Supreme Court decision in Mornington Peninsula Beach Box Association Inc & Anor v Mornington Peninsula Shire Council [2021] VSC 45.
The recent decision of the Supreme Court of Victoria considered a disputed waste service charge which was applied broadly to the Mornington Peninsula Shire Council (Council) local community.
Cavanough J dismissed the claim against the Council, and held that the waste service charge imposed by Council pursuant to sections 155(1)(d) and 162(1)(b) of the Local Government Act 1989 (Act) was valid.
Background
The plaintiffs were an incorporated association representing the interests of persons occupying beach boxes and boat sheds within the Mornington Peninsula Shire, together with an occupier of one of the beach boxes. Whilst the beach boxes are situated on Crown land, they are occupied privately and accordingly, attract rateable status under the Act.
Sections 155(1)(d) and 162(1)(b) of the Act provide a municipal council with the power to declare service rates and service charges on rateable land in respect of the collection and disposal of refuse.
The Council’s ‘waste services charge’ was set at $193 per property for the 2016-2017 year, which increased to $197 for the 2017-2018 year and $241 for the 2018-2019 year.
The parties’ submissions
The plaintiffs contended that the waste services charge was invalid in relation to the beach boxes, because no waste services (for example, kerbside waste collection) were provided directly to those properties.
In summary, the Council submitted that:
- it was authorised under the Act to impose the waste service charge because it was an annual charge imposed on rateable land for the collection and disposal of refuse; and
- charges under the Act may be levied for waste services that are, or include, waste services to be provided for the benefit of the local community generally. Accordingly, there is no requirement in the Act which specifies that a waste service charge must be for services provided directly to the land of the person to be charged.
The decision
Cavanough J accepted the Council’s submissions and found that an annual service charge could be imposed under the Act in relation to any rateable land in the municipal district, to recover the cost of waste services proposed to be provided by the Council, whether those services were to be provided to particular properties or to the local community more broadly.
It is important to note that in these circumstances, the beach boxes were not provided with any direct waste services. Rather, the waste services charge was levied on the beach boxes because of their status as rateable properties within the municipality.
This decision is significant for municipal councils state-wide and further clarifies municipal councils’ powers to impose service rates and service charges under the Act. The decision supports the Council’s broad capacity to levy specific charges, particularly in circumstances where annual rate increases have been capped.
HWL Ebsworth Lawyers regularly acts for municipal Councils and landowners in relation to a variety of local government matters, including rates, charges and governance matters. If you have any queries about how this decision might affect you, please feel free to contact us.
This article was written by Mark Bartley, Partner, Alex Gelber, Special Counsel and Chris Boocock, Associate.
