SHIRE OF CUE

[2016] WASAT 91

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT:   LOCAL GOVERNMENT ACT 1995 (WA)

CITATION:   SHIRE OF CUE [2016] WASAT 91

MEMBER:   MS H LESLIE (MEMBER)

HEARD:   15 JULY 2016

DELIVERED          :   28 JULY 2016

FILE NO/S:   DR 195 of 2016

MATTER                :SHIRE OF CUE

Applicant

Catchwords:

Rates minimum payment ­ Ministerial approval ­ Quashing of rate

Legislation:

Local Government (Financial Management) Regulations 1996 (WA), reg 52, reg 53
Local Government Act 1995 (WA), s 6.35, s 6.82(1), s 6.82(3)

Result:

The rates raised by the applicant for the financial year 2015/2016 for the differential rates category GRV Unimproved be quashed

Summary of Tribunal's decision:

The applicant had, in error, struck a rate without Ministerial approval in circumstances where, under the Local Government Act 1995 (WA), Ministerial approval was required.  The rate was found to be unlawful and was quashed by the Tribunal.

Category:    B

Representation:

Counsel:

Applicant:     N/A

Solicitors:

Applicant:     N/A

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Application

1. The Shire of Cue (Shire) has applied under s 6.82(1) of the Local Government Act 1995 (WA) (LG Act) for an order that the rates raised for the financial year 2015/2016 for the differential rates category 'GRV Unimproved' be quashed.

Jurisdiction

1. Under s 6.82(1) of the LG Act, where there is a question of general interest as to whether a rate or service charge was imposed in accordance with the LG Act, the local government or any person may refer the question to the State Administrative Tribunal (Tribunal) to have it resolved.

2. Under s 6.82(3) of the LG Act, the Tribunal may make an order quashing a rate or service charge when in its opinion it has been improperly made or imposed.

The issue

1. Section 6.35 of the LG Act governs the imposition of minimum payments.  Section 6.35(1) provides:

   Subject to this section, a local government may impose on any rateable land in its district a minimum payment which is greater than the general rate which would otherwise be payable on that land.

2. Section 6.35(2) of the LG Act provides:

   A minimum payment is to be a general minimum but, subject to subsection (3), a lesser minimum may be imposed in respect of any portion of the district.

3. In striking the rate, the Shire imposed a minimum payment under s 6.35(1).  It did not impose a lesser minimum in respect of any portion of the district.  Section 6.35(4) therefore does not apply.

4. However, section 6.35(4) provides:

   A minimum payment is not to be imposed on more than the prescribed percentage of ­

   (a)the number of separately rated properties in the district; or

   (b)the number of properties in each category referred to in subsection (6),

   unless the general minimum does not exceed the prescribed amount.

5. Section 6.35(5) of the LG Act provides:

   If a local government imposes a differential general rate on any land on the basis that the land is vacant land it may, with the approval of the Minister, impose a minimum payment in a manner that does not comply with [subsection] … (4) for that land.  (Tribunal's emphasis)

6. The prescribed percentage for the purposes of s 6.35(4) is 50% (under reg 52 of the Local Government (Financial Management) Regulations 1996 (WA) (Regulations)). The prescribed amount of the general minimum for the 2015/2016 year was $200 (reg 53 of the Regulations).

7. The general minimum payment set by the Shire exceeded the prescribed amount and was imposed on 100% of the properties in the category GRV Unimproved.

8. It is accepted that the Shire did not obtain approval from the relevant Minister as required by s 6.35(5) prior to the imposition of the general minimum payment.

Conclusion

1. Whilst Ministerial approval can be granted for vacant land minimum payments that exceed the 50% limit that would otherwise apply, no such approval was sought by the Shire.  In the Tribunal's view, therefore, the GRV based differential general rate is unlawful as it has been applied to more than the prescribed percentage of properties in breach of s 6.35(4).  Such a question qualifies as a 'question of general interest as to whether a rate … [has been] imposed in accordance with the LG Act' and is a matter capable of reference to the Tribunal under s 6.82(1) of the LG Act.

2. Accordingly, in the view of the Tribunal, the request made by the Shire for the quashing of the rate raised should be acceded to.

Orders

1. Accordingly, the following order is made under s 6.82(3) of the LG Act:

   1.The rates raised by the Shire of Cue for the financial year 2015/2016 for the differential rates category GRV Unimproved be quashed.

I certify that this and the preceding [14] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MS H LESLIE, MEMBER