SUPREME COURT OF QUEENSLAND

CITATION:	WB Rural Pty Limited v Valuer-General for the State of Queensland [2017] QSC 192	
PARTIES:	WB RURAL PTY LIMITED AS TRUSTEE FOR THE WHITSUNDAY TRUST
ACN 067 848 499
(applicant)
v
VALUER-GENERAL FOR THE STATE OF QUEENSLAND
(respondent)	
FILE NO/S:	BS No 10238 of 2016	
DIVISION:	Trial Division	
PROCEEDING:	Application	
ORIGINATING COURT:	Supreme Court at Brisbane	
DELIVERED ON:	13 September 2017	
DELIVERED AT:	Brisbane	
HEARING DATE:	16 February 2017	
JUDGE:	Douglas J	
ORDER:	It is declared that the Respondent has power, pursuant to section 29 of the Valuation of Land Act 1944 (Qld) and section 269(1) of the Land Valuation Act 2010 (Qld), now to alter valuations issued by the Respondent on 27 January 2009 (effective 30 June 2007), 22 March 2010 (effective 30 June 2010) and 1 March 2011 (effective 23 November 2010) in respect of land owned by the Applicant in the event that such valuations are affected by error or omission which the Respondent considers it necessary to correct other than an error of law or mistake of fact that may be corrected under section 28A of the Valuation of Land Act 1944 (Qld) or in the event that, in the opinion of the Respondent, 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, and which power exists regardless of whether such alteration would be outside the time period mentioned in section 85 of the Land Valuation Act 2010 (Qld).	
CATCHWORDS:	STATUTES – ACTS OF PARLIAMENT –INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – GENERALLY – where s 28 of the Valuation of Land Act prohibits, with exceptions, the respondent from making alterations to valuations of land during the period during which any annual valuation relating to the area in question is in force – where s 29 of the Act provides that the respondent may ‘at any time’ make alterations to an existing valuation of land – where the applicant sought alterations to valuations relevant to the 2010 and 2011 financial years, which the respondent contended it lacked the power to make – whether the respondent’s power to make alterations ‘at any time’ was limited to periods during which any annual valuation relating to the land was in force – whether words ‘at any time’ in s 29 are to be read down by reference to s 28 – whether the historical context of the Act supports the reading down of s 29
Land Valuation Act 2010 ss 85(3), 267, 269
Valuation of Land Act 1944, ss 20, 21(3), 27(7), 28, 28A, 29, 29A, 30(3), 31, 37(1), 38, 39, 41A(1), 42(3), 48	
COUNSEL:	S L Doyle QC with M May for the applicant
D B Fraser QC for the respondent	
SOLICITORS:	Cooper Grace Ward for the applicant
G R Cooper, Crown Solicitor, for the respondent	

[1]	The issue in this case is whether the respondent has the power to alter the valuations of land owned by the applicant for the 2010 and 2011 financial years.  The valuations affect the amount of land tax assessable as payable by the applicant.  The basic facts underlying the case are not controversial.  What is controversial is the proper interpretation of the statutory regime that provides for the alteration of valuations. 
[2]	Put at its simplest the question is whether the respondent may alter the valuations “at any time”, to use the language of s 29 of the Valuation of Land Act 1944 (“VOLA”), or whether those words should be construed so as to apply only while the valuation is “in force”, words used in s 28 and s 29A of that Act.  For the reasons set out below it is my view that the language of s 29 is sufficiently clear to permit the relevant valuations to be altered now even though they have ceased to be in force.   
Background
[3]	From the 2010 financial year onwards the applicant had been assessed for land tax on the basis that land that it owned was worth approximately $8 million.  That valuation had been made in circumstances where the applicant was said to be entitled to a deduction or exemption on the basis that the land was used for agricultural purposes.  Because of the applicant’s entitlement to such a deduction or exemption, it was unnecessary, for practical purposes, to object to the valuation figure.  In June and July 2014, however, the Commissioner of State Revenue issued amended land tax assessments for the 2010 to 2014 financial years on the basis that the applicant was not entitled to that deduction or exemption.  This meant that the land tax payable by the applicant increased from nominal sums in the order of approximately $6,000 to $23,000 per year to substantial sums in the order of approximately $227,000 to $301,000 per year.  
