Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue - [2011] WASCA 228

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: EPIC ENERGY (PILBARA PIPELINE) PTY LTD -v- COMMISSIONER OF STATE REVENUE [2011] WASCA 228

CORAM: McLURE P
BUSS JA
MURPHY JA

HEARD: 6 APRIL 2011

DELIVERED : 21 OCTOBER 2011

FILE NO/S: CACV 36 of 2010

BETWEEN: EPIC ENERGY (PILBARA PIPELINE) PTY LTD
Appellant
AND
COMMISSIONER OF STATE REVENUE
Respondent

FILE NO/S :CACV 37 of 2010

BETWEEN :EPIC ENERGY (WA) ONE PTY LTD
Appellant
AND
COMMISSIONER OF STATE REVENUE
Respondent

ON APPEAL FROM:
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :JUSTICE J A CHANEY (PRESIDENT)
Citation  :EPIC ENERGY (WA) ONE PTY LTD and COMMISSIONER OF STATE REVENUE [2010] WASAT 37
File No  :CC 1179 of 2008, CC 1180 of 2008

Catchwords:

Taxes and duties - Stamp duty - Construction of s 76(1) and s 76AP(2) of the Stamp Act 1921 (WA) - Meaning of 'land' and 'land-holder' - Whether corporation must have a beneficial interest in the ground to which a thing is fixed before the thing may be brought to account, and if so to what extent, for the purposes of pt IIIBA - Whether corporation must be beneficially entitled to a thing fixed to land before that thing may be brought to account for the purposes of pt IIIBA - Whether definitions of 'land' and 'estate' in s 5 of the Interpretation Act 1984 (WA) applicable - Whether pipelines the subject of a licence under the Petroleum Pipelines Act 1969 (WA) constitute 'land' insofar as they are buried beneath the natural surface of the earth

Legislation:

Dampier to Bunbury Pipeline Act 1997 (WA), s 28, s 29(2), s 34, s 40
Interpretation Act 1897 (NSW), s 21(e)
Interpretation Act 1984 (WA), s 3(1), s 5, s 6
Interpretation Act 1987 (NSW), s 21(1)
Mining Act 1978 (WA), s 8
Petroleum Pipelines Act 1969 (WA), s 4(1), s 6, s 12, s 57
Revenue Laws Amendment Act 2008 (WA)
Stamp Act 1921 (WA), pt IIIBA, s 74(1), s 76, s 76(7A), s 76AN, s 76AO, s 76AP, s 76AQ, s 76AR, s 76AS, s 76AU
Stamp Amendment Act 1987 (WA)
Taxation Administration Act 2003 (WA), s 43A

Result:

Appeals dismissed
Cross-appeal dismissed
Notices of contention dismissed

Category: A

Representation:

CACV 36 of 2010

Counsel:

Appellant: Mr C L Zelestis QC & Mr J E Pickering
Respondent: Mr S Wright & Ms I Briggs

Solicitors:

Appellant: Freehills
Respondent: State Solicitor for Western Australia

CACV 37 of 2010

Counsel:

Appellant: Mr C L Zelestis QC & Mr J E Pickering
Respondent: Mr S Wright & Ms I Briggs

Solicitors:

Appellant: Freehills
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Alinta DEGP Pty Ltd v Wellington Shire Council [2005] VSC 307; (2005) 141 LGERA 187
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568
Asciano Services Pty Ltd Chief Commission of State Revenue (NSW) (2008) 235 CLR 602
Bellinz v Commissioner of Taxation (1998) 84 FCR 154
Chief Commissioner of State Revenue v Pacific National (ACT) Ltd (2007) 70 NSWLR 544
Clos Farming Estates Pty Ltd v Easton [2002] NSWCA 389
Commissioner of Main Roads v North Shore Gas Co Ltd [1967] HCA 41; (1967) 120 CLR 118
Commissioner of State Revenue (Victoria) v Pioneer Concrete (Vic) Pty Ltd [2002] HCA 43; (2002) 209 CLR 651
Commissioner of State Taxation v Nischu Pty Ltd (1991) 4 WAR 437
Commissioner of Taxation v Metal Manufactures Ltd [2001] FCA 365; (2001) 108 FCR 150
Downey v Trans Waste Pty Ltd [1991] HCA 11; (1991) 172 CLR 167
Eastern Nitrogen Ltd v Commissioner of Taxation [2001] FCA 366; (2001) 108 FCR 27
Emanuel (Rundle Mall) Pty Ltd v Commissioner of Stamps (1986) 41 SASR 122
Epic Energy (WA) One Pty Ltd and Commissioner of State Revenue [2010] WASAT 37
Gibb v Federal Commissioner of Taxation [1966] HCA 74; (1966) 118 CLR 628
Glentham Pty Ltd v City of Perth [1986] WAR 205
Grain Elevators Board (Vic) v Dunmunkle Corporation [1946] HCA 13; (1946) 73 CLR 70
Hook v Rolfe (1986) 7 NSWLR 40
Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234
Jennings Construction Ltd v Burgundy Royale Investments Ltd (No 2) [1987] HCA 10; (1987) 162 CLR 153
Joseph v Joseph [1967] Ch 78
Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd (1994) 51 FCR 446
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
Mabo v The State of Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1
Melluish (Inspector of Taxes) v BMI (No 3) Ltd [1996] AC 454
North Shore Gas Co Ltd v Commissioner of Stamp Duties [1940] HCA 7; (1940) 63 CLR 52
Origin Energy Power Ltd and Commissioner of State Revenue [2007] WASAT 302
Parramore v Duggan [1995] HCA 21; (1995) 183 CLR 633
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Tkacz [2001] WASCA 391; (2001) 25 WAR 77
Re Lehrer and The Real Property Act 1900 - 1956 [1961] SR (NSW) 365
Robinson v Local Board of Barton‑Eccles (1883) 8 AC 798
Sherritt Gordon Mines Ltd v Federal Commissioner of Taxation [1977] VR 342
Standard Portland Cement Co Pty Ltd v Good (1982) 2 NSWLR 668
Sterling Nicholas Duty Free Pty Ltd v The Commonwealth [1971] 1 NSWLR 353
Stevens v Colonial Sugar Refining Co Ltd [1920] HCA 74; (1920) 28 CLR 330
TEC Desert Pty Ltd v Commissioner of State Revenue [2010] HCA 49; (2010) 241 CLR 576
The Commonwealth v New South Wales [1923] HCA 23; (1923) 33 CLR 1
Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510
Vopak Terminals Australia Pty Ltd v Commissioner of State Revenue [2004] VSCA 10; (2004) 12 VR 351

