For the purposes of the Fire and Emergency Services Levy your local council has classified all land into one of six categories, based on an assessment of its dominant use. These categories are:
- Public Benefit
In addition, ‘Residential’, ‘Industrial’ and ‘Commercial’ land may be classified as Vacant. Land may also be classified as mixed development where it represents a combination of the above categories.
After receiving your land classification notice, you may ask your council for a review where you believe the classification is incorrect. Councils may require that you complete a formal request and may charge a fee for this review. Where you successfully appeal your land classification, any application fee will be refunded. Further details of the appeal process should be available on your council’s website.
In almost all cases, land that is categorised as ‘Residential’ for purposes of local government rates will be classified as ‘Residential’ for purposes of the FESL. There are, however, some special cases:
- Any land that instead meets the requirement for classification as ‘Government’ or ‘Public Benefit’.
- Any land that meets the requirement for classification as residential for local government rates but is exempt from rates under sections 555 and 556 of the Local Government Act 1993.
If you need more information: Section 516 of the Local Government Act 1993 sets out the requirements for land to be categorised as ‘Residential’ for council rates.
In almost all cases, land that is categorised as ‘Farmland’ for purposes of local government rates will also be classified as ‘Farmland’ for purposes of the FESL. If, however, land meets the requirements for classification as ‘Government’ land or ‘Public Benefit’ land it will not be classified as ‘Farmland’.
If you need more information: Section 515 of the Local Government Act 1993 sets out the requirements for land to be categorised as ‘Farmland’ for council rates.
Land may only be classified as ‘Industrial’ for the FESL Act if:
- it cannot be classified as ‘Government’, ‘Public Benefit’, ‘Farmland’ or ‘Residential’, and
- the dominant use of the land is for one of the industrial purposes set out in the FESL Act.
Land may only be classified as ‘Commercial’ for the FESL if it cannot be classified as ‘Government’, ‘Public Benefit’, ‘Farmland’, ‘Residential’ or ‘Industrial’ land. You should consult the requirements for each of these property sectors, in order to determine whether your land is ‘Commercial’.
Land may be classified as ‘Public Benefit’ for purposes of the FESL where:
- The land is not used for any profit-making purpose, or the dominant use of the land is for a purpose that is not profit-making, and
- The liable person is using the land for a specific purpose set out in Schedule 1 of the FESL Act, and this represents the dominant use of the land.
|TEST A – Not used for a profit-making purpose?||TEST B – Use of the land is listed in Schedule 1 and this is the dominate use?||Should be classified as Public Benefit?|
|Land used as a church by a religious organisation that is a registered charity, but on weekends the land is used for profit-making markets.||Yes. The dominant use of the land is as a church, which is not a profit-making activity.||Yes. A place of worship is listed in Schedule 1 of the FESL Act.||Yes|
|A separately valued land parcel owned by an RSL used only for lawn bowls.||Yes. An RSL is a registered club, and these are non-profit organisations.||Yes. Sporting facilities are listed in Schedule 1.||Yes|
|A separately valued land parcel owned by a sports club, used as an entertainment and dining establishment.||Yes. Registered clubs are non-profit organisations.||No. Entertainment and dining venues are not listed in Schedule 1.||No|
|A land parcel consisting solely of a private jetty that is only used for private recreational purposes.||Yes. Private recreational purposes are not profit-making.||Yes. Jetties are listed in Schedule 1.||Yes|
|A nursing home operated by a church that is registered as a charity.||Yes. Registered charity uses will not be profit-making purposes.||Yes. Schedule 1 includes “hospital, within the meaning of the Public Health Act.” This includes nursing homes.||Yes|
|A nursing home operated for profit.||No||Yes||No|
|A large parcel of rural residential land predominantly used as a private residence, but where one fifth of the land is subject to a conservation agreement.||Yes. The land is not used for profit-making purposes.||Yes. The land is subject to a conservation agreement, which is listed in Schedule 1.||No|
Land may be classified as ‘Government’ for purposes of the FESL where it is:
- Land owned by the Crown (i.e. the NSW Government)
- Land owned by a NSW State-Owned Corporation
- Land owned by the Commonwealth Government
- Land owned by a council
- Land in the unincorporated area of the Western Division (land in the far west of NSW where there is no council)
- Embassies and consulates.
Where land listed above is leased for value by a third party and the dominant use of the land is for purposes of the lease, the land will not generally be eligible to be classified as ‘Government’ land.
The FESL Act looks to a common sense definition of what ‘leased for value’ means. A peppercorn rent would not be considered ‘for value’, while market rent would be considered ‘for value’. In between, judgement is exercised by councils, who are responsible for classifying land.
The requirement that ‘the dominant use of the land is for purposes of the lease’ could apply to parcels of land where multiple activities occur. For example, a council-owned park may have a lease applying to a small part of the park, which is used as a café. In such cases, the café may not be the dominant use of the land parcel, so the land could be classified as ‘Government’.
The FESL Regulation provides a number of other special cases where land is classified or not eligible to be classified as ‘Government’ land.
Vacant ’Residential’, ‘Commercial’ or ‘Industrial’ land may be classified as ‘Vacant’ if:
- it has been classified as ‘Residential’, ‘Industrial’ or ‘Commercial’ and
- there are no buildings or structures (complete or incomplete) on the land that are being used or that could be used for a ‘Residential’, ‘Industrial’ or ‘Commercial’ purpose, and
- the land is not being used for storage or treatment of goods, materials or any other item.
You may apply to your council to seek a ‘Vacant’ land sub-classification. This may be done via a standard form that council may have on its website, or through some other means advised to you by the council.
Your council may charge an application fee (currently up to $50) for reviewing an application for ‘Vacant’ status under FESL. If your application is successful, any fee charged by council will be refunded.