Gwozdecky v North Sydney Council
[2000] NSWLEC 155
•06/26/2000
Land and Environment Court
of New South Wales
CITATION: Gwozdecky v North Sydney Council [2000] NSWLEC 155 PARTIES: APPLICANT:
RESPONDENT:
Peter Michael Gwozdecky
North Sydney CouncilFILE NUMBER(S): 30033 of 2000 CORAM: Talbot J KEY ISSUES: Practice & Procedure :- appeal against decision determining application for review of categorisation of land - whether out of time - extent of right to appeal LEGISLATION CITED: Local Government Act 1993 s 514, s 525, s 526 CASES CITED: DATES OF HEARING: 26/06/2000 EX TEMPORE
JUDGMENT DATE :06/26/2000 LEGAL REPRESENTATIVES: RESPONDENT:
APPLICANT:
In person
SOLICITORS:
N/A
Mr D T Miller (Barrister)
SOLICITORS:
Windeyer Dibbs
JUDGMENT:
IN THE LAND AND Matter No. 30033 of 2000
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 26 June, 2000
Respondent
1. I have the benefit of submissions from both parties and documents which form the fundamental skeleton of the history of this matter.
2. The applicant in the proceedings, the respondent to the notice of motion, received a rate notice in May 1999 and a further rate notice in July 1999, both of which confirmed that the council had applied the business rate to the subject property in some respect.
3. The applicant subsequently lodged a document headed Application for Change in Category of Land - Categorisation for Rating Purposes, which bears the insignia of the North Sydney Council. He also wrote a letter to the council on 19 July 1999 making submissions in support of the printed application form.
4. I am satisfied that a letter which was forwarded to the applicant on 1 November 1999 was a response to the application. In that respect I do not perceive any issue between the parties.
5. The council recognises that its letter of 1 November 1999 is a declaration pursuant to s 525(5) of the Local Government Act 1993 (“the LG Act”) made in response to an application by the applicant pursuant to s 525(1)(b) to have rateable land declared to be within the residential category for the purposes of s 514.
6. Subsequently, on 3 February 2000 the applicant wrote to the council again, this time to the Mayor directly and forwarding a copy to the General Manager, reiterating the history as he saw it. It is not necessary for present purposes to go into the details or to attempt a comparison with the earlier correspondence but he set out reasons in support of a residential categorisation.
7. Section 525(1)(a) provides that a rateable person may apply to the council at any time for a review of a declaration that the person’s rateable land is within a particular category for the purposes of s 514.
8. For practical purposes it is difficult to discern the distinction between a review of a declaration that the person’s rateable land is within a particular category for the purposes of s 514 and an application to have the person’s rateable land declared to be within a particular category for the purposes of that section. One would have thought that the latter would, in many respects, be the same and certainly similar in most respects to the former.
9. Accepting that the letter on 1 November 1999 was itself a declaration would mean that the letter of 3 February may be a review. One difficulty is that the Court does not have before it any document that purports to be a declaration other than the letter of November and the rate notice.
10. Section 525 places no limit on the number of reviews or applications for a declaration that can be made. Indeed, it specifically says that such an application may be made at any time.
11. Mr Miller refers the Court to s 525(2) which requires that an application must be in the approved form. There is no evidence of what is the approved form. Presumably the Court is asked to infer that because the applicant filled in a particular form that had the insignia of the council on it then that is the approved form.
12. Nevertheless, I am not satisfied that s 525(2) is such that it requires strict compliance. The purpose of the legislation can be satisfied by an application made in other than the approved form, depending on the circumstances and the manner in which the application is made in each case.
13. I am mindful of the fact that if the letter of the 10 February 2000 is not a declaration or the outcome of a review then the applicant will be forced to rely upon the letter sent to him by council on 1 November 1999 as the basis for his appeal.
14. Section 526(2) provides that an appeal by a rateable person dissatisfied with a declaration of a council under s 525 must be made within 30 days of the date the declaration is made.
15. The difficulty with s 526(1)(b) is that it provides a right of appeal only in respect of a declaration under s 525.
16. Fortunately for the applicant, s 525(5) provides for notification of a decision in response to an application for a review of a declaration under s 525(1)(a). The decision must either declare the land to be within the category nominated in the application (s 525(3)), or that it is not within the nominated category (s 525(4) and (5)).
17. In my opinion the Court is entitled to treat the letter of 3 February 2000 as an application for review of either the original declaration, whenever it was made, or the declaration made in November 1999 in response to the applicant’s specific application in that respect. It follows therefore that the relevant date for calculating the period of 30 days is the letter the council wrote in response on 15 March 2000. The application was filed on 12 April 2000 which is within the 30 day period after the date of that letter.
18. I hold that the application is made in time.
19. I accept what Mr Miller says that there is some argument which supports the proposition that the appeal made by the applicant is not in the above category. However, as Mr Miller rightly concedes, it is equivocal. In these class 3 proceedings, I am not prepared to put too fine a point on it.
20. The council was justified in having this issue determined as a preliminary question in the light of the consequences the answer could have for the hearing which is set down for 5 July.
22. The notice of motion is dismissed.21. I do not propose to make any order in respect of the costs of this morning. The question of costs can be dealt with following the hearing, if necessary.
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