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Inside track: Local Government

05 October 2021

#Local Government

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Inside track: Local Government

Why council rates and charges are just so special

A recent decision of the Supreme Court of Queensland in Kozik & Ors v Redland City Council [2021] QSC 233 was handed down on 13 September 2021, which required Redland City Council (Council) to refund the full amount of special rates and charges that it had levied with respect to land adjacent to its canal estates since 2011. The Council expended considerable funds in dredging, maintenance and managing environmentally relevant activities in relation to the canal estates and had sought to cover these costs because the service provided a special benefit to the landowners adjacent to the canal estates.

What happened

From July 2011 to 30 June 2017, the Council had passed resolutions to levy special rates and charges (Special Charges) against landowners whose land was adjacent to the Aquatic Paradise Canal Reserve and Marina, Sovereign Waters Lake Reserve and Raby Bay Cabal Reserve and Marina (Reserves) within the Redland local government area.

The Council has the power to levy Special Charges under the Local Government Act 2009 (LGA) and Local Government Regulation 2012 (LGR) and, before the enactment of the LGR, under section 28 of the superseded Local Government (Finance, Plans and Reporting ) Regulation 2010 (2010 LGR) which has similar provisions as the LGR.

Under the LGR, a local government may levy Special Charges for services, facilities and activities that have a special relationship to particular land because the land or occupier of the land:

  • specially benefits; or
  • has or will have special access; or
  • the land is, or will be, used in a way that specially contributes to the need; or
  • the occupier specially contributes to the need for the service facility or activity.

In this case, the Special Charges were to fund capital and operational expenditure for the services undertaken in the Reserves by the Council and for which the adjacent landowners were considered to receive a special benefit.

The Council issued rates notices from 2011-2017 and included the Special Charges to be paid by the landowners who dutifully paid the rates notices, including the Special Charges. However, around March 2017, the Council became aware that the Resolutions it had passed each year to levy the Special Charges were not validly made.

As a result, the Council refunded, with interest, the balance of the Special Charges that had not been expended for the services to each affected landowner.

The landowners then commenced proceedings in the Supreme Court to recover all the Special Charges they paid since 2011, which included the amount of the funds already spent by the Council to provide the services.

What does the law say

A local government must levy general rates for rateable land, a requirement under section 94 of the LGA. However, in addition to the general rates and charges, a local government may levy Special Charges if it chooses to do so and must follow the process set out in section 94 of the LGR. In this case, both the 2010 LGR and the LGR were relevant.

To levy rates and charges, a local government must pass the appropriate resolutions at its budget meeting each financial year, stating what rates and charges will apply for the coming financial year.

However, to levy Special Charges, a local government must also comply with the process set out in section 94B of the LGA and section 94 of the LGR. If it intends to levy Special Charges, a local government must pass a resolution that identifies the rateable land to which Special Charges will apply and adopt an overall plan.

The overall plan must be adopted when the local government first resolves to levy Special Charges and must include the following:

  • a description of the service, facility or activity that is the subject of the Special Charge
  • identifies the rateable land to which the Special Charge will apply
  • include an estimate of the cost of carrying out the overall plan
  • include an estimated time frame to carry out the overall plan.

In addition to the above, a local government must adopt an annual implementation plan if the proposed service, facility or activity costs need to be recovered over more than one financial year. The annual implementation plan, which sets out the activities of the overall plan that will be undertaken that financial year, must be adopted at the annual budget meeting until the service facility or activity identified in the overall plan has been completed.

Section 94 (14) of the LGR also provides that a resolution or overall plan is not invalid merely because it does not identify all rateable land to which the Special Charges could apply or where rateable land is included where the Special Charges should not have been levied.

Section 95 of the LGR also states that surplus Special Charges collected in a financial year can be retained for the following financial year’s annual implementation plan if it is not spent in the financial year in which it was collected. However, this is only the case for the duration of the overall plan. Once the overall plan expires, any surplus Special Charges must be refunded to the relevant ratepayer.

