CURTIN UNIVERSITY OF TECHNOLOGY and TOWN OF VICTORIA PARK
[2010] WASAT 175
•2 DECEMBER 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: CURTIN UNIVERSITY OF TECHNOLOGY and TOWN OF VICTORIA PARK [2010] WASAT 175
MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)
HEARD: 11 AUGUST 2010 AND 10 SEPTEMBER 2010
WRITTEN SUBMISSIONS
20 SEPTEMBER 2010
22 SEPTEMBER 2010
30 SEPTEMBER 2010
DELIVERED : 2 DECEMBER 2010
FILE NO/S: DR 26 of 2010
BETWEEN: CURTIN UNIVERSITY OF TECHNOLOGY
Applicant
AND
TOWN OF VICTORIA PARK
Respondent
Catchwords:
Curtin University of Technology - Rate notices - Rateable land - Appeal of a decision of a local government - Public purpose - Definition of 'owner'
Legislation:
Curtin University of Technology Act 1966 (WA), s 5, s 7(1)(a), s 20, s 33, s 33(1), s 33(2)
Interpretation Act 1984 (WA), s 5
Local Government Act 1995 (WA), s 1.4, s 6.26, s 6.26(2)(a)(i), s 6.28(2), s 6.41, s 6.44 s 6.52(1)(b), s 6.76(1)(a)(ii), s 6.77
Valuation of Land Act 1978 (WA), s 4
Result:
The application is allowed
Category: B
Representation:
Counsel:
Applicant: Mr P McGowan and Mr H J Paiker
Respondent: Mr J Skinner
Solicitors:
Applicant: Paiker & Overmeire
Respondent: Jackson McDonald
Case(s) referred to in decision(s):
Swan Yacht Club Inc v Town of East Fremantle [2005] WASCA 99
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Curtin University of Technology granted a total of five leases in favour of various telecommunications companies to enable those companies to erect mobile phone towers on parts of the University's Campus at Hayman Road, Bentley. Three of those leases relate to small portions of land and two others are in respect of parts of the University's buildings on the Campus.
The Town of Victoria Park issued rate notices to the University in respect of the property the subject of those leases. The University lodged an objection with the Town of Victoria Park, on the basis that the Campus was exempt from rates and taxes. The Town dismissed the objection and the University applied to the Tribunal for a review of that decision. The Tribunal upheld that application, but only on the basis that the University was not the owner of the property in question for the purposes of the Local Government Act 1966 (WA).
Background and facts
Curtin University of Technology (Curtin) is the body corporate referred to in s 5 of the Curtin University of Technology Act 1966 (WA) (Curtin Act). One of Curtin's functions is to 'provide courses of study appropriate to a university, and other tertiary courses, and to aid the advancement, development and practical application of knowledge': s 7(1)(a) of the Curtin Act. Curtin carries out its functions at, amongst other places, its campus at Hayman Road, Bentley, being Canning location 1884 and being the whole of the land in Crown Land Title Volume LR 3093 Folio 106 (Campus).
The Campus is Crown Land Reserve 27142 vested in Curtin under s 20 of the Curtin Act and which is the subject of a management order in favour of Curtin.
Between 1999 and 2006, Curtin granted the following leases of various small parts of the Campus to certain telecommunications companies (Telcos) to enable the Telcos to construct what Curtin refers to as telecommunication phone towers:
(1)in favour of Telstra Corporation Limited, part of the seventh floor library building comprising an area of approximately 13.6 square metres giving Telstra a right to fit antennae to the roof of the library building and a right of access (Lease 1);
(2)to Lucent Technologies Australia Pty Ltd (and assigned to Hutchison 3G Australia Pty Ltd) an area of approximately 28.3 square metres located on the roof of building designated no 402 (Lease 2);
(3)to Optus Mobile Pty Ltd areas of respectively 8 and 8.71 square metres on the roof of the library building (Lease 3);
(4)to Vodaphone Network Pty Ltd (and sublet to Optus Mobile Pty Ltd) an area of approximately 60 square metres near the boundaries of Kent Street and Manning Road (Lease 4); and
(5)to Optus Mobile Pty Ltd an area of 42 square metres near the boundaries of Kent Street and Manning Road (Lease 5).
