Land and Environment Court New South Wales

• Medium Neutral Citation: Barrak Corporation Pty Ltd v Parramatta City Council [2014] NSWLEC 1077
• Hearing dates: 19, 20 March 2014
• Decision date: 09 May 2014
• Jurisdiction: Class 3
• Before: Pearson C

Decision

Appeal dismissed

• Catchwords: APPEAL -Rating categorisation - Application to change sub-category from Business CBD to Business General - Whether centre of activity
• Legislation Cited: Environmental Planning and Assessment Act 1979; Interpretation Act 1987; Land and Environment Court Act 1979; Local Government Act 1993; Sydney Regional Environmental Plan No 28-Parramatta; Parramatta Local Environmental Plan 1989 (City Centre); Parramatta City Centre Local Environmental Plan 2007; Parramatta Local Environmental Plan 2011
• Cases Cited: Australian Education Union v Department of Education and Children's Services [2012] HCA 3; Council of the City of Sydney v South Sydney City Council [2001] NSWLEC 129; Jakd Pty Ltd v Randwick City Council [1996] NSWLEC 93; Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2009] NSWLEC 109 Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145; Peabody Pastoral Holdings Pty Ltd v Mid-Western Regional Council [2013] NSWLEC 86; Ranglen Investments Pty Ltd v Fairfield City Council [1006] NSWLEC192; Ulan Coal Mines Pty Ltd v Mid-Western Regional Council [2013] NSWLEC 1167; Wilson v State Rail Authority of New South Wales [2010] NSWCA 198
• Category: Principal judgment
• Parties: Barrak Corporation Pty Ltd (Applicant); Parramatta City Council (Respondent)
• Representation: Mr A Pickles (Applicant); Mr J Hutton (Respondent); Mr B Barrak, Barrak Lawyers (Applicant); Mr C Drury, Sparke Helmore (Respondent)
• File Number(s): 30746 of 2013

Judgment

1 Barrak Corporation Pty Ltd (Barrak) is the owner of rateable land known as 116 Wigram Street Harris Park (the property). The property is a triangular shaped block of 1085 sqm, located on the western side of Wigram Street at the corner of, and with secondary frontage to, Kendall Street, Harris Park. The property is approximately mid way between Parramatta and Harris Park railway stations, on the eastern side of the railway line. The improvements comprise one building used for the purposes of a restaurant. Annexure A is a locality map printed 22 November 2013 as included in the Council's Statement of Facts and Contentions.

2 The property has been categorised as "Business-CBD" for rating purposes since the adoption of that rating sub-category by Parramatta Council for the making of rates for the 1995/96 financial year. On 24 June 2013 the Council adopted the rates for the 2013/14 financial year. On 12 July 2013 the Council issued a rates notice for the period 1 July 2013 to 30 June 2014, which identified the categorisation of the property for ordinary rates as "Business-CBD", and also levied the CBD Infrastructure Special Rate.

3 On 22 August 2013 Barrak applied under s 525(1) of the Local Government Act 1993 (the LG Act) for change in rating categorisation, nominating as the proposed sub-category "Business General". The application sought:

(1) for ordinary rates, the property being removed from the Business CBD category and included in the Business General category;

(2) for special rates, the property not being subject to the CBD Infrastructure Special Rate; and

(3) reimbursement of rates payments made as a result of the property being wrongly rated as Business CBD for ordinary rates and being wrongly levied with the CBD Infrastructure Special Rate.

4 In support of the application, Barrak referred to its submission made on 23 May 2013 in relation to the Council's Corporate Plan 2013/14-2016/17 incorporating Draft Budget and Rates & Charges for 2013/14, exhibited from 2 to 30 May 2013. That submission stated that the current and proposed rates are exorbitant, comparing the proposed ad valorem rate for Business CBD for the property at $29,961.22 with that for Business General at $14,585.90; and outlined relevant history of the rating of the property, stating that while rates had been levied at CBD standard, there was a lack of CBD infrastructure. Barrak objected to the rating of the property as Business CBD, and requested that the Council review the inclusion of the property in the Business CBD category, stating that if the Business CBD rates are to be maintained the zoning of the property and others similarly affected should be changed; and that in the alternative, the property should be rated Business General.

5 On 26 August 2013 the Council notified Barrak that its Application for Change in Rating Category was refused.

6 On 25 September 2013 Barrak appealed to the Court pursuant to s 526 of the LG Act, seeking orders that the declaration of sub-category for the property as "Business CBD" be set aside and that the property be categorised as "Business General" to take effect as of 1 July 2013; an order that the property be not subject to the CBD Infrastructure Special Rate; and an order that the Council reimburse Barrak for all rates payments made as a result of the property having been levied with the "Business CBD" sub-category rates and being subject to the CBD Infrastructure Special Rate.

7 Barrak accepts that by reason of s 574(3) of the LG Act any appeal against the imposition of the CBD Infrastructure Special Rate is out of time, and that there is no power in these proceedings to order reimbursement of rates paid. While the submission of 23 May 2013 included a request for a review of the inclusion of the property in the Business CBD sub-category, the material in evidence does not indicate whether a review was undertaken. These proceedings accordingly are an appeal against the Council's refusal on 26 August 2013 of the application made on 22 August 2013 under s 525(1)(b) of the LG Act to change the rating sub-category of the property from "Business CBD" to "Business General".

8 Barrak's position is that while the categorisation of the property in the Business CBD sub-category had some logic in 1995 when the Business CBD sub-category reflected the zoning, when regard is had to the changes in planning controls since then, and other factors such as changes in parking controls, there are not reasonable grounds for believing that the property is within the centre of activity that is CBD. Barrak submits that it is sufficient that the zoning of the property has changed. Other factors that would also support the change in sub-category are that the physical uses and built form are materially different to those in the CBD, so that the property can no longer be regarded as being in the CBD; that with such matters as removal of parking meters and changes to parking controls the property is in an area which is not part of the CBD; that the steps taken to review the categorisation of Harris Park land more generally indicate that the Council has not turned its mind to the question of whether the property should continue to be categorised as Business CBD; and that fairness would be relevant in a merits review in deciding that there is no reasonable basis for having the property in the CBD sub-category.

9 The Council's position is that this appeal is not a challenge to the creation of the sub-category, and the Court must take the sub-category as it finds it. It is sufficient that the property is located in the area identified in the Central Business District Centre of Activity rating map. If, contrary to that position, if it is necessary to identify a "centre of activity" for the property to continue to be in the Business CBD sub-category, there are a number of factors which point to the property being within such a centre of activity, including the spatial geography, the diversity of land uses and business in the CBD centre of activity, the exclusion of highly intensive retail activity from the CBD centre of activity, the diverse range of built forms in the CBD centre of activity and the constraints of heritage considerations, the range of levels of public infrastructure and parking restrictions, the inclusion in the centre of activity of a number of natural barriers and dividing lines, the existence of a core or middle area and fringe areas of the centre of activity, and the concentration of businesses rather than residential uses in the centre of activity.

Legislation

10 Chapter 15 of the LG Act makes provision for council finances, including the making of rates. There are four categories of an ordinary rate and of rateable land: farmland, residential, mining, and business (s 493). A council must make and levy an ordinary rate for each year on all rateable land in its area (s 494(1)). A rate can consist of an ad valorem amount, which is an amount in the dollar expressed to apply to the land value of all rateable land in the council's area within the relevant category or sub-category, or a base amount to which an ad valorem amount is added (ss 497, 498). Part 2 of Chapter 15 makes provision for limiting the annual income from rates and charges, including conferring power on the Minister to specify, by order published in the Gazette, the percentage by which councils' general income (which includes income from ordinary rates) for a specified year may be varied (s 506).

11 Part 3 of Chapter 15 deals with ordinary rates. Before making an ordinary rate, a council must have declared each parcel of rateable land in its area to be within one or other of the four categories, being farmland, residential, mining or business (s 514). Land is to be categorised as residential if its dominant use is for residential accommodation (excluding some forms of residential use such as hotel, guest house etc), if (in the case of vacant land) it is zoned for residential purposes, or if it is rural residential land (s 516). Land is to be categorised as farmland if its dominant use is for farming which has a significant and substantial commercial purpose or character and is engaged in for the purpose of profit (other than rural residential land) (s 517); and land is to be categorised as mining if its dominant use if for a coal mine or metalliferous mine (s 517). Land is to be categorised as business if it cannot be categorised as farmland, residential or mining (s 518).

12 Section 529 enables a council to determine a sub-category or sub-categories for one or more categories of rateable land:

529 Rate may be the same or different within a category

(1) Before making an ordinary rate, a council may determine a sub-category or sub-categories for one or more categories of rateable land in its area.

(2) A sub-category may be determined:

(a) for the category "farmland"-according to the intensity of land use, the irrigability of the land or economic factors affecting the land, or

(b) for the category "residential"-according to whether the land is rural residential land or is within a centre of population, or

(c) for the category "mining"-according to the kind of mining involved, or

(d) for the category "business"-according to a centre of activity.

Note. In relation to the category "business", a centre of activity might comprise a business centre, an industrial estate or some other concentration of like activities.

(3) The ad valorem amount (the amount in the dollar) of the ordinary rate may be the same for all land within a category or it may be different for different sub-categories.

(4) Land may be taken to be irrigable for the purposes of subsection (2) (a) if, and only if, it is the subject of a water right within the meaning of the Valuation of Land Act 1916.

13 A council must give notice under s 520 to each rateable person of the category declared for each parcel of land. A declaration that a parcel of land is within a particular category takes effect the date specified in the declaration (s 521), and ceases when a subsequent declaration concerning the land takes effect (s 522). Section 523 provides for review of declarations:

523 When are the declarations of categories reviewed?

(1) A council need not annually review a declaration that a parcel of land is within a particular category, but may review a declaration:

(a) as part of a general review of the categorisation of all or a number of parcels of land, or

(b) because it has reason to believe that a parcel of land should be differently categorised.

(2) A council must review a declaration if required to do so in accordance with section 525 by a person who is rateable in respect of a parcel of land to which the declaration applies.

