Fire and Emergency Services Levy Act 2017 (NSW)

Fire and Emergency Services Levy Act 2017 No 9 An Act to provide for the charging and collection of a fire and emergency services levy; to abolish the emergency services insurance contribution scheme; and to make related amendments to other legislation. Part 1 Preliminary 1 Name of Act This Act is the Fire and Emergency Services Levy Act 2017. 2 Commencement This Act commences on the date of assent to this Act. 3 Definitions (1) In this Act: ad valorem component of levy—see section 17. ad valorem rate formula—see section 28. area means an area within the meaning of the Local Government Act 1993. Note— Lord Howe Island is taken to be an area under this Act. assessed levy—see section 97. assessed rate or charge—see section 96. Chief Commissioner means the Chief Commissioner of State Revenue under the Taxation Administration Act 1996. collection instalment means a collection instalment payable under section 99. commercial land means land classified as commercial land under this Act. compliance certificate means a compliance certificate issued by the Valuer-General under section 133 or by the Chief Commissioner under section 136. compliance issue—see sections 133 and 136. council means a council within the meaning of the Local Government Act 1993. Court means the Land and Environment Court. Crown means the Crown in right of New South Wales and includes any NSW Government agency and any statutory body representing the Crown in right of New South Wales. eligible pensioner in relation to a levy on leviable land means a person who is an eligible pensioner in relation to land under Chapter 15 of the Local Government Act 1993. farmland means land classified as farmland under this Act. FESL revenue target means the FESL revenue target determined by the Treasurer under section 36. financial year means a period of 12 months commencing on 1 July in each year. first financial year of the levy means the financial year that commences on the start date for the levy. fixed component of levy—see section 16. function includes a power, authority or duty, and exercise a function includes perform a duty. government land means land classified as government land under this Act. hardship guidelines—see section 84. industrial land means land classified as industrial land under this Act. land includes a stratum within the meaning of the Valuation of Land Act 1916. land value—see section 18 (6). lease has the same meaning as it has in the Local Government Act 1993. lease for value means a lease for more than nominal rent. leviable land has the meaning given by section 6. levy (or FESL) means the fire and emergency services levy payable under this Act. levy estimate information—see section 34. levy notice means the notice by which a levy is charged (see section 78). levy recovery arrangement—see section 91. levy valuation—see section 21. liable person, in relation to land, means a person who is liable for a levy for that land or who would be liable for a levy for the land if the land were leviable land. liable State owned corporation means a State owned corporation that is declared to be a liable State owned corporation by a regulation under section 42. Lord Howe Island means the Island under the Lord Howe Island Act 1953. Monitor means the Emergency Services Levy Insurance Monitor appointed under the Emergency Services Levy Insurance Monitor Act 2016. owner has the same meaning as it has in the Local Government Act 1993. parcel of land includes a parcel that comprises a stratum within the meaning of the Valuation of Land Act 1916. Note— See also section 10 for the circumstances in which land is a separate parcel of land under this Act. payment order—see section 86. pensioner discount amount—see section 25. property sector—see section 40. public benefit land means land classified as public benefit land under this Act. published ad valorem rate—see section 27. quarterly instalment period—see section 82. relevant payment—see section 95. relevant proportion—see section 30. residential land means land classified as residential land under this Act. start date for the levy means the date appointed as the start date for the levy by a regulation made under section 152. State owned corporation means a State owned corporation (within the meaning of the State Owned Corporations Act 1989) or a subsidiary of a State owned corporation. unvalued land—see section 19. vacant land means land sub-classified as vacant land under this Act. vacant land discount—see section 23. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes included in this Act do not form part of this Act. (3) In this Act, a reference to a financial year, when immediately preceded by a reference to particular years (in the format of [year]/[year]), is a reference to the financial year that commences and ends in those years (respectively). Note— For example, a reference to the 2017/2018 financial year is a reference to the financial year commencing in 2017 and ending in 2018. 