Fire and Emergency Services Levy Regulation 2017

Base rate and adjusted base rate. The base rate for each property sector is the starting dollar amount used to calculate the fixed component of the levy. Clause 4 requires annual adjustment by multiplying that base rate by the ratio of the Sydney CPI for December of the previous financial year to the December 2016 Sydney CPI. The resulting rate must be rounded to three decimal places (with a fourth decimal place of 5 rounded up) and then rounded to the nearest ten cents. The adjusted base rate is then published and used under section 16(4) of the Act.

Property sectors. The levy is divided among five sectors: public benefit land, farmland, residential land, industrial land, and commercial land. The relevant proportions for 2017/2018 are set in clause 8. These proportions determine each sector’s share of total levy revenue. They are not static in practice but must be amended if the burden shifts; clause 8 only provides the initial proportions.

Unvalued land. Land that the Valuer-General cannot assign a standard land value to (often because it is exempt from council rates) is treated as unvalued. Clause 5 declares that Aboriginal Land Council land and oyster aquaculture land exempt under Local Government Act sections 555(1)(g) or (h) are unvalued and have a land value of zero. This effectively exempts them from the ad valorem component of the levy, though the fixed component may still apply depending on the Act’s provisions.

Levy valuation for Lord Howe Island. Instead of using standard land values, clause 6 prescribes a rate per square metre. For the first three years (1 July 2017 to 30 June 2020) the rate is $70 per whole square metre (and $7 per whole tenth of a square metre for fractions). For each subsequent three-year period, the Valuer-General calculates an adjusted rate based on the percentage change in average land values across all sectors in NSW from 1 July 2016. That percentage (P) is used in the formula: adjusted rate = $70 × (1 + P/100). The resulting land value is rounded to the nearest $1,000. This mechanism ties Lord Howe Island values to mainland trends, which may not reflect the island’s actual market conditions.

Relevant proportion. Section 30 of the Act requires the regulation to specify the proportion of the total levy that each property sector must raise. Clause 8 sets these for 2017/2018 only. The proportions are defined precisely to four decimal places. The residential sector (56.45%) is by far the largest contributor, followed by commercial (23.77%) and industrial (14.79%). The proportion for public benefit land is negligible (0.63%). These proportions create incentives for cross‑subsidisation and political negotiation when property values shift.

Government land and liable state owned corporations. The classification of land as government land generally exempts it from the levy (the Crown does not pay tax to itself). Clause 9 tightens this exemption. It carves out Essential Energy and Endeavour Energy from the government land exemption, making them liable. It also expands the exemption to include particular toll road trust land, Crown‑leased land used for the lease, government school premises, and certain national park lease land. The concept of “dominant use” is used for leased land, which requires factual determination and may create disputes.

Ad valorem rate rounding. The ad valorem rate (the per‑dollar component) must be rounded down to six decimal places (clause 7). This direction is unusual because most tax rounding rules round either up or to the nearest digit. Rounding down reduces the effective rate slightly, which over millions of properties produces a small but material revenue reduction. This is a regulatory choice that benefits ratepayers at the margin.

Annual returns and certification. Councils must provide two annual returns: one to the Valuer-General under section 67 of the Act (clause 11) and one to the Chief Commissioner under section 107 of the Act (clause 13). Both returns must be certified by the council’s general manager or public officer as accurate and complete. Clause 13 specifies the content: assessed rates/levies, payments, write‑offs, collection instalments paid, and levy payments held as at 30 June.

Pensioner discount. Clause 12(1)(b) requires levy notices to specify any applicable pensioner discount deducted. The discount is a concession available under the Act; the regulation does not set the eligibility criteria but mandates disclosure on the notice.

Combined notice requirements. When a levy notice is combined with a local government rates notice, the items must appear in a specific order: rates and charges items first, then levy items, then a combined total (clause 12(2)). This ensures the levy is presented as an additional item rather than being merged, preserving transparency for ratepayers.

Suspension of review. Clause 14 suspends the requirement for the Minister to review the Act under section 150, as permitted by section 153(1)(i). This means the statutory five-year review has been formally deferred; no new timeline is set. The suspension clause itself was inserted in 2022, indicating the government decided not to trigger a review at that point.