Table of Contents

McLure P's reasons.................................................................................................................. 7
The pipelines
The statutory framework
The grounds of appeal
Notices of contention and cross‑appeal
Construction alternatives
Transposition of definition into s 76AP(2)
The proper construction of 'land' and 'land‑holder'
Notices of contention and cross‑appeal
Buss JA's reasons.................................................................................................................... 24
The acquisition of the issued share capital in each of EEPP and EEWA
The statement under s 76AN of the Act, the stamp duty assessments, the objections and the review
The appeals, the notices of contention and the cross‑appeal
The relevant provisions of the Act
The relevant provisions of the Mining Act
The relevant provisions of the Interpretation Act 1984 (WA)
The relevant provisions of the Petroleum Pipelines Act
The relevant provisions of the Dampier to Bunbury Pipeline Act
The issues before the Tribunal
The decision and reasoning of the Tribunal
The grounds of appeal
The notices of contention
The grounds of the cross‑appeal
The modern approach to statutory construction
The purpose or object of pt IIIBA of the Act
The expansive nature of the definitions of 'land' in s 76(1) of the Act and 'land' and 'estate' in s 5 of the Interpretation Act
The function of a definition in a statute
The merits of the grounds of appeal
The merits of the notices of contention
The merits of the cross‑appeal

Conclusion
Murphy JA's reasons............................................................................................................. 49
General statutory background
Division 3 of pt IIIBA
Interpretation provisions
Section 76AP(2)(a) - overview
The appellants' construction
The respondent's preferred construction
The fourth construction
The respondent's fallback construction
Conclusion as to the proper construction of s 76AP(2)(a) and the result of the appeal

The Origin Energy decision and subsequent amendments to the Act
The construction issue raised in the notice of contention and cross‑appeal

McLURE P: These appeals raise for determination the proper construction of the 'land rich' provisions in pt IIIBA of the Stamp Act 1921 (WA) (the Act). The central question is whether gas pipelines and associated infrastructure are 'land' for the purposes of s 76AP(2) of the Act.
The appellant in appeal CACV 36 of 2010, Epic Energy (Pilbara Pipeline) Pty Ltd (EEPP), is the owner of the Pilbara Energy Pipeline (PEP) and associated pipeline infrastructure, the Port Hedland Energy Pipeline (PHEP) and associated pipeline infrastructure and the Burrup Extension Pipeline (BEP) and associated pipeline infrastructure.
The appellant in CACV 37 of 2010, Epic Energy (WA) One Pty Ltd (EEWA), is the owner of the Wodgina Lateral Pipeline - Northern Section (WLPNS) and associated pipeline infrastructure.
On 2 June 2004, Epic Energy Pty Ltd acquired all of the issued shares in each of EEPP and EEWA from Epic Energy (WA) Investments Pty Ltd, an unrelated company.
On 9 August 2004, each appellant lodged a statement in the approved form with the respondent, the Commissioner of State Revenue, stating that the estimated unencumbered value of all 'land' in Western Australia to which it was entitled as at 2 June 2004 was 'nil', on the basis that the pipelines did not constitute land within the meaning of pt IIIBA of the Act.
On 24 July 2007, the respondent assessed the appellants' stamp duty in respect of the change in ownership of their shares on the basis that EEPP and EEWA were 'land‑holders' within the meaning of pt IIIBA of the Act. EEPP was assessed for duty of $7,310,110 and EEWA was assessed for duty of $380,770. An objection to the assessments was disallowed and the appellants sought a review of the assessment in the State Administrative Tribunal (the Tribunal).
The Tribunal determined whether each of the appellants was a land‑holder as a preliminary issue. The Tribunal concluded that where the appellants held an interest or estate in land and the pipeline was fixed to the land the subject of that interest, the pipeline was included in the land to which the appellants were beneficially entitled.