4 Application of Act to Lord Howe Island The levy payable under this Act extends to land situated on Lord Howe Island and, for that purpose: (a) Lord Howe Island is taken to be an area under this Act, and (b) the Lord Howe Island Board is taken to be the council for that area and has all the functions of a council in relation to that area under this Act. Part 2 Fire and emergency services levy Note— Part 11 of this Act postpones the introduction of the levy until a start date appointed by the regulations. Most of the provisions of this Act are suspended (and have no effect) until a start date for the levy is appointed. 5 Fire and emergency services levy A fire and emergency services levy is payable on all leviable land. 6 Land on which levy is charged (1) For the purposes of this Act, leviable land is any land situated in the area of a council that is within one of the following property sectors: (a) public benefit land, (b) farmland, (c) residential land, (d) industrial land, (e) commercial land. (2) Land is within a property sector if the land is classified to be within that property sector under this Act. 7 Who is liable to pay levy (1) The owner for the time being of leviable land is liable to pay the levy, except as provided by this section. (2) If leviable land owned by the Crown or a State owned corporation (other than a liable State owned corporation) is the subject of a lease for value and the dominant use of the land is for the purposes of the lease, the lessee under the lease is liable to pay the levy. (3) If there are 2 or more owners, or 2 or more lessees, who are liable to pay the levy in respect of the same land, they are jointly and severally liable to pay the levy. Note— Government land is exempt from the levy. Land owned by the Crown or a State owned corporation is to be classified as government land under this Act unless the land is the subject of a lease for value and the dominant use of the land is for the purposes of the lease. There are some exceptions to that classification requirement. 8 Levy is payable for each financial year The levy is payable for each financial year. Note— The levy can be paid as a single instalment or as quarterly instalments (see Part 6). 9 Amount of levy The amount of the levy payable is provided for by Part 3. 10 Levy payable on each separate parcel of land (1) A separate levy is payable for each separate parcel of land. (2) Land is taken to be a separate parcel of land for the purposes of this Act: (a) if the land is separately valued under the Valuation of Land Act 1916, or (b) if the land is the subject of one valuation under that Act, or (c) in any other circumstances provided for by or under this Act. (3) Subsection (2) does not affect the application of this Act to land that is not valued under the Valuation of Land Act 1916. (4) This section is subject to Parts 5 and 8 and any regulations under this section. Note— Part 5 (Division 7) and Part 8 provide for further circumstances in which land is treated as a separate parcel of land for levy purposes. (5) The regulations may make further provision for the circumstances in which something is, or is not, taken to be a separate parcel of land under this Act. 11 Levy payable to council The levy is payable to the council for the area in which the leviable land is situated. 12 Council must charge and collect levy on behalf of State (1) A council is responsible for charging the levy on land situated in the council's area and for collecting the levy. (2) A council charges and collects the levy on behalf of the State. (3) The council must account for amounts collected by paying collection instalments to the Chief Commissioner in accordance with this Act. 13 Levy to be apportioned over whole year (1) A levy is proportionate to the portion of the year for which land is leviable land. (2) A levy for land that is within a particular property sector is proportionate to the portion of the year for which the land is within that property sector. 14 No levy for government land There is no levy payable in respect of government land. Note— Land that is not within a council area is also excluded because it is not leviable land. Part 3 Amount of levy Division 1 Fundamentals 15 Components of levy: fixed and ad valorem (1) The levy payable is the total of the following: (a) the fixed component of the levy, (b) the ad valorem component of the levy. (2) The components of the levy are based on the property sector that the land is within. Note— Part 5 sets out how land is classified into different property sectors. 16 Fixed component of levy (1) The fixed component of the levy is the base rate for the property sector that the land is within. (2) The base rate is as follows: (a) $100 for public benefit land, (b) $100 for residential land, (c) $200 for farmland, (d) $200 for industrial land, (e) $200 for commercial land. (3) The regulations may prescribe a different base rate for any property sector. If they do, the base rate for that property sector is the prescribed rate. (4) The regulations may provide for adjustments to the base rate for any property sector to account for movements in the consumer price index. If they do, the fixed component of the levy is the adjusted base rate (as provided for by the regulations) for the property sector that the land is within for the financial year for which the levy is charged. 