[Darryl Telfer]

Hi Mary,

First off it may be worth checking with Tweed and Ballina Councils as Gem appear to operate similar properties in those LGAs.
Secondly, always a good idea to get a legal opinion but FWIW her are my completely unqualified findings from a quick look at the legislation etc and Fair Trading.

LGA s514 requires rateable land to be categorised Farmland, Residential, Mining or Business. Fair to say this is rateable and is not a Farm or a Mine – leaves just Residential or Business to choose from – and per s518 it can only be Business if it cannot be Residential.

LGA s516 defines “residential” as “…dominant use is for residential accommodation (otherwise than as a hotel, motel, guest-house, backpacker hostel or nursing home or any other form of residential accommodation (not being a boarding house or a lodging house) prescribed by the regulations).

Fair to say, from what you’ve told us, the dominant use is for residential accommodation. The “otherwise” part above excludes “any other form of residential accommodation … prescribed by the regulations. Also s516 (2) also provides for the regs to determine land that is not to be categorised as residential.

The regs exclude retirement villages (among some other things which don’t seem to resemble the Gem property) from being categorised residential).
Is it a retirement village? Retirement Villages are defined under s5 of the Retirement Villages Act 1999, but s5(3)(d)of the Retirement Villages Act 1999 excludes “a community within the meaning of the Residential (Land Lease) Communities Act 2013 (from the definition of a retirement village).
Is Gem’s property a community within the meaning of the Residential (Land Lease) Communities Act 2013? (if it is, its not a retirement village.
Well, it appears its is a “community within the meaning of the Residential (Land Lease) Communities Act 2013” as it is listed in the NSW Fair Trading’s Accommodation Register https://applications.fairtrading.nsw.gov.au/accomregister/AccommodationSearch.aspx. (and it is not listed in Retirement Village register).

I would still asked them what the residency arrangements are to see if they are operating as a community within the meaning of the Residential (Land Lease) Communities Act 2013.

I think I’ve included all the pieces to the puzzle but to me it looks like they are Residential – i.e. dominant use is for residential accommodation and does not meet any of the exclusions provided in the regs – unless its a manufactured home village!!