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31 July 2017 ​Approach to classifying land as "residential" or "business" is confirmed

By Cecilia Rose, Partner

Approach to classifying land as "residential" or "business" is confirmed: Karimbla Properties v Council of the City of Sydney; Bayside City Council; and North Sydney City Council [2017] NSWLEC 75

Why is Karimbla important?

Justice Sheehan confirmed the approach to determining when to categorise land as "residential" under section 516 of the Local Government Act 1993.  It is not necessary to have a building ready for occupation in order to classify it as "residential". The Court can order the Council to repay rates paid under an incorrect classification.

The Decision

While the Councils in the proceedings adopted slightly different approaches to their arguments, one of the central issues was whether Meriton Apartments Pty Ltd v Parramatta City Council [2003] NSWLEC 309 (Parramatta) was correctly decided. Sheehan J considered there was no reason to depart from the ratio decidendi in Parramatta, and confirmed that "activities implementing a development consent, which will lead to a residential development of a type not excluded by the section, dictate that the land in such circumstances be categorised for rating purposes as for "residential accommodation." [98] 
 
Sheehan J also considered whether the Court could order a repayment of rates paid previously under the incorrect categorisation.  North Sydney argued that if a refund was sought, different proceedings for restitution would be required.  Sheehan J was satisfied that having regard to the objective of finality in proceedings (section 64(2) of the Civil Procedure Act 2005) and the broad jurisdiction of the Land and Environment Court, that it was possible to make an order for repayment, and that it was appropriate to do so.  The Applicants were therefore entitled to a repayment of rates paid previously under different categorisations [124].
 
Find the case here.

Cecilia Rose, Partner  |  Phone: +61 2 9233 5544  |  Email: cxr@swaab.com.au

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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