17 Ad valorem component of levy (1) The ad valorem component of the levy is calculated by applying the relevant ad valorem rate to the land value of the parcel of land on which the levy is charged. (2) The relevant ad valorem rate is the published ad valorem rate for the property sector that the land is within for the financial year for which the levy is charged. (3) The council that charges the levy is to calculate the ad valorem component of the levy. 18 Land value of land (1) The land value of land is the land value (within the meaning of the Local Government Act 1993) used by the council for the purpose of levying rates under Chapter 15 of the Local Government Act 1993, subject to this section. (2) For any period in which the rates payable in respect of land are postponed under Division 2 of Part 8 of Chapter 15 of the Local Government Act 1993, the levy is to be charged as if the land value of the land were the non-attributable value of the land (despite section 61 of the Valuation of Land Act 1916). (3) The non-attributable value of land is the land value of the land for the purpose of levying rates under Chapter 15 of the Local Government Act 1993 minus the attributable part of the land value (within the meaning of Division 2 of Part 8 of Chapter 15 of the Local Government Act 1993). (4) If the council does not levy rates on the land, the land value of the land is the land value of the land determined in accordance with the Valuation of Land Act 1916. (5) However, if the land is unvalued land, the land value of the land is the land value of the land determined in accordance with Division 2. (6) A reference in this Act to the land value of land, for levy purposes, is a reference to the land value of land determined as provided for by this section and Division 2. Note— Section 61 of the Valuation of Land Act 1916 provides that land value must be ascertained by reference to the valuation list, and any supplementary lists, provided by the Valuer-General under Part 5 of the Valuation of Land Act 1916. Section 62 of the Valuation of Land Act 1916 provides that the most recent valuation list is to be used to determine land value. Division 2 Unvalued land 19 Unvalued land—meaning (1) The following land is unvalued land: (a) land on Lord Howe Island, (b) any other land declared by the regulations to be unvalued land. (2) Land is not unvalued land if it is required to be valued for the purposes of another tax. (3) Land is required to be valued for the purposes of another tax if the Valuer-General is required, under the Valuation of Land Act 1916, to provide a valuation of the land which is used for the purposes of a rate or charge that is payable under the Local Government Act 1993, land tax or any other rate or tax (other than the levy). 20 Regulations may specify land value of unvalued land (1) The regulations may specify the land value of unvalued land, or the method by which the land value of unvalued land is to be calculated, for the purposes of this Act. (2) The land value of unvalued land, or the method by which the land value is calculated, may be specified by reference to the owner of the land, the liable person in relation to the land, the use of the land, the location of the land or in any other way. (3) The regulations may specify a zero land value for unvalued land. In that case, the land value of the land is zero and no levy is payable on the land (including no fixed component). (4) The regulations have effect despite anything to the contrary in the Valuation of Land Act 1916. 21 Valuer-General to ascertain land value of unvalued land (1) The Valuer-General is to ascertain the land value of each parcel of land that is unvalued land in accordance with the regulations. (2) The land value of unvalued land is the land value as ascertained by the Valuer-General under this section. (3) A valuation made by the Valuer-General under this section is a levy valuation. (4) This section does not apply if the regulations specify a zero land value for the unvalued land. 22 Application of Valuation of Land Act 1916 (1) Levy valuations are to be entered in the Register of Land Values kept under the Valuation of Land Act 1916. (2) Information entered in the Register of Land Values about levy valuations is to be included in any valuation list or supplementary lists compiled by the Valuer-General and furnished to a rating or taxing authority under the Valuation of Land Act 1916. (3) Subject to this Division, the Valuation of Land Act 1916 and the regulations under that Act apply, with any necessary modifications, to levy valuations and to the information about levy valuations entered in the Register of Land Values in the same way as they apply to general valuations and to the information about general valuations entered in the Register of Land Valuers under