Lease 1, Lease 2, Lease 3, Lease 4 and Lease 5 are collectively referred to below as the Leases.
On 17 July 2009, the respondent (Town) raised rate notices in respect to what are described as Phone Towers 1 5 being the property the subject of the Leases and issued those notices to Curtin for the financial year 2009/2010 under the Local Government Act 1995 (WA) (LG Act). In each rate notice, the Town has ascribed a valuation based on gross rental value of $14,300 in respect of each of the properties the subject of the Leases and has ascribed a rate of 7.62 cents in the dollar. The amount of rates payable in each case is $1090.80, plus the Emergency Services Levy.
On 7 September 2009, Curtin objected to the assessments on the basis that the property the subject of the rate notices was not rateable land under the provisions of s 33 of the Curtin Act or alternatively of s 6.26 of the LG Act. On 16 December 2009 the Town disallowed that objection.
Under s 6.77 of the LG Act, Curtin has sought a review by the Tribunal of that decision.
The issues
These reasons for decision address the following issues:
(1)Is the property the subject of the Town's rate notices exempt from rates under s 33 of the Curtin Act?
(2)Is the property the subject of the Town's rate notices rateable land within the meaning of the LG Act?
(3)Is Curtin the owner of the property the subject of the Town's rate notices for the purposes of the LG Act?
Is the land the subject of the Town's rate notices exempt from rates under s 33 of Curtin Act?
Section 33 of the Curtin Act provides as follows:
Exemption from tax or rate
(1)No tax or rate may be charged or levied upon any property vested in the University.
(2)Subsection (1) does not operate so as to exempt property that is vested in the University, if it is leased to or occupied by any person for any private purpose.
Curtin submits that s 33(1) of the Curtin Act applies unless the whole of the property vested in Curtin is leased to or occupied by any person for any private purpose. Curtin therefore contends that, despite the fact that a small part of the Campus is leased to or occupied by a person other than Curtin, the Campus as a whole is still vested in Curtin and therefore s 33(1) of the Curtin Act continues to apply.
However, I believe that the exemption in s 33(1) of the Curtin Act is to ensure that Curtin's resources are directed as far as possible towards educational purposes and that the exception in s 33(2) relates only to those parts of Curtin's properties that are leased out to private operators for purposes which are not closely associated with Curtin's objectives. Presumably those leases would be on commercial terms, and in those circumstances Curtin would be expected to pay rates and taxes in respect of those parts of its property.
That being so, the next issue to be considered is whether or not the property the subject of the Leases is 'leased to or occupied by any person for any private purpose' as provided for in s 33(2) of the Curtin Act.
The term 'private purpose' in s 33(2) of the Curtin Act is not defined. However, it would seem reasonable to regard this expression as meaning a purpose which is not a public purpose. The expression 'public purpose' has been the subject of some judicial comment, more recently in Swan Yacht Club Inc v Town of East Fremantle [2005]WASCA 99 (Swan Yacht Club) where, at [25] where Pullin JA made the following statement:
For a purpose to be a 'public purpose' the objector must show that it is a purpose which relates or pertains to the people of the State or of some particular region or locality as a whole, and so relate or pertain in the sense of the provision of some service, utility or benefit to the public which would not be otherwise provided, and which is not provided with the primary purpose of producing profit (although profitability might well flow from charges or fees imposed or monies collected or earned in respect of such a provision). Such a definition accords with activities which are traditionally the province of government and with the meaning of the word 'public'. This definition of 'public purpose' appears in Franklyn J's judgment in State Government Insurance Office v City of Perth(1987) 71 LGRA 123 at 135 and it was adopted by the Full Court of this Court in Port Kennedy Resorts Pty Ltd v The City of Rockingham [2000] 112 LGERA 296 at [34].
