Imhoff v Port Stephens Council

[2005] NSWLEC 262

Land and Environment Court

of New South Wales

CITATION:	Imhoff v Port Stephens Council [2005] NSWLEC 262
PARTIES:	Denese Imhoff and Neville Imhoff Port Stephens Council
FILE NUMBER(S):	30126 of 2005
CORAM:	Cowdroy J
KEY ISSUES:	Appeal :- rating - appeal against categorisation of land - whether appeal within time - whether applicants requested review of categorisation
LEGISLATION CITED:	Local Government Act 1993 Pt 3, ss 514, 520, 521, 525, 526(2)
CASES CITED:	Gwozdecky v North Sydney Council (2000) 108 LGERA 389
DATES OF HEARING:	10/05/2005
DATE OF JUDGMENT:	05/23/2005
LEGAL REPRESENTATIVES:	APPLICANTS In person SOLICITOR Denese Vale & Associates RESPONDENT T Howard SOLICITOR Harris Wheeler

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Cowdroy J

23 May 2005

30126 of 2005

DENESE IMHOFF AND NEVILLE IMHOFF
Applicants

PORT STEPHENS COUNCIL
Respondent

JUDGMENT

1 Cowdroy J: By notice of motion dated 6 April 2005 Port Stephens Council (“the Council”) seeks summary dismissal of the applicants’ appeal against Council’s categorisation for rating purposes of the applicants’ land.

Facts

2 The applicants are the registered proprietors of unit 2 in strata plan 18390 located in Columbia Close, Nelson Bay (“the unit”). Prior to 2004 the Council had categorised the unit as business premises for rating purposes pursuant to s 514 of the Local Government Act 1993 (“the Act”).

3 On 21 July 2004 the Council issued a rate notice for the unit based upon the business category. On 4 August 2004 the applicants wrote to the Council requesting a change in the categorisation from business to residential. By letter dated 18 August 2004 the Council responded seeking further information from the applicants and requested that an application form be completed and returned. On 30 August 2004 a Council officer, Mr Barrass conducted an inspection of the unit and on 17 November 2004 the Council received the completed Residential Rating Application signed by the applicants.

4 By letter dated 26 November 2004 Council responded advising the applicants inter alia as follows:-

Council has determined the land category for the above property to be business. The reason for this is that from the information you have provided Council has determined that the property is not used for residential purposes within the meaning of section 516 of the Local Government Act, 1993 as the property is not used as a residence. Section 518 of the Local Government Act requires land that cannot be categorised as residential, farmland or mining to be categorised as business.

Section 526 of the Local Government Act allows you to appeal Council’s declaration to the Land and Environment Court within 30 days of this declaration.

Thereafter the letter set out the terms of s 526 which provides:-

526 Appeal against declaration of category

(a) the date on which a declaration is specified, under section 521, to take effect, or

may appeal to the Land and Environment Court.

(2) An appeal must be made within 30 days after the declaration is made.
(3) The Court, on an appeal, may declare the date on which a declaration is to take effect or the category for the land, or both, as the case requires.

5 By letter dated 15 December 2004 received by the Council on 20 December 2004, the applicants responded stating that they would be spending more time at the unit as a result of their retirement and provided further details concerning the furnishing of the unit and of the fact that they had each joined local clubs. The letter concluded:-

Accordingly I would be pleased if you would amend the category of our property to residential. I note your advice that we have only 30 days to appeal your declaration. In the vent that you do not change the category to residential then we request an extension of the appeal period in view of the above circumstances and the Christmas period. Please address all future correspondence to our Nelson Bay address.

6 On 23 December 2004 the applicants made a telephone enquiry of the Council concerning their letter and were informed that there would be no response until the new year. A further enquiry was made on 17 January 2005 in which Mr Barrass indicated that he would need to conduct an inspection of the unit and obtain further information.

7 On 20 January 2005 Mr Barrass inspected the unit. At the conclusion of the inspection, Mr Barrass explained to the applicants that he had not been provided with sufficient evidence to change Council’s categorisation and that other evidence such as a change of address on drivers’ licences and electoral role and proof of a mailing address at the unit would support their claim. Mr Barrass also obtained further details from the applicants concerning their periods of occupation of the unit.

8 Another Council officer, Ms Helen Wild, in her affidavit sworn on 6 April 2005, referred to a conversation she held on 3 February 2005 with Denese Imhoff in which Ms Imhoff disagreed with the Council’s categorisation of the unit. Ms Wild advised Ms Imhoff to seek legal advice.

9 On 8 February 2005 the Council received a letter written by the applicants which referred to the conversation with Ms Helen Wild. No further information as discussed with Mr Barrass on 20 January 2005 was provided.

10 Council did not make any declaration after 26 November 2004. On 18 February 2005 the applicants filed their appeal against Council’s categorisation of the unit as “business” under s 514 of the Act.

Legislative Provisions

11 Section 514 contained in Pt 3 of the Act makes provision for the categorisation of land for purposes of ordinary rates as follows:-

Before making an ordinary rate, the Council must have declared each parcel of rateable land in its area to be within one or other of the following categories:

· farmland

· residential

· mining

· business.

Note. Land falls within the “business” category if it cannot be categorised as farmland, residential or mining. The main land uses that will fall within the “business” category are commercial and industrial.