that Act. Note— Parts 3 and 4 of the Valuation of Land Act 1916 permit objections to, and appeals against, valuations made by the Valuer-General. Part 5 of the Valuation of Land Act 1916, among other things, requires councils to use the valuation list as the basis for charging rates or taxes. (4) For the purpose of applying the Valuation of Land Act 1916 to levy valuations of unvalued land on Lord Howe Island: (a) Lord Howe Island is taken to be an area, and (b) the Lord Howe Island Board is taken to be a rating or taxing authority, and a council, for that area. (5) The regulations under the Valuation of Land Act 1916 may modify the application of, or disapply, any provision of the Valuation of Land Act 1916 or the regulations under that Act in relation to unvalued land and levy valuations. Division 3 Discounts 23 Discount for vacant land (1) A liable person is eligible for a vacant land discount in respect of the levy payable on leviable land if the land is vacant land. (2) The levy payable for a financial year is to be reduced by the vacant land discount (expressed as a percentage) for the financial year for which the levy is charged. (3) The vacant land discount is 0.5 or, if another rate is prescribed by the regulations, that rate. (4) The discount applies to the fixed and ad valorem components only and not to any interest that accrues on overdue payments of the levy. (5) The discount applies only to the proportion of the levy that is payable for the number of quarterly instalment periods during the financial year in which the land is vacant land. 24 Discount for eligible pensioners (1) A liable person is eligible for a pensioner discount in respect of the levy payable on leviable land if the liable person is an eligible pensioner. (2) The levy payable for a financial year is to be reduced by the pensioner discount amount. (3) The pensioner discount amount is proportionate to the number of quarterly instalment periods during the financial year in which the liable person is an eligible pensioner. (4) Only one pensioner discount can be claimed in respect of a parcel of land, even if more than one eligible pensioner is a liable person in respect of the land. (5) If the pensioner discount amount is more than the levy that (but for the discount) would be payable, the levy payable is zero. 25 Pensioner discount amount (1) The pensioner discount amount is the indexed amount for the financial year for which the levy is payable. (2) The indexed amount is the amount determined by multiplying $50 by A/B, where: A is the Sydney CPI number for December in the financial year before the financial year for which the indexed amount is being determined, and B is the Sydney CPI number for December 2016, and A/B is calculated to the nearest 3 decimal places (and a fourth decimal place of 5 is to be rounded up). (3) If the indexed amount is not a multiple of 10 cents, the amount is to be rounded to the nearest 10 cent multiple (and an amount of 5 cents is to be rounded up). (4) The Treasurer is to publish a notice on the NSW legislation website by 30 April before the commencement of each financial year for which the levy is payable specifying the indexed amount for that financial year, calculated in accordance with this section. (5) In this section: Sydney CPI number means the Consumer Price Index (All Groups Index) for Sydney issued by the Australian Statistician or, if the Australian Statistician fails or ceases to issue that number, another number or index prescribed by the regulations. 26 Change of circumstances (1) If circumstances occur during a financial year that cause an entitlement to a pensioner discount on the levy to arise, the entitlement is taken to arise at the beginning of the first day of the quarterly instalment period that starts immediately after the quarterly instalment period during which those circumstances occurred. (2) If circumstances occur during a financial year that cause an entitlement to a pensioner discount on the levy to cease, the entitlement is taken to cease at the end of the last day of the quarterly instalment period during which those circumstances occurred. (3) If, at the time the entitlement is taken to arise or cease, the levy for the whole year has been paid in full, the portion of the payment that is proportionate to the number of quarterly instalment periods remaining after that time is to be credited to the levy payable in respect of the remaining part of the year. Part 4 Method for calculating ad valorem rate Division 1 Treasurer to calculate ad valorem rate 27 Published ad valorem rate (1) The Treasurer must, before the commencement of each financial year for which the levy is payable, determine an ad valorem rate of the levy for the next financial year. (2) The determination must specify an ad valorem rate of the levy for each property sector (other than government land). (3) The determination is to be made by order published on the NSW legislation website. (4) The order is to be published on the NSW legislation website by the date of 30 April that occurs immediately