14 Section 525 provides for an application for a change of category:

525 Application for change of category

(1) A rateable person (or the person's agent) may apply to the council at any time:

(a) for a review of a declaration that the person's rateable land is within a particular category for the purposes of section 514, or

(b) to have the person's rateable land declared to be within a particular category for the purposes of that section.

(2) An application must be in the approved form, must include a description of the land concerned and must nominate the category the applicant considers the land should be within.

(3) The council must declare the land to be within the category nominated in the application unless it has reasonable grounds for believing that the land is not within that category.

(4) If the council has reasonable grounds for believing that the land is not within the nominated category, it may notify the applicant of any further information it requires in order to be satisfied that the land is within that category. After considering any such information, the council must declare the category for the land.

(5) The council must notify the applicant of its decision. The council must include the reasons for its decision if it declares that the land is not within the category nominated in the application.

(6) If the council has not notified the applicant of its decision within 40 days after the application is made to it, the council is taken, at the end of the 40-day period, to have declared the land to be within its existing category.

15 There is no right of appeal conferred in relation to a council's determination of a rating category or sub-category. Section 525 confers a right of appeal against a council's declaration that land is within a particular category from a specified date, and against a council's determination on a review of a declaration that particular land is within a category, or of an application to change the category:

526 Appeal against declaration of category

(1) A rateable person who is dissatisfied with:

(a) the date on which a declaration is specified, under section 521, to take effect, or

(b) a declaration of a council under section 525,

may appeal to the Land and Environment Court.

(2) An appeal must be made within 30 days after the declaration is made.

(3) The Court, on an appeal, may declare the date on which a declaration is to take effect or the category for the land, or both, as the case requires.

16 The provisions for review, change of category, and appeal, apply in relation to sub-categories:

531 What provisions of this Part apply to the determination of sub-categories?

(1) Sections 519-527 apply to the determination of sub-categories for a category of rateable land in the same way as those sections apply to the declaration of a category.

(2) Notice of determination of a sub-category may be given in the same notice as the notice of declaration of a category.

17 There is no dispute that the property is properly within the business category. No issue was raised as to compliance with procedural requirements under the LG Act. The issue in the proceedings is the Council's determination not to approve the application to have the property declared to be within the Business General sub-category rather than the Business CBD sub-category for the 2013/14 rating year.

Planning controls

18 Under the Parramatta Local Environmental Plan 1989 (City Centre) (the 1989 LEP) the property was zoned 3(f) (City Centre Zone). The 1989 LEP included three Business zones: 3(d) Automotive Business, 3(f) City Centre, and 3(f-r) City Centre-Retail. The 3(f-r) City Centre-Retail zone applied to the land south of the Parramatta River between Marsden and Smith Streets to the railway line and Parramatta Station, and the land now developed as Westfield shopping centre on the southern side of the railway line. The 3(f) and 3(d) zoned land was generally located around the 3(f-r) zone.

19 The objectives of the 3(f-r) zone were:

(a) to maintain and enhance the retail functions of the city central spine, by encouraging shops and similar pedestrian oriented uses;

(b) to limit office development in the interests of maintaining retail core functions as well as restricting overshadowing of pedestrian malls and places;

(c) to maximise pedestrian convenience and comfort; and

(d) to provide for other development which complements or supports the primary retail function of the zone, particularly on sites or parts of sites which do not front major pedestrian routes.

20 The objectives of the 3(f) City Centre zone were:

(a) to encourage office and commercial development appropriate to the Centre's status and regional functions;

(b) to ensure the development is arranged and carried out in a way that maximises convenience and comfort for pedestrians;

(c) to ensure that development is arranged and carried out in a way that preserves views to and from the Centre, and appropriately relates to items of environmental heritage within the Centre;

(d) to ensure that developers contribute to the supply of parking in the Centre whether on site or otherwise, having regard to the capacity of the street system immediately adjoining the site;

(e) to accommodate other development which complements or supports the primary office functions of the zone; and

(f) to ensure that the major use of any land within the zone is for commercial or office development than for retail development.

21 The land immediately to the south of the property to Ada Street, and on the other side of Wigram Street between Harris Street and Una Street, was also zoned 3(f). To the east, the land bounded by Una Street, Wigram Street, Marion Street and Harris Street was included in the 2(g) Residential Conservation zone. The objectives of the 2(g) zone were:

(a) to encourage the conservation of residential areas which include individual buildings and streets of heritage significance; and

(b) to enable economic uses of existing buildings so as to assist in their conservation.

22 A number of properties located in the 2(g) zone were listed as items of environmental heritage in Sch 2 to the 1989 LEP.

23 Annexure B is an extract from the zoning map for the 1989 LEP, with the property marked "X".

24 On 20 August 1999 the Sydney Regional Environmental Plan No 28-Parramatta (Parramatta REP) was made. The Parramatta REP applied to the land in the Parramatta local government area (LGA) referred to as the Parramatta Primary Centre, and created six precincts: Precinct 1-City Centre, Precinct 2-Harris Park, Precinct 3-Government, Precinct 4-Westmead, Precinct 5-Rydalmere, and Precinct 6-Camelia. The objectives of the Parramatta REP were to establish regional planning aims for the Parramatta Primary Centre (cl 4(1)(a)); and to provide aims for development and detailed development controls for the City Centre and Government Precincts, and aims for development for the other four precincts (cl 6(2)).

25 Precinct 1-City Centre included the area previously zoned 3(f-r) under the 1989 LEP, and some properties previously zoned 3(f) and 3(d) under that LEP to the west of the railway line. There were seven land use zones in the City Centre Precinct: City Core, Retail Core, City Edge, Automotive Business, Special Uses, Open Space and Transport. The land on the northern side of Kendall Street, and on the eastern side of Wigram Street to Ruse Street, was included in the City Centre Precinct and zoned City Edge.

26 Under the Parramatta REP the property was located in Precinct 2-Harris Park. Part 4 Precinct 2-Harris Park Precinct included a statement of the aims of that part (cl 29). The planning controls in the 1989 LEP continued in effect for the Harris Park Precinct until 2001 when Part 4 Div 2 Zoning and Div 3 Building design controls were inserted in the Parramatta REP. The Harris Park Precinct Zoning Map (exhibit 1, p193) shows that the property, together with the land on the eastern side of the railway line which had previously been in the 3(f) zone under the 1989 LEP and the land on the southern side of Marion Street to Harris Street which had previously been in the 3(f-r) zone under the 1989 LEP, was in the Business zone under the Parramatta REP. The land to the south, and on the eastern side of Wigram Street, was zoned Residential 2(a). The zoning map shows that eight lots on the northern side of Marion Street between Wigram Street and Harris Street, which had under the 1989 LEP been in the 2(g) Residential Conservation zone, were zoned Business.

27 The Parramatta City Centre Local Environmental Plan 2007 (the 2007 LEP) commenced on 21 December 2007, and applied to the land formerly in Precinct 1-City Centre and the majority of the land in Precinct 3- Government under the Parramatta REP. The land on the northern side of Kendall Street, and on the eastern side of Wigram Street to Ruse Street, which had formerly been in the City Centre Precinct and zoned City Edge, was zoned B4 Mixed Use. The objectives and permitted uses in the B4 zone are:

Zone B4 Mixed Use

1 Objectives of zone

· To provide a mixture of compatible land uses.

· To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

· To create opportunities to improve the public domain and pedestrian links within the Mixed Use Zone.

· To support the higher order Commercial Core Zone while providing for the daily commercial needs of the locality, including:

· commercial and retail development,

· cultural and entertainment facilities that cater for a range of arts and cultural activity, including events, festivals, markets and outdoor dining,

· tourism, leisure and recreation facilities,

· social, education and health services,

· high density residential development.

· To protect and enhance the unique qualities and character of special areas within the Parramatta city centre.

2 Permitted without consent

Nil

3 Permitted with consent

Any other development not otherwise specified in item 2 or 4

4 Prohibited

Car parks (except those required by this Plan or public car parking provided by or on behalf of the Council); Caravan parks; Dual occupancies; Dwelling houses; Extractive industries; Home occupation (sex services); Industries; Light industrial retail outlets; Mines; Vehicle body repair workshops; Warehouse or distribution centres.

28 The Parramatta Local Environmental Plan 2011 (the 2011 LEP) commenced on 7 October 2011, and applied to the land included in the Parramatta LGA other than the land to which the 2007 LEP applied. The boundary between the land included in the 2011 LEP and that included in the 2007 LEP runs along Kendall Street and Wigram Street on the other side of the road to the property. Annexure C is an extract from the zoning map for the 2011 LEP,

29 Under the 2011 LEP the property, together with the land which had also been included in the Business zone in the Harris Park Precinct Zoning Map (and four lots on the eastern side of Harris Street at the intersection with Marion Street), is zoned B1 Neighbourhood Centre. The objectives, and permitted uses, of the B1 zone are:

Zone B1 Neighbourhood Centre

1 Objectives of zone

· To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood.