[4]	Accordingly, the applicant sought to revisit the valuation of the land on which the tax was assessed on the basis that it was to be assessed at a value of about $3.9 million.  The difficulty that the applicant faced was that a taxpayer cannot object to a valuation after (at most) one year has elapsed since the valuation was issued.  
[5]	After correspondence from the applicant, on 21 January 2016, the respondent voluntarily amended valuations relevant to the land tax payable for the 2012 financial year onwards pursuant to s 85(3) of the Land Valuation Act 2010 (“LVA”).  That reduced the valuations of the land to $3.9 million.  The applicant also asked the respondent to alter the valuations relevant to the 2010 and 2011 financial years but the respondent took the view that it did not have the power to do so.  Consequently, the applicant seeks a declaration that the respondent does have the power to alter those valuations relevant to the 2010 and 2011 financial years.
[6]	There were three relevant valuations.  The first was issued on 27 January 2009 effective from 30 June 2007.  The second was issued on 22 March 2010 effective from 30 June 2010 and the third was issued on 1 March 2011 effective from 23 November 2010.  The applicant’s submission is that those valuations can be altered pursuant to s 29 of VOLA.  As I have said, the applicability of s 29 is the controversial issue for determination.
[7]	VOLA was repealed by s 267 of LVA but its transitional provisions, in s 269, provided that VOLA continued in effect for the making and issuing of a valuation if it has taken effect or is to take effect or will take effect before 30 June 2011.  All the relevant valuations took effect before 30 June 2011 so that VOLA continues in effect for the making and issuing of those valuations.  
[8]	Section 29(3) provided that every alteration of the valuation of land made under s 29 “must be taken to be a valuation”.  The applicant also relied upon s 38, s 41A(1), s 42(3) and s 27(7) to support the conclusion that there was no reason to read the words in s 269(1) “for the making and issuing of a valuation” to preclude VOLA from applying so as to authorise the alteration of a valuation that had taken effect by 30 June 2011.  The respondent also conceded that the power to alter valuations under VOLA continued in effect.  
Structure of VOLA
[9]	The principal sections of interest from VOLA are s 28, s 29 and s 29A.  I shall refer to them in more detail shortly.  There are other sections that should be considered also.  
[10]	Section 21(3) is part of a section dealing with omissions to make a valuation of land in an area.  If the chief executive becomes aware of such an omission to make a valuation of land, the chief executive shall, thereupon, make a valuation of that land as at the date fixed for all lands in the area.  That valuation shall come into force on a date fixed by the chief executive under s 20 and, unless an alteration is made under s 29, shall be in force for the balance of the period during which the annual valuation is in force in accordance with the Act.  
[11]	Section 28 deals with the alteration of a valuation that is in force or is to come into force.  The structure of the section is that no alterations shall be made in the valuation of any parcel of land during the period during which any annual valuation relating to the area in question is in force or, where such a valuation has not come into force, during the period between the issuing of a notice of valuation and the date of the valuation coming into force unless certain conditions are met.  