Landowners in NSW. Every owner of land in New South Wales that is not specifically exempt (such as government land or certain Aboriginal lands) pays the fire and emergency services levy. The regulation indirectly impacts them through indexation, rounding rules, and classification decisions. Residential landowners bear the largest burden (56.45% of total levy), making them the most affected group. Commercial and industrial landowners are also significantly affected. The indexation formula using Sydney CPI means landowners in regions with lower inflation than Sydney may face a real increase in levy cost.

Lord Howe Island landowners. Clause 6 creates a unique valuation scheme for them. Their levy liability is based on area (square metres) multiplied by a rate that is adjusted every three years by reference to statewide land value movements. This can lead to divergence: if Lord Howe Island land values grow more slowly than the NSW average, owners still pay the increased adjusted rate. Conversely, if island values grow faster, the adjustment may understate the true rise. Liability is highly sensitive to the monthly determination of the “percentage change” by the Valuer-General.

Aboriginal Land Councils and oyster aquaculture operators. Land exempt from all rates under Local Government Act sections 555(1)(g) or (h) is declared unvalued with zero land value by clause 5. This eliminates the ad valorem component of the levy for those parcels. However, the fixed component may still be payable under the Act. The regulation does not affect the fixed component, so these entities are not fully exempt; they still face a fixed charge that is not linked to land value.

Essential Energy and Endeavour Energy. These state‑owned electricity distributors are explicitly made liable for the levy on their land (clause 9(1)). Their subsidiaries are also included. This means these entities, unlike most other government‑owned corporations, cannot rely on the government land exemption. The cost presumably flows through to electricity prices, affecting consumers across regional and urban NSW.

WCX M4 and M5 asset trusts. The toll road operators that lease Crown land for the WestConnex motorway are classified as holding government land under clause 9(2)(a) and (b), so they are exempt from the levy. This reduces their operating costs, which may affect toll prices or government concession payments. The exemption applies only to land owned by the Crown that is leased to these specific trusts.

Councils in NSW. Councils are the principal collection agents for the levy. Their duties include classifying land, handling classification applications (capped at $50 fee), providing annual returns to the Valuer-General and Chief Commissioner, issuing levy notices, and collecting instalments. Clause 11 requires the general manager or public officer to certify returns. Councils also handle write‑offs, reductions, and waivers, and must identify pensioner discounts. The administrative burden is not trivial: they must reconcile levy payments with their own rates systems and produce reports.

The Valuer-General. Responsible for calculating the adjusted rate for Lord Howe Island (clause 6(3)-(5)), determining the percentage change in average land values across sectors, and publishing it in the Gazette. Also receives annual returns from councils (clause 11). This adds to the Valuer-General’s existing functions under the Valuation of Land Act 1916.

The Treasurer. Obliged to publish the adjusted base rates by 30 April each year (clause 4(4)). This is a time-sensitive administrative act.

The Chief Commissioner of State Revenue. Receives the council return under clause 13; the content is specified by the regulation.

Ratepayers receiving combined notices. Those who receive a combined rates and levy notice from their council will see a specific layout: rates items first, then levy items, then a combined total. This ordering may affect how ratepayers perceive the charges - the levy appears after rates, which could reduce resistance.

People applying for classification reviews or vacant land declarations. They face a maximum fee of $50 for such applications (clause 10). This low cap is intended to avoid cost barriers for challenging council decisions.

School landlords. Land used for government schools that is leased is classified as government land (clause 9(2)(d)), so those lessors are exempt from levy. This encourages private owners to lease land for school use as the levy does not apply.

Duty to publish adjusted base rates. The Treasurer must publish the adjusted base rate for each property sector on the NSW legislation website by 30 April before each financial year (clause 4(4)). Failure to publish would mean the rate cannot be set for that year, creating uncertainty. The duty is mechanical but time‑sensitive.