2 Permitted without consent

Home occupations

3 Permitted with consent

Bed and breakfast accommodation; Boarding houses; Building identification signs; Business identification signs; Business premises; Child care centres; Community facilities; Health consulting rooms; Hostels; Medical centres; Neighbourhood shops; Respite day care centres; Roads; Shop top housing; Water recycling facilities; Any other development not specified in item 2 or 4

4 Prohibited

Agriculture; Air transport facilities; Airstrips; Amusement centres; Animal boarding or training establishments; Boat building and repair facilities; Boat launching ramps; Boat sheds; Bulky goods premises; Camping grounds; Caravan parks; Cemeteries; Charter and tourism boating facilities; Correctional centres; Crematoria; Depots; Eco-tourist facilities; Electricity generating works; Entertainment facilities; Exhibition homes; Exhibition villages; Extractive industries; Farm buildings; Forestry; Freight transport facilities; Function centres; Garden centres; Hardware and building supplies; Health services facilities; Heavy industrial storage establishments; Helipads; Highway service centres; Home industries; Home occupations (sex services); Industrial retail outlets; Industrial training facilities; Industries; Jetties; Landscaping material supplies; Marinas; Mooring pens; Moorings; Mortuaries; Open cut mining; Passenger transport facilities; Plant nurseries; Port facilities; Pubs; Recreation facilities (major); Registered clubs; Research stations; Residential accommodation; Restricted premises; Rural industries; Rural supplies; Sewerage systems; Sex services premises; Signage; Storage premises; Timber yards; Tourist and visitor accommodation; Transport depots; Truck depots; Vehicle body repair workshops; Vehicle repair stations; Vehicle sales or hire premises; Warehouse or distribution centres; Waste or resource management facilities; Water recreation structures; Water supply systems; Wharf or boating facilities; Wholesale supplies

30 The land in the vicinity of the property formerly zoned Residential 2(a) under the Parramatta REP is now zoned R2 Low Density Residential under the 2011 LEP. The objectives and permitted uses in the R2 zone are:

Zone R2 Low Density Residential

1 Objectives of zone

· To provide for the housing needs of the community within a low density residential environment.

· To enable other land uses that provide facilities or services to meet the day to day needs of residents.

· To ensure that non-residential land uses are located in a context and setting that minimises impacts on the amenity of a low density residential environment.

· To allow for a range of community facilities to be provided to serve the needs of residents, workers and visitors in residential neighbourhoods.

2 Permitted without consent

Home occupations

3 Permitted with consent

Bed and breakfast accommodation; Boarding houses; Building identification signs; Business identification signs; Community facilities; Dual occupancies; Dwelling houses; Educational establishments; Emergency services facilities; Environmental facilities; Environmental protection works; Exhibition homes; Exhibition villages; Flood mitigation works; Group homes; Health consulting rooms; Home-based child care; Home businesses; Home industries; Hospitals; Hostels; Neighbourhood shops; Public administration buildings; Recreation areas; Recreation facilities (indoor); Recreation facilities (outdoor); Roads; Seniors housing; Water recycling facilities

4 Prohibited

Any development not specified in item 2 or 3

31 The view on the first day of the hearing included the area along Wigram Street north from the property to Hassall Street, along Kendall Street and Ada Street, south along Wigram Street to Marion Street, east along Marion Street to Albion Street, west along Marion Street and then north along Station Street East, across the railway line at Harris Park Station, along Cowper Street to Parkes Street, and then back to Parramatta railway station. It was apparent on the view, and confirmed by the Schedule of properties in the Harris Park locality that are rated as Business prepared by the Council (exhibit 1, tab 10), that several of the properties in the R2 zone in the locality of the property are used for commercial or retail purposes. Those uses include restaurants, take away food shops, supermarket, and professional offices. The Schedule indicates that some of those properties have been subject to the Business rating category since 1995/96, while others have only recently been categorised as Business. The Heritage Map for the 2011 LEP (exhibit 1, p 322) shows that the area bounded by Kendall Street, Station Street East, Marion Street, Harris Street and Una Street, is the Harris Park West Conservation Area, and that the majority of the lots in that Heritage Conservation Area (not including the subject property) are identified as individual heritage items. It was common ground that many of those properties that are listed as heritage items in Sch 5 of the 2011 LEP are used for commercial purposes pursuant to approvals under the conservation incentive provisions of the 2011 LEP in cl 5.10(10):

(10) Conservation incentives

The consent authority may grant consent to development for any purpose of a building that is a heritage item or of the land on which such a building is erected, or for any purpose on an Aboriginal place of heritage significance, even though development for that purpose would otherwise not be allowed by this Plan, if the consent authority is satisfied that:

(a) the conservation of the heritage item or Aboriginal place of heritage significance is facilitated by the granting of consent, and

(b) the proposed development is in accordance with a heritage management document that has been approved by the consent authority, and

(c) the consent to the proposed development would require that all necessary conservation work identified in the heritage management document is carried out, and

(d) the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, or the heritage significance of the Aboriginal place of heritage significance, and

(e) the proposed development would not have any significant adverse effect on the amenity of the surrounding area.

32 The Council has prepared a Planning Proposal to amend the 2011 LEP so as to amalgamate the 2007 LEP into the 2011 LEP. It was not in dispute that the Planning Proposal (exhibit 4) has been exhibited and forwarded to the Department of Planning for drafting, and that in November 2013 the Council was advised that the amalgamated planning instrument would possibly be made within six to nine months. In addition to amalgamating the 2007 LEP into the 2011 LEP, the Planning Proposal proposes to add the B3 Commercial Core zone to the 2011 LEP, and amend, among others, the B4 Mixed Use zone. Those amendments include incorporation of the following objectives from the 2007 LEP into the B4 Zone objectives:

To create opportunities to improve the public domain and pedestrian links within the Mixed Use zone

To support the higher order Commercial Core Zone while providing for the daily commercial needs of the locality

To protect and enhance the unique qualities and character of special areas within the Parramatta city centre

33 The proposal includes deletion of certain land uses currently permissible in the B4 zone in the 2007 LEP, and the rezoning of one lot in Hassall Street, to the north of the subject property, from B3 to B4. It was common ground that the amendments proposed by the Planning Proposal do not apply to or affect the subject property.

Rating categorisation

34 The Council resolution of 17 July 1995 making the rates for the year commencing 1 July 1995 (exhibit 3) provided (in paragraph (1)(b)) the ad valorem amount of the ordinary rate for "all rateable land within the City of Parramatta which is categorised as business land (and is not within the sub-categories of business land referred to in (c) through to and inclusive of (z) below)" at 1.349c in the dollar upon Land Value.

35 Paragraphs (d)-(z) specify the ad valorem amounts for 23 sub-categories identified respectively as "Industrial Centre of Activity" Nos 1 - 23, all at 1.44c in the dollar. Those 23 sub-categories apply for rateable land "categorised as business land" and within the relevant sub-category "because it is within the geographical area which was highlighted on the map exhibited for inspection by Council during the exhibition of the Draft Management Plan as..." the specified Area.

36 Paragraph (c) provides (emphasis added):

In case of all rateable land within the City of Parramatta which is categorised as business and is within the sub-category of "Central Business District", because it is land which is zoned "Business" in the Parramatta Local Environmental Plan, 1989 (City Centre), an Ordinary Rate of one point seven zero three cents (1.703c) in the dollar upon Land Value....

37 The declaration in 1995 of the sub-category of Central Business District was made by reference to the zoning under the 1989 LEP (in contrast to the Industrial sub-categories 1-23, which were identified by reference to a map). That changed in 2000, when the Council resolution on 10 July 2000 making the rates for the year commencing 1 July 2000 (exhibit B, tab 38) declared the Central Business District sub-category in the following terms (emphasis added):

(3) In the case of all rateable land within the City of Parramatta which is categorised as business land and is within the sub-category of Central Business District, because it is within the geographical area which was highlighted on the map exhibited for inspection by Council during the exhibition of the Draft Management Plan as Central Business District Centre of Activity, ...

38 The various Industrial Centre of Activity sub-categories for land categorised as business were also identified in 2000 by reference to the map (paragraphs (4)- (26)). Paragraph (2) provided that all rateable land categorised as business, but not within the sub-categories of business land referred to in paragraphs (3)-(26), that is, not within the Business CBD or the Industrial sub-categories, was subject to an ordinary rate of 1.2971c in the dollar. The ad valorem rate for the Business CBD sub-category was 2.4434c in the dollar.

39 The parties agreed that the map referred to in paragraph (3) of the resolution of 10 July 2000 is that included in the Council's bundle (exhibit 1 tab 3) and in Barrak's bundle (exhibit A, tab 4), which they agreed dates from 1999 (the Centre of Activity Map). That map, headed "Central Business District (CBD) Parramatta" shows a number of lots coloured in blue "Centre of Activity", including the subject property. It also includes the adjoining properties in the area bounded by Kendall, Wigram and Ada Streets; the land to the east bounded by Wigram, Parkes, Harris and Una Streets; the land to the south fronting Station Street East opposite the railway line; and properties fronting the southern side of Marion Street as far as Harris Street; and properties on the northern side of Marion Street to Wigram Street. The land coloured blue corresponds with the land zoned Business zones (3(d), 3(f), and 3(f-r)) under the 1989 LEP. Annexure D is an extract from the Centre of Activity Map.

40 The approach adopted by the Council of declaring the various sub-categories by reference to a map has continued since 2000. The Council resolution of 24 June 2013 making the rates for the year 2013/14 provided for Ordinary Rates for land categorised as business as follows:

(a) Business General land, described in (A)(2)(i) as land:

"...which is categorised as Business General land (and is not within the sub-categories of Business land referred to in (B)[sic](ii) through to and inclusive of (B)[sic](v) below)...";

(b) a sub-category of business land, described in (A)(2)(ii) as land:

"...which is categorised as business land and is within the sub-category of Central Business District (CBD), because it is within the geographical area which is highlighted on the map exhibited for inspection during the exhibition of the Draft Operational Plan as Central Business District Centre of Activity,..." (emphasis added);

(c) an additional sub-category, the CBD Centre of Activity Area 2 (the Westfield site), described in (A)(2)(iii) as land:

"...which is categorised as Business land and is within the sub-category of Central Business District - Centre of Activity Area No 2, because it is within the geographical area which is highlighted on the map exhibited for inspection during the exhibition of the Draft Operational Plan as Central Business District Centre of Activity Area No 2,...";

(d) various Business Industrial Centres of Activity, identified in (A)(2)(iv) by reference to particular suburbs:

"...and within the geographical areas which are highlighted on the map exhibited for inspection during the exhibition of the Draft Operational Plan as "Business Industrial Centres of Activity...";

and

(e) an additional Industry Centre of Activity No 2, identified as:

"because it is within the geographical area which is highlighted on the map exhibited for inspection during the exhibition of the Draft Operational Plan as Industrial Centre of Activity No 2".