12 Section 520 of the Act provides for notification of a declaration of the category selected for rating purposes by the Council, as follows:-

520 Notice of declaration of category

(1) A council must give notice to each rateable person of the category declared for each parcel of land for which the person is rateable.
(2) The notice must be in the approved form and must:
(a) state that the person has the right to apply to the council for a review of the declaration that the land is within the category stated in the notice, and
(b) state that the person has the right to appeal to the Land and Environment Court if dissatisfied with the council’s review, and
(c) refer to sections 525 and 526.

13 Section 521 provides:-

A declaration that a parcel of land is within a particular category takes effect from the date specified for the purpose in the declaration.

14 Section 525 relevantly provides:-

525 Application for a change of category

(1) A rateable person (or the person’s agent) may apply to the council at any time:
(a) for a review of a declaration that the person’s rateable land is within a particular category for the purposes of section 514, or
(b) to have the person’s rateable land declared to be within a particular category for the purposes of that section.
(2) An application must be in the approved form, must include a description of the land concerned and must nominate the category the applicant considers the land should be within.
(3) …
(4) If the council has reasonable grounds for believing that the land is not within the nominated category, it may notify the applicant of any further information it requires in order to be satisfied that the land is within that category. After considering any such information, the council must declare the category for the land.
(5) The council must notify the applicant of its decision. The council must include the reasons for its decision if it declares that the land is not within the category nominated in the application.
(6) If the council has not notified the applicant of its decision within 40 days after the application is made to it, the council is taken, at the end of the 40-day period, to have declared the land to be within its existing category.

Council’s submissions

15 Council submitted that there are two types of declarations, namely those made pursuant to s 514 and those made pursuant to s 525 and that the words “for the purposes of section 514” contained in s 525(1) had the effect of allowing a review of a determination under s 514 but not a review of a declaration made under s 525. The declaration made by the Council on 26 November 2004 was made pursuant to s 525.

16 Council submits that pursuant to s 526(2) of the Act it is mandatory for an appeal to be made within 30 days of a declaration made under s 525. It submits that such declaration was made on 26 November 2004 and allowing for public holidays, the appeal, being instituted on 18 February 2005, is out of time. It follows that the appeal is incompetent.

Applicants’ submissions

17 The applicants submit that their letter of 15 December 2004 constituted an application for a review of the Council’s declaration for rating purposes and that the review was sought pursuant to s 525(1) of the Act.

18 The applicants submit that pursuant to s 525(6), in the absence of a declaration by Council, Council is deemed to have declared the land to be within the “business” category on 23 January 2005, being the expiration of the forty day period provided by that subsection. Accordingly the applicants were entitled to an additional 30 day period in which to appeal pursuant to s 526(2), with the result that the appeal is within time.

Findings

19 In Gwozdecky v North Sydney Council (2000) 108 LGERA 389 Talbot J considered the provisions of ss 525 and 526 of the Act. His Honour observed as follows:-

[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.

20 Talbot J also observed at [15]:-

[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.

21 Assuming Council’s letter of 26 November 2004 constituted a declaration made under s 525(5) of the Act, the thirty day period for appeal provided by s 526(2) would have expired on 29 December 2004, giving allowance for the two public holidays.

22 By their letter of 15 December 2004, the applicants requested the Council to “amend the category of our property to residential”. Whilst the word “review” is not used, it is clear that the letter constitutes an application for review. Section 525(2) refers to the need for an approved form. The applicants’ letter contained the essential details required for a review and no evidence was led to show that any “approved form”, prescribed by statute or regulation, exists. Talbot J in Gwozdecky made similar observations as follows:

[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.

23 By its declaration made on 26 November 2004, Council exercised its power under s 525(3) to declare the unit to be within the business category. In doing so, Council confirmed the categorisation which had previously been made pursuant to s 514. It follows that the Council’s letter of 26 November 2004 comprises a declaration.

24 The power provided by s 525(1) enables a rateable person to apply “at any time” for a review of the declaration that their land is within a particular category, or alternatively to have the land declared to be within a particular category, for the purpose of s 514. Following receipt of the applicants’ letter, the Council sought and obtained further particulars from the applicants and carried out an internal inspection of the premises on 20 January 2005. Such conduct is entirely consistent with Council’s investigation for the purpose of a review of its declaration of categorisation made on 26 November 2004.

25 The broad power provided by s 525(1) entitled the applicants to seek a review of the Council’s declaration of 26 November 2004. The letter of 15 December 2004 constituted such an application. The fact that such review initiated a reconsideration of Council’s previous declaration of 26 November 2004 is immaterial since s 525(1) does not limit the number of reviews that may be sought. The Court therefore rejects the submission that s 525(1) prevents the review of a declaration made under that section.

26 Council did not determine the application for the review within 40 days of 20 December 2004, being the date of receipt of the applicants’ letter of 15 December 2004. As a consequence, on 29 January 2005 pursuant s 525(6) the Council is deemed to have declared the land to be within its existing category. The applicants, being dissatisfied with such declaration, were entitled to appeal under s 526 to this Court within 30 days thereafter, or by 28 February 2005.

27 Since the applicants’ appeal was instituted on 18 February 2005, it follows that the appeal is within time. Accordingly, the Council’s notice of motion fails.

Orders

28 The Court orders:

1. The Notice of Motion dated 6 April 2005 be dismissed.

2. The respondent pay the applicants’ costs.