Duty to calculate Lord Howe Island land values. The Valuer-General must determine the percentage change in average land values across all property sectors before 15 March every third year, then publish the percentage and adjusted rate in the Gazette by the following 15 April (clause 6(4)-(5)). The formula is mandated. Until publication, the previous rate applies (clause 6(6)), providing continuity.

Right to apply for classification review at capped fee. Clause 10 sets a maximum fee of $50 for applying for a classification (or review) of land under section 51 of the Act, for a declaration of vacant land under section 55, or for a review of a revocation of vacant land sub‑classification under section 62. This low fee ensures cost is not a significant barrier. The council cannot charge more than $50, though it may charge less.

Duty of councils to provide certified returns. Under clause 11, the general manager or public officer of a council must certify a return to the Valuer-General under section 67 of the Act. Under clause 13(2), the same officer must certify the return to the Chief Commissioner under section 107. The certification attests to accuracy and completeness. This imposes personal accountability on senior council officers. False or negligent certification could lead to professional sanctions or liability under the Act.

Duty to specify pensioner discount on levy notice. Clause 12(1)(b) mandates that a levy notice must specify any applicable pensioner discount deducted. The council must ensure the notice clearly shows the discount amount, not merely the net payable. This transparency right helps eligible ratepayers verify they receive the concession.

Right to a specific notice layout when combined. If a levy notice is combined with a rates notice, clause 12(2) requires that all rates or charges items appear before any levy items, and a combined total must be shown at the end. Ratepayers have a right to see the levy as a separate line item after rates. This prevents councils from burying the levy within the rates total.

Duty to inform the Chief Commissioner of write-offs, reductions, and waivers. The council’s annual return must include details of any levy amounts written off, reduced, or waived (clause 13(1)(c)). This imposes a duty of disclosure. The Chief Commissioner can thus monitor whether councils are exercising discretion appropriately.

Duty to separate levy items in combined notices. Clause 12(2) also requires a list showing all amounts payable with rates or charges items first. This is a positive duty on councils to format the notice correctly. Non‑compliance could render the notice invalid, though the regulation does not prescribe a penalty.

Right to have base rates adjusted only by formula. Clause 4 imposes a mechanistic indexation, not discretionary. Property owners have the right to expect that base rate changes are calculated strictly by the Sydney CPI formula. This limits political manipulation but also removes ability to respond to changing risk profiles.

Right to rely on published adjusted rate. The adjusted base rate notified under clause 4(4) is the rate for the financial year (clause 4(5)). The council cannot use a different rate. This certainty benefits both councils and landowners in budgeting.

This regulation is subordinate to the Fire and Emergency Services Levy Act 2017, which contains the primary offence and penalty provisions. The regulation itself does not create penalties. However, the duties imposed on councils and officers can be enforced indirectly through the Act.

Certification of returns. Clauses 11 and 13(2) require the general manager or public officer to certify the accuracy and completeness of information in returns to the Valuer-General and Chief Commissioner. False certification could constitute an offence under general law (for example, giving false or misleading information) or under section 113 of the Act (if it applies to information provided under the regulations). The regulation does not specify a penalty amount, but the Act may impose fines of up to 100 penalty units or more for furnishing false information.

Non‑publication of adjusted base rates. The Treasurer’s duty is administrative; enforcement would rely on reporting or judicial review. If the Treasurer fails to publish by 30 April, the adjusted base rate for the coming financial year is not legally fixed. This could lead to legal challenges by councils unable to issue valid levy notices. In practice, such default is unlikely.

Council failure to format levy notices correctly. Clause 12 sets out requirements for levy notices. A council that issues a notice without listing items correctly or without specifying pensioner discounts may be in breach of the Act or its regulations. Ratepayers could object to the levy, or seek review under Part 7 of the Act. Persistent failure could result in the Chief Commissioner issuing directions.

Exceeding the $50 cap on application fees. Clause 10 sets a maximum fee of $50 for classification applications. A council charging more would be acting beyond power. Ratepayers could challenge the fee in court or under administrative law. The Chief Commissioner could also seek to recover overpayments.

