South Australian Supreme Court finds an “implied power” for councils to take possession of land

The power to sell land for non-payment of rates under section 184 of the Local Government Act 1999 (LG Act) is one of the more significant powers which South Australia’s Parliament has conferred upon local government councils.

Recent judicial consideration by the Supreme Court of South Australia has shed light upon just how broad that power is.

In particular, in The Corporation of the City of Marion v Nash [2022] SASC 29, Judge Dart of the Supreme Court recently found that it is necessary to “imply” into the LG Act a power on the part of a council to take possession of land to facilitate the sale of land under section 184 of the LG Act. This conclusion was reached after consideration of New South Wales Supreme Court authority regarding the equivalent power in that State, and the practical necessity of councils being able to take possession of land in order to facilitate the sale of land.

The power to sell land for non-payment of rates is generally a last resort. Its exercise often leads to significant resistance from owners and occupiers, at all stages of the process. Thus, having Supreme Court authority for the proposition that a council may indeed take possession of land for the purpose of sale is very useful particularly in cases where the land is occupied.

Nevertheless, sale of land for non-payment of rates is a process which can never be guaranteed to proceed smoothly, and the ability to obtain an order for possession under the “implied” power described by Judge Dart does require court proceedings. We always encourage any council contemplating sale of land for non-payment of rates to seek legal advice. Norman Waterhouse has significant experience in advising councils on all debt recovery options, up to and including all stages of the process for sale of land for non-payment rates.

Felice D’Agostino on 8210 1202 fdagostino@normans.com.au or Dale Mazzachi on 8210 1221 dmazzachi@normans.com.au.