The respondent submitted that the decision under review should be affirmed as correct and preferable. The respondent argued that the Tribunal should place significant weight on the highly specialised expertise of the Valuer-General's assessors in making determinations about land use under s 8.

• The Tribunal finds that the most appropriate classification of the predominant land use of the property on 1 July 2024 is 'commercial' under s 8(1) of the Act and 'Commercial - Other' under reg 14 of the Local Government (General) Regulations 2013;
• The Tribunal considers that the decision that the land use of the property was 'commercial' under s 8 of the Act is the correct and preferable decision and that it should be affirmed.

Administrative Review - Emergency Services Funding Act 1998 - Decision by Minister in respect of an objection to land use attribution

Emergency Services Funding Act 1998 ss 5, 8, 9, 10, 13, 26

Emergency Services Funding (Remissions - Land) Regulations 2014 sch 1

Legislation Interpretation Act 2021 ss 11, 32

Local Government (General) Regulations 2013 reg 14

Private Health Insurance Act 2007 (Cth) s 121-5

South Australian Civil and Administrative Tribunal Act 2013 ss 34, 37

Abbott v Commissioner of Land Tax [1979] VicRp 31; [1979] VR 297

Gray v Mercantile Mutual Insurance (Aust) Ltd [1994] SASC 5201; (1994) 63 SASR 154

Mr P Armenores appeared in person for the applicant

Mr S Ranieri, Crown Solicitor's Office, appeared in person for the respondent

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 37(1)(a)

1. The applicant seeks a review of the 6 February 2025 decision of the Treasurer's delegate (1222242405) about the attribution of land use under the Emergency Services Funding Act 1998 (the Act) for 389 Brighton Road Hove 5048 (the Property). Reviews are permitted and conducted in accordance with s 9(4) of the Act and s 34 of the South Australian Civil and Administrative Tribunal Act (the SACAT Act). The applicant lodged his objection within time: s 9(4a).
2. The owner of the property on 1 July 2024 was PALD Medical Specialists Group Pty Ltd (ACN: 609 716 994). I will order that the name of the applicant is corrected.
3. The applicant contends that the Property and the neighbouring property, 387 Brighton Road Hove 5048 (the Irrelevant Property), together form the 'Hove Specialist Clinic' or the 'Hove Day Surgery.' The owner of the Irrelevant Property on 1 July 2024 was PALD Super Property Pty Ltd (ACN: 653 979 170) - a different corporate entity to the owner of the Property.
4. Section 8(1) of the Act lists the prescribed five land use categories for the purposes of determining the applicable land use factor and the emergency services levy:

e. Other - namely, all uses other than Commercial, Industrial, Residential and Rural.

1. 'Land use factors' are then prescribed under s 10 relating to those land uses. The 'land use factor' is then multiplied by the 'area factor' and the capital value to determine the 'value of land' for the purposes of determining the levy under the Act: s 6. Section 8(2) of the Act provides that "land will be taken to be used for one of the purposes referred to in subsection (1) if, in the opinion of the Valuer-General, it is being predominantly used for that purpose on the relevant day". The Commissioner must serve a notice of the amount of the levy on the person who was the owner of the land as at 12.01 am on 1 July of each financial year: s 16 of the Act. The 'relevant day' in this matter is therefore 1 July 2024.
2. The Valuer-General assessed the Property's predominant land use on the relevant day as 'Commercial' for the purposes of s 8(2) of the Act. In making that decision, the Valuer-General assigned the Land Use Code (LUC) of '2770 - Physicians and Surgeons' to the Property.
3. Section 8(5) of the Act provides that "In this section - commercial use of land means a use of land defined by the Local Government Regulations as commercial shop, commercial office or commercial other." The 'Local Government Regulations' is defined in the Act to mean the Local Government (General) Regulations 1999 (the 1999 Regulations). The 1999 Regulations were revoked on the commencement of the Local Government (General) Regulations 2013 (the 2013 Regulations). For the purposes of this review the 2013 Regulations are the successor to the 1999 Regulations or a relevant instrument that informs the interpretation of s 8 of the Act (Legislation Interpretation Act 2021 s 32).
4. Regulation 14 of the 2013 Regulations defines the differing commercial categories at the 'relevant day' (see below) as:

(b) Commercial - Shop comprising the use of land for a shop within the meaning of a prescribed instrument;

(c) Commercial - Office comprising the use of land for an office within the meaning of a prescribed instrument;

(d) Commercial - Other comprising any other commercial use of land not referred to in the categories specified in paragraph (b) or (c).

