[Suzi Flynn]

The City has a developer who has recently applied for a change of rating categorisation to residential back to the date the demolition was approved. We all know about the Meriton v Parramatta case on this. However, the City is contesting the appropriateness of that ruling and has not recategorised land (going back several years) as requested.

The developer has appealed at LEC on 7 matters, even though in some cases the demolition has either not started or is not complete and commercial tenants still remain on the property. In other matters, construction is complete and Council is only approving to recategorise from the date of application.

This developer, I am told, has recently applied for similarly back-dated rating categorisations to several Councils in the metro area.

If your Council has received similar applications and would like to discuss further, please call me.

[David Grima]

Hi Suzi,
I believe we (the Botany branch of Bayside) have a hearing coming up.
I have been instructed by our Director that we will lose the first hearing (based on the existing Parramatta case) but that we will then be in a position to appeal where we will argue that the judgment was incorrect in the Parramatta case.
This will obviously have ramifications for all Councils.
Dave

[Suzi Flynn]

Hi everyone,
You may have noticed that the court has ruled on this matter and applicant, Karimbla Properties (aka Meriton) was successful on all counts. The case is Karimbla Properties v Council of the City of Sydney; Bayside City Council; and North Sydney Council [2017] NSWLEC 75 and has been posted to the Case Law section of this website.

The City of Sydney has filed its intention to appeal.

This ruling differs in a few ways to the 2003 Meriton v Parramatta case and has even worse implications for all Councils.

Essentially this ruling means that there is no time limit in which an owner must request a change in category and there is no limit to the number of prior years’ refund if the owner fails to notify of or request a change until years later.

Also, Karimbla argued that ‘vacant land’ could include an unoccupied commercial building – an argument that the court upheld.

[Michael Olthof]

G’day Suzi,

Seems like a very odd ruling on vacant land. I read that the judge looked to the dictionary definition of ‘vacant’ only; no mention of the context to land; and then applied that definition to ‘vacant land’. (Even FESL law recognises that land ain’t vacant if it has any material on it.)

Hopefully the new Act will include a comprehensive list of definitions.

Regards, MO.

[Cherie Muir]

Glad to hear that the City is appealing Suzi

[Suzi Flynn]

Just a quick update: The Court of Appeal hearing was held last week on this matter. Now we will await the Judgment.

[Suzi Flynn]

Latest update: the Court of Appeal ruled in favour of the councils and dismissed the LEC ruling.

Karimbla sought leave to appeal to the High Court but the High Court today dismissed their application. This means that the decision of the Court of Appeal stands.

[Author]

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