The plaintiffs’ submissions essentially assert the individual lots, which have
been subdivided, are not separately used until sold. This however, is not the test
under s.23. The starting point before s.23 can apply is that each lot is a separate
property as defined by s.7 of the RVA. This starting point having been reached, the
question then is, are these separate lots being jointly used as single property? In my
view, passive ownership of separate properties is not a joint use. The fact separate
properties may be on the market one day and not on another mitigates against such a
construction. The manner in which the plaintiffs rate their landholdings likewise
cannot affect the construction of s.23. Likewise I do not consider the fact each
individual piece of land and/or the block on its own is regarded by the plaintiffs as
“land stock” provides the necessary element of joint use. In practice, once
subdivided into allotment by evidence of a deposited plan or title, the worth to the
subdivider-owner lies not in their togetherness as lots but in their separateness as
distinct lots of land. The bulk residential allotments are not united, they are actually
independent of each other.
The intentions of the particular landowner from time to
time likewise do not determine the issue. It is the actual use, if any, established by
evidence which must determine whether s.23(b) is satisfied.
PI
Applying the principles I have endeavoured to enunciate to the evidence
disclosed in the extensive affidavits filed, I am satisfied s.23 of the RPA does not
apply to the plaintiffs’ subdivision/holdings.
[lo] The declaration sought in this regard is accordingly refused.
AstoB:
[ 1 ] Section 21 provides for discretionary rating relief. Uniform annual general
charges or uniform annual charges may be reduced by Council on its own motion or
on the application of a ratepayer. The ratepayer must be the occupier of more than
one separate rateable property in the district, but there is no requirement the
-
8/20/2019 UAGC Neil Construction v NSCC
29/35
3
properties must be contiguous. There is no requirement that there be a commonality
of use and the charges may be reduced by Council, in respect of one or more of the
separate rateable properties are occupied. In making its decision the Council is to be
guided by consideration of what is reasonable in the circumstances.
[12]
The plaintiffs now seek the following orders against the Rodney District
Council and the North Short City Council:-
[aI 1
PI
[cl
PI
An order quashing the Council decisions that in principle and in the
general case relief was not appropriate under s.21 in respect of unsold
subdivided land;
A declaration the Councils should give full consideration to
applications by developers with an open mind including all the usual
circumstances which apply in respect of subdivided land;
A declaration that 12 listed factors relating to subdivided land are
relevant considerations for the Councils in considering applications
under s.2 1; and
A declaration that both Councils have erred in law in construing and
approaching s.21 in an overly restrictive manner and in concluding
that if land held in multiple titles is not jointly used as a single
property, discretionary relief under s.21 was also not in general terms
available.
[ 131 The plaintiffs claim the reports and resolutions of these two Councils
establish both Councils have made a decision that in general discretionary relief
under s.21 will not be granted for the developers in respect of the unsold vacant lots
in their subdivisions. I therefore turn to deal with the evidence before me.
[ 141 In the case of Rodney, it passed a resolution on 17 December 1998 as
follows:
-
8/20/2019 UAGC Neil Construction v NSCC
30/35
6
That the General Manager be delegated the power to reduce or cancel
any separate uniform charge or uniform annual general charge, in
respect to a written application from the occupier (pursuant to the
provisions of s.21(1) of the Rating Powers Act 1988) if he is satisfied
that all of the land concerned is used as one farming operation.
This resolution followed the receipt of a report dated 29 October 1998 to the effect
there would not be as a general rule any case for exempting the payment of uniform
annual charges on subdivided land pursuant to s.21. Such report concluded by
recommending a resolution in the following terms:
1
That, as a general rule, the Council’s policy be to levy uniform annual
charges and uniform annual general charges against every separately
rateable property within a subdivision - notwithstanding that
numerous properties might be owned and occupied by the same
owner - it being of the opinion that such properties are not used
jointly as a single property; (and) there is no case for granting
discretionary relief pursuant to the powers of s.21 of the Rating
Powers Act 1988.
[15] While I accept the Council does not appear to have formally adopted this
resolution, it does appear the Council accepted the viewpoints expressed in the
resolution.
[16] In September 1999 the Council reconsidered its resolution of December 1998
having received a report which stated:
The resolution is not quite correct.
