Challenging Council Rates and Charges
Ratepayers who receive rates notices that appear invalid must act quickly. The power of Councils to levy rates and charges is created, and limited, by Part 8 of the Local Government Act 1975 (Vic) (LGA), that specifies several different types of rates and charges, the most general being the uniform rate and various forms of charge.
An ambiguity exists regarding when a service rate or charge can be levied. Such a rate or charge is declared, under s162 LGA, to fund services that can include water supply, waste disposal and collection and sewage services. Some ratepayers have been required by councils to pay a service rate or charge even when their land does not and cannot receive that service. The question arises whether there is an implicit requirement in s162 for a ratepayer to receive the service for which the service rate or charge is levied.
Our view is that there is such a requirement. If all landowners were required to pay a ‘service’ rate or charge regardless of whether they received the service, there would be no clear distinction between this rate or charge and the general rate leviable under s160. The insertion of two different sections to deal with the general rate and service rate indicates a legislative intent that a service rate or charge should only be payable by recipients of the relevant service.
There are several avenues for appealing a rate or charge declaration. Special rates and charges (but only special rates and charges) can be appealed to VCAT (s183 LGA). Other rates or charges can be appealed to the County Court (s184 LGA). In all cases, a ratepayer must lodge the application within 60 days of receiving the first written notice of the rate or charge under challenge. This creates a need to act urgently.
If Council purports to impose a rate or charge that is legally invalid or beyond its power, proceedings can be commenced in the Supreme Court. One possible example, arguably, could exist where a Council levies a service charge without providing any such service. Supreme Court proceedings are, of course, technically complex and expensive. Legal advice is required both as to prospects of success and cost-effectiveness.
21 September 2017
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