IN WHAT is regarded as a landmark finding, the Victorian Supreme Court has ruled that beach box owners on the Mornington Peninsula must pay waste disposal charges.
The decision handed down by the court last week after two years’ deliberation is likely to affect various other charges levied by municipalities throughout Victoria.
The Mornington Peninsula Beach Owners Association launched legal action against Mornington Peninsula Shire Council three years ago in a bid to avoid paying the annual waste charge.
Unlike households, the beach boxes do not have bins that are left to be emptied weekly at the kerbside but, following the court’s decision, they will now have to pay the $338 waste disposal charge included in this year’s shire budget. The charge was $242 in 2018 when the beach box owners started their challenge.
The mayor Cr Despi O’Connor said the judge was “highly critical of the case put forward by the [beach box] association and found that it failed at every point”.
“This was a significant case for council and a successful claim would have had negative consequences for all Victorian councils and seriously impacted their ability to deliver services to the community,” Cr O’Connor said.
“Our waste levy allows us to deal with waste across the shire, including public places. It’s not just about household bins.”
Beach box association president Mark Davis said its committee was “naturally disappointed with this outcome and will be considering our next steps”.
In an email to association members Mr Davis said the waste service charge had been challenged “on the basis that we could not and did not receive council waste collection”.
“The judgement found that a ‘work around’ to the [state government imposed] rates cap applied by [the shire] was valid,” he said.
“This decision has important implications not only for us as beach box owners, but for all rateable land in Victoria.”
The association’s legal representatives Kellehers Australia described the 87-page decision by Justice Anthony Lewis Cavanough as being “a robust, comprehensive judgement”.
“He accepted that the beach box occupiers, as a class, stood to gain some direct or indirect benefit from each of four waste-related ‘services’ council provided [such as] beach cleaning, foreshore litter bins, drain clearing and waste disposal vouchers,” Kellehers stated in a summary of the “key fundamental and highly significant findings”.
The association argued that while council did not provide rubbish bins or disposal services to beach boxes public rubbish bins were installed for during camping season and bins on the foreshore were marked for street litter only.
Cr David Gill said if the beach box owners had won their case “the precedent set for paying fees or even rates would have sent shock waves throughout our community”.
“It could have meant that if there was little or no benefit to an individual from an aspect of a service fee or even rate charge there could be claims for a deduction from the normal payments. For example, if you do not use the council Infant welfare service or kindergarten or homeless service you wouldn’t have to pay for them.
“This would leave impossibly high charges for the less well-off using essential services.”
Cr Gill said bathing box owners paid on average about $30 a week “for the privilege of using an outstanding public asset for their exclusive use with the bonus of selling their licences at market value as if it were an investment property” (“‘Locals only’ rule for beach boxes” The News 2/6/20).
“My belief is that these licence fees are for a luxury item and should also be at market value.”
Cr Steve Holland said the ruling against the beach box owners was “not unexpected, given the potential state-wide ramifications had the shire lost”.
“However, I’m not a fan of broad-based service charges, which can be used by municipalities to circumvent the rate cap in order to pay for services people expect to be funded via rates revenue,” Cr Holland said.
“That said, I’m also not a fan of rate capping – it allows elected councillors to avoid accountability for perpetual rate hikes. If only there was a cap on state and federal taxes.”
First published in the Southern Peninsula News – 10 August 2021
