BackNaming of property owner in an auction notice when selling property for unpaid rates unreasonable
Background
The Toowoomba Regional Council decided to take action under the Local Government Regulation 2012 to sell a property for overdue rates.
Having previously been advised of council’s intention to sell their property for overdue rates and charges, the landowner awoke one morning to find an auction notice erected outside of the property which contained their full name.
The landowner complained to the Ombudsman’s Office about council’s actions in stating the reason for the notice of sale along with their name.
The investigation
The investigation considered whether it was necessary and/or reasonable for council to name the landowner on the auction notice it erected outside of their property.
There were extensive communications between this Office and council during the investigation exploring the various legal arguments around interpreting the legislative framework for disposing of property for overdue rates and charges. The views of the Department of Infrastructure, Local Government and Planning were also sought during the investigation.
In investigating this matter, the three main issues considered were:
1. Whether council was required to include the landowner’s name on the auction notice
The investigation found that there was no express legislative requirement to include the landowner’s name on the auction notice and that the term ‘a full description of the land’ in s.142(4)(b) of the Regulation should not properly be interpreted as including the name of the landowner.
It was therefore not considered that there was any requirement in the statutory scheme for council to include the landowner’s name on the auction notice.
2. Whether it was a breach of privacy for council to include the landowner’s name
The investigation found that, as the name of the owner of a particular piece of land is a matter of public record, releasing the information is not a breach of privacy.
3. Whether it was reasonable for council to include the landowner’s name
The investigation found that council’s decision to include the name of the landowner on the auction notice was unreasonable. It was considered that the potential for significant distress to a landowner in this situation far outweighed any perceived detriment to a person with an interest in the land.
The outcome
The investigation found that the publication by council of the name of a landowner on an auction notice is not a requirement under s.142 of the Regulation, is unnecessary to support the sale of land process, and has the potential to cause significant distress to a landowner and is therefore unreasonable administrative action.
It was recommended that council cease including landowners’ names in its auction notices and that it review the information that is publicly available relating to land to be sold for overdue rates and charges and make changes to its procedures to ensure no unnecessary publishing of a landowner’s name occurs. Council accepted the recommendations.
Making a difference
An action not being prohibited by law does not necessarily make it reasonable. In this case, while council’s actions in including the landowner’s name were not a breach of privacy, those actions resulted in a level of distress that was unnecessary and this made them unreasonable.
In making administrative decisions which have the potential to cause distress or embarrassment, councils should give consideration to the reasonableness of publicly naming a person, and only do so when essential to the respective decision.
Source: Office of the Queensland Ombudsman, Australia