1. Regulation 14(3) defines the 'prescribed instruments' as the Development Regulations 2008 or the Planning and Design Code under the Planning, Development and Infrastructure Act 2016.
2. The parties provided a considerable amount of evidence on the applicability of the 1999 and 2013 Regulations and land use determinations using the LUC categories. Mr Andy Weinman, Lead Senior Valuer, provided sworn and oral evidence about the Valuer-General's assessment and determination processes. Mr Weinman outlines that the LUC of 2770 is commonly regarded by the Valuer-General as a subcategory of 'Commercial - Other' in reg 14 and 'Commercial' under s 8 of the Act.
3. The Valuer-General has a practice of referring to LUCs in levy assessments because they are uniform categories used by various agencies and public officials for various rate and taxation statutes (emergency services levy, council rates, sewerage and supply, regional landscape levy etc). However, in my view, the LUCs are a distraction from the primary statutory function that is under review in this matter. This is not a review of the attribution of the LUC, but a review of the land use attribution of 'Commercial' under s 8 of the Act. While LUC's might be helpful to assist the Valuer-General to subcategorise land uses and undertake their determinations in a broadly uniform manner, the Act only requires a determination into one of the five categories in s 8(1) of the Act.
4. The emergency services levy is imposed on owners of 'land'. 'Land' is not defined in the Act. Owner is defined in the Act. I am satisfied that the reference to 'land' under the Act should be taken to mean a reference to land held in fee simple for the purposes of this review.
5. The Valuer-General has a discretion under the Act to assess the levy against a piece of land or a portion of land. The Valuer-General also has a statutory discretion to consider contiguous land together if that aggregation is held by the same owners or under the same occupation (s 5(2) of the Act, see also Legislation Interpretation Act 2021 s 11). The Valuer-General did not consider the Property and Irrelevant Property together in their initial assessment. I note that this proceeding is not a review of the Valuer-General's decision to assess the Property and the Irrelevant Property separately under s 5(2) of the Act. In any event, this Tribunal has no power to review the exercise of the Valuer-General's discretion under s 5(2) of the Act because there are only four reviews that the Tribunal can consider under the Act and s 34 of the SACAT Act, namely:

a. Section 5A(5) reviews of a refusal to aggregate non-contiguous land.

b. Section 9(4) reviews relating to the attribution of land use (such as this application).

c. Section 13(4) reviews of decisions about alterations to the assessment book.

d. Section 26(4) reviews of vehicle classification.

1. This review is a s 9(4) review. Section 9(1)-(2) of the Act outlines that an objection "to the attribution of a particular land use" can be made to the Minister (or their delegate: s 31). The relevant Minister is the Treasurer.
2. On 23 August 2024 the applicant lodged an objection against the Valuer-General's assessment. The applicant contended that the Property should be classified as a LUC '5811 - Private Hospital' because (among other things) the Property and Irrelevant Property are - taken together - a licensed Private Day Procedure Centre under the Health Care Act 2008 and a 'declared hospital' pursuant to s 121-5(6) of the Private Health Insurance Act 2007 (Cth). The applicant's view is that a '5811 - Private Hospital' sits under the 'all other uses' or 'Other' land use category in s 8 of the Act.
3. Regulation 9 of the Emergency Services Funding (Remissions - Land) Regulations 2014 (2014 Regulations) provides that land used solely or predominantly for scheduled purposes is remitted for the benefit of all persons who are liable to pay the levy in respect of that land. The relevant Schedule 1 lists the following LUCs:

1. The reference to LUCs in the 2014 Regulations adds to the confusion about the applicability of LUCs to determinations under s 8 of the Act. I note that 5800 appears to be a heading or 'catch all' of all 58[XX] categories. Also, I note that LUC '5890 Medical and Health Services inc. veterinary N.E.C.' is missing from the remission regulation. This may indicate a regulatory intent that there is to be a clear remission delineation between 'hospitals' and other 'medical' facilities. However, as I have outlined, I think that arguments relating to the LUC subcategories are a distraction from the core issue in this matter, and confuse what is required under the Act.
2. The applicant objected to the Valuer-General's attribution of land use under s 9(1). An objection is not a direct challenge to attribution of a LUC, it is only an objection to the attribution of land use under s 8 of the Act.
3. On objection the Minister may decide an objection 'as he or she thinks fit and must notify the objector in writing of his or her decision and the reasons for it': s 9(3). On 6 February 2025 a delegate of the Minister disallowed the applicant's objection in writing. The delegate's decision is the decision under review in this matter. The delegate placed weight on the Valuer-General's opinion and determined that the 'predominant use' of the Property under s 8(2) of the Act was 'Commercial' land use under ss 8(1)(a), 8(2), and 9(3) of the Act. The delegate also affirmed the attribution of LUC '2770 - Physicians and Surgeons.'
4. On 11 February 2025 the applicant applied for a review to this Tribunal under s 9(4) of the Act and s 34 of the SACAT Act. The Tribunal conducts its review of the respondent's decision as an independent body. The Tribunal will, in exercising its review jurisdiction, examine the decision of the decision-maker by way of rehearing. On a rehearing the Tribunal must reach the correct or preferable decision but in doing so must have regard to, and give appropriate weight to, the decision of the original decision-maker and any other relevant matters.
5. The procedure on a rehearing will include an examination of the evidence or material before the decision-maker and a consideration of any further evidence or material that the Tribunal decides to admit for the purposes of rehearing the matter.
6. Any factual findings made by the Tribunal must be established on the balance of probabilities. The review conducted by the Tribunal is on a basis resembling a de novo hearing, where the Tribunal Member conducting the review effectively stands in the shoes of the original decision-maker in determining the correct or preferable decision.
7. After making its decision, the Tribunal can affirm or vary the decision under review or can set the decision aside and either substitute its own decision or send the matter back to the decision-maker for reconsideration.