Liability for miscalculating levy due to incorrect classification. The classification rules in clause 9 determine whether land is government land (exempt) or not. If a council wrongly classifies land as government land, the levy is underpaid; if it wrongly denies government land status, the landowner overpays. The regulation does not prescribe a penalty for mistaken classification, but the Act provides for adjustments, refunds, and additional levy if inaccuracy is due to fraud or evasion.

Impact of rounding rules. Clause 7 requires ad valorem rates to be rounded down to six decimal places. A council that incorrectly rounds up would overcharge. Overcharges are unlawful and must be refunded. The rounding rule is mandatory; there is no tolerance.

Consequences of failing to certify returns. The regulation does not state a penalty for failing to certify. However, the Act may require returns to be provided; without certification, the Chief Commissioner may deem the return non‑compliant and could estimate the council’s levy collections, potentially disadvantaging the council’s revenue.

Suspension of review does not remove accountability. Clause 14 suspends the requirement for a review under section 150 of the Act, not the enforcement provisions. All existing penalty and enforcement mechanisms remain.

Fire and Emergency Services Levy Act 2017. This regulation is made directly under that Act. It implements provisions of the Act requiring subordinate legislation: indexation (s 16(4)), unvalued land (ss 19(1)(b) and 20), relevant proportions (s 30), classification of government land (s 42(1)(b) and (g)), application fees (s 51, 55, 62), annual returns (ss 67 and 107), form of levy notice (s 78), and suspension of review (s 153(1)(i)). The Act is the superior law; the regulation cannot override it.

Local Government Act 1993. Cross‑referenced extensively. Clause 5 incorporates exemptions under section 555(1)(g) or (h) of that Act to define unvalued land with zero value. Clause 12(2) allows levy notices to be combined with rates and charges notices under the Local Government Act, and prescribes the order of items. Clause 9(2)(c) classifies land leased to the Crown or a council as government land if the dominant use is for the lease, which ties into council land ownership and leasing under the Local Government Act.

Interpretation Act 1987. Referenced in the note under clause 3, which advises that definitions and interpretive provisions in that Act apply to the regulation.

National Parks and Wildlife Act 1974. Clause 9(2)(e) refers to Schedule 14 lands or ALR Act lands within Part 4A of that Act, leased to the Minister, as government land. This connects the levy exemption with conservation leasing arrangements.

Education Act 1990. Clause 9(2)(d) classifies land used for a government school (as defined in that Act) as government land if leased. This ensures that private owners leasing land for public school purposes do not face the levy.

Valuation of Land Act 1916. While not cited directly, the Valuer-General’s functions under clause 6 rely on his or her general valuation powers. The regulation imposes specific additional calculation duties.

Government information (public access) legislation. The requirement to publish adjusted base rates on the NSW legislation website (clause 4(4)) and in the Gazette (clause 6(5)) interacts with the requirement for official publication.

Privacy laws. The annual returns under clauses 11 and 13 require councils to provide personal information (landowner details). Those returns must comply with privacy principles under the Privacy and Personal Information Protection Act 1998. The regulation does not address privacy; councils must manage it separately.

Essential Energy and Endeavour Energy legislation. The regulation’s specification of these corporations as liable (clause 9(1)) overrides any general government land exemption in their enabling Acts. This may affect their financial reports and pricing determinations by the Australian Energy Regulator.

Motorways and road toll concession deeds. Clause 9(2)(a) and (b) exempts specific trust land for the M4 and M5 motorways. The drafting references ACNs and trust details, which suggests the regulation was tailored to existing contractual arrangements. Any change in concessionaire would require amendment.

Statutory review obligations. The Act originally required a review under section 150. Clause 14 suspends that requirement, as allowed by section 153(1)(i). This means the general reviews under the Legislation Review Act 1987 may still apply, but the sector‑specific review is paused.

Rounding and CPI methodology standards. The regulation uses Sydney CPI, not national CPI. This may interact with tax indexation in other areas where national CPI is used.

The regulation was originally published in NSW legislation on the day of its commencement, being the date of publication (clause 2). The text provided by the user appears to be the current authorised version.

