VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
planning and environment LIST
(LaND VALUATION)	vcat reference No. P729/2020

APPLICANT	John Wyke	
responsible authority	Yarra Ranges Shire Council	
SUBJECT LAND	8 Nicklaus Place
CHIRNSIDE PARK  VIC  3116	
before	Mark Dwyer, Deputy President	
hearing type	Hearing	
date of hearing	3 December 2020	
DATE OF ORDER	9 December 2020	
CITATION	Wyke v Yarra Ranges SC (Land Valuation) [2020] VCAT 1378	

Order
1	Pursuant to section 127 of the Victorian Civil and Administrative Tribunal Act 1998, the application is amended by amending the date of the decision under review from 11 March 2020 to 9 September 2020.
2	The application is dismissed.

Mark Dwyer
Deputy President

APPEARANCES:		
For John Wyke	Lyn Boyes and Graham Brewer, instructed by Ken Smith solicitor	
For Yarra Ranges Shire Council	Terry Bramham, solicitor, of Macquarie Local Government Lawyers	

REASONs
What is the proceeding about? 
1	The applicant John Wyke is the owner of a residential property within ‘The Heritage’ estate in Chirnside Park, sometimes also designated as the Heritage Golf and Country Club Resort. 
2	The Heritage is a large residential and recreational estate that includes, amongst other things, residential properties, hotel conference and convention facilities, golf courses and recreational parklands. 
3	Mr Wyke’s property, along with other residential land in the estate, is currently classified by the Yarra Ranges Shire Council as ‘residential’ for differential rating purposes under the Local Government Act 1989. As such, his land attracts the full residential rate in each rating year.
4	The Heritage Owners Corporation No. 1 has for some time contended that the application of the residential rate is unfair for residents in the estate, on the basis that much of the local infrastructure is funded by the Owners Corporation (rather than the Council) and that, apart from garbage collection, the Council does not provide a full range of Council services within the estate. The Owners Corporation has advocated for a 25% reduction in the residential rate for residential land within the estate, and/or a separate differential rate classification under the Local Government Act 1989. The Council has been unwilling to agree to either option.
5	Through this proceeding at VCAT Mr Wyke seeks to review the decision of the Council to classify his land as ‘residential’ for rating purposes, and seeks instead to have his land reclassified to a proposed ‘integrated tourist resort’ classification.
6	Section 183 of the Local Government Act 1989 provides that:
(1)	An owner or occupier of land whose interests are affected by a decision of the Council to classify or to not classify that land as land of a particular type or class for differential rating purposes may apply to VCAT for review of the decision.
7	The Council contests the application, including on the basis of jurisdiction. The Council contends that there is no power under section 183 that would enable VCAT to reclassify land to a type or class that does not exist. 
Preliminary issues
8	Although Mr Wyke’s application is a single application in relation to his land, he was represented at the hearing by the chair of the Owners Corporation and another resident. The ‘applicant’ submissions all referred to, and were made on behalf of, the Owners Corporation - in fact, neither Mr Wyke nor his land was mentioned anywhere in the written or oral submissions, even by way of notional background. The purported ‘decision’ initially relied upon as the basis for Mr Wyke’s review was a letter from the Council addressed to the chair of the Owners Corporation, that also makes no reference to Mr Wyke or his land. It appears that the Owners Corporation is attempting to run some sort of test case through Mr Wyke, although this may have been problematic in terms of the specific application made and/or the relief sought. Given my decision on jurisdiction, nothing ultimately turns on this.
9	Before the hearing, Mr Wyke sought to amend his application by amending the date of decision under review from 11 March 2020 (being the date of a Council letter to the Owners Corporation) to 9 September 2020 (being the apparent date of the latest rates notice for Mr Wyke’s land).  It is perhaps curious that, having sought this amendment, the applicant did not produce Mr Wyke’s latest rate notice (i.e. the decision that now purportedly forms the basis for review) and the applicant’s written submissions continued to refer to the earlier letter as ‘the only relevant decision’, without amendment. The Council nonetheless consented to the amendment, subject to maintaining its attack on jurisdiction generally. I have made the amendment as it has the effect of removing some of the procedural and timing issues relating to the initial application, albeit still leaving some other issues open for debate. Given my decision on jurisdiction, which arises whether the application is amended to change the date of decision or not, nothing ultimately turns on this.
Jurisdiction
10	I agree with the Council that VCAT lacks jurisdiction to deal with this application, or to grant the relief sought.
11	Under section 161 of the Local Government Act 1989, a Council may raise any general rates by the application of a differential rate - i.e. applying a different rate to different types or classes of land. If it does so, the Council is required to provide information, amongst other things, about the definition of the types or classes of land that are subject to the rate, the objectives of the differential rate, and the rate and amount of rates payable in relation to each type or class of land. 
12	It is common ground that the Council’s current rating structure comprises five differential rates which are applied to the following property classifications being:
•	residential
•	farmland
•	commercial
•	industrial
•	vacant substandard
13	Different rates in the dollar are struck for each of these property classifications as part of the Council’s declaration of its general rates in any given year, including the current rating year. 
14	It is also common ground that, of these five existing differential rating classifications, Mr Wyke’s land would be defined as residential land, and that is the way in which his land is being used. It is not farmland, nor commercial or industrial land, nor vacant.
15	What Mr Wyke (or the Owners Corporation) seek is for the Council to introduce a new sixth rating type or class that does not yet exist. They have called this an ‘integrated tourist resort’ classification, and they seek to have it applied to land in ‘The Heritage’ estate. Despite repeated lobbying over a long period, the Council has not agreed to this outcome. Accordingly, Mr Wyke is attempting to use the limited review process under section 183 of the Local Government Act 1989 to achieve that same outcome.