Determinations of predominant land use under s 8 of the Act

1. The requirements for making s 8 determinations under the Act are clear and simple. Each portion or parcel of land, or aggregated parcels, can only be assessed as fitting one of the five categories for its 'predominant use' on 1 July.
2. The relevant land is the Property. 'Predominant use' is not defined in the Act. The Macquarie Dictionary defines 'predominant' as "having ascendancy, power, authority, or influence over others; ascendant" and "prevailing." I adopt this definition for the purposes of my review. Further, the consideration of predominant use is a practical, functional assessment based on the actual 'use'. This is determined on the facts at the relevant time. What a person intends the premises to be used for is of no importance. What signs or descriptors of the property say about its use is of little importance. All that is important is what the land is actually used for at the relevant time, with the predominant use being the function that imparts a character to the parcel as a whole.[1]
3. I heard evidence and argument over three hours at the hearing and I have considered the written submissions and affidavits of the parties. I have had regard to the filed material that was before the Treasurer's delegate and have considered all other documents filed in this matter.
4. The applicant applies for the delegate's decision to be set aside, and for a determination that the land use of the Property is "Other" under s 8 of the Act. The applicant claims that the Valuer-General makes inconsistent decisions under s 8 relating to medical facilities, and that the Valuer-General (and the Minister's delegate) relied on unclear concepts such as a property being 'institutional' enough to regard it as a 'hospital.' The applicant contends that hospitals and medical facilities of varying sizes and capacities are arbitrarily deemed in and out of contention as a hospital by the Valuer-General. The applicant outlined what it regards as inconsistencies between other decisions made by the Valuer-General under s 8 relating to medical facilities and hospitals.
5. The applicant has expended large amounts of capital to improve and upgrade the combined facility and obtain various federal and state approvals. I do not doubt that the applicant has "worked extremely hard to earn their place on the list of declared hospitals." The applicant contends that the Commonwealth declaration of the combined facility as a 'hospital' and the State licensing of the combined facility as a 'day procedure centre' should be determinative. I note that Hove Day Surgery Pty Ltd (ABN 81 652 467 733) holds the 'day procedure centre' licence under the Health Care Act 2008, and that the combined facility is not licensed as a 'hospital' under that Act. The applicant contends that the Property should be classified as a LUC '5811 - Private Hospital' for the purposes of the assessment of the emergency services levy (and therefore the levy should be remitted under reg 9 of the 2014 Regulations).
6. The respondent seeks the decision to be affirmed, and invites the Tribunal to put significant weight on the 'art' (or specialised expertise) of the Valuer-General assessors who make their determinations based on a broad range of factors like 'scale', and 'economic income', and 'difficulty to re-purpose', and 'institutional character', and 'valuation approach', and 'LUC categorisation' and even - as it appears in this case - a subjective assessment of what the business signage meant on a particular day. The respondent submits that land use determinations can only be understood through this complex lens, and that the expertise to make these decisions is highly specialised.
7. The statutory task is simple: what was the predominant use of the Property on the relevant day? Anything not related to that test is an unnecessary gloss. The Department may wish to consider revising its guidance materials and policies so that they are clearer and realigned with the statutory task. After considering the Department's materials, examples and other decisions related to LUCs '5800 - Medical and Health', '5810 - Hospital', '5811 - Private hospital', '5812 - Community hospital', '5890 - Medical and Health Services inc. veterinary N.E.C.' and '2770 - Physicians and Surgeons', I agree with the applicant that the Department does not seem to be able to clearly and uniformly delineate between the various LUCs. I note that, even in this case, the Department had assigned a different LUC to the Property from 2019 to 2023 before changing it to '2770 - Physicians and Surgeons' in 2024.
8. Adding irrelevant factors and categorisations into any statutory decision-making process is unhelpful. It wastes time and State resources, creates community uncertainty, and invites review applications. A decision-maker's subjective view of the 'institutional character' of a property, or its 'difficulty to re-purpose' is almost wholly irrelevant to the statutory task of the assessment of predominant use on the relevant day. The applicant's submissions expose how easily these arbitrary additional factors are inconsistently applied by the Department.
9. Clearer guidance materials may also dispel an alleged perception of a lack of consistency in decision making. The Department may consider releasing short guidance materials that:
   1. remove any irrelevant concepts, factors and sub-categorisations that aren't related to predominant functional use; and
   2. simply outline the kind of predominant activities that would normally occur at the differing types of facilities.
10. 'Predominant use' is a test related to a property's function over its form. 'Institutional character' relates to a highly subjective assessment of the form or 'perception' of a property. It does not relate to function or use and is therefore not a relevant factor. 'Scale of operations' is sometimes related to function or use and should be retained (where relevant). 'Difficulty to re-purpose' is a subjective assessment about some future 'reforming' (by builders, planners and architects) and is not related to the functions carried out on particular land on a particular day. This factor is minimally relevant at best.[2] As the applicant contends, reliance on signage should be given minimal weight or avoided in the future. Signage is not determinative of function and is only of limited relevance (it expresses a proposed or intended function or use only, not actual use).
11. Section 8 investigations require a functional, practical assessment of predominant use of the land on the relevant day. Section 8 decisions are not an assessment of what is said about a building, or how someone 'feels about' or 'perceives' its form, or their (non-expert) views on how well it may be renovated in the future. Section 8 assessments are 'real-world', 'point in time' assessments of what tasks and activities are actually predominantly carried out on the land.

What was the predominant use of the Property on the relevant day?