The only amendment exhibited in the source text is clause 14, inserted by 2022 (795), sec 3. That amendment added the suspension of the requirement to review the Act under section 150. No other amendments are shown. It is possible that the relevant proportions in clause 8 have been amended since 2017/2018, but the source text does not indicate any such amendment. The clause as provided only sets the proportions for 2017/2018. The regulation is therefore relatively stable, with one substantive change.

The year 2022 amendment suggests the government chose to defer the mandatory review, perhaps because the levy had only been operating for a few years (it commenced in 2017‑18) and a full review was considered premature or politically inconvenient. The insertion uses a standard form: “For the Act, section 153(1)(i), the Act, section 150 is specified to be suspended.” This is a clean suspension without a sunset date. That means unless revoked or amended, the suspension remains indefinitely.

No transitional amendments appear in the source. The regulation does not contain savings or transitional provisions. Each clause takes effect on commencement (clause 9(3) for classification).

The absence of further amendment history is notable. Given the complexity of the levy and changing land values, one might expect updates to the relevant proportions or the indexation formula. That no such updates appear in the provided text may indicate they are made by separate amending regulations not included in this excerpt, or that the proportions remain unchanged. However, the reader should note that the source text is not guaranteed to be the full consolidated history; it only shows the sections as displayed.

The source text does not mention any court cases. There is no reference to litigation, judicial interpretation, or specific disputes arising from the regulation. This is consistent with its character: it is a largely mechanical subordinate instrument that has not been subject to reported challenge.

However, it is possible that litigation has occurred under the parent Act that touches on these provisions. For example, disputes about classification of land as government land under clause 9 could have led to administrative appeals under the Act or to the Civil and Administrative Tribunal. Similarly, the valuation of Lord Howe Island land under clause 6 might generate objections. None are recorded in the regulation itself.

The regulator’s power to suspend the review (clause 14) has not been tested in court, and no constitutional challenge to the levy mechanism is noted in the source.

Therefore, the deep dive cannot report any litigation history from the provided material. The user is cautioned that this absence does not prove no litigation occurred; it only means the regulation text does not mention any. A proper search of NSW case law databases would be needed.

Rounding down the ad valorem rate. Clause 7 says “rounded down to 6 decimal places.” Most tax rounding rules round to the nearest or up. Rounding down means the effective tax rate is slightly lower than the calculated rate. Over the entire property base, this reduces total levy revenue by a small but definite amount. Councils and taxpayers should verify that rounding is done correctly; any upward rounding would be unlawful.

Sydney CPI indexation. Clause 4 uses the Sydney CPI number, not the national CPI or a regional index. This means property owners in areas with lower inflation than Sydney effectively face a real increase in their levy burden because the base rate is indexed by Sydney CPI. For example, rural areas with stagnant land markets still pay rates indexed by a metropolitan price index.

Lord Howe Island valuation adjustment is backwards-looking and sector-average. The adjusted rate for each three-year period uses the percentage change in average land values across all property sectors between 1 July 2016 and the last preceding 1 July. This does not reflect Lord Howe Island’s own market, nor the specific sector the island land belongs to. The result can diverge materially from actual island values.

Relevant proportions in clause 8 are only for 2017/2018. The source text only provides one year’s proportions. The Act requires the regulation to specify proportions for each year. If the regulation has not been amended to update them, the levy allocation is frozen at the 2017/2018 distribution. This could mean residential landowners are paying more or less than intended as property values shift.

Government land classification for leased land uses “dominant use” test. Clause 9(2)(c) exempts land leased to the Crown or a council if the dominant use is for the purposes of the lease. This is a factual test that can be disputed. For example, land leased for a community centre with a commercial café component may be borderline. The council’s classification decision is subject to administrative review.

State-owned corporations are liable, but subsidiaries are included without definition. Clause 9(1) says “any subsidiary of those corporations” is also a liable state owned corporation. “Subsidiary” is presumably as defined in the Corporations Act. This could extend to entities not directly involved in electricity distribution, potentially creating liability for non‑core activities.

Application fee cap may be below cost. Clause 10 caps the fee at $50 for classification applications, reviews, and vacant land declarations. This may be lower than the council’s actual administrative cost. The council cannot charge more, so it must subsidise the service from general revenue. This creates an incentive for councils to resist processing such applications or to discourage them.