41 There are now two CBD ratings sub-categories of business land under s 529(2)(d) of the LG Act. The ad valorem amount set for 2013/2014 for the land categorised as Business General was 0.012733933 cents in the dollar; for Business CBD 0.02261865 cents in the dollar; and for CBD Centre of Activity 2 (the Westfield shopping centre), 0.03723942 cents in the dollar.

42 The Draft Operational Plan (exhibit 1, tab 11) includes a map titled "Ordinary Rates" dated 22 April 2013 (the Ordinary Rates Map). That map includes the subject property in the area coloured light blue as "Business CBD". The area coloured light blue is the same shape as the area coloured light blue on the Centre of Activity Map, although some areas near the city centre have been excluded (which the Council submits is presumably because they have been rezoned from business as a result of redevelopment: written submissions [32]). The Ordinary Rates Map includes a dark blue area, marked "Business CBD Centre of Activity", which coincides with the Westfield Shopping Centre. Properties coloured yellow are described as "Residential Suburban". Those properties to the south and on the opposite side of Wigram Street that are in the R2 Low Density Residential zone under the 2011 LEP, and which are used for commercial or retail purposes, are coloured orange, "Business General". Annexure E is an extract from the Ordinary Rates Map.

43 Barrak's submission to the Council in its letter dated 23 May 2013 (exhibit A, tab 14) in response to the exhibition of the draft Corporate Plan 2013/14-2016/17, objected to the rating of the property as Business CBD. The submission stated that while the property was included in the "Deemed CBD for Rating Purposes" map provided by the Council, it was not within the CBD as defined in the 2007 LEP; and that although the property had been rated as Business CBD historically it had not been serviced in similar manner as the CBD. The submission identified nine other properties in Wigram Street also used as restaurants which would continue to be rated Business General, and which operate in a commercially competitive environment with the subject property, and submitted that there "is simply no rational basis to treat this property differently to other restaurants and business uses in Wigram Street and surrounding Harris Park area". The submission requested the Council to conduct a review under s 525 of the LG Act of the inclusion of the property in the Business CBD category. The Council's Business Paper dated 24 June 2013 addressed the submissions received in response to the public exhibition of the Corporate Plan, and noted in response to the submission provided on behalf of Barrak, that the neighbouring properties currently outside the CBD rating boundary "are proposed to be moved from the Business General category to Business CBD, thus eliminating the inequalities the current boundary creates".

44 On 4 July 2013 the Council's Service Manager-Rates notified the owners of 70 properties by letter that the area in which their property was located had been affected by a change in the rating boundary, and that change put their property in the Business CBD rating category. That change affected all Business rated properties bounded by Una, Wigram, Marion and Harris Streets. The letter noted that when the CBD rating category had been introduced some 15 years earlier that properties within the affected area were predominantly used for residential purposes; this was no longer the case and a boundary adjustment was required (exhibit A, tab 18).

45 The letter to Barrak dated 26 August 2013 advising that the Council had refused the application to change the rating category included advice that those additional properties were now included in the Business CBD category (exhibit A, tab 24).

46 At its meeting on 14 October 2013 the Council considered concerns raised by the owners of those 70 properties. The recommendation before it was to phase in the increase over four years, and to approve the creation of a new rating category called "Business CBD Transitional" (exhibit A, tab 26). The Council deferred consideration for a meeting with affected landowners, and a workshop was held on 6 November 2013 (exhibit A, tab 29). The Council meeting on 11 November 2013 resolved to note that "the charging of the CBD Business Rates for 70 properties in Harris Park was an administrative error"; that new rates notices would be issued for those properties; and that a briefing paper was to be prepared on the options and processes for reviewing rates across the whole of Harris Park (exhibit A, tab 30).

Consideration

47 The appeal before the Court is in respect of the Council's refusal on 26 August 2013 of Barrak's application made on 22 August 2013 under s 525(1)(b) of the LG Act that the property be declared to be within the Business General sub-category, and not the Business CBD sub-category. The form completed by Barrak, headed "Application for Change in Category of Land Categorisation for Rating Purposes" (provided with the Class 3 application) provides the information required by s 525(2) of the LG Act. Section 525(3) provides:

(3) The council must declare the land to be within the category nominated in the application unless it has reasonable grounds for believing that the land is not within that category.

48 The Council's determination of the application included the following reasons for refusing to change the categorisation:

Unfortunately, the location of your property is well inside the current Business CBD area, and as the dominate[sic] use of your property remains for the purpose of Business, your rates as such must reflect the current rating category for your property with the Business CBD Area.

49 Section 526(3) provides the powers of the Court on appeal:

(3) The Court, on an appeal, may declare the date on which a declaration is to take effect or the category for the land, or both, as the case requires.

50 The LG Act does not otherwise address the nature of the appeal provided in s 526. It is clear that it does not provide an opportunity for an applicant to contest the creation of the sub-category itself: Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2009] NSWLEC 109 at [21], per Pain J. Section 39(2) of the Land and Environment Court Act 1979 provides that the Court has, for the purposes of hearing and disposing of the appeal, all the functions and discretions which the Council had in respect of the matter the subject of the appeal.

51 The Council framed the task before the Court as being to determine whether the property is within a "centre of activity" within the meaning of s 529(2)(d), and submits that the Court need only be satisfied that there are "reasonable grounds" for believing that the property is part of such a "centre of activity" (written submissions, [2]). If there are reasonable grounds to believe that the property is not within the Business General sub-category, it will be within the Business CBD sub-category, there being no other candidate sub-categories, and so the issue is whether there are reasonable grounds to believe that the property is within the Business CBD sub-category determined by the Council on 24 June 2013. Barrak submitted that while the Council is bound by a "reasonable grounds" test, the Court is not. Barrak submits that the presumption in s 525 is in favour of the applicant's application, and the Court is bound to declare the category in accordance with the application unless it has reasonable grounds to believe otherwise.

52 The parties referred to two decisions in Class 3 appeals relating to business categorisation: Ranglen Investments Pty Ltd v Fairfield City Council [1006] NSWLEC192, and Jakd Pty Ltd v Randwick City Council [1996] NSWLEC 93.

53 Ranglen was an appeal against a determination that the relevant land was in the "Fairfield Business Centre" sub-category. The site was located on The Horsley Drive, and called "Fairfield Centre". The site area was 2.606ha, and the site was zoned "Light Industrial" and had three buildings and parking. The tenants included a clothing factory, car repair and service premises, other premises making clothes, a printer, two storing furniture, one selling and repairing heavy furniture, one selling mobile phones and a sandwich shop. Bannon J considered planning evidence relating to the retail and office uses on both sides of The Horsley Drive and concluded that while the industrial zoning gave the subject site a different emphasis from the retail area, both formed part of an area "which may fairly be described as Fairfield business centre". His Honour concluded that it was open to the Council to conclude that the subject site formed part of the Fairfield Business Centre and could appropriately be included in that sub-category.

54 Jakd was an appeal against a declaration that the relevant land was categorised as "business". The site (923 sqm) had a part one and part two storey building providing at ground floor level workshop, office, storage areas, used for an auto electrical repair workshop and a motor vehicle mechanical repairs, and at first floor level a residence with two bedrooms occupied by a couple as their residence together with other members of their family. Bignold J concluded that the primary facts were not capable of supporting the conclusion that the dominant use was for residential accommodation, and that the residential use of the land was dominated by the industrial/commercial use. Having regard to the nature of the land, its development by buildings and the separate uses made of the buildings and the relative significance of the uses, the dominant use was not for residential accommodation; accordingly the land could not be categorised as "residential" land within the meaning of s 516 of the LG Act, and its proper categorisation was accordingly "business".

55 Ranglen suggests that the appropriate approach in a s 526 appeal is to consider whether the land can properly be regarded as forming part of the sub-category which the council has decided, rather than whether in fact it is. Jakd suggests an approach closer to that indicated by the wording of s 525, namely that the applicant's land is to be declared to be within the nominated sub-category unless there are reasonable grounds to believe that it is not within that sub-category. It is relevant, however, that Jakd concerned a choice between the residential and business categories and that s 518 requires land to be categorised as business if it cannot be categorised as one of the other categories (on the facts of that case, residential). It is also relevant that the question of whether the land in Jakd could be categorised as residential, as contended by its owner, depended by virtue of s 516(1)(a) on its dominant use.

56 The focus on dominant use also applies to the categorisation of land as "farmland" and "mining" under ss 515 and 517. In Ulan Coal Mines Pty Ltd v Mid-Western Regional Council [2013] NSWLEC 1167 Moore SC considered whether nine parcels of land had correctly been classified as "mining", and upheld each appeal under s 526 against the council's reclassification of the land as "mining", declaring the relevant parcels to be either "farmland" or "residential". Peabody Pastoral Holdings Pty Ltd v Mid-Western Regional Council [2013] NSWLEC 86 was an appeal under s 526 against the council's refusal of a review of declarations that three parcels of land were re-categorised to be "mining", sub-category "mining coal". The Court had, by consent, declared the three parcels of land to be respectively categorised as "residential", "residential" and "farmland". In a subsequent successful application for costs, Preston CJ concluded that none of the council's five reasons for categorising the parcels of land as mining supported that categorisation; and that once each of those reasons was shown to be incorrect it followed that there was not a foundation for the council to decide to re-categorise the land as mining and decline the owner's applications to change the category, or defend its decisions in the appeals.

57 Both Ulan Coal and Peabody concerned appeals against declarations to change the categorisation of the relevant land, which depended on a finding as to the dominant use, rather than an appeal against refusal to change the sub-category which had been determined on a different basis. While neither is directly on point, those decisions support a reading of Ranglen and Jakd that the Court's task in an appeal under s 526 is to determine what the appropriate category (or sub-category) is, on the basis that it is for the Council to prove the proper categorisation of the subject land (Jakd, p2), and that s 525(3) requires that the land be declared to be within the category nominated in the application unless there are reasonable grounds for believing that the land is not within that category. Section 526 then enables the Court to declare the category (or sub-category) for the land. While I would not necessarily agree with the Council that the s 525(3) consideration is more limited, it is clearly different where, as here (and in the case of a residential sub-category) the sub-category is determined by reference to a geographic area such as a suburb or an area on a map, in contrast with the situation where the sub-category is determined by reference to the described use (as is the case for mining and farmland sub-categories).