More relevant is section 98 of the LGR, which requires a local government to refund Special Charges if “a rates notice includes special rates and charges that were levied on land to which the special rates or charges do not apply or should not have been levied”. This section provides that while the rate notice is not invalid, the local government must return surplus Special Charges as soon as practicable.

What went wrong

The fundamental issue was that the resolutions passed by the Council in 2011 and 2012 identified a document as the overall plan, but this document did not include an estimate of costs or time to complete the overall plan. As such, the adoption of the overall plan, which was non-compliant with the requirements of the LGR, was invalid.

Failing to adopt a valid overall plan at the time the Council first resolved to levy Special Charges meant that the resolutions passed (by the Council) over the subsequent years were also invalid because the overall plan is, as held by the Court, the “central feature of the regulatory scheme for special rates and charges”.

The Court also held that because each of the resolutions was invalid, it “makes it appropriate to regard them as of no effect from the beginning and incapable of ever having provided legal effects”.

While the Council refunded unspent Special Charges (when it became aware that the resolutions were invalid), it did not refund an amount equivalent to the spent portion of the Special Charges, arguing that to refund the full amount would “unjustly enrich” the landowner who had, and would continue to, receive the benefit of the services already provided.

On this point, the Court held that “The Council cannot avoid or diminish its statutory obligation to return the amount of the Special Charges to each person who paid them, by a defence that the payers will be unjustly enriched by the return”. This is because the Special Charges were not valid from the beginning, and if the Council did not return the Special Charges in total, it would in effect retain funds to which it has no entitlement.

The Court held that the full amount of the Special Charges had to be returned to the relevant ratepayers because the Special Charge itself was invalid and should not have been levied. Therefore, by operation of section 98 of the LGR, the Council is required to refund the Special Charges in full.

It may be that the Council will appeal this decision given the implications and the Special Charges that will have to be refunded. Local governments throughout Queensland including those with canal estates for which Special Charges are levied will also be watching on with interest.

How we can help

Our team of local government lawyers regularly review and advise on rates and charges including the validity of special rates and charges and the process of drafting and adopting overall plans and annual implementation plans. If you need any assistance, please speak to us or contact us here.

Author: Eleanor Scott

In the media

Commonwealth

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Cyber-attacks on local, state and Cwth governments ‘on the rise’
Cybercrime reports to the Australian Cyber Security Centre (ACSC) in 2020-21 were up nearly 13 per cent on the previous financial year. Commonwealth, state, territory, and local governments accounted for 35 percent of these incidents, ACSC said in its annual Cyber Threat Report released this month (17 September 2021).  More...

ALGA responds to new warnings of growing climate change impacts at the local level
The Australian Local Government Association (ALGA) has applauded calls for the nation’s 537 councils to be given greater backing to protect local communities from the accelerating impacts of climate change (23 September 2021).  More...

Neighbourhood issue: Climate costs and risks for council
As the level of government closest to the community, councils are at the heart of responding to climate impacts. The findings and case studies in this new report paint a picture of the impacts and scale of the challenge councils face, but also outline a pathway to overcome them (22 September 2021).  More...

Commonwealth renews new push to boost remote-area recycling
Regional and remote areas of Australia will get new or expanded recycling facilities after $7 million in new federal funding was announced this week. The grant funding will be made available through the Recycling Modernisation Fund and will be additional to the 23 projects that have already been identified in regional and remote Australia (17 September 2021).  More...

Victoria

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The Brimbank Ratepayers and Residents Association is calling for increased accountability and transparency from Brimbank councillors. The association recently wrote to all councillors with concerns that many aren’t responsive to resident enquiries, don’t reply to emails or phone calls, nor engage via social media platforms (25 September 2021).  More...