Levy notice combined with rates notice must list items in a specific order. Councils accustomed to listing charges in a different order must reprogram their billing systems. If they fail to list rates items before levy items, the notice may be legally defective. Ratepayers could argue the levy is not due until a compliant notice is issued.

Pensioner discount shown on notice but not calculated by the regulation. Clause 12(1)(b) says the notice must specify any applicable pensioner discount deducted. The regulation does not define the discount amount or eligibility - that is in the Act. But if the council incorrectly calculates or omits the discount, the notice is wrong. The regulation mandates disclosure but does not provide a stand‑alone right.

Annual returns require details of write-offs, reductions, and waivers. Clause 13(1)(c) obliges councils to report amounts written off, reduced, or waived. Councils must track these even if they are small. This transparency may expose councils to scrutiny if they appear overly generous in waivers.

Suspension of review may delay needed reform. Clause 14 suspends the statutory review indefinitely. This means the levy’s operation may not be examined for many years. Any problems with the rate structure or indexation will go unaddressed unless the government voluntarily commissions a review. Ratepayers cannot force a review through this clause.

For councils: adjust base rates correctly each year. The general manager must ensure that the Treasurer’s published adjusted base rates are applied. The council should receive the notice and incorporate it into its billing software. The rounding to nearest ten cents is mandatory.

For councils: handle Lord Howe Island valuation with care. If the council has jurisdiction over Lord Howe Island (Lord Howe Island Board may be the rating authority), it must calculate land value per clause 6 using square metre rates, apply the correct adjusted rate for the three‑year period, and round to the nearest $1,000. The Valuer‑General’s Gazette notice must be followed; the transitional provision (clause 6(6)) applies until publication.

For councils: cap classification application fees at $50. Any application for classification, review, or vacant land declaration under sections 51, 55, or 62 of the Act must be charged no more than $50. The council may choose to charge less or waive the fee, but cannot exceed it. The fee should be clearly stated in public information.

For councils: certify returns to the Valuer-General and Chief Commissioner. The general manager or public officer must personally certify the accuracy and completeness of each return. This requires internal audit controls to verify data. The certification should be signed and dated, and kept on record. The return content is specified in clause 13: assessed rates/levies, payments received, write‑offs, collection instalments, and amounts held as at 30 June.

For councils: format levy notices correctly. When issuing a stand‑alone levy notice, separate the fixed and ad valorem components if desired, but always show pensioner discounts. When combined with rates, list all rates/charges items first, then levy items, then a combined total. The council’s billing system must be updated to meet this ordering.

For councils: track levy amounts written off, reduced, or waived. The annual return must include details of these amounts. The council should maintain a register of such adjustments with reasons.

For landowners on Lord Howe Island: verify land area and valuation. The levy is based on square metres. If the council uses an incorrect area or the wrong adjusted rate, the landowner should object under the Act. The landowner may also question whether the percentage change applied by the Valuer‑General is correctly calculated.

For Essential Energy and Endeavour Energy. These corporations must budget for the levy on their land. They should not assume exemption as government land. They should also check whether land owned by subsidiaries is captured.

For WCX M4 and M5 trusts. They should confirm that the land they lease from the Crown is correctly classified as government land. If the lease changes, the classification may change; they would become liable.

For Aboriginal Land Councils and oyster aquaculture operators. They should check whether their land is exempt under Local Government Act sections 555(1)(g) or (h). If so, the land value is zero. But they may still owe the fixed component of the levy. They should review their levy notice to ensure the fixed component is correctly calculated.

For ratepayers challenging classification. They can apply to the council for a classification review at a maximum fee of $50. If unsatisfied, they can appeal to the Chief Commissioner under the Act.

For all stakeholders: monitor Gazette and NSW legislation for updates. The adjusted base rates are published by 30 April. The Lord Howe Island adjusted rate is published by 15 April every third year. Any new regulations amending relevant proportions will appear on the legislation website. Clause 14 suspends the review; a future government may lift the suspension.