58 In my view, having regard to the language used in s 525(3), applying s39(2) of the Court Act, and having regard to the relevant authorities, the issue to be determined in this appeal is whether there are reasonable grounds to believe that the property is not within the Business General sub-category. If there are not, the property should remain in the Business CBD category, there being no other candidate sub-categories.

Identification of the sub-category by a map

59 The Council's primary position is that there is a legally valid sub-category determined by reference to the blue-shaded area on the Ordinary Rates Map referred to in the 24 June 2013 resolution, and that the property is within that sub-category because it is coloured blue on that map.

60 Barrak submits that if that is the relevant enquiry, the question whether the property can fairly be said to be within the CBD centre of activity constituted by the light-blue shaded areas on the Centre of Activity Map must necessarily be answered "yes". However, Barrak submits that the appeal is not limited to asking whether the property falls within an area specified on a map drawn by the Council, and if the legislature had intended that an appeal would be limited to a factual enquiry of that type it would not have vested the Court with power to hear and determine an appeal.

61 The authorities provide assistance on this submission. The judgment in Ranglen does not indicate whether the identification of the "Fairfield Business Centre" sub-category was by reference to a map, or on some other basis. By noting that the industrial zoning of the subject land gave the subject property "a different emphasis from the retail area", the judgment suggests that the identification was not done simply on the basis of a common zoning. In any event, even if the identification had been made solely on the basis of an area marked on a map, Bannon J did not restrict his consideration to that factor, and considered, assisted by expert planning evidence, the nature and diversity of the actual uses of the subject site and the other land in the relevant sub-category.

62 Further assistance is provided by the decision of Pearlman CJ in Council of the City of Sydney v South Sydney City Council [2001] NSWLEC 129, a judicial review challenge to the declaration of sub-categories for both residential and business categories. In contrast with the "farmland" and "mining" sub-categories under s529, which depend on the use, the sub-categories for "residential" and "business" are determined by reference to different criteria. For residential, that is according to whether the land is rural residential land or "is within a centre of population" (s 529(2)(b)); and for business, "according to a centre of activity" (s 529(2)(d)).

63 South Sydney City Council had determined the sub-categories by reference to the name of the suburb. Pearlman CJ considered s 529(2)(b), and held:

26. ...If land has been categorised as residential, then the power to determine a sub-category of that residential category is enlivened. However, the power is circumscribed. The sub-categories which may be determined in the exercise of the power are only two - rural residential land sub-category and centre of population sub-category. Those two notions - of rural residential land or land within a centre of population - describe not only the ambit of the power but also its outcome. They describe the ambit of the power because of the use of the words "according to whether". That is, there must be land which fits within the term "rural residential land" (as defined) for there to be a rural residential land sub-category, and there must be land which fits within a centre of population (according to its ordinary and natural meaning, since it is undefined) for there to be a centre of population sub-category. The notions also describe the outcome of the exercise of the power, because the sub-categories so determined can only be one or both of the two that are described - no other type of sub-category is permissible.

27. Such a construction accords, in my opinion, with the language of s 529(2)(b). The term "according to" indicates that the determination of a sub-category must correspond to or be in conformity with the descriptions that follow. The use of the word "whether" indicates choices or alternatives, and that is emphasised by the repetition of the word "is". Accordingly, where there is land that is categorised residential, then sub-categories of land may be determined so long as the land that is to be so sub-categorised corresponds with one or other of the two descriptions.

64 Section 529(2)(d) also uses the term "according to", and applying the reasoning in City of Sydney, the determination of a sub-category would have to "correspond to or be in conformity with the descriptions that follow". However, while s 529(2)(d) does not use the term "whether", Pearlman CJ stated that alternatives limiting the ambit of the power to determine sub-categories are also required in the remainder of s 529, including s 529(2)(d):

31. ...For the category business, the sub-categories must be determined to correspond with a centre of activity, and the note to the subsection itself indicates choices that may be made (sub-s (2)(d)).

65 The parties also referred to the more recent judicial review challenge to the determination of a sub-category, Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2009] NSWLEC 109 (upheld on appeal Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145). That challenge involved a number of grounds, relevantly for the circumstances of this appeal, being to the council's determination of a business sub-category, "Business-Marrickville Metro", which applied to a single landholding that was a shopping centre with 101 tenants. Pain J held ([2009] NSWLEC 109 at [47]) that a sub-category could be a single landholding, and that in determining the ordinary meaning of the term "centre of activity" the note to s 529 provided some guidance, as did the Department of Local Government and Cooperatives policy document "Council Rating and Revenue Raising Manual" (April 1994). Her Honour concluded that the concentration of activities at the Metro site was a large number of retail sites, and that there was no prohibition on a sub-category relating only to a single land user "provided that the category relates to a centre of activity based on land use, as the sub-category Business -Marrickville Metro does". That conclusion was upheld on appeal: Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145 at [79]-[80].

66 Having regard to these authorities, I am not persuaded that the Council's position is correct. I agree with Barrak that if that were sufficient that the property is within the area coloured light blue on either the Centre of Activity Map or the Ordinary Rates Map, the right of appeal conferred by s 526 would be futile, except possibly in circumstances such as the purported extension of the Business CBD rate in 2013 to the additional 70 properties not included in the Ordinary Rates Map. While this is not an appeal in relation to the initial determination of a sub-category, or a challenge to the validity of the Council's determination of that sub-category, Ranglen and City of Sydney support the proposition that there must be a centre of activity. Neither of those decisions support the proposition that the determination of whether there are reasonable grounds to believe that the property is not within the Business General sub-category can be answered solely by reference to a map.

Centre of Activity

67 The Council's alternative position is that the geographic area shown on the Ordinary Rates Map, including the subject property, is a "centre of activity" within the meaning of s 529(2)(d). The Council submits that the Court must take the sub-category as it finds it, and cannot consider whether the Council could have made a better or fairer sub-category by drawing the boundaries differently, and thus the inquiry is narrower than that which Barrak is asking the Court to undertake. The Council submits that it is not appropriate for the Court to apply some preconceived notion of what constitutes a central business district or CBD. "CBD" is just the label that the Council affixed to the area it determined to be a sub-category and therefore a "centre of activity", and the question on appeal is whether that area, including the property, can fairly be described as a "centre of activity", not whether the property is part of the Parramatta CBD in some other sense.

68 Barrak submits that in the present circumstances the label "CBD" is not an arbitrary or meaningless label affixed to a sub-category, but rather acts as a descriptor attached to a geographical boundary which the Council identifies as a "centre of activity". The requirement in s 529 to identify a sub-category by reference to a "centre of activity" does not mean "any" centre of activity, but an identifiable centre, which it could rationally be said to form a part; and whether it can rationally be said to form part of that centre depends on an examination of a number of characteristics, which includes zoning, type of land uses, density and the like. Barrak submits that reference needs to be made not only to the characteristics of the nominated centre, but also to the characteristics of the properties nearby that are said not to fall within that centre of activity.

69 The first question to determine is what is to be understood by the term "centre of activity" as used in s 529(2)(d).

70 The Council submits that Ranglen and Marrickville Metro support the following propositions about the meaning of "centre of activity" as used in s 529(2)(d):

(1) The words "centre of activity" should be given their ordinary meaning (Marrickville Metro (Pain J) at [46]; Marrickville Metro (CA) at [79]; and they should not be read down by reference to departmental policies or other extrinsic materials: Ranglen;

(2) The note in s 529(1), which states "[i]n relation to the category 'business', a centre of activity might comprise a business centre, an industrial estate or some other concentration of like activities") is a relevant aid to construction: Marrickville Metro (Pain J) at [47]; however, it should not be read as restricting or overriding the ordinary meaning of the expression "centre of activity": Ranglen;

(3) A centre of activity need not be a centre of "like activities" - it may be comprised of "a number of enterprises involving different activities": Ranglen (in that case including both retail and industrial activities); and Marrickville Metro (Pain J) at [43], that the council may determine a sub-category in respect of a "single site on which several activities are located";

(4) A centre of activity will normally involve "a concentration of activities" within a particular area or around a particular site: Marrickville Metro (Pain J) at [46]; Marrickville Metro (CA) at [79]). While the word "centre" requires some kind of geographical connection between activities carried out on the parcels of rateable land within the sub-category, the connection need not be of any particular kind (it can be large or small, depending on how the council defines it);

(5) A centre of activity may be tightly compressed and homogeneous (for instance, the 100 tenancies in Marrickville Metro, all of which were retail premises and on one lot), or more diverse, for example the more loosely described centre of activity in Ranglen which encompassed a variety of land uses and different geographical areas on each side of The Horsley Drive; and

(6) The label affixed to the category (in this case "Central Business District" or "CBD") is not important - what matters is the characteristics of the area to which the category applies: Marrickville Metro (Pain J at [43]-[44]; Marrickville Metro (CA) at [81]-[84]).

71 Barrak agrees with this summary, other than with the final proposition (written submissions in reply, [10]). Barrak submits that there is a distinction between the declaration of a sub-category, and a determination that a rateable property falls within that sub-category, and this appeal relates to the latter. In Marrickville Metro the challenge was to the declaration of the sub-category, and it was understandable that the label affixed to the category was unimportant in determining whether the council had made a reviewable error when it declared the categories and sub-category (written submissions in reply, [11]-[12]). In this appeal under s 526 the question is different and the name of the category may have some relevance. In oral submissions Barrak submitted that the term "Central Business District" does mean something: it is a centre of business, and geographical by being a district, as a descriptor of a centre of activity. There has to be a purpose to the label, and that is so in this circumstance because the label was descriptive. It is not permissible to rely simply on a map, there must be some relevance to the geographic descriptor of "CBD", which did mean something in 1995.

