Favourable ratings: No local government rates on miscellaneous licences in Western Australia

The Local Government Act 1995 (WA) (LG Act) provides that, unless an exemption applies, all land in Western Australian is rateable for the purpose of funding local government operations.

In Atlantic Vanadium Pty Ltd and Shire of Mount Magnet [2024] WASAT 16 the State Administrative Tribunal (WA) (SAT) determined that local government rates may not be levied on land which is subject to a miscellaneous licence granted under the Mining Act 1978 (WA) (Mining Act), irrespective of the nature of the occupation (such as the building of roads etc) of that land by the tenement holder.

In contrast, rates may be levied on other mining tenements (excluding prospecting licences of less than 10) irrespective of whether occupation has occurred.

Within the Shire of Mount Magnet, Atlantic Vanadium held 6 miscellaneous licences under the Mining Act. Despite having been granted in or about 2016, it was not until June 2023 that the Shire sought to impose rates and issued a rates notice.

Atlantic Vanadium successfully challenged the validity of the rates notice on review in the SAT. The review turned on the interpretation of the statutory exemption. It did not require the SAT to make any factual findings about what had been done on the subject land (whether physically or otherwise).

The SAT:

1. focused on a miscellaneous licence not conferring exclusive possession and providing only ancillary and subsidiary rights (ie, relating to the mining operations undertaken pursuant to other tenements); and
2. acknowledged that the purposes for which a miscellaneous licence may be granted included substantial physical occupation of the land (eg accommodation, workshop and storage facilities).

The relevant exemption (s6.26(2)(a)(ii)(I) of the LG Act) states

The following land is not rateable land –

1. Land which is the property of the Crown and –
   1. …
   2. is unoccupied, except –

1. 1.  ​where any person is [relevantly the holder of a mining tenement under the Mining Act] other than by reason of that person being the holder of a prospecting licence … in respect of land the area of which does not exceed 10 ha or a miscellaneous licence …

The Shire contended that an occupied miscellaneous licence fell outside the exemption from being rateable land.

The SAT, however, held that the proper meaning of the exception was that:

1. ​when a mining tenement was granted over Crown land there was no exemption from rates based on the land being unoccupied. That is, the land was rateable whether occupied or not; and
2. as a miscellaneous licence was a further exception, Crown land the subject of a miscellaneous licence was not rateable (whether occupied or not).

In reaching its conclusion, the SAT had regard to the amendments made to the legislation when passing through parliament. The amendments identified an intention that land the subject of miscellaneous licences and special prospecting licences should be exempt from rating. The SAT inferred that this was due to these tenement types only conferring ancillary and subsidiary rights. Further, the SAT considered, this interpretation accorded with the LG Act’s statutory objective of providing for a simpler and more efficient system for local governments to issue rates notices.

Not without reason, the SAT observed that the drafting of the exemption was not altogether clear.

Dealing with rates notices

While the SAT’s decision noted the apparent novelty in this case of the Shire issuing a rates notice for miscellaneous licence tenure, mining tenement holders (when dealing with rating notices) should ensure that rating notices issued to them are spatially limited so as not to include areas of miscellaneous licences and prospecting licences (of not more than 10).

HWL Ebsworth regularly advise clients with mining tenements or crown land interests on a range of land access and operational issues. Whether or not involving rating questions, please reach out to us if you have any queries or require assistance with your resource or infrastructure project.

This article was written by Mark Etherington, Partner, Michael Brady, Partner and Shaun McNaught, Partner.