His Honour goes on to say at [32] that whether or not the subject land is used for a public purpose requires an examination of the evidence as to the use to which the subject land was put at the relevant time.
The parties have expressly requested that the Tribunal does not seek submissions from the Telcos as to the actual use of the property the subject of the Leases. I am not therefore in a position to form a view as to whether that property is being used for public or for private purposes. On its face, it would not be difficult to accept that generally the use of the property is for telecommunications and it would follow that telecommunications, being at least at one time the province of government, is a public purpose. That could lead me to conclude that the use of the leased property is not for a private purpose and that therefore the property remains exempt from rates under s 33(1) of the Curtin Act. However, without further information about the use of the property the subject of the Leases, I am unable to make this finding.
Is the land the subject of the rate notices rateable land within the meaning of the LG Act?
Section 6.26 of the LG Act provides as follows:
Rateable land
(1)Except as provided in this section all land within a district is rateable land.
(2)The following land is not rateable land
(a)land which is the property of the Crown and
(i)is being used or held for a public purpose;
…
Curtin's first argument is that, in the case of Lease 1, Lease 2 and Lease 3, the property being rated is a building or a part of a building, not 'land', and that therefore at least the property the subject of those three leases is not rateable under s 6.26(1) of the LG Act.
With respect, I disagree. Section 5 of the Interpretation Act 1984 (WA) provides that in every written law the word 'land' includes buildings and other structures, land covered with water, and any other estate, interests, easement, servitude or right in or over land. There is nothing in the LG Act to indicate that the word 'land' should be read in any other way.
Further, s 6.28(2) of the LG Act provides that the method of valuation of land which is being used predominantly for nonrural purposes is the gross rental value of that land. The expression 'gross rental value' is defined in the LG Act by reference to the definition of the same term in the Valuation of Land Act 1978 (WA) (VL Act). There, that expression is defined to mean the gross annual rental that the land might reasonably be expected to realise if let on a tenancy from year to year. The word 'land' in the VL Act is defined to mean:
… lands, tenements and hereditaments, and any improvements to land, and includes any interest in land;
On that basis, I am satisfied that 'rateable land' under the LG Act includes buildings and interests in land.
Curtin's second argument is that the reference to 'rateable land' in s 6.26 of the LG Act is in this case a reference to the whole of the Campus and that the property the subject of the Leases cannot be separately rated. The basis of this argument seems to be that what is rateable under the LG Act is land, not parts of land.
Again, I disagree. Section, s 6.52(1)(b) of the LG Act clearly contemplates that the land rated can have more than one 'owner' as that word is defined in the LG Act and that rates can be apportioned between owners of several portions of the land rated. Also, s 6.76(1)(a)(ii) allows for an objection to the rate record of a local government on the basis that 'the land or part of the land' (emphasis added) is not rateable land. It would follow that if only part of land is found not to be rateable land then that could only mean that the remaining part is rateable.
Third, Curtin argues that the property the subject of the Leases is the property of the Crown and is being used or held for a public purpose. Therefore, the property is not rateable land under s 6.26(2)(a)(i) of the LG Act.
This argument is raised on the basis that either:
(a)the property the subject of the Leases is being used for a public purpose; or
(b)the land in question is the whole of the Campus and its predominant use, namely as a University, is for a public purpose, notwithstanding the small portions of it that have been leased to the Telcos.
As regards the first basis, to establish whether the exemption under s 6.26(2) of the LG Act applies, it is necessary to establish whether or not the property in question is being used or held for a public purpose.
Once again, I conclude that in the absence of any evidence as to the specific use of the property the subject of the Leases, I am unable to make a finding in that regard.
As regards the second basis, Curtin finds support for the 'predominant use' test in Swan Yacht Club at [45] where His Honour refers to the 'predominant and primary use' of the land in question.