72 I accept the Council's submission on the sixth proposition. As noted by Tobias JA in Marrickville Metro ([2010] NSWCA 145 at [82]), there is no statutory requirement to identify a sub-category by any particular name. Section 543(1) of the LG Act requires only that a council give "a short, separate name" for each amount of the ordinary rate. An example of that is the industrial sub-categories first declared in 1995/96 which were described as "Industrial Centre of Activity" numbered 1-23, labels which themselves would not disclose the type or extent of industrial activity or any other basis on which the sub-categories were to be distinguished from each other. While Marrickville Metro was a judicial review challenge to the determination of the sub-category, rather than an appeal in relation to whether particular land was within a sub-category, in my view the difference in context is not material in this regard. I agree with the Council that what matters is the characteristics of the area to which the sub-category applies, and whether the area that includes the property can fairly be described as a "centre of activity". For the reasons stated below, I do not accept that the inclusion in the name of the "Business CBD" sub-category of the term "CBD" would be irrelevant or inappropriate.

73 I agree with the parties that propositions (1)- (5) are supported by the authorities. In the absence of a definition in the LG Act, or any indication that some other specific meaning is to be derived, the task is to determine the ordinary and grammatical meaning of the term "centre of activity", having regard to the context and legislative purpose: Australian Education Union v Department of Education and Children's Services [2012] HCA 3; Wilson v State Rail Authority of New South Wales [2010] NSWCA 198. That was the approach adopted in Ranglen. The departmental policy quoted (at [41]) by Pain J in its draft 1994 version, was referred to by Bannon J in Ranglen in a version issued June 1995 which included the following:

"The expression centre of activity is not defined in the Act. However, in the view of the Department, the words refer to an area of land (usually comprising more than one parcel of rateable land) at which a complex of 'business' activities are carried on in a fairly concentrated manner with a high degree of congruity and homogeneity, having regard to the geographic cohesion of the land, the use to which it is put, and the comparative independence and self-relatedness of the activity or activities carried on in the area (eg a business centre or industrial estate)."

74 The evidence in the present appeal did not include a copy of this policy, or any other departmental policy. Whether or not it reflects current departmental policy guidance, the usefulness of the policy was questioned in Ranglen, Bannon J doubting whether there was any provision in the Interpretation Act 1987 that would enable him to take it into account. Pain J, on the other hand, considered that in the context of applying the ordinary meaning of the words "centre of activity", "the interpretation in this manual should be adopted". On the facts in Marrickville Metro, the reference in the policy to business activities "carried on in a fairly concentrated manner with a high degree of congruity and homogeneity" would be an accurate description of the Marrickville Metro shopping centre. In my view, however, by the inclusion of the qualifying notions of a "high" degree of congruity and homogeneity, the policy is more restrictive than the reference to "activity" in the term "centre of activity" might otherwise be considered to be. I agree that the term as used in s 529(2)(d) should not be read down by reference to that policy.

75 In relation to the second proposition, the note to s 529 does not form part of the Act (s35 of the Interpretation Act 1987; s 6 of the LG Act), and its function is "to assist understanding" (s6 LG Act). In Ranglen, Bannon J held that the note would be of limited assistance if the words of the Act are clear, and that in any event, in its terms the note would not confine a "centre of activity" to a centre of "like activities". In my view the note provides examples of what could be considered to be a "centre of activity", and would not otherwise confine the ordinary meaning of the term: that is made clear by the use of the word "might", which leaves other possibilities open.

76 Propositions (3), (4) and (5) are critical in considering what is a "centre of activity". The facts in Ranglen and Marrickville Metro illustrate the diversity of factors that might be considered by a council in determining a relevant centre of activity. The "large integrated shopping complex" (as the Marrickville Metro was described by Tobias JA [2010] NSWCA 145 at [79])) occupying a single site is in contrast with the larger area, on both sides of The Horsley Drive, Fairfield, which included both retail and industrial zoning and uses, considered to be a centre of activity in Ranglen. In City of Sydney, the "centre" of population and of activity was a suburb.

77 In my view, the use of the word "activity" in "centre of activity" can encompass a range of different types of activity such as commercial and retail, so that a "centre" of activity may comprise a number of enterprises involving different activities, which need not be "like activities". There must be some geographical connection between the activities carried out on the parcels of rateable land within the area, which would normally involve a concentration of activity within a particular area or around a particular site, so that there can be said to be a "centre". The geographical connection need not be confined or compressed and homogeneous, for example as in Ranglen where the relevant centre of activity occupied different geographical areas on both sides of what Bannon J described as "an important transport link and busy road". The concept of a centre of activity is primarily a geographic one, and requires some agglomeration or concentration of business activity (using the word "business" in its broadest sense) within the specified area.

Whether there is a "centre of activity"

78 The next question to determine is whether there is an area that can properly be regarded as being a "centre of activity", in which the subject property is located.

79 Barrak submits that the zoning of the property is fundamental in understanding whether it is within the relevant "centre of activity". Additional factors are the label applied to describe the sub-category; the physical uses and built form which are materially different to those on the northern side of Kendall Street and on the western side of the railway; the removal of parking meters and changes in parking restrictions in the Harris Park area; the way in which the Council approached the rating of Harris Park in 2013; and whether it is fair and equitable to impose the Business CBD rates on the property.

80 Considering first the zoning of the property, Barrak submits that the Business zoning under the 1989 LEP was the only reason to create the Business CBD sub-category initially and to include this property in that sub-category. That was reasonable in 1995, when the property was identically zoned to the land in the CBD core and to the north of Parramatta. However, the property is now zoned B1 Neighbourhood Centre, while the land on the other side of Kendall Street, the land in the block between Una Street, Wigram Street, Harris Street and Parkes Street, and the land on the other side of the railway line is zoned B4, while other land closer to the centre of Parramatta is zoned B3. Barrak submits that when the property was placed in the Harris Park Precinct under the Parramatta REP in 1999 a significant change in planning intent occurred. The objectives for the Business zone under Part 4 Precinct 2 - Harris Park Precinct were provided in cl 29F(1) (emphasis added):

(a) to provide opportunities for low scale retail and commercial development which supports surrounding residential development,

(b) to encourage the integration of commercial centres with public transport and pedestrian networks,

(c) to meet the urban design objectives set out in this Part and (where applicable) to comply with the controls for Special Areas as set out in this Part.

81 Barrak submits that the objectives of the City Core, Retail Core and City Edge zones within Precinct 1- City Centre Precinct were markedly different, and the introduction of the REP cannot be regarded as an "administrative carve up". It represented a down-zoning of the property, with the creation of the City Core, Retail Core and City Edge zones, and the separate Harris Park precinct. While the making of the Parramatta REP did not affect ratings, given the Council's resolution in 1995 it ought to have recognised that the making of the REP left its earlier rating decision without a rationale, and that when the REP was made that was a strong indication that the Harris Park precinct was not part of the city centre of Parramatta.

82 The Council submits that the centre of activity need not, and generally would not, coincide with any local environmental plan boundaries or zoning boundaries, and that the argument that the actual zoning matters in determining ratings sub-categories must fail. First, zoning and rating processes are entirely separate, being effected under different statutes and by different levels of government, and there is no basis for the submission that the ratings sub-category should coincide with zoning boundaries. Secondly, there are several different zonings under the 2007 LEP, and the rating sub-category must be able to accommodate more than one zoning on the applicant's own case. Thirdly, when a comparison is made between the ratings categories and sub-categories and the Harris Park zoning map under the 2011 LEP, there would be many ratepayers situated next to higher zoned land (including B4 land) who are subject to the same rating as the higher zoned land. Fourthly, if the zoning is relevant in the way submitted by the applicant, then the CBD centre of activity boundary does accord with zoning to some extent, as it takes in the B4 Mixed Use zoning within the 2007 LEP and that part of Harris Park zoned B1 Neighbourhood Centre. The Council submits that the legal source of the zoning objectives and restrictions applying to particular property is just an administrative arrangement, stemming in the circumstances here from the re-organisation effected by the Parramatta REP, and that it does not matter whether it is the 2007 LEP or the 2011 LEP that applies, which is underscored by the proposed amendments to the 2011 LEP so that one instrument will apply across the Parramatta LGA.

83 I accept the Council's submissions. The zoning history since the 1989 LEP reflects decisions both of the Council and the NSW Government, the latter primarily in the decision to make the Parramatta REP in 1999 which, among other things, removed the centre of Parramatta from the local planning controls when separate planning controls were applied to Precinct 1-City Centre and Precinct 3-Government. The subsequent planning history, including the addition to the Parramatta REP of controls for the Harris Park Precinct, the continuation of separate controls for the city centre in the 2007 LEP, and the proposed amalgamation of the 2007 LEP and 2011 LEP, reflects the exercise of different legislative powers, at different levels of government, at different times, and for different purposes to those exercised for rating purposes under the LG Act. There is in my view no basis for a suggestion that rating sub-categories which depend either on actual use, or by reference to a spatial criterion, should necessarily reflect the zoning, even if the zoning might be the basis (whether for convenience or otherwise) on which the boundaries of the sub-category are at any point of time determined, or identified. Further, to the extent that the zoning is significant in determining whether there is a centre of activity, and if so, whether particular land is within that centre of activity, there are two reasons why that is not determinative in the circumstances of this case, and in any event would lend support to the Council's determination that the property is within the relevant sub-category.

84 First, the 2007 LEP and the 2011 LEP need to be considered together to obtain a complete picture of the zoning. The 2007 LEP includes an area in the centre of Parramatta to the east of Church Street and extending as far south as Hassall Street which is zoned B3 Commercial Core, which is surrounding by land zoned B4 Mixed Use. The relationship between the two is made clear in the stated objectives for each zone. Those for the B3 zone include:

· To provide a wide range of retail, business, office, entertainment, community and other suitable land uses which serve the needs of the local and wider community, including:

· commercial and retail development,

· cultural and entertainment facilities that cater for a range of arts and cultural activity, including events, festivals, markets and outdoor dining,

· tourism, leisure and recreation facilities,

· social, education and health services.

...

· To strengthen the role of the Parramatta city centre as the regional business, retail and cultural centre, and as a primary retail centre in the Greater Metropolitan Region.