16	As I have indicated, section 183 of the Local Government Act 1989 allows an owner of land to apply to VCAT for the review of the Council decision to classify or to not classify land as land of a particular type of class. In my opinion, section 183 empowers VCAT to make the correct or preferable choice in the classification of land from amongst the particular types or classes of land already declared by the Council. It does not empower VCAT to essentially compel the Council to introduce a new rating type or class that does not yet exist.
17	In Anderson v Cardinia SC [2011] VCAT 1687, the then Deputy President Macnamara stated that there were two different aspects to differential rating under the Local Government Act 1989. The first of these is for the Council to establish the differential rating regime by identifying and declaring the different types or classes of rateable land that will apply in the municipality. The second is to then classify the individual rateable properties in the municipality in accordance with that regime, thereby designating which of the differential rates each property is subject to. This second process is described in the statute as classification, and entails putting a particular property or properties in the class to which differential rate has been described. Macnamara DP held that is only the second process (and not the first) which VCAT is empowered to review under section 183.
18	In Tedesco v Melton SC [2012] VCAT 218, the then Vice President Judge Macnamara adopted his earlier decision in Anderson. He stated that, insofar as there might be an attack on the what the Council has done (or not done) in establishing its differential rating regime, these matters may conceivably be the subject of some sort of judicial review in the Supreme Court, but this is not a matter of classification. VCAT does not have jurisdiction to change the differential rating regime declared by a Council. It cannot properly exercise jurisdiction which Parliament has not granted to it. Section 183 of the Local Government Act 1989 only allows a review of the classification insofar as whether a particular property has been placed in the correct rating classification.
19	It follows that, for example, if a property has been incorrectly classified as commercial land, but should have been properly classified as industrial land, VCAT can order that the land be reclassified from one to the other. But VCAT cannot change the differential rating regime by adding or deleting different types or classes of rateable land. 
20	Mr Wyke’s advocates attempted to distinguish Anderson and Tedesco on two bases.
21	The first of these was to argue that the two decisions were made before amendments to section 183 of the Local Government Act 1989 in 2012, which introduced Ministerial Guidelines relating to differential rates. However, the changes to the Act in 2012 do not in any way affect the underlying principle in Anderson and Tedesco, nor the way in which the limited VCAT review provision should the interpreted. Indeed, it was section 161 of the Act that was amended, and the review provision in section 183(1) did not change. 
22	Furthermore, there is nothing in the Ministerial Guidelines for Differential Rating, April 2013 that were introduced as a result of the 2012 amendments to the Local Government Act 1989 that suggests otherwise. Indeed, the Guidelines are of a general nature, such as the following:
Types and classes of land categories and their combination that are considered appropriate for differential rates include the following: 
 general land; 
 residential land; 
 farm land; 
 commercial land; 
 industrial land; 
 retirement village land; 
 vacant land; 
 derelict; and 
 cultural and recreational. 
…
The use of a differential rate applicable to very few property assessments in a municipality should be considered with caution, particularly in relation to setting of higher differential rates, and have regard to the impact on the land subject to the proposed rate and the consequential impact upon the broader municipality through consideration of equity. This is especially so in the case of differential rates applied to narrowly or specifically defined activities or land use types.
23	The VCAT review provision is not mentioned in the Ministerial Guidelines. The guidelines are clearly dealing with the initial establishment of the differential rating regime by the Council, rather than the classification of individual properties in accordance with that regime – i.e. the same distinction drawn by Deputy President Macnamara in Anderson.
24	The second basis upon which the applicant sought to distinguish Anderson and Tedesco was through an argument that these two decisions had been ‘overtaken’ by the Court of Appeal decision in Chopra v Department of Education and Training [2019] VSCA 298. I consider that argument to be misconceived. Indeed, the decision in Chopra is simply not applicable here.
25	In Chopra, the proceeding concerned an application to review a decision under the Freedom of Information Act 1982. An underlying right of review clearly existed under that Act, and the case concerned whether the invalidity of part of a request for documents (caused by a non-compliance with the Act) invalidated the entire request for documents, and thus affected the jurisdiction of VCAT on review and/or the exercise of its power of summary dismissal. Chopra stands as authority for a different principle under different powers under a different Act. Here, the situation is materially different in that there is no underlying right of review to start with. There is no right in section 183 of the Local Government Act 1989 to review the initial establishment of the differential rating regime by the Council. Chopra does not provide authority to alter Parliament’s intent in this regard. The applicant simply does not get to first base. 
26	I consider that Anderson and Tedesco still represent a correct statement of VCAT’s limited jurisdiction under section 183. They provide a common-sense and purposive interpretation of the provision. VCAT can only review whether a particular property has been placed in the correct rating classification out of those that have already been declared by the Council, but it cannot invent or apply a completely new classification. 
27	It follows that the application fails for want of jurisdiction and should properly be dismissed.
Merits
28	Given that the application fails for want of jurisdiction, I make no comment on the merits of Mr Wyke’s contention that the current rating classifications are unfair and/or that a different rating classification should be introduced and applied to ‘The Heritage’ estate. 
29	Moreover, the relief sought by Mr Wyke in this proceeding would not necessarily achieve anything. The Council’s budgetary processes are clearly not reviewable by VCAT. Accordingly, even if VCAT could in some way find that jurisdiction existed under section 183 to compel the Council to introduce a new rating type or class for an ‘integrated tourist resort’, the Council would still control the differential rate in the dollar that might be struck for such land.  It will not necessarily lead to the lower overall rates to which the Owners Corporation aspires.

Mark Dwyer
Deputy President