before the commencement of the financial year. (5) An ad valorem rate specified in the order for a property sector is the published ad valorem rate for that property sector for the financial year for which it is specified. (6) If an order specifying the ad valorem rate of the levy for a financial year is not published on the NSW legislation website by the date of 30 April that occurs immediately before the commencement of that financial year, the published ad valorem rate for a property sector is taken to be the published ad valorem rate for the financial year that immediately precedes the financial year. (7) Subsection (6) does not apply to the ad valorem rate for the first financial year of the levy. 28 Ad valorem rate formula (1) The Treasurer is to determine the ad valorem rate of the levy for a property sector using the ad valorem rate formula. (2) The ad valorem rate formula is the following formula: where: A is the ad valorem rate of the levy for the property sector for the financial year for which the determination is being made. R is the revenue target for the property sector for the financial year. F is the fixed component of the levy for the property sector for the financial year. Nnv is the estimated number of non-vacant properties in the property sector for the financial year. D is 1 minus the vacant land discount for the financial year. Nv is the estimated number of vacant properties in the property sector for the financial year. C is the pensioner discount amount for the financial year. P is the estimated number of pensioner discount properties in the property sector for the financial year. Vnv is the estimated value of non-vacant properties in the property sector for the financial year. Vv is the estimated value of vacant properties in the property sector for the financial year. (3) For the public benefit land and farmland property sectors, Nv and Vv are taken to be zero. (4) Expressions used in the ad valorem rate formula have the meanings given by this Division. 29 Revenue target for property sector The revenue target for a property sector for a financial year is the amount determined by applying the relevant proportion for the property sector to the FESL revenue target for that financial year. Note— Division 2 sets out how the Treasurer determines the FESL revenue target. 30 Relevant proportion (1) The relevant proportion for each property sector is as follows: (a) for public benefit land—0.33%, (b) for farmland—4.56%, (c) for residential land—58.07%, (d) for industrial land—10.38%, (e) for commercial land—26.66%. (2) The regulations may specify a different relevant proportion for any property sector and, if they do, the relevant proportion for the property sector is the proportion specified in the regulations. (3) The regulations may specify different proportions for different financial years. 31 Estimate of non-vacant properties (1) The estimated number of non-vacant properties in a property sector is an estimate adopted by the Valuer-General, for a financial year, of the number of non-vacant parcels of land in that property sector in that financial year. (2) The estimated value of non-vacant properties in a property sector is an estimate adopted by the Valuer-General, for a financial year, of the total land value, for levy purposes, of all non-vacant parcels of land in that property sector in that financial year. (3) A parcel of land is non-vacant if it is not sub-classified as vacant land. (4) The Valuer-General is to prepare and adopt an estimated number of non-vacant properties and an estimated value of non-vacant properties, for each property sector, and give each estimate to the Treasurer by 15 March in the year in which the financial year for which the estimate is made commences or by a later date approved by the Treasurer. (5) An estimate of value is to be rounded to the nearest multiple of $100,000 (with an amount of $50,000 rounded up). (6) Estimates are not required for the government land property sector. (7) In this section, a reference to a parcel of land is a reference to a parcel of land that is a separate parcel of land under this Act. 32 Estimate of vacant properties (1) The estimated number of vacant properties in a property sector is an estimate adopted by the Valuer-General, for a financial year, of the number of vacant parcels of land in that property sector in that financial year. (2) The estimated value of vacant properties in a property sector is an estimate adopted by the Valuer-General, for a financial year, of the total land value, for levy purposes, of all vacant parcels of land in that property sector in that financial year. (3) The Valuer-General is to prepare and adopt an estimated number of vacant properties and an estimated value of vacant properties, for each property sector, and give each estimate to the Treasurer by 15 March in the year in which the financial year for which the estimate is made commences or by a later date approved by the Treasurer. (4) An estimate of value is to be rounded to the nearest multiple of $100,000 (with an