85 The objectives for the B4 zone include:

To support the higher order Commercial Core Zone while providing for the daily commercial needs of the locality, including:

· commercial and retail development,

· cultural and entertainment facilities that cater for a range of arts and cultural activity, including events, festivals, markets and outdoor dining,

· tourism, leisure and recreation facilities,

· social, education and health services,

· high density residential development.

86 The area in which the property is located, at the boundary between the 2007 LEP and the 2011 LEP, has a business zoning, B1 Neighbourhood Centre. While the objectives and permitted uses are not the same as those for either the B3 or B4 zones, the B1 zone includes a range of permissible business and retail uses, including relevantly, a restaurant or café, and prohibits residential accommodation other than specified limited types. When considered together, the zoning provisions in the 2007 LEP and the 2011 LEP reflect an area that has a central core, a surrounding commercial and business area, and an area at the fringe in which the property is located. While the detail of the zone objectives and permissible and prohibited uses, has changed since the 1989 LEP, that is consistent with the approach adopted in that LEP with its 3(f-r) and 3(f) business zones. The proposal to amalgamate the 2007 LEP into the 2011 LEP does not change that.

87 Secondly, having regard to the land that is used for commercial or retail purposes but is not included in the Business CBD sub-category, the land on the eastern side of Wigram Street and extending south along Wigram Street to Marion Street is zoned R2 Low Density Residential. The only form of commercial or retail use permissible with consent in that zone is "neighbourhood shops", and it was common ground that the businesses presently operating in that area, in particular as restaurants, are doing so either as some form of existing use or pursuant to the conservation incentive provision in cl 5.10 of the 2011 LEP. Leaving aside any difference that this might make to the land value and thus to the actual amount of rates paid, the zoning of the subject property as B1 Neighbourhood Centre incorporates higher development potential than is the case for the businesses on the other side of Wigram Street which are zoned R2. It does not suggest that the property, and the other land zoned B1, more properly belongs in the same sub-category as those residential zoned properties.

88 Rather than it being the inclusion of land zoned B1 Neighbourhood Centre in the Business CBD sub-category together with land zoned B3 or B4, if there is an anomaly it would seem to be with the eight lots on the northern side of Marion Street (to the south of the subject property) between Wigram Street and Harris Street that were zoned Residential Conservation 2(g) under the 1989 LEP, re-zoned Business in 2001 under the Parramatta REP, and now B1 Neighbourhood Centre under the 2011 LEP. Those lots are not included in the Business CBD sub-category on the Centre of Activity Map, and for rating purposes, are either Residential or Business General on the Ordinary Rates Map. However, whether or not those properties could be regarded as being in the relevant centre of activity is not a matter that needs to be considered in this appeal.

89 The first additional factor on which Barrak relied was the label attached to the sub-category. Barak submits that in 2000, when the Council changed its identification of the land within the sub-category from Business zoning to the Centre of Activity Map, the Council did not turn its mind to whether the sub-category should still be described as "CBD". Barrak relies on a number of Council documents, including a press release from May 2013 announcing the upgrade of street paving, signage and furniture on Wigram Street between Marion and Ada Streets (exhibit A, tab 13), in support of its submission that there is a distinct neighbourhood of Harris Park, and that the use of the term "CBD" does not include Harris Park.

90 The reasons why I would not regard the label affixed to a sub-category as necessarily significant are provided above at paragraph [72]. In the circumstances of this case, where the Business CBD sub-category label was initially applied to land "because it is land which is zoned 'Business'...", and most recently "because it is within the geographical area which is highlighted on the map...", the use of the term "CBD" does not necessarily do other than provide the label required by s 543 of the LG Act. It might be different had either resolution stated that land was within the sub-category "because it is in the CBD": however, even the term "CBD" itself is capable of a range of meanings. I accept that there may be an understanding of Harris Park as a distinct community or area. That would not preclude a particular lot within Harris Park also being considered to be part of another, larger, area centred on the central core of Parramatta.

91 The second additional factor relied upon was physical uses and built form. Barrak submits that a "centre of activity" needs density and a concentration of activity, and that there is a cohesion in the B4 area, and also in the transition to the more cohesive B3 area. Harris Park has its own homogeneity, reflected in the low scale village character, but it is not that of the B3 or B4 land. The zoning and heritage constraints in Harris Park mean that there is a stark change in the form of development. For the reasons above at paragraphs [83]-[88] I do not regard the zoning, or the heritage constraints of other land in the immediate locality of the property, as requiring a conclusion that the property is not within a centre of activity. The broader issue of differences in physical uses and built form, and cohesion, is significant, and is considered below.

92 The third additional factor is the changes made to parking controls in the Harris Park area. In 2009 the Council considered an options paper in relation to changing parking meter restrictions, with the paper recommending allowing for more all day parking in Harris Park by allowing all day ticketed parking on one side of the street with the other side being free but time restricted to 1-2 hours, for all the streets in Harris Park "except for the main commercial streets, those being Marion Street, Wigram Street (between Parkes Street and Marion Street), and Kendall Street (due to its close proximity to the CBD)" (exhibit A, tab 32, p14). The report also recommended that paid parking be retained in the section of Wigram Street and Harris Street north of Parkes Street and part of Hassall Street (which was at that time in a different zone to the rest of Harris Park) "due to its close proximity to the CBD". Barrak submits that if the area north of the subject property was not regarded as part of the CBD but merely proximate to it, the property could hardly be regarded as a CBD location, and the downgrading of parking restrictions and removal of meters speaks against part of Wigram Street being regarded as a centre of activity.

93 In my view the changes to the parking controls do not support the proposition that the property is not within a centre of activity. The Parking Meters Options Paper 2009 and the report to the Council by the Service Manager, Traffic and Transport dated 21 November 2012 both indicate that these recommendations were made in response to concerns raised that employees of businesses in Harris Park did not have access to all day parking in close proximity to their place of employment (exhibit A, tab 32, p3, p 10); and that in light of the restrictions imposed by the RTA on the issuing of any additional business parking permits, those concerns could be addressed by varying the parking restrictions to allow more all day parking (exhibit A, tab 32, p 5). That issue was considered in the Options Paper along with the question of whether the free 15 minute parking ticket scheme should be extended to all parking meters in Parramatta, and if so, what options were available to recover revenue. The report to Council in 2012 indicates that the implementation of changes to parking restrictions were appropriate to be carried out together with the installation of new parking meters approved in October 2012 and to be installed in early 2013 (exhibit A, tab 32, p 1). I do not regard the changes to parking restrictions as any indication either way as to whether the property, or its immediate locality, can be regarded as within a centre of activity. At its highest, those changes support the proposition that the pattern of usage and demand for parking, including from visitors and employees, is variable across the Parramatta LGA, and that the Council has most recently addressed changing circumstances in its decision in 2012 to change the location of meters and timing and other restrictions on parking in part to satisfy demand for all day parking.

94 The fourth additional factor relied upon by Barrak was the way in which the Council purported in 2013 to extend the number of properties within the Business CBD sub-category and the consequent review of Harris Park rating, summarised at paragraphs [44]-[46] above. Barrak submits that this indicates that the Council has not given proper thought to what the boundaries of the centre of activity are, or turned its mind to the question of whether the property should be in the Business General sub-category. Barrak submits that the evidence is that far from it being likely that those 70 properties will be re-rated Business CBD in the near future, the significant public outcry as a consequence of the Council's attempt to rate the area as Business CBD forced the Council to back down, and the Council has now resolved to review all of the rates for the whole of Harris Park.

95 I do not agree that the sequence of events concerning the 2013/2014 rating of the 70 properties in the area bounded by Una, Wigram, Marion and Harris Streets supports the proposition that the property is not within the centre of activity. It clearly was an error, acknowledged in the Lord Mayoral Minute of 11 November 2013, to charge Business CBD rates for those 70 properties, "as the maps for rating purposes did not identify these properties as CBD business rates" (exhibit A, tab 31). The notes from the workshop on 6 November 2013 (exhibit A, tab 29) indicate the range of issues discussed, summarised as:

Bottom line - rates

parking

what services might be expected

current state (run down) of properties. Rubbish on streets

heritage - limits opportunities for development - until last 10 years. Not much happening - changed to commercial/restaurant then increased rates

96 The issues raised at the workshop, and noted in the Mayoral Minute (exhibit A, tab 30), traversed matters beyond the increase from Business General to Business CBD ordinary rates for the 70 affected properties, and included lack of correlation between the increase in rates and the infrastructure and services delivered, and also the imposition of the CBD infrastructure special rate. Whether or not the review of the rates for Harris Park ultimately results in any change to the determination of the Business CBD sub-category or the creation of any new sub-category, or other changes for example reallocation of spending on infrastructure by the Council, in my view the process leading up to the review does not of itself provide a basis for determination now of the question of whether the subject property is within a centre of activity which is the Business CBD sub-category.

97 The final additional factor relied upon by Barrak was fairness. Barrak submits that the overall effect of the Business CBD sub-category is to increase the rates by some 90 percent; that the change of sub-category would have no material effect on the ratepayers of Parramatta; and that it is disproportionate that the additional rates are paid by the 20 properties which are in the B1 zone and also within the Business CBD sub-category. Barrak accepts that there is a limited role for any notion of fairness in the declaration of a category or sub-category (Marrickville Metro (Pain J at [94]-[95]); City of Sydney at [49]), however submits that in an appeal on the merits under s 526 the Court can consider whether the property should go into a different sub-category, or whether there was no rational basis for it to be included in the Business CBD sub-category. On that basis it is relevant that the owners of the other 70 properties in the Business General sub-category are paying a fraction of the rates when there is nothing to distinguish the properties; and while there may initially have been a difference in development potential for this property, now there is not.

