[Elizabeth Fenning]

Hi all,
I’m seeking advice on a rate exemption application for a property owned by Australasian Conference Association Ltd (ACA) and used as a retirement/aged care facility under Adventist Senior Living.
I’m looking for guidance on:

How to determine from their Constitution whether the land is genuinely used for charitable purposes (key clauses/tests you rely on).
Whether facilities of this nature would typically qualify under s556(1)(h).
Any precedents, red flags, or assessment tips for aged‑care or retirement facilities seeking charitable exemption.

Would appreciate insights from fellow Rating Professionals.

[Srisa Heffernan]

Hi Elizabeth – we are in a similar situation with a LALC applying for non-rateability for 28 of their properties. From my study of the case law – primarily Community-Housing-Limited-v-Clarence-Valley-Council-2015-NSWCA-327-Appeal &
Gumbangerri-Aboriginal-Corporation-v-Nambucca-Council.pdf My primary thoughts are:

1. Looks like they meet the non-rateability test for PBI (Public benevolent Institutions)
“ Examples of charities that may be PBIs include organisations that:
• directly provide relief to people in need, such as:
o some hospitals and hospices
o some disability support services
o some aged care services, or
o providers of low rental or subsidised housing, for people who cannot afford market rent”

2. based on previous similar case law we will probably need to make these non-rateable so we decided that the best way was to go back and ask them to provide more detail on how they “vet” applicants for their homes.
“ eg. As providers of low rental or subsidised housing, how do you ensure your homes are being rented to people who cannot afford market rent?”

Under section 525(4) of the LGA “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.” So we are intending to ask them to furnish council with details on the following questions for council to establish the extent of their charitable activities and make a determination on non-rateability.

a. Can anyone rent these properties or must Aboriginality be confirmed by kinship?
b. Is rent capped or scaled for applicants depending on income?
c. How do you analyse income of the applicants?
d. Who makes the decisions about who is eligible?
e. Is the process of reviewing applicants an open and transparent process?

The majority of these questions came from the judgements of the above case law – the judge used these as points in favour of establishing that the properties in question were in fact non-rateable.

4. we will also ask for current photos of the dwellings proposed to become non-rateable – if the property is vacant land they would automatically become eligible for non-rateability.

I will let you know how we go.

• This reply was modified 3 months, 3 weeks ago by Srisa Heffernan.

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