[Michael Cherry]

Hi All,

Putting this one out there for opinions.

A religious body has applied for exemption on land upon which a church is under construction. My initial (and perhaps narrow-minded ) view is that exemption should not apply until the land is physically used for public worship.

“(e) land that belongs to a religious body and is occupied and used in connection with–
(i) a church or other building used or occupied for public worship, ”

Has anyone granted exemption during the construction phase?

I note there is some helpful case-law commentary within paragraphs 18 -22 “Bayside Council v Karimbla Properties (No 3) Pty Ltd [2018] NSWCA 257. https://www.caselaw.nsw.gov.au/decision/5be235f4e4b0a8a74af0ab6e

Thanks – appreciate any feedback.

Mick

[Matthew Saunders]

Hi Mick,

I have the same interpretation as you. I have never been 100% confident about the interpretation, but I always quote the legislation and claim that the building must be occupied as a place of worship before the exemption can be granted, and I have quoted this many times. I haven’t had any cases where they question this interpretation, and they wait until the occupation takes place to re-apply. I then grant the exemption from the date of issue of the Occupation Certificate.

Kind regards,
Matthew.

[Bradley Filmer]

Hi Mick,

Same as Matthew, we don’t grant the exemption until the building is occupied. We also use the date of the occupation certificate as the date the exemption starts.
We haven’t been challenged on this either and most applicants are ok once explained to them.

Thanks
Brad

[Ken Bakon]

Fellow Pros,
We had a similar situation regarding the construction of a mosque in Punchbowl.
We initially knocked it back based on not granting exemption until an occupation certificate was issued. Our lawyers initially agreed.
They went to their lawyers who supplied a detailed advice as to why the exemption should be granted even though construction was still taking place.
After our lawyers examined their lawyer’s opinion, our lawyers opinion changed. We then took our lawyers advice with the result being exemption was granted prior to an occupation certificate being issued.

However, each case may be different, so we have not changed our guidelines regarding occupation certificates and will still initially reject future applications until an occupation certificate is issued.

[Tracey Walker]

Hi Mick,

Sorry for the delayed response but as per Matthew and Brad, we have taken the view here they need to be occupying the building in order to be receive the exemption.

[Michael Cherry]

Thanks everyone for your opinions. Interesting topic – appears it is a bit of a grey area which is supported by the fact City of Newcastle also have differing legal opinions which support each view.

Thanks again.

[Author]

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