98 I agree with the Council that any general concept of fairness has a limited role in the context of this appeal. As Pain J made clear in Marrickville Metro (at [94]), there is nothing in the LG Act that requires a council to deal with similar categories of ratepayers on the same basis, and the overriding requirement is that all the properties in the same category or sub-category must pay the same amount of rates. Her Honour went on to state:

95 Even if fairness is an essential part of the approach required by the LG Act, what fairness means has to be assessed in the context of the whole of the rate setting exercise. That one large ratepayer pays more than others, and has a sense of grievance about that does not lead automatically to the conclusion that that ratepayer has been treated unfairly.

99 The Court of Appeal agreed, Tobias JA noting (at [75]) that that case involved the "differential allocation of the rating burden within the LGA as permitted by law". While Marrickville Metro was a challenge to the determination of the sub-category, and not an appeal against a refusal to change the sub-category, there is no indication in the provisions of ss 525 and 526 that the absence of some commercial competitors from a rating sub-category is a relevant factor in deciding whether the applicant's property should remain in that sub-category or be put in another. Any general consideration of fairness would, as submitted by the Council, be impossible for the Court to judge, and would depend on factors such as the land value of each lot, the costs incurred by the Council in servicing the land, and how other ratepayers are treated, for example in provision of infrastructure and services, matters on which the Court has no evidence. More importantly, the task of deciding the differential allocation of the rating burden within the LGA is clearly imposed on the Council, and not the Court: Marrickville Metro.

100 The Council submitted (written submissions, [50]) that the following factors are relevant in consideration of the characteristics of the asserted centre of activity:

(1) Other than the area bounded by Una, Wigram, Marion and Harris Streets, the CBD centre of activity is in the shape of an elongated oval, centred on the intersection of Smith and Macquarie Streets. So far as geography is concerned the property is a natural part of that oval that radiates from the absolute commercial centre; the property is approximately 450m from the absolute city centre, while other lots (particularly the northern end of Church Street) are considerably further away;

(2) The centre of activity encompasses a diverse range of land uses and business types, with small lots and intensive retail apparent near to the absolute city centre, larger lots with uses other than retail more apparent towards the edges, and many restaurants of a similar character to the one operated on the property;

(3) The centre of activity does not include the highly intensive retail activity conducted in the Westfield shopping centre which is within a separate rating sub-category;

(4) The centre of activity encompasses a diverse range of built forms. High rise buildings tending to congregate towards the absolute city centre, however the built form is constrained by heritage considerations even close to the absolute city centre. There is no uniform trending in built form away from the absolute city centre, and Harris Park is also constrained by heritage considerations;

(5) The streets within the centre of activity are subject to a range of levels of public infrastructure and parking restrictions;

(6) The centre of activity includes and encompasses a number of natural barriers or dividing lines generally constituted by transport routes;

(7) The centre of activity has a core or middle area and areas around the fringes, and in that sense it is more like Ranglen than the more homogeneous or cohesive centre of activity in Marrickville Metro; and

(8) The unifying feature of the centre of activity is that there is a concentration of business rather than residential use, and where there is residential use it is generally mixed use. That is consistent with the inclusion of the property in the centre of activity since the property is just to the north west of an area characterised by a mix of small owner/operator business and residences.

101 Barrak submits in response to those factors:

(1) Distance may be relevant but not to the exclusion of other characteristics, and an area that is close to a geographic centre may nevertheless be separated from it by a physical boundary such as a road or railway line. Church Street is distinctly the "main street" of Parramatta and is the northern entry point to the city; Wigram Street is not a gateway to the Parramatta city centre; and any particular lot has to be in the centre of activity;

(2) While there is a variety of activity and range of uses including restaurants in Church and George Streets, they are in the heart of the CBD and are zoned accordingly. There are many restaurants in Wigram Street that are no different to the subject site, have the same zoning and are rated Business General. There is a cohesion to Harris Park, but it is not in common with the CBD;

(3) The applicant does not seek to exclude itself from the centre of activity by comparison with the activity in the Westfield shopping centre, and plainly enough that centre forms a distinct centre of activity of its own;

(4) While the centre of activity contains a diverse range of built forms, and built forms are constrained by heritage considerations in the CBD and Harris Park, the subject site is not so constrained, but is constrained by the zoning which anticipates a lower scale form than much of the CBD. There must be congruity and homogeneity, not diversity;

(5) The infrastructure provision is clearly different, for example there is no undergrounding of electricity as is the case in the centre of Parramatta, and there are no parking meters; and the Council has not identified any other area where parking restrictions have been downgraded;

(6) While the railway line does bisect the CBD in a practical sense it does not dissect access across the CBD; there are crossings at Pitt, O'Connell, Church, Marsden, Hassall and Parkes Streets. In contrast Harris Park is disconnected. The railway line acts as a barrier between Harris Park and the southern reaches of the CBD, and there are no crossings between Parkes Street and Cambridge Street. The character of Parkes Street is significant, as a four lane carriageway part dual carriageway connecting the Great Western Highway to James Ruse Drive, which operates akin to an inner city by-pass of the south of Parramatta city centre and divides Harris Park from Parramatta city centre;

(7) It is accepted that a centre of activity can have a core, middle and fringe. The Parramatta REP recognised that yet did not include the subject property in any of those precincts, and further the Council has not identified any rational explanation as to why the boundary of the centre of activity even if it could be said to be CBD fringe runs along Ada Street; and

(8) The applicant agrees that the property is within a concentration of low scale businesses and that it lies to the north west of an area characterised by a mix of small owner/operator businesses and residences, however those small-scale businesses are not identified as being within the CBD centre of activity. There needs to be cohesiveness and a concentration of activities.

102 Considering those factors, I agree with Barrak that distance from a central core would not of itself be indicative that a property is within a centre of activity. As noted above, there must be some geographical connection between the activities carried on. I do not regard the boundaries represented by the railway line and the transport routes including Parkes Street, or what might be regarded as gateway or entry points into Parramatta, as determinative. Whether or not the railway line and road network constitute such a separation or segmentation, that is not reflected in the zoning maps, and nor was there apparent on the view a discernible pattern in uses or built form relating to those boundaries. Based on the view and the aerial photograph provided with the Council's Statement of Facts and Contentions (exhibit 5) which shows the property together with land a similar distance from the centre of Parramatta, I accept that the area included in the Ordinary Rates Map includes a diverse range of land uses and business types, and a diverse range of built forms, and that those in the area which includes the property and extends towards the centre of Parramatta can generally be described as predominantly business or mixed use rather than solely residential use. Those uses and built forms reflect some geographical factors (such as the separation provided by the railway line), but more importantly, reflect the zoning history (which would include associated provisions such as applicable floor space ratios and height limits), and significantly, the constraints imposed by the heritage considerations including for individual items and precincts in the city centre, as well as those applicable near the property. Those uses and built forms include smaller lots, higher buildings, and intensive retail in the city centre, with much less uniformity of built form and uses away from that centre. For example, that part of Wigram Street on which the property is located has a range of similarly sized businesses and retail uses, and a two storey fire station, while across the other side of Wigram Street there is a multi-storey commercial building presently used as a storage facility. The area on the other side of the railway line at the intersection of Marion Street and Cowper Street, which is also in the Business CBD sub-category, has a mix of heritage houses, small businesses and residential uses, similar in character to the area where the subject property is located.

103 I agree with the Council that there is a centre of activity with a core and middle areas and areas around the fringes. While it could not be described as homogeneous, a centre of activity need not be, and can be more diverse. In my view the property can properly be regarded as being within that centre of activity.

Conclusion

104 The property is within the area identified by the Council in 1995 in its determination of the Business CBD sub-category, initially on the basis of its zoning under the 1989 LEP and since 2000 by reference to the map, as a centre of activity for the purposes of s 529(2)(d) of the LG Act. While I have concluded that inclusion in an area specified on a map would not of itself be sufficient to be satisfied that the property is within the relevant centre of activity, there are a number of factors that establish that there is a centre of activity as shown on that map, and that the property is appropriately included within it. First, while there have been changes in the applicable planning instruments since the 1989 LEP, through the changes made by the Parramatta REP, the subsequent application of the 2007 LEP to the area formerly included within the City Centre and Government Precincts, and the inclusion of the property in the land to which the 2011 LEP applies, the property has retained a business zoning. While I accept that the B1 Neighbourhood Centre zoning is different to the B3 zoning of land in the centre of Parramatta and the B4 zoning of land between that centre and the subject property, it is still a business zoning which permits a range of business and commercial uses. That has to be contrasted with the land in the care bounded by Una, Wigram, Marion and Harris Streets which is zoned R2, much of which is subject to heritage constraints, and where those properties used for commercial purposes are within the Business General sub-category. There is not homogeneity from the other side of Kendall Street towards the centre of Parramatta, either in the zoning (which is B3 at the centre and B4 in the area closest to the subject property), or in the range of built form and uses.

105 The area shown on the Ordinary Rates Map as a centre of activity includes a diverse range of built forms and uses, which can generally be described as reflecting a concentration of business or commercial uses, and including residential uses primarily as part of mixed use development. I accept that the business and commercial uses are more concentrated, and intense, in the central part of Parramatta now zoned B3 than in the B1 zoned area where the property is located. I also accept that overall the area determined by the Council to be a centre of activity is diverse rather than homogeneous. I am satisfied, however, that there is a centre of business and commercial activity that consists of a core, middle and fringe, and that the subject property is located in the fringe part of that centre of activity. While it may be that other properties not included in the Ordinary Rates Map might equally be regarded as being within that centre of activity, that is not the issue in these proceedings. Neither is the issue of whether or not the Council undertakes what might be regarded as an equitable distribution of infrastructure or other service delivery from the revenue derived from the rates.

106 I am satisfied that there are reasonable grounds for believing that the property is not within the Business General sub-category, and that it can properly be regarded as being within the Business CBD sub-category. On that basis, the appeal against the refusal to change the rating sub-category applying to the property from Business CBD to Business General should be dismissed.

107 The orders of the Court are:

1. The appeal is dismissed.

2. The exhibits are returned except for exhibits C and 5.

Linda Pearson

Commissioner of the Court

ANNEXURE A

ANNEXURE B

ANNEXURE C

ANNEXURE D

ANNEXURE E

Decision last updated: 09 May 2014