[12]	The main conditions said to be potentially relevant to this dispute at this stage are those set out in s 28(1)(g) and s 28(1)(h) but it will be useful to set out the whole of the section to help illustrate the circumstances that permitted an alteration of land valuation under it:
“28	Alteration of valuation in force or to come into force
(1)	No alteration shall be made in the valuation of any parcel of land during the period during which any annual valuation relating to the area in question is in force or, in the case of an annual valuation which has not come into force, during the period between the issuing of a notice of valuation under section 41A and the date of the valuation coming into force—
(a)	unless such land is subdivided during such period; or
(b)	unless where 2 or more parcels of unoccupied land adjoining each other valued as 1 portion of land and 1 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 chief executive 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 chief executive 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 licence 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 purposes of a single dwelling house or farming when valued, that land ceases to be used for either of such purposes whereby the valuation is, having regard to the provisions of section 17(1) and (2), in the opinion of the chief executive, altered; or
(g)	unless, in the opinion of the chief executive, 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 error or omission which the chief executive considers it necessary to correct, other than an error of law or mistake of fact that may be corrected under section 28A; or 
(i)	unless by reason of—
(i)	the implementation of a planning scheme, an alteration in the land use and development under a planning scheme or an amendment of a planning scheme; or
(ii)	the application of a local law of the local government of the area in question affecting the use of development land; or
(iii)	any other action or decision of the local government of the area in question affecting the use or development of land;
the chief executive is of opinion that the valuation of such land has altered; or
(j)	unless, being land used for commercial or industrial purposes or for purposes other than those of a single dwelling house or farming when valued, that land comes under exclusive use for purposes of a single dwelling house or farming whereby the valuation thereof is, having regard to section 17(1) and (2), in the opinion of the chief executive, altered; or
(k)	unless— 
(i)	in the case of 2 or more parcels of adjoining land—those parcels become the subject of a common ownership during any such period, no part thereof being leased or let or all the parcels being leased or let to 1 person; or
(ii)	in the case of 2 or more parcels of land—those parcels could, if a valuation of all lands in the area was then taking place, be included pursuant to section 34 in 1 valuation;
and the chief executive is of the opinion that, by reason of the foregoing and having regard to such other factors as the chief executive considers relevant, the several parcels of land should be included in 1 valuation; or
(l)	unless the valuation is a valuation for rental purposes of a lease, licence or permit made because—
(i)	the purpose of the lease, licence or permit has changed; or
(ii)	the conditions of the lease, licence or permit have changed; or
(iii)	the area of the lease, licence or permit has changed; or
(m)	unless the land becomes the subject of a determination of native title or an indigenous land use agreement, under the Native Title Act 1993 (Cwlth).
(2)	The inclusion in 1 valuation of the several parcels of land shall be taken to represent an alteration made in the valuation of those several parcels whether or not such first mentioned valuation is the same as, or different from, the sum of the valuations of those several parcels.
(3)	In subsection (1)—
farming has the meaning given by section 17(2).
single dwelling house has the meaning given by section 17(2).
(4)	An alteration in a valuation must not be made under subsection (1)(d) unless the owner of the land applies to the chief executive within 6 months after the permanent damage happens.
(4A)	If the unimproved value of a parcel of land is altered by the loss, under a resource operations plan, of a water licence the value of which formed part of the unimproved value of the land, an alteration may not be made under subsection (1)(e) until the 30 June that is at least 1 year after the resource operations plan has effect.” (emphasis added)
[13]	Section 28A dealt with the alteration of valuations made after an appeal or an objection to an earlier valuation.  Section 29 provided:
“29	Chief executive may alter valuation
(1)	The chief executive may at any time alter the valuation of any land the valuation of which may be altered under section 28, 28A or 30(3).
(2)	The chief executive may include in 1 valuation the several parcels of land referred to in under section 28(1)(k).
(3)	Every alteration of the valuation of any land made under this section must be taken to be a valuation and the provisions of part 6 about notices of valuation and objections and part 6A about appeals apply.”
[14]	Section 29A then went on to provide a further power to alter a valuation in force at any time during the period starting three years immediately before and continuing since the effective date of the current valuation to enable an adjustment to be made to rates, rental and land tax payable under the statutes set out there.  Again it is useful to set out the whole section:
“29A	Alteration of valuation for rate, rental or land tax adjustment
(1)	The chief executive may alter any valuation in force at any time during the period starting 3 years immediately before, and continuing since, the effective date of the current valuation, to enable an adjustment to be made to rates payable under the Local Government Act 2009 or the City of Brisbane Act 2010, rental payable under the Land Act 1994 or land tax payable under the Land Tax Act 2010 or the repealed Land Tax Act 1915.
(1A)	An alteration made under subsection (1) is effective from—
(a)	if the event that requires the alteration to be made happened during the period mentioned in subsection (1)—the date of the event; and
(b)	if the event happened before the period began—the beginning of the period.