1. I reject the applicant's argument that I should affirm the Property as a 'hospital' under the Act because the combined facility is regarded as a 'hospital' under a different legislative regime. The 'hospital' declaration and 'day procedure centre' licence relate to the combined facility only and, in any event, different statutory regimes have differing definitional methodologies and consider different factors that reflect their different statutory purposes.
2. Hypothetically, if the Property and the Irrelevant Property were considered together by the Valuer-General under the s 5(2) contiguous land provisions of the Act then the Valuer-General, and the Minister's delegate, may have decided that the combined facility was a 'hospital' and/or regarded as 'Other' under s 8 of the Act. They may also have regarded the combined facility as fitting the LUC categories of '5800 Medical and Health', '5810 Hospital', or '5811 Private hospital.' However, this is all conjecture as it is not what has occurred.
3. The combined facility (the Property and the Irrelevant Property) is not the subject of the original decision, the objection decision, or this review. If the applicant wishes for the Property and the Irrelevant Property to be considered together for emergency services levy purposes, then it may agitate for the decision-maker to exercise their discretion to do so under s 5(2) of the Act (if the other lawful requirements are met).[3] As I outlined in paragraph 13 above, the exercise of discretion by the Valuer-General to assess the levy over an aggregation of contiguous land subject to the same ownership or occupation under s 5(2)(b) of the Act is not reviewable in this Tribunal.
4. This review only relates to the attribution of land use to the Property by the Minister's delegate. The applicant concedes that, without both parcels, there is no hospital ("Neither 387 nor 389 functions as a hospital alone, it is the combined entity that forms Hove Day Surgery").[4] The applicant also submitted that "387 and 389 cannot function independently." Although the combined facility is a 'day procedure centre' under the Health Care Act 2008, the Property is not a 'hospital' or 'day procedure centre' under that Act. The Property is not a 'declared hospital' under the Private Health Insurance Act 2007 (Cth). The Property is not a hospital, and would not be a hospital for the purposes of the Act even if the combined facility was. The part is not the sum. In my view, this is conceptually fatal to the applicant's case.
5. The parties agreed that the 'predominant use' of the Property on 1 July 2024 was as waiting rooms, consulting rooms, an outpatient minor treatment space, a carpark, a driveway, a sterilisation facility, an office space, a kitchen, a toilet and a phototherapy room. Inpatient procedure and recovery functions are undertaken in the Irrelevant Property.
6. The predominant land use of the Property can only be Commercial, Industrial, Residential, Rural or Other under s 8 of the Act. Having considered all the evidence, I am satisfied that the Property is not Industrial, Residential or Rural.
7. The Macquarie Dictionary defines 'commercial' as something that is of, or in the nature of, commerce or an enterprise engaged in commerce and capable of returning a profit. 'Commercial' use of land means a use of land defined by the Local Government Regulations as a commercial shop, commercial office or commercial other: s 8(5). Regulation 14 of the 2013 Regulations defines the differing commercial categories at the 'relevant day' as:

(b) Commercial - Shop comprising the use of land for a shop within the meaning of a prescribed instrument;

(c) Commercial - Office comprising the use of land for an office within the meaning of a prescribed instrument;

(d) Commercial - Other comprising any other commercial use of land not referred to in the categories specified in paragraph (b) or (c).

1. Regulation 14(3) defines the 'prescribed instruments' as the Development Regulations 2008 or the Planning and Design Code under the Planning, Development and Infrastructure Act 2016. The Development Regulations 2008 were rendered obsolete when the Development Act 1993 was repealed on 19 March 2021. However, insofar as they may assist in the interpretation of 'Commercial', I note that those regulations contain the following definitions:
   1. office means any building used for administration or the practice of a profession, but does not include consulting rooms or premises where materials or goods are stored for sale or manufacture.
   2. shop means - (a) premises used primarily for the sale by retail, rental or display of goods, foodstuffs, merchandise or materials; or (b) a restaurant; or (c) a bulky goods outlet or a retail showroom; or (d) a personal service establishment, but does not include - (e) a hotel; or (f) a motor repair station; or (g) a petrol filling station; or (h) a plant nursery where there is no sale by retail; or (i) a timber yard; or (j) service trade premises; or (k) service industry.
   3. consulting room means a building or part of a building (not being a hospital) used in the practice of a profession by a medical, veterinary or dental practitioner, or a practitioner in any curative science, in the provision of medical services, mental, moral or family guidance, but does not include a building or part of a building in which animals are kept for fee or reward.
2. On 1 July 2024 the - now superseded - Planning and Design Code Version 2024.11 (the Code) dated 19 June 2024 was in operation. Part 7 of the Code outlines that a term listed in Column A has the meaning set out in Column B, and that land uses and activities set out in Column C are to be taken as being included in the meaning of the land use, and that land uses and activities in Column D are to be taken as being excluded from the meaning of the land use term. Further, the Code provides that, in the event of any inconsistency, Column D prevails over Column C. The following is an excerpt of the Code that outlines some relevant land uses and activities:

