With the return of the State Government it now appears certain that the Transport Development Levy will come into operation. A Transport Development Levy (“levy”) will be assessed on certain (leviable) car parking spaces in the Adelaide Central Business District for the 2014/15 financial year.
The levy will apply to off street car parks and ticketed on‑street car parks located within the Adelaide CBD. The levy will be $750.00 per annum per car park indexed annually based on the CPI.
Owners of leviable car parking spaces as at 1 January 2015 will be required to be registered by 31 January 2015. The first levy will be due to be paid on 31 March 2015.
A draft of the Transport Development Levy Bill 2013 has been made available for consultation.
While the draft has not yet been finalised or come into law an initial review of the draft reveals a number of significant issues.
A leviable car parking space is defined as a parking space where the use of the space is subject to a fee or charge or the provision of some other value other than where the amount paid is rent paid under a lease to occupy the whole of a piece of land that comprises the whole of the title but does not include an exempt parking space (as defined in schedule 1). In other words, if a payment is made for the use of a parking space then it will be a leviable parking space unless the amount paid is rent paid under a lease or licence to occupy the whole of the piece of land. It also includes a parking space used for fleet and employee parking. An employee park may be in premises for which rent is paid but it is still leviable.
There may be circumstances in which rent is paid under a lease or licence to occupy land which comprises part only of a Certificate of Title. Logically where a parking space is the subject of a lease of land that comprises part only of a Certificate of Title then this should also be excluded as a leviable parking space.
A leviable parking space will be an exempt parking space if it is used exclusively by a business to provide parking for customers or clients.
A leviable parking space will also be exempt where it qualifies as:
- residential parking;
- a loading bay;
- parking in a hospital;
- disabled parking;
- motorbike parking;
- parking for emergency vehicles;
- parking for people attending special events;
- car sale displays;
- bus lay-overs;
- where there is a limited number of parking spaces (not more than five) in one ownership.
Whether a parking space is exempt at any given time may be difficult to determine in the circumstances. The circumstances in which a parking space may be used may change from time to time.
Both the owner and the operator of a car park are liable to register and pay the levy. The operator of a car park is a person who operates the car park under a lease, licence or other agreement. The owner is a person who holds the fee simple in land on which the park is situated.
A determination of leviable parking spaces is made on 1 January in each financial year. The test requires that a consideration be made on 1 January as to whether there has existed at any time during the whole of the year one or more parking spaces on the land. This determination may not be possible in some circumstances. This is because the date for determination is 1 January, which is halfway through the relevant year. The test effectively requires that a prediction be made as to the future; that is, whether a leviable parking space may exist some time after 1 January.
The owner of leviable premises is liable for payment of the levy for each leviable parking space, as well as the operator. However, the owner may have no way of knowing how many leviable parking spaces are on the land, depending upon whether some of those spaces are exempt spaces.
Where there is a change in the ownership of a leviable parking space, then notice of the change must be given to Revenue SA. However, it is not clear who has the obligation to give this notice.
It is also not clear which of the owner and/or the operator are actually liable to pay the levy. It appears that the operator (and all of the operators if there are more than one), together with the owner (and all of the owners if more than one) are jointly and severally liable to pay the levy. What is not clear is how this liability is to be divided up amongst the various parties concerned.
It also appears that both the operator and the owner have an obligation to lodge a return on or before 30 March in each year. In fact, where a car park has an owner and an operator, a return may be lodged by the operator on behalf of the operator and the owner. This means that the operator can register on behalf of himself and the owner without the knowledge of the owner. This potentially creates a financial liability on the owner without the owner’s knowledge or consent.
Another question will be whether an owner of premises which is not the operator is able to recover levy paid by the owner. In some cases this may depend upon the terms of any lease between the owner and the operator.
An update will be provided if and when the bill is finally enacted into law. For further advice in relation to the proposed Transport Development Levy, contact DW Fox Tucker Lawyers.