(2)	However, the chief executive may decide not to alter a valuation under subsection (1) if the chief executive is of the opinion, formed on reasonable grounds, that the rate, rental or land tax adjustment resulting from the valuation alteration would be so small that making the alteration can not be justified in the circumstances. (3) The chief executive may alter a valuation of land under subsection (1) only if the alteration is because of an alteration of a valuation permitted under section 28 or 30(3).” (emphasis added)
[15]	Section 30(3) provides a further power for the chief executive under s 29 or s 29A to alter a valuation of land if part of the land ceases to be land for which a valuation is required.  Section 31 also permits a valuation to be made where an area of land that has been valued is abolished or joined to another area or where part of the area is excluded from it and included in another area.  Such a valuation was deemed to be in force on and from the date of the joinder or inclusion and was to continue in force for the balance of the period then current.  
[16]	Section 37(1) required the chief executive to make an annual valuation of all land in an area with certain exceptions.  Section 38(1) provided that each annual valuation should have force and effect in respect of the land to which it related for the period of 12 months commencing on 30 June next following its making while s 39 provided that, if an annual valuation was not made as required, the last preceding valuation of all lands in the area in question should continue to have force and effect until the next such valuation commenced to have force and effect.  Section 48 provided that the valuation roll shall be amended whenever an alteration is made under s 29 in the valuation of any parcel of land.  
Submissions
[17]	The applicant made four points in particular in response to the respondent’s argument that the words in s 28(1) “during the period during which any annual valuation relating to the area in question is in force” served as a limitation on the time when an alteration permitted under s 28 could be made pursuant to s 29(1).  The respondent’s submission was that, therefore, the power to make such an alteration ceased, generally speaking, once the year of currency of the valuation during which it was in force was over.  
Applicant’s first submission – give effect to the words “at any time”
[18]	The first submission for the applicant was that the argument robbed the words “at any time” in s 29 of meaning insofar as s 29 referred to the alteration of a valuation that may be altered under s 28.  The submission was also that it would rob of utility the three year period referred to in s 29A(1) given the terms of s 29A(3).  Section 29 and s 29A were said to identify the power to make alterations and clearly allowed for alterations to be made outside the period of force of the valuation.  To read them with 
s 28 as the terms of each section required, led to the conclusion that s 28 could not be concerned with defining the period within which the alteration must be made.
[19]	The respondent’s submission was that the words “at any time” in s 29 can operate effectively within the context of the limits of s 28.  That does not explain why the words should be read down further, however, so as to apply only while a valuation is in force.  That would require the implication of words into s 29(1).  
[20]	Another possible interpretation is that s 28 sets out in detail the circumstances permitting alterations that may be made during the period during which an annual valuation is in force while s 29 widens the period during which a valuation may be altered if it is one of the valuations that may be altered not only under s 28 but also under s 28A or s 30(3).  Section 29A then sets out a subset of categories of valuations that may be altered during the period starting three years immediately before and continuing since the effective date of the current valuation to enable adjustments to be made to rates payable, rental payable and land tax payable under the statutes set out in s 29A(1).  Those alterations may be made only if they are because of an alteration permitted under s 28 or s 30(3).  So there are practical differences between the powers of alteration under each of s 28, s 29 and s 29A.  
[21]	There seems to me to be no compelling reason, therefore, to read down the words “at any time” to be limited necessarily to the period during which an annual valuation is in force. The argument for the respondent would make more practical sense if the power of alteration in s 29(1) was limited to alterations under s 28 but its extension to alterations made pursuant to s 28A and s 30(3) suggests the contrary.  The fact that s 29A explicitly limits its power to alter valuations to those in force described in that section adds weight to the analysis suggesting that s 29(1) is not so limited.  
Applicant’s second submission – give effect to s 28(4A)
[22]	The second submission made for the applicant is that the limitation suggested for the respondent is inconsistent with s 28(4A) which provides that, where an alteration is based on the loss of a licence under a resource operations plan, see s 28(1)(e), the alteration cannot be made “until the 30 June that is at least 1 year after the resource operations plan has effect”.  
