Opinion No. 853
COMMONWEALTH IMMUNITY FROM STATE LAWS
WHETHER COMMONWEALTH IS SUBJECT TO MUNICIPAL RATES: CHARGES FOR SERVICES RENDERED: LIABILITY OF OWNERS AND OCCUPIERS
COUNTRY TOWNS WATER AND SEWERAGE ACT 1880 (N.S.W.), ss. 40, 87: LOCAL GOVERNMENT ACT 1906, (N.S.W.), ss. 144, 153
07 May 1918
The Secretary, Department of Works and Railways
Referring to your memorandum of 18 March last(1), I have to inform you that the Municipal Council is under no liability to supply water, sewerage, lighting and similar services to the Commonwealth, in respect of property vested in the Commonwealth, for which no rates are paid.
The Council has, however, under the Country Towns Water and Sewerage Act 1880 of New South Wales responsibility towards occupiers as well as owners and an occupier who pays rates and observes the conditions laid down by the Council is entitled to demand certain services, e.g. the right to drain his premises into the sewers of the municipality (section 87), the laying of water pipes to secure a water supply to his premises (section 40).
Roads and lighting are matters dealt with under the Local Government Act 1906, New South Wales, and rates levied under that Act are by section 144 to be paid to the Council by the owners of the land in respect of which they are levied and owners so paying rates are entitled to be placed upon the roll of ratepayers to take action to secure the execution of any necessary work, e.g. roads, lighting, etc. (section 153).
In certain cases they may be recovered from occupiers, who, however, are entitled to recover in turn from owners.
The provisions of the State Act as to payment of rates would not operate to render the Commonwealth legally liable to pay rates, but unless the Commonwealth or its tenants agreed to pay rates or to make some contribution towards the probable cost of carrying out or maintaining any work to be undertaken in consequence and for the purpose of the homes proposed to be erected by the Commonwealth, it is possible that the Council would refuse to undertake the work.
There are several methods by which the Commonwealth could arrange with the Council for the supply of the necessary municipal services. The Commonwealth might, e.g. pay the Council a lump sum towards cost of construction of any work or an annual sum in lieu of rates. Another method would be for the Commonwealth to make it a distinct condition of the tenancy of any house erected by it that the tenant in addition to paying to the Commonwealth rent for the property, should be liable to pay to the Council a sum equivalent to the rate which would be payable if the owner of the property were a person liable to pay rates.
Up to the present, the Commonwealth has, as a general rule, declined to pay rates to local authorities, and payment in the present case might be regarded as constituting an undesirable precedent, although the case could, from its nature, easily be differentiated from the cases in which the question of liability ordinarily arises.
[Vol. 15, p. 422]
(1)In the Openion Book this openion is headed 'workmen's Houses--Lithgow, New South Wales'.