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The Rating Powers Act 1988 (RPA) provides Council with a specific mechanism for rating drainage and river protection, and in particular section 41 which provides:

s 41 “Differential rates

1. In adopting a differential rating system in terms of sections 79 to 93 of this Act in accordance with section 40(3) of this Act, a Board shall take account of -
1. The benefits that are, in the opinion of the Board, likely to accrue, directly or indirectly, to any property from the work or service in respect of which the separate rate is to be made; and
2. The extent to which the characteristics or the use of any property, or any actions of its occupier, are, in the opinion of the Board, likely to either contribute to or alleviate the need for the work or service concerned.

 

1. Where the rate is in respect of works for the protection of land from flood or erosion or for the conservation of soil or the management of water, a Board shall, for the purposes of subsection (1) of this section, give consideration to, -
1. In relation to direct benefit, -
1. The likelihood, frequency, depth, and severity of flooding and erosion; and
2. The likelihood, frequency, and extent of damage to land and the improvements to the land; and
3. The improvement of drainage; and
4. The need for water management generally, - in relation to the actual and potential uses of the land and by reference to the advantages accruing from the works concerned and the responsibility for their care and maintenance:
2. In relation to indirect benefit -
1. The establishment or preservation of economic units of land; and
2. The protection or establishment of water, sewerage, drainage, electrical, gas, and other services and of works, services, and amenities to which rates from the land may be applied; and
3. The protection or establishment of communications and of any other property, service, or amenity within or benefiting the land.”

The terms of section 42(1)(a) are similar to the principles contained in the Soil Conservation & Rivers Control Act 1941 and the Drainage Act 1908 (both now repealed) which required an assessment of the amount of direct and indirect benefit applicable to each rateable property.

Section 41(1)(b) introduces a new concept not contained in the earlier legislation. It is considered that the characteristics or use of land or the actions of occupiers (including development of land) in the total catchment contributes in varying degrees to the need for flood protection and drainage work in the lower catchment. The application of this principle has resulted in the requirement to levy a contributor differential on almost whole catchments including upper catchments.

Section 41(2) deals specifically with a rate in respect of works for the protection of land from flood or erosion or for the conservation of soil or the management of water which may be summarised as the very reasons for the existence of Project Watershed. This subsection specifies matters that require consideration in relation to direct and indirect benefits.

Council does not consider there is any conflict between the relevant statutory provisions of the LGAAA and the RPA. Both statutes emphasise benefits, direct and indirect, and contribution/alleviator factors as primary principles to be applied.