Local councils in Victoria investigate mandatory net zero carbon buildings
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Bid to boost Ballarat's brand as university town with $6m masterplan
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Federal government’s car parking scheme leads to council division
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NSW

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Sydney's west to boom with $139 million in new infrastructure
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Planning changes delivered to prohibit gas exploration in 16 LGAs
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Council credit card management under the microscope
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New Rural Boundary Clearing Code
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Queensland

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Council alliance takes collaborative approach to waste management
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In Practice and Courts

Victoria

MAV submissions – September 2021
MAV-ABM Submission to draft Victorian Recreational Boating Strategy

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Plan Melbourne land use framework 
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Designated bushfire prone areas (BPA) map updated
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Investment fast track fund 2021: Second round
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Investment Fast-Track Fund guidelines
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Funded activities must be completed by 30 June 2022.

Queensland

Draft State Infrastructure Strategy
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The draft vision anticipates the State’s infrastructure needs over the next two decades and will be supported by seven regional infrastructure plans.
The QGIP is a detailed program of the Government's four-year $52.2 billion infrastructure spend and also outlines the potential future proposals currently under consideration by the Queensland Government.
Feedback on this draft SIS is now open until 7 October 2021.

Building our regions Round 6
Guidelines for Round 6 are being provided to regional councils so they could assess potential projects to submit for funding when applications open in the coming weeks. Councils can apply for up to $2 million in funding to support a range of eligible construction and works projects over three years. More information about Building Our Regions is available here (September 2021).

Cases

Pattison v Victorian Electoral Commission (Review and Regulation) [2021] VCAT 1073
Review and Regulation List – Local Government Act 2020 ss 123; 288; 304; 311; 312 – review of declaration of result of election – applicable principles. 

Moreland CC v Trinh [2021] VCAT 1016
Approved apartment building – non-compliance with endorsed plans – request to amend permit – application for enforcement order – heritage – neighbourhood character impacts – overlooking across roadway – capacity to use as additional dwelling – parking and safety.

Whittlesea CC v Gamble [2021] VCAT 1084
Section 109 of the Victorian Civil and Administration Act 1998 – application for costs associated with enforcement proceeding under section 114 of the Planning and Environment Act 1987. 1 The application for costs by Whittlesea City Council against Jason Gamble is refused.

Moreland CC v Soas [2021] VCAT 1081
Section 109, 115B and 115C of the Victorian Civil and Administration Act 1998 – application for costs and reimbursement of fees associated with enforcement proceeding under section 114 of the Planning and Environment Act 1987.
1 The respondent, Basem Soas, is ordered to pay the costs of the applicant, Moreland City Council, fixed in the sum of $4,000.00.

Deputy Secretary of the Department of Local Government, Planning and Policy v Douehi [2021] NSWCATAD 279
LOCAL GOVERNMENT – whether councillor breached the Local Government Act 1993 (NSW), the Local Government (General) Regulation 2005 and the Council's Code of Conduct.

Walker v Northern Beaches Council [2021] NSWCATAD 277
ADMINISTRATIVE LAW – access to government information – restraint order in place – leave required for applicant to apply for information under Government Information (Public Access) Act 2009 (NSW) – Transitional Provisions Northern Beaches Council.

Trevor Allan McBride v MidCoast Council [2021] NSWLEC 100
VALUATION – compulsory acquisition – before and after valuation method – highest and best use as a manufactured home estate – hydrological and ecological constraints on development – market value – Severance – injurious affection – disturbance.

Drake v Randwick City Council [2021] NSWLEC 98
COSTS – applicant commences Class 4 proceedings seeking declaratory relief – proceedings concerned application of cl 4.1A of the Randwick Local Environmental Plan 2012 to nominated development proposal plans – Applicant subsequently amends relief – amended relief seeks abstract judicial advice concerning cl 4.1A – not appropriate to give judicial advice sought – related Class 1 proceedings based on cl 4.1A fail because design merit proceedings fail – Class 4 proceedings dismissed – no reason to depart from presumption that costs follow the event – applicant to pay Respondent's costs of Class 4 proceedings – applicant to pay Respondent's costs of Class 4 costs consideration.