[23]	The respondent’s submission in reply to that argument was that it misconceived the effect of the subsection.  The submission was that the date of 30 June referred to in s 28(4A) was the date of effect of the annual valuation.  In the circumstances the provision referred to a change of regime under s 28(1)(e) by which water licences ceased to form part of the unimproved value of the land and became separately assignable as tradeable rights.  Mr Fraser QC for the respondent submitted that the temporal limitation in s 28(4A) was addressed by s 29 or s 29A which empowered the respondent to make the necessary change and delay the valuation change to the 30 June that was at least one year after the resource operations plan had effect so that when the alteration was finally made it was to the valuation currently in force at that 30 June date. 
[24]	That may well be correct but it also makes sense to allow s 29 to do the work as it were by making the alteration at any time.  It is unnecessary for me to determine this question of construction in the abstract but I do not see it as one which prevents me from taking a wider view of the power to alter under s 29.  
Applicant’s third submission – give effect to s 28(4)
[25]	The third submission was that the limitation of the words “at any time” suggested by the respondent would operate so as to cut across s 28(4) which contemplated an application for an alteration being made within six months after a flood or cyclone, for example, caused permanent damage to a property: see s 28(1)(d).  The applicant’s submission was that if the opening words of s 28 were to be construed as the respondent submitted then s 28(4) would operate so as to permit an application for an alteration only in the shorter of the period of six months, if that length of time was available before 30 June, or the period between the permanent damage and the balance of the year remaining of the then valuation until 30 June. 
[26]	Mr Doyle QC for the applicant illustrated that submission by an example to make it more concrete.  If a property experienced a flood in February, s 28(4) contemplated the land owner having until August to apply for an alteration and, in a practical sense, the alteration responding to that application would not be made until after it was applied for, yet the valuation that was “in force” in February would have ceased to be in force on 30 June when the next annual valuation would come into force.
[27]	Again, Mr Fraser QC submitted, as I understood him, that the submission was misconceived on the basis that, if an application was approved under s 28(4) then the current valuation, presumably at the time of approval, would be able to be amended under s 29 before 30 June.  If an annual valuation became effective on the intervening 30 June within the six months available under s 28(4) and before approval, then s 29A could be used within three years since the effective date of the current valuation to alter the valuation effective before 30 June.  
[28]	The contrary argument is, however, that the alteration contemplated is of the valuation in force during the valuation year when the damage occurs, the prohibition in s 28(1)(d) being against making a change to that valuation unless the damage occurs and an application is made within 6 months under s 28(4).  As the application within 6 months could well be made outside the year during which the valuation is in force that lends force to the argument that the words “at any time” in s 29(1) should mean what they appear to say.  That the valuation may not have changed because of the application of s 39 would simply be fortuitous and does not provide a reason to limit the proper construction of the words in s 29(1).
[29]	One can imagine problems of timing even under Mr Fraser’s interpretation.  If, for example, the damage occurred close to the end of June, and the respondent formed an opinion under s 28(1)(d) more than three years later, would there be a remedy?  One would not expect that to happen but the potential may be there.  At the least the respondent’s submissions could lead to timing problems in unusual cases and do not justify limiting the potential application of s 29(1) in the fashion proposed.  
Applicant’s fourth submission – give effect to retrospective amendment
[30]	The fourth submission by the applicant is that the reference to a period when the valuation is in force in s 28(1) is used elsewhere in VOLA to refer to the period for which the determined valuation was to be taken to be the valuation even if by retrospective amendment, referring, for example, to s 29(1), s 29(3), s 29A(1), s 29A(1A) and s 31.
[31]	The respondent’s submission was that that result followed by application of s 29A in any event which may well be correct but it remains the case that VOLA contemplates the use of s 29 to alter valuations by retrospective amendment apparently outside the period during which the annual valuation is in force. 
