Approach to clas­si­fy­ing land as ​“res­i­den­tial” or ​“busi­ness” is confirmed

Approach to clas­si­fy­ing land as ​“res­i­den­tial” or ​“busi­ness” is con­firmed: Karim­bla Prop­er­ties v Coun­cil of the City of Syd­ney; Bay­side City Coun­cil; and North Syd­ney City Coun­cil [2017] NSWLEC 75

Why is Karim­bla important?

Jus­tice Shee­han con­firmed the approach to deter­min­ing when to cat­e­gorise land as ​“res­i­den­tial” under sec­tion 516 of the Local Gov­ern­ment Act 1993. It is not nec­es­sary to have a build­ing ready for occu­pa­tion in order to clas­si­fy it as ​“res­i­den­tial”. The Court can order the Coun­cil to repay rates paid under an incor­rect classification.

The Deci­sion

While the Coun­cils in the pro­ceed­ings adopt­ed slight­ly dif­fer­ent approach­es to their argu­ments, one of the cen­tral issues was whetherMeri­ton Apart­ments Pty Ltd v Par­ra­mat­ta City Coun­cil [2003] NSWLEC 309 (Par­ra­mat­ta) was cor­rect­ly decid­ed. Shee­han J con­sid­ered there was no rea­son to depart from the ratio deci­den­di in Par­ra­mat­ta, and con­firmed that ​“activ­i­ties imple­ment­ing a devel­op­ment con­sent, which will lead to a res­i­den­tial devel­op­ment of a type not exclud­ed by the sec­tion, dic­tate that the land in such cir­cum­stances be cat­e­gorised for rat­ing pur­pos­es as for ​“res­i­den­tial accom­mo­da­tion.” [98]

Shee­han J also con­sid­ered whether the Court could order a repay­ment of rates paid pre­vi­ous­ly under the incor­rect cat­e­gori­sa­tion. North Syd­ney argued that if a refund was sought, dif­fer­ent pro­ceed­ings for resti­tu­tion would be required. Shee­han J was sat­is­fied that hav­ing regard to the objec­tive of final­i­ty in pro­ceed­ings (sec­tion 64(2) of the Civ­il Pro­ce­dure Act 2005) and the broad juris­dic­tion of the Land and Envi­ron­ment Court, that it was pos­si­ble to make an order for repay­ment, and that it was appro­pri­ate to do so. The Appli­cants were there­fore enti­tled to a repay­ment of rates paid pre­vi­ous­ly under dif­fer­ent cat­e­gori­sa­tions [124].

Find the case here.