Variations to ‘Differentiating Factors’ for Differential Rates

As the 2021/22 financial year approaches, rates declarations will soon be front of mind for many of our readers. It is therefore important that readers are aware of certain legislative changes which have recently come into operation, and which will apply with respect to rates declared for the 2021/22 financial year.

In particular, these changes will impact councils which declare (or which are considering declaring) differential rates which vary according to land use category or locality (or both) and/or service rates or annual service charges which vary according to land use category.

Local Government (General) (Differentiating Factors) Variation Regulations 2021

The Local Government (General) (Differentiating Factors) Variation Regulations 2021 (Variation Regulations) have recently modified regulation 14 of the Local Government (General) Regulations 2013. That is the regulation which prescribes differentiating factors for rating purposes.

The Variation Regulations have inserted new concepts from the Planning, Development and Infrastructure Act 2016 into the Local Government (General) Regulations 2013. However, interestingly, the Variation Regulations have also preserved concepts from the Development Act 1993 and Development Regulations 2008 for rating purposes, even though those concepts are effectively extinct for other purposes.

Councils which declare differential rates, annual service charges or service rates which vary according to ‘land use category’ should be aware that definitions set out in the Development Regulations 2008 (regarding dwellings, offices, etc.) are still relevant in determining what land use category a property will fall into. This is the case even though those regulations are revoked, and even though the equivalent definitions in the ‘Planning and Design Code’ (the Code) also apply.

Of perhaps even greater interest, councils which declare differential rates which vary according to ‘locality’, and in particular ‘zones’ (whether or not in combination with land use categories), can now rely upon zones, precincts and localities as set out in the council’s development plan (as it stood immediately before revocation), or zones and subzones in the Code. This gives rise to a potentially useful discretion on the part of such councils. In particular, such councils can rely upon boundaries under the old planning system, or boundaries under the new planning system, or even a combination of both when determining localities for differential rating purposes.

The Variation Regulations did not impose any end date or transitional scheme regarding this peculiar reliance on old and new planning systems for rating purposes. The Local Government (General) Regulations 2013 are also not due to expire for several years. Therefore, in the absence of any further legislative amendment, this ‘hybrid’ differential rating approach appears as though it will remain a feature of local government rating beyond just the 2021/22 financial year.

For more specific information on any of the material contained in this alert please contact Felice D’Agostino on +61 8210 1202 or fdagostino@normans.com.au, Dale Mazzachi on +61 8210 1221 or dmazzachi@normans.com.au or Chris Alexandrides on +61 8210 1299 or calexandrides@normans.com.au.