[Jeanette Coen]

Council and the VG have just been notified that a permissive occupancy ceased in 2016, however neither Council or the VG received no notification at the time of cancellation. The entity holding PO had paid the rates up to the 30 June 2019. The entity wrote to Council in July wanting to know why they were still receiving rate notices as they had no property or leases in our shire. I advised that we had a valuation provided by the VG (based on the PO) and we were obligated to rate them accordingly. The VG have advised Council that the valuation has now been cancelled. My question: Does Council have to adjust the rates back to 2016 and refund any rates paid or can make the adjustment to the date of the Crown actually notified us the PO was cancelled which was late August. When I contacted Crown Lands I was advised that Council had never been notified of the cancellation as the notice of cancellation went to the neighbouring Council where the entity also had a PO.

[Simone Fisher]

Hi Jeanette,

We had one similar to this a few years back. In our case rates had continued to be levied on a crown lease that expired in the 1970’s & the ratepayer had continued to pay the rates despite no longer using the land. The ratepayer submitted a request for refund of all rates paid back to the early 1970’s & we declined the request using the below reasons:

Section 574(3) of the Local Government Act 1993 provides that an appeal on question of whether land is rateable or subject to a charge must be made within 30 days after service of the rates and charges notice.

Section 2(1) of the Recovery of Imposts Act 1963. Section 2(1) provides:

2 Limitation on time for the bringing of proceedings to recover taxes

(1) No proceedings shall be brought to recover from the Crown or the Government or the State of New South Wales or any Minister of the Crown, or from any corporation, officer or person or out of any fund to whom or which it was paid, the amount or any part of the amount paid by way of tax or purported tax and recoverable on restitutionary grounds (including but not limited to mistake of law or fact):

(a) in the case of a payment made before the commencement of this Act, after the expiration of the time within which such proceedings but for the enactment of this Act might have been brought or the expiration of twelve months after the date of the commencement of this Act, whichever period first expires, or

(b) in the case of a payment made subsequent to the commencement of this Act, after the expiration of twelve months after the date of payment.

I did abit of digging at the time though & could not find any court cases where section 574(3) & The Recovery of Imposts Act had been tested in this type of situation. If the ratepayer had come back to us or if it had have proceeded to court we would have sought legal advice & I think in all probability would have negotiated write-off & refund for a number of years.

Hope this is of some help.

Regards,

Simone

[Matthew Saunders]

Hi Jeanette,

You can quote sec 574 regarding time for appeal on whether they are subject to (a)rates or (b) charges, is limited to 30 days after the service of the rates notice.

The section specifically mentions a holder of a licence or permit for land under the Crown Land Management Act 2016, so you may have some success using this. I would check if this provision applies to the land in question, considering the crown lands Act was enacted in 2016, to see if the Crown Land Act 2016 superseded whatever Act it was previously leased under.

Kind regards,

Matthew.

[Jeanette Coen]

Hi Simone and Matthew, Thank you very much for your response. That was the response I was hoping for just need ed to confirm.

Kind Regards Jeanette

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