However, in Swan Yacht Club, the public use test was being applied to the whole of a Crown reserve, whereas in this case the Town has only assessed the property the subject of the Leases. Accordingly, in my opinion, the use of the remainder of the Campus has no bearing on whether or not the property the subject of the Leases is being used for a public purpose.
Is Curtin the owner of the land the subject of the rates notices for the purposes of the LG Act?
Section 6.41 of the LG Act requires a local government to give the 'owner of rateable land' a rate notice stating the date the rate notice was issued and including certain other prescribed details. Section 6.44 of the LG Act states that the owner for the time being of land on whom a rate or service charge has been imposed is liable to pay the rate or service charge to the local government.
The term 'owner' is defined in s 1.4 of the LG Act as follows:
owner, where used in relation to land
(a)means a person who is in possession as
(i)the holder of an estate of freehold in possession in the land, including an estate or interest under a contract or an arrangement with the Crown or a person, by virtue of which contract or arrangement the land is held or occupied with a right to acquire by purchase or otherwise the fee simple;
(ii)a Crown lessee or a lessee or tenant under a lease or tenancy agreement of the land which in the hands of the lessor is not rateable land under this Act, but which in the hands of the lessee or tenant is by reason of the lease or tenancy rateable land under this or another Act for the purposes of this Act;
(iii)a mortgagee of the land; or
(iv)a trustee, executor, administrator, attorney, or agent of a holder, lessee, tenant, or mortgagee, mentioned in this paragraph;
(b)where there is not a person in possession, means the person who is entitled to possession of the land in any of the capacities mentioned in paragraph (a), except that of mortgagee;
(c)where, under a licence or concession there is a right to take profit of Crown land specified in the licence or concession, means the person having that right;
(d)where a person is lawfully entitled to occupy land which is vested in the Crown, and which has no other owner according to paragraph (a), (b), or (c), means the person so entitled;
(e)means a person who
(i)under the Mining Act 1978, holds in respect of the land a mining tenement within the meaning given to that expression by that Act;
(ii)in accordance with the Mining Act 1978 holds, occupies, uses, or enjoys in respect of the land a mining tenement within the meaning given to that expression by the Mining Act 1904 3; or
(iii)under the Petroleum and Geothermal Energy Resources Act 1967 holds in respect of the land a permit, drilling reservation, lease or licence within the meaning given to each of those expressions by that Act;
or
(f)where a person is in the unauthorised occupation of Crown land, means the person so in occupation;
It seems to be common ground between the parties that Curtin does not fall within subparagraphs (a), (b) (c), (e) or (f) of the definition of 'owner'.
That leaves subparagraph (d) of the definition. The Town argues that Curtin must be the 'owner' under subparagraph (d), on the basis that Curtin is lawfully entitled to occupy the land in question and that the land is vested in the Crown and that the entering into of the Leases does not affect Curtin's entitlement to occupy that property.
I disagree. Each of the Leases entitles the lessee in each case to quiet enjoyment and possession of the leased property and the fact that Curtin has certain access rights to ensure compliance with the terms of the lease in question does not deny each lessee of its rights of exclusive possession.
I am therefore of the view that Curtin is not the owner of each property the subject of the Leases within the meaning given to the word 'owner' under the LG Act, while the relevant Lease is still in force.
Conclusion
In my opinion, Curtin is not the owner of the land the subject of the Leases for the purpose of the LG Act. Accordingly the rate notices have not been given to the owner of the rateable land as required by s 6.41 of the LG Act and therefore Curtin's application before the Tribunal must succeed.
Orders
1. The application of Curtin University of Technology is allowed.
2. The objection by Curtin University of Technology to the assessment of rates on the properties described respectively as Phone Tower 1, Phone Tower 2, Phone Tower 3, Phone Tower 4, and Phone Tower 5 is upheld, and rate notices issued by the Town of Victoria Park 10325000501 to 10325000505 inclusive are quashed.
I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT
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