The last sentenceof part (g) of the
resolution says, “if he is satisfied that the land concerned is used as
one farming operation”, when there will in fact be some cases (e.g.
two sections used by one occupier as a home and garden) where
discretionary relief would also be appropriate.
[ 171 A resolution was passed on 30 December rescinding the clause of the earlier
resolution and providing as follows:
That the General Manager be delegated the power to reduce or cancel
any separate uniform annual charge or uniform annual general charge
in respect to a written application from the occupier (pursuant to the
provisions of s.2 (1) of the Rating Powers Act (1988) if he considers
it reasonable in the circumstances to do so.
-
8/20/2019 UAGC Neil Construction v NSCC
31/35
7
[ZS] Subsequently Hopper Developments Limited on behalf of Weiti Views
Limited and Elan Properties Limited were advised by the Council uniform annual
charges would apply to each section in the subdivision. Mr Sharplin on behalf of
Rodney Council acknowledged this view, namely that in the general case s.21 relief
would not be granted
for
subdivisions.
[19] No formal application for relief has been filed with Rodney by any of the
applicants.
[20] In the’ case of North Shore a report of 16 February 1999 recommended:
That there be no granting of discretionary relief pursuant to the
powers of s.21
of the
Rating Powers Act 1988 if the property is not
used jointly as a single property.
[21] On 24 February North Shore passed a resolution as follows:
That there is no granting of discretionary relief pursuant to the powers
of s.21 of the Rating Powers Act 1988 if the property is not used
jointly as a single property.
[22] In October 1999 the Council apparently realised its resolution of February
1999 could be challenged. A further report was obtained and a new resolution
passed stating:
That it is unlikely that the Council would regard i t as reasonable to
reduce or cancel charges in terms of s.21 of the Rating Powers Act
1988 in the case of separate properties within a subdivision with the
same occupier, although any such application will be dealt with under
its merits and in the context of its own particular circumstances.
[23] The Council’s Revenue Manager, Mr Wong Kam, in cross-examination has
acknowledged following this later resolution there was no real change to the basic
position of the Council, namely the developers would not be granted relief. A
written application from Green & McCahill seeking relief was subsequently
declined.
[24] No application under s.21 for relief had been made by any of the plaintiffs to
the North Shore Council.
-
8/20/2019 UAGC Neil Construction v NSCC
32/35
8
[25] Under s.4 of the Judicature Amendment Act 1972 this Court may grant relief
in relation to the exercise, refusal to exercise, or proposed or purported exercise by
any person of a statutory power. Exercise by the Council of its powers under s.21 is
such a statutory power of decision and is open to review. The problem facing the
plaintiffs in this case is however, no application has been made by any of them for
the Council to consider. Mr Asher submits the only inference I can draw from the
material before me is any such application is doomed to fail and I should make some
form of declaration accordingly. He points out the Councils may on their own
motion, grant the relief referred to in the subsection.
[26] Mr Galbraith for the Councils refers to the current Rodney and North Shore
City resolutions. He submits neither circumscribes the decision other than in terms
of s.21. He submits the plaintiffs’ proceedings are really an attempt to have the
Court impose compulsory criteria on the Councils. He submits there is nothing
improper in any Council adopting a general policy provided that it does not preclude
it from making an exemption if the circumstances of the case warrants special
treatment as required by the legislation: Practical SIzooting u Police [ 19921 1 NZLR
709.
[27] I can appreciate the plaintiffs’ concerns. They feel they have come up
against a brick wall so far as any possibility of receiving any relief is concerned.
The simple fact, however, is neither Council has received an application from any of
them and in the light of the latest and enforced motions which correctly set out the
Councils’ responsibilities, I am not prepared without more to determine either
Council will act contrary to its statutory obligations at the hearing of any such future
application. Nor am I prepared to formulate some form of test list or check sheet
illuminating matters which a particular Council must take into account when hearing
an application for relief. What will or will not be relevant will depend upon the
particular circumstances of each applicant at the hearing of any application.
As Mr
Galbraith acknowledged, the Councils must give full consideration to applications by
developers with an open mind and take into account all the usual circumstances
which apply in respect of subdivided land. In the event a Council does not do so
when considering an application any ratepayer has rights of objection and recourse to
the Court.
-
8/20/2019 UAGC Neil Construction v NSCC
33/35
9
[28] The declaration sought is accordingly refused.