History and context
[32]	The respondent also submitted that the history of the predecessors to the form of VOLA when it was replaced in 2010 was consistent with its submissions.  I was taken, for example, to s 13 of VOLA as it was in force in 1959. Section 13(2) is clearly the predecessor of s 28. It provided that no alteration should 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 was in force, unless certain contingencies happened. Nevertheless, it went on to provide that the respondent may at any time alter the valuation of any land, the valuation of which may be altered pursuant to s 13(2). That seemed to me to provide an equivalent to s 29(1).  There was also, in that earlier version of VOLA, a general provision in s 11(4) enabling the respondent to alter the valuation of any parcel of land on account of any of the events mentioned in the then s 13 “at any time after this Act is proclaimed to be in force”. 
[33]	There were also later amendments introducing earlier versions of s 29A but they did not seem to me to justify now interpreting s 29(1) in the way suggested for the respondent.  
[34]	Accordingly, it seems to me that the historical context of the legislation is at best equivocal and in some respects supportive of the applicant’s submission, particularly when one takes s 11(4) of the Act in force in 1959 into account. 
[35]	Nor does the fact that annual valuations could be extended in effect by s 39 of VOLA beyond the year of their original making until the next valuation commences seem to me to affect these questions of construction.   
[36]	The respondent also referred to the 2010 explanatory notes in respect of the saving provisions of the LVA which referred to the need for a “period of time, to issue or amend existing valuations for annual valuation years” before the commencement of the LVA Bill. It was urged on me that the reference to “a period of time” carried the connotation that the effect of the transitional provisions should be limited.  That does not assist me, however, in determining whether the words “at any time” in s 29 should be limited in the manner submitted for the respondent.  
[37]	Section 29 also has work to do as well as or beyond that contemplated by s 29A.  That is reflected in s 21(3), s 30(3) and s 48 to which I have referred previously and suggests that the power in s 29(1) should not be read down to apply only during the period during which an annual valuation is in force.  
[38]	On one view the power in s 29A could be seen as a subset of the power granted under s 29(1), a construction which permits them to work harmoniously.  It was submitted for the applicant, for example, that the circumstances referred to in s 28(1)(g) and s 28(1)(h) dealing with uniformity in values and the effects of errors or omissions were more readily dealt with under s 29(1) than s 29A, with its focus on rates, rental and land tax payments.
Conclusion and order
[39]	 For the reasons I have expressed earlier when dealing with the applicant’s first submission in particular it seems to me that the words “at any time” in s 29(1) should not be read down to mean “at any time during the period during which any annual valuation relating to the year in question is in force”. The subsection seems to me to be one of more general effect than that.  It also deals with valuations that may be altered under s 28A and s 30(3).  There is no reason why such valuations should only be alterable within the period described in s 28(1).  
[40]	Section 29(1) is also capable, not only of dealing with the possible timing problems that may arise under s 28(4) and s 28(4A), but also of providing a more ambulatory power of alteration extending beyond the relatively limited power under s 29A which deals with adjustments to rates payable, rental payable or land tax payable where the alteration is also because of an alteration permitted under s 28 or s 30(3). 
[41]	One can imagine circumstances such as have arisen here where the power to alter outside the three year period covered by s 29A would be appropriate. The language of s 29(1) does not prevent such a power from arising.  
[42]	In the circumstances, therefore, I propose to make a declaration in the terms sought by the applicant, namely:
“The Respondent has power, pursuant to section 29 of the Valuation of Land Act 1944 (Qld) and section 269(1) of the Land Valuation Act 2010 (Qld), now to alter valuations issued by the Respondent on 27 January 2009 (effective 30 June 2007), 22 March 2010 (effective 30 June 2010) and 1 March 2011 (effective 23 November 2010) in respect of land owned by the Applicant in the event that such valuations are affected by error or omission which the Respondent considers it necessary to correct other than an error of law or mistake of fact that may be corrected under section 28A of the Valuation of Land Act 1944 (Qld) or in the event that, in the opinion of the Respondent, 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, and which power exists regardless of whether such alteration would be outside the time period mentioned in section 85 of the Land Valuation Act 2010 (Qld).”
[43]	I shall hear the parties further about the form of the order and costs.