Means a building or part of a building (not being a hospital) used in the practice of a profession by a medical, veterinary or dental practitioner, or a practitioner in any curative science, in the provision of medical services, mental, moral or family guidance, but does not involve any overnight accommodation other than for animals that are recovering from surgery, medical care or in for observation as part of a veterinary practice

Means any building or part of a building used for administration or the practice of a profession, but does not include a consulting room or premises where materials are stored for sale or manufacture.

Means premises used for the provision of services catering to the personal or domestic needs of customers.

Examples - The following are examples of services that may be available at personal and domestic services establishments: clothing repair and alterations; cutting, trimming and styling hair; domestic pet grooming; manicures and pedicures; non-surgical cosmetic procedures; personal care procedures; self-service clothes laundering; shoe repair; watch repair.

Adult entertainment premises; Adult products and services premises; Consulting room; Office; Financial institute.

Means a premises used primarily for the sale by retail, rental or display of goods, foodstuffs, merchandise or materials; or a personal or domestic services establishment.

Bulky goods outlet; Personal or domestic services establishment; Restaurant

Adult entertainment premises; Adult products and services premises; Hotel; Motor repair station; Retail fuel outlet; Service trade premises; Wholesale plant nursery.

1. After considering all the materials in this matter, I find that the Property is used predominantly for commercial operations that aren't in the nature of a 'Commercial - Shop' or 'Commercial - Office', as defined in reg 14 of the 2013 Regulations. The tasks and functions undertaken at the Property on 1 July 2024 were commercial in character that were related to the provision of medical services (and very similar to those outlined in the above definitions of 'consulting rooms'). Given the limited scope of the definitions under s 8(1), I find that the most appropriate classification of the predominant land use of the Property on 1 July 2024 is 'Commercial' under s 8(1) of the Act and 'Commercial - Other' under reg 14 of the 2013 Regulations.
2. Further, I am satisfied that the Property, standing alone, is not and could not have been in the LUC category '5811 - Private Hospital.' Insofar as it is necessary, I note that the determination that the Property was classed under the LUC category '2770 - Physicians and Surgeons' on the relevant day appears to be reasonably open on the facts. However, I make no finding on the attribution of a LUCs as they play no part in the statutory decision-making process about the attribution of predominant land use under s 8. If Parliament wishes for LUCs to be part of a s 8 decision-making process, then it may amend the Act or relevant regulations to refer to them (and any associated activities or 'uses'). Alternatively, the Planning and Design Code could be amended to include LUC categories (and any associated activities or 'uses').
3. Last, I note that s 9(4) land use reviews commenced in order to secure remissions like this could easily be avoided in the future if the Department releases clear guidance materials outlining what operations, uses and activities fall within LUC categories '2770 - Physicians and Surgeons', '5890 Medical and Health Services inc. veterinary N.E.C.', and the 2014 Regulations Schedule 1 LUC categories of:

1. Notwithstanding my comments above on the weighting of factors by the decision-maker, I consider that the decision made on Thursday 6 February 2025 that the land use of the Property was 'Commercial' under s 8 of the Act is the correct and preferable decision and that it should be affirmed.

1. The name of the applicant is amended to PALD Medical Specialists Group Pty Ltd.
2. The Tribunal affirms the decision under review.

[1] See Abbott v Commissioner of Land Tax [1979] VicRp 31; [1979] VR 297; Gray v Mercantile Mutual Insurance (Aust) Ltd [1994] SASC 5201; (1994) 63 SASR 154, 170-172.

[2] Difficulty to re-purpose and related concepts are only relevant insofar as they may relate to the 'purpose built' nature of a property for undertaking the predominant functions on the particular day - but again it is only the actual activity and use that matters.

[3] I note that the Property and the Irrelevant Property are separate properties that appear to be owned by separate entities.

[4] Response to final Written Submissions, p 2.