As to C:
[29] Under s.32 of the RVA an objection must be made within the time and in the
manner specified in Regulations made under the Act. Regulation 3 of the Rating
Valuations Regulations 1998 requires a Notice of Valuation to include information
as to the pe;son with whom an objection must be lodged and the postal address. In
each of the cases here the Notice of Valuation specified Quotable Value at the postal
address at Takapuna as being the appropriate person with whom objections were to
be lodged. All plaintiffs accordingly directed all objections lodged to Quotable
Value at that address.
[30] Section 34 specifies the process for the consideration of objections:
[al
The Council must refer the objection to a registered valuer or other
person of a class specified in the Rules (there is none) who may be the
same person who undertook the original valuation or decision for
review.
PI
A review of the objection must be undertaken in the first instance by
the registered valuer or other person specified in the Rules.
[cl
The review must be conducted in accordance with any Rules.
PI
On conclusion of the revieb the Council may determine to alter the
valuation or decline to alter the valuation.
[31] In the case of all the objections, the decision following receipt of the
objection was made by Quotable Value as the valuation service provider for the
Council concerned. In no case was a review carried out by Quotable Value and
considered by the Council. Councils have taken the view that they have delegated to
Quotable Value the processing of the objection from receipt through to a written
decision and to written notification and that Council input was not required in the
-
8/20/2019 UAGC Neil Construction v NSCC
34/35
10
process. The plaintiffs claim by delegating the decision to determine objections to
Quotable Value and failing to determine them themselves the Council has failed to
comply with the statutory regime provided for by s.34.
[32] The Councils contend s.34 has been complied with. They contend in the
context of the RVA the reference of subsection (4) to the Territorial Authority
should be interpreted to mean “The Territorial Authority through its valuation
services provider”. They submit the RVA sets out various powers and functions of
Territorial Authorities in preparing and maintaining District Valuation Rolls, of these
functions those which .come under the definition of valuation services must be
carried out by registered valuer and valuation services includes the altering of any
such value objection. They contend the interpretation they seek would give effect to
the purpose of the Act which has required a valuation exercise to be contracted out to
a valuation service provider. They claim Councils have no valuation experience and
for the Council to have a right of veto over the valuer’s decision and review would
introduce an unacceptable potential for Council interference into what is intended to
be an independent valuation task. They submit that a requirement for Council to use
registered valuers to carry out valuation services is designed so as to avoid a
potential conflict of interest. They also submit that such a result is also consistent
with s.36 of the RVA which gives a Territorial Authority the right to object to the
review under s.34. They submit it would be inconsistent for a Council if it was able
to object to its own decision.
[33] I do not accept the Councils’ submissions. The definition of “valuation
services” in the RVA implies the functions of a valuation service provider under the
Act are limited to the fixing and altering of Roll values and granting of equalisation
certificates and does not extend to the substantive decisions which the statute
imposes on Councils in relation of the preparation of District Valuation Rolls and the
determination of objections. This conclusion, in my view, is reinforced by s.50 of
the RVA which allows the delegation by a Local Authority of any of its functions
and powers under the RVA “to any officer or employee of the Local Authority”.
The section does not refer to a contractor and in particular does not refer to valuation
service providers.
In my judgment the terms of the Act are plain and
-
8/20/2019 UAGC Neil Construction v NSCC
35/35
11
straightforward, the Council is required by virtue of s.34(4) to make the final
decision on any objection.
[34] The plaintiffs ask that the objections should be allowed and the individual
valuation assessments which were the subject of the objections declared invalid. I do
not consider such declarations should be made in the present case. My reasons are:
[al
This issue was not raised until the hearing was underway.
*
PI
The plaintiffs asked for the objection to be heard by the Land
Valuation Tribunal under s.36. All parties proceeded on the basis the
decision had been made by the Council. While the plaintiffs may
well not have appreciated Council itself had not made the actual
decision to disallow the objection, I think it is now too late to raise
what is essentially a point of procedure only.
[cl
Granting the relief sought would be futile.
It would simply return the
issue around and back to the Court for determination. The substantial
issues as to the correctness or otherwise of the Councils’ approach or
rather the approach made by its agents has been discussed in this
judgment.
[35] Relief is accordingly refused. In the circumstances, there will be no order for
costs.
Morris J
Dated this day of VW
2000.