Caulfield v Bellingen Shire Council [2021] NSWCATAD 267
HUMAN RIGHTS – discrimination – enforcement of settlement – whether Deed of Settlement and Release precludes applicant for continuing with claim.

Woodbine Park Nominees Pty Limited v Wingecarribee Shire Council [2021] NSWLEC 1530
MODIFICATION APPLICATION – bulk water extraction and storage – removal of trial period condition – contentions resolved – consent orders.

New v Ku-Ring-Gai Council [2021] NSWCATAD 263
ADMINISTRATIVE LAW – access to government information – access application –review of decision that information not held by an agency.

Eastwood & Anor v Scenic Rim Regional Council [2021] QCA 197
The District Court judge was correct in her conclusion that the limitation defence must succeed so that there was no need for a trial of the action. The application to extend time should be refused.
license to occupy, caravan parks – Council leases on the property – occupation of site for the life of the caravan park.

Kozik & Ors v Redland City Council [2021] QSC 233
LOCAL GOVERNMENT – POWERS, FUNCTIONS AND DUTIES OF COUNCILS GENERALLY – POWERS GENERALLY – ULTRA VIRES OR ILLEGAL EXERCISE OF POWER – where the plaintiffs owned waterfront residences on land within the Redland City local government area – where the defendant local Council passed resolutions to levy special charges to fund lake and canal works and services (‘the services’) – where the resolutions were passed without compliance with mandatory provisions in the relevant regulations – where the Council refunded the amount of the special charges that had not been spent on the services – where the Council contends that it is not lawfully obliged to return the spent portion of the special charges – whether the plaintiffs are entitled to recover the balance of the special charges
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – CLASS ACTIONS OR GROUP PROCEEDINGS – where the claim is a representative action under Part 13A of the Civil Proceedings Act 2011 (Qld) – where the plaintiffs bring their claim on behalf of a group of registered home owners in the local government area who paid the special charges (‘the group members’) – where the Court is to decide five questions of law or fact common to the claims of the group members
REAL PROPERTY – RATES AND CHARGES – RATING OF LAND – RECOVERY OF OVERPAID RATES – where the Council passed invalid resolutions for special charges – where the special charges were paid in rate notices – whether the Council is obligated to return the percentage of invalid special charges
EQUITY – GENERAL PRINCIPLES – UNJUST ENRICHMENT – where the Council contends that if it were to return the spent amount would be to unjustly enrich the plaintiffs and group members – where by reason of the invalid resolutions, the Council had no right to make, use or retain any part of the special charges – where the services have conferred some benefit on the plaintiffs and group members – whether the Council can avoid its statutory obligation to return the balance of the special charges by defence that to do so would unjustly enrich the plaintiffs and group members
RESTITUTION – INVOLVING CROWN OR PUBLIC AUTHORITIES – CLAIMS AGAINST CROWN OR PUBLIC AUTHORITIES – whether the plaintiffs can recover the balance of the special charges as money had and received
Constitution of Queensland 2001 Qld s 65, s 71.

Serratore & Ors v Noosa Shire Council (No.2) [2021] QPEC 46
PLANNING AND ENVIRONMENT – APPEAL – COSTS – where each appellant given an enforcement notice under s 168 of the Planning Act 2016 in relation to vegetation clearing – appeal against decision to give the enforcement notices – where appeal allowed and enforcement notices set aside – where declarations and consequential orders made – whether Council’s case against the second, fifth, sixth and seventh appellants was without reasonable prospects of success, or alternatively, frivolous or vexatious – whether Council failed to properly discharge its responsibilities in the proceeding
Planning Act 2016 Qld s 168; Planning and Environment Court Act 2016 Qld ss 59, 60 and 61

Legislation

Victoria

Bills

Date of second reading speech: 16 September 2021
Water and Catchment Legislation Amendment Bill 2021 (Vic)

NSW

State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment (No 2) 2021 (2021-544) – published LW 17 September 2021

State Environmental Planning Policy (Vegetation in Non-Rural Areas) Further Amendment 2021 (2021-545) – published LW 17 September 2021

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

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