amount of $50,000 rounded up). (5) Estimates are not required for the government land, public benefit land or farmland property sectors. (6) In this section, a reference to a parcel of land is a reference to a parcel of land that is a separate parcel of land under this Act. 33 Estimate of pensioner discount properties (1) The estimated number of pensioner discount properties in a property sector is an estimate adopted by the Valuer-General, for a financial year, of the number of parcels of land in that property sector that will be eligible for a pensioner discount in that financial year. (2) The Valuer-General is to prepare and adopt an estimated number of pensioner discount properties, for each property sector, and give each estimate to the Treasurer by 15 March in the year in which the financial year for which the estimate is made commences or by a later date approved by the Treasurer. (3) An estimate is not required for the government land property sector. (4) In this section, a reference to a parcel of land is a reference to a parcel of land that is a separate parcel of land under this Act. 34 Councils to provide levy estimate information to Valuer-General (1) Each council is to provide to the Valuer-General, by 15 February in each year or by a later date prescribed by the regulations, a return in a form approved by the Valuer-General that contains the levy estimate information for the council's area. (2) The levy estimate information means the following: (a) information about the classification and sub-classification of land in the council's area, (b) information about the number of parcels of land in the council's area that are eligible for a pensioner discount under this Act, (c) any other information that the Valuer-General reasonably requires for the purpose of exercising his or her functions under this Division. (3) The levy estimate information must be up to date as of 31 December in the year before the return is required to be provided. (4) In this section, a reference to a parcel of land is a reference to a parcel of land that is a separate parcel of land under this Act. 35 Information to be used by Valuer-General to provide estimates (1) The Valuer-General is to make the estimates required to be made by the Valuer-General under this Division on the basis of the levy estimate information provided to the Valuer-General by councils in accordance with this Act and any other information that the Valuer-General considers relevant. (2) If a council fails to provide any levy estimate information for the council's area by the date it is required to provide that information under this Act, the Valuer-General may make the estimate on the basis of any other information available to the Valuer-General. (3) The Valuer-General may, in adopting an estimate under this Division, make any adjustments or allowances that the Valuer-General considers it appropriate to make. Division 2 FESL revenue target for ad valorem calculation 36 FESL revenue target (1) The Treasurer is to determine the FESL revenue target for a financial year using the following formula: where: ERt is the FESL revenue target for the financial year (represented by "t"). FTt is the funding target for the financial year. CCt is the collection cost for the levy in the financial year. ERt-2 is the FESL revenue target for the financial year that commenced 2 years before the period "t" (represented as "t-2"). ARt-2 is the actual FESL revenue for the financial year that commenced 2 years before the period "t" (represented as "t-2"), as certified by the Treasurer. OCt is the recovered over-collection amount for the financial year. (2) To avoid doubt, if ERt-2−ARt-2 is a negative amount, that amount is subtracted from the total. (3) When calculating the FESL revenue target for the 2017/2018 financial year and the 2018/2019 financial year, ERt-2− ARt-2 is taken to be zero. (4) The FESL revenue target is to include any additions made under Part 2 of Schedule 3. Note— Under Schedule 3, the Monitor budget and start-up costs for the levy can be added to the FESL revenue target during the initial period of the scheme. (5) Expressions used in the FESL revenue target formula have the meanings given by this Division. 37 Funding target The funding target for a financial year is the total of the following funding targets for the financial year: (a) the SES funding target (within the meaning of Part 5A of the State Emergency Service Act 1989), (b) the fire brigades funding target (within the meaning of Part 5 of the Fire and Rescue NSW Act 1989), (c) the rural fire brigade funding target (within the meaning of Part 5 of the Rural Fires Act 1997). 38 Collection cost (1) The collection cost for the levy in a financial year is the amount calculated by the Treasurer in accordance with this section. (2) The Treasurer is to calculate the collection cost for a financial year using the following formula: where: CCt is the collection cost for the financial year (represented by "t"). ECt is the estimated collection cost for the financial year. ACt-2 is the actual c