[Steve Ansoul]

Further to this post… the ESF FAQ’s states:

Q – If the use of a parcel of land is a workshop, motor vehicle repair facility or garage, i.e. mechanic, panel beater, are these activities considered to be a general purpose factory, or are they commercial as they are not manufacturing?

A – If the dominant use of the land is a workshop, motor vehicle repair facility or garage, i.e. mechanic, panel beater, then the land should be classified as industrial land in accordance with Appendix E – Definition of Industrial Land.

I consider a tyre repair facility to meet this definition so will make the classification INDNV.

[Steve Ansoul]

Definition 1 of appendix E is headed “Manufacturing including…” with part a. then stating “General purpose factory… used for manufacturing, assembly or repairs”. It gives an example of “motor vehicle repair facility or workshop”. A little ambiguous for me as the primary heading of 1. is manufacturing but it gives an example of mv repair facility or workshop. Wouldn’t a tyre repair sales/workshop like Bob Jane then meet the example provided so therefore a classification of INDNV? OR is it COMNV because it doesn’t meet “manufacturing” primary heading & not a “general purpose factory”???

[Steve Ansoul]

Its a 3. absolutely from Byron Shire Council thanks Andrew.

Cheers
Steve A.

[Steve Ansoul]

Hi Andrew,

Our council wants to lodge a submission so I was wondering if NSWRP has a draft response to the 12 questions (or the like) that would be available? Only asking so that we can be consistent (if our Council agrees of course). Tourists have a significant impact to our LGA so we intend to ask IPART to consider a “tourism” growth factor as well.

Thanks Andrew.

Steve A.

[Steve Ansoul]

Hi Mary,

We have also received an application from an aboriginal corporation (not a LALC) for exemption as a charity/PBI. This corp has been given exemptions for other properties based on LG general regulation clause 123(d) but 1 property not covered by ILUA and that’s the one they are asking for. I realise corps may have different “rule books” which I am yet to receive but I was wondering about what your case was and the outcome?

Cheers
Steve A.

[Steve Ansoul]

Sorry Jason – should have mentioned that our situation is outside your issue of “research and development”…

[Steve Ansoul]

Hi Jason,

In Byron Bay, a private organisation has leased a section of railway land from the middle of town to the entrance of a resort for the purposes of a light rail service (a few km’s and yes the rail company set up is part of the company that owns the resort). Obviously a business venture but gets tricky as Council is also involved due to the “community benefits” and precinct improvements also realised. Most of the land has “rail infrastructure” on it (i.e. disused rail lines) even though they are building platforms (which I believe are not defined as rail infrastructure). It is owned by Transport for NSW. As you point out, the exemption under section 555g is based on ownership and a lease is irrelevant (even though the Valuer General will provide a valuation due to the lease). As a result, we have determined the land to be exempt as it’s dominant rail infrastructure and owned by TfNSW.

Cheers
Steve A.

[Steve Ansoul]

Hi Lee,

I asked NSW Treasury to review my interpretation of how to apply FESL specifically in regard to conservation agreements and I’ve reproduced my interpretations and Kevin Pugh’s 21/04/17 comments below. It’s a bit lengthy and Kevin Pugh’s comments are in bold + prefixed with “***”. Hope this helps. Steve A.

***Council is ultimately responsible for how it interprets and applies the FESL Act. Even legislation as detailed as the FESL Act is still, to a certain degree, pitched as a reasonably high level framework which then provides discretion for councils to interpret. With that caveat out of the way, allow me to provide feedback on your proposed interpretation below:

Classification

• Section 41 of the Fire and Emergency Services Levy Bill 2017 (FESLB) sets out the steps to classify land and S41 (3)(b) states classify as public benefit land (PBL) if;
o S43 (1)(a) it’s not for profit
 S43 (2) defines not for profit to mean that the whole or the dominant part of the land is not used for profit.
o S43 (1)(b) conservation agreements are listed in the PBL land use purpose list (FESLB Schedule 1 Part 10 (e)).
o S43 (1)(c) states the above purpose (i.e. in this case a CA) is the dominant use of the land it complies as PBL if above conditions are met.

o MY INTERPRETATION: If the percentage of the CA covers greater than 50% of the land then classify as PBL as the CA is the dominant purpose and the use or profit making ability of the remaining portion of the land is irrelevant. If the CA covers less than 50% of the land ,PBL not applicable and classify land based on its dominant use.

o ***This would seem to be one of several reasonable interpretations that might be made. Another might take account of how many people visit and/or enjoy use of the respective sub-parcels and how often.

Land Value Component

• Section 18 (1) of the FESLB states that the land value to use for FESL ad-valorem calculation purposes is the land value we use for rating pursuant to Chapter 15 of the Local Government Act 1993 (LGA). Further sub-sections under s18 provide for exceptions to this rule however, none mention conservation agreements.
• Section 555 (1)(b1) of the LGA states that CA land is exempt from rating and s555 (3) of the LGA states that the rate levied is to be reduced by the land area attributable to the CA.

• MY INTERPRETATION: Leaning towards using the total land value supplied by the Valuer General to calculate FESL for CA land regardless of the FESL classification determined by council. Reason being that S555 (3) of LGA uses the term “any rate levied” rather than requiring a council to reduce the land value based on the percentage of land under CA before levying the rate. This section also covers a reduction of the base amount (fixed rate component) for CA properties which wouldn’t be the case if S555 (3) simply required a land value adjustment. I believe it is common practice (possibly to cater for software limitations) for councils to reduce the land value for CA properties to cater for the automatic levy reduction which may not be technically correct but would result in a correct ad-valorem component levy being calculated.

• ***I think this is the most reasonable interpretation, and that alternative interpretations would not be very strongly supported by the legislative provisions.

Fixed FESL levy component

• MY INTERPRETATION: CA assessments are to pay the full FESL fixed charge based on their FESL classification (regardless of the percentage of land under a CA). FESLB does not cater for an apportionment or reduction of the FESL fixed charge component for CA land and S555 (3) of the LGA is irrelevant for altering/determining a FESL fixed levy component.

• ***Again, I think your interpretation is the correct one.

[Steve Ansoul]

Hi Adele,

I agree with Suzi. The land is not owned by the crown so S555(1a) is irrelevant. Council land is rateable unless specifically exempted. If Council wanted to seek reimbursement for the rates and charges from the lessee, an outgoings clause would have needed to be inserted in the lease agreement.

Steve A.

[Steve Ansoul]

FYI – Byron also received a request to review rateability of the 4 fire stations in our shire. They were all being rated. Title searches were performed and they were all in the name of “Minister for Emergency Services” or “State of NSW”. I acknowledge the prior Act issue with the undertaking “Board of Fire Commissioners” although irrelevant in our case (maybe this is why they had been rated historically). I determined that all are Crown owned land and that “Fire & Rescue NSW” is a state govt agency so therefore exempt under 555 (1a). The other issue for councils that are also water utilities is in regard to water and sewer charging. Non-rateable properties are not exempt from S.502 user charges but should be exempt from 501 annual charges. In our case, historically we have levied volumetric charges (S.502) but also levied fixed water & sewer charges (S.501) if the property utilises the services (based on an equity logic).

Cheers
Steve A.

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