The applicant was the owner of a caravan park that was surrounded on three sides by water. Access to the caravan park was via a bridge over Mooyumbin Creek. However, the bridge fell into disrepair and was closed in 2007. Due to increases in traffic at the alternative access to the caravan park, the Council resolved to design and construct a new bridge, and to recoup those costs from the applicant by way of a ‘special charge’.
Council commenced design for the new bridge in late 2008 and construction of the bridge was complete in early 2010. In June 2011, Council resolved to impose a “special charge” on the land in the amount of $2,157,268 pursuant to the Local Government Act 2009 (LGA) and the Local Government (Finance, Plans and Reporting) Regulation 2010 (Regulation), to cover the costs of designing and constructing the bridge.
The applicant applied for judicial review in the Supreme Court of the decision by Council to impose the special charge on its land.
Section 28 of the Regulation required a local government’s resolution to levy special charges to identify the land to which the charges apply, and the overall plan for the facility to which the charge applies. It was common ground that the local government had to adopt the overall plan before commencing work on the facility.
Under the Regulation, an overall plan was also required to:
Judge Wilson considered the Council’s September 2008 resolution to construct the bridge, and found it could not be an ‘overall plan’ because it did not properly satisfy any of those elements. The June 2011 resolution that purported to impose the special charge was also found not to be an ‘overall plan’ as it was made after the bridge had been completed, not before, as required under section 28.
Accordingly, the Court found that no overall plan had been prepared by Council to support the special charge, as required by the LGA and the Regulation.
To impose a special charge, an annual implementation plan (AIP) must be adopted if the overall plan for the facility was to be for more than one year. The Regulation required an AIP to be prepared for each financial year that actions occur in relation to the facility, not just the year that the special charge is levied. Because the Council did not resolve to levy the special charge until 2011, the Court found that no AIP was prepared by Council.
The Council argued that the non-compliances should not invalidate the special charge, as they were technical, and not essential steps to the exercise of the power to impose a special charge. After considering the explanatory notes and the purpose of the Regulation, which was to provide transparency and accountability in the conduct of local government, the Court held that the steps identified in the Regulation were essential preliminaries to the exercise of the Council’s functions.
Accordingly, strict compliance with section 28 was a precondition to the proper exercise of a local government’s power to levy a special charge, and the special charge was overturned.
While the Regulation has been repealed, similar provisions in relation to special charges exist in the Local Government Regulation 2012. Accordingly, when imposing a special charge, local government must ensure that all procedural requirements for imposing special rates are met, or the rates will be at risk of being overturned.
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