The pipelines

The PEP is approximately 214 km long and consists of sections of pipe welded together. The PEP is above ground in two places but is otherwise under the natural surface of the land.
With certain exceptions, the land upon which the PEP is located is the subject of easements granted under the Petroleum Pipelines Act 1969 (WA) (PP Act). The exceptions include Forrest Location 116, Forrest Location 266 and Forrest Location (now Lot) 255. Forrest Locations 116 and 266 subsequently formed part of Forrest Lot 399.
The BEP is situated on land the subject of an easement granted under the PP Act and on land the subject of an interest arising under the Dampier to Bunbury Pipeline Act 1997 (WA) (DBP Act) in relation to an area within what is known as the DBNGP Access Corridor.
The land on which the PHEP is installed is within 12 general purpose leases (GP leases) granted to a third party under the Mining Act 1978 (WA). EEPP holds a sublease of parts of the areas the subject of the GP leases. Part of the PHEP is also within Forrest Lot 255.
The land on which the WLPNS is located is within a miscellaneous licence granted to a third party under the Mining Act. EEWA holds a sub‑licence and has the benefit of a trust of the miscellaneous licence.
Under the PP Act, the pipelines (and associated infrastructure) remain the property of the appellants, whether or not they are affixed to any land (s 57).
The Tribunal concluded that EEPP held an interest in land the subject of the easements, the sublease of areas within the GP leases and within the DBNGP Access Corridor, and that EEWA held an interest in land the subject of the miscellaneous licence. The Tribunal also concluded that EEPP did not hold an interest in Forrest Locations 255, 116 and 266. There is no challenge to these findings.
As a consequence of these findings, the Tribunal concluded that all the relevant pipelines and associated infrastructure constituted land to which the respective appellants were entitled within the meaning of s 76AP(2) of the Act with the exception of those parts of the PEP and PHEP and associated pipeline infrastructure in Forrest Locations 255, 116 and 266.

The statutory framework

Part IIIBA is headed 'Duty on change of control of certain land‑owning corporations'. It was accepted by the parties that the appellants were corporations to which div 3 of pt IIIBA applied, being corporations incorporated outside Western Australia.
Part IIIBA relevantly provides that the transfer of shares in a corporation which is a land‑holder for the purpose of div 3 attracts duty on the dutiable statement calculated in accordance with the provisions of s 76AO.
A corporation is a land‑holder if it satisfies two criteria, the first relating to the unencumbered value of land situated in Western Australia to which it is entitled and the second relating to the value of all land to which it is entitled, wherever situated. Section 76AP(2) provides:
A corporation is a land‑holder for the purposes of this Division if at the time of a relevant acquisition ‑
(a)it is entitled to land situated in Western Australia and the unencumbered value of the land is not less than $1 000 000, or it is entitled to land situated in Western Australia as a co‑owner of the freehold or of a lesser estate in the land and the value of the whole of the freehold or lesser estate is not less than $1 000 000; and
(b)the value of all land to which the corporation is entitled, whether situated in Western Australia or elsewhere, is 80% or more of the value of all property to which it is entitled, other than property directed to be excluded by subsection (3),
or if the Commissioner determines that paragraphs (a) and (b) would have applied to the corporation at the time of the relevant acquisition but for a transaction, or series of transactions, which in the Commissioner’s opinion had as its purpose, or one of its purposes, the defeat of the object of this Division.
It was accepted by the parties that the share transaction on 2 June 2004 was a 'relevant acquisition' (see s 76AQ). Section 76(1) defines 'entitled' to mean 'beneficially entitled'. At the relevant time, land was defined in s 76(1) as follows:
'land' includes a mining tenement, and also includes ‑
(a)any estate or interest in land; and
(b)anything fixed to the land including anything that is, or purports to be, the subject of ownership separate from the ownership of the land.
Mining tenement is defined in s 76(1) as follows:
'mining tenement' means ‑
(a)a mining tenement held under the Mining Act 1978 being a mining tenement within the meaning of that Act or the Mining Act 1904;
(b)a mining tenement or right of occupancy continued in force by section 5 of the Mining Act 1978; and
(c)a tenement, right or interest that is ‑
(i)similar to a tenement or right referred to in paragraph (a) or (b); and
(ii)held under the law of another State, a Territory, the Commonwealth or another jurisdiction.
Part IIIBA was inserted into the Act by the Stamp Amendment Act 1987 (WA). It was aimed at eliminating stamp duty avoidance practices involving the placing of land in the name of a company and, in effect, selling the land by transferring the shares in the company, which attracted substantially less stamp duty than if the land itself had been transferred (Western Australia, Parliamentary Debates, Legislative Assembly, 11 June 1987, 2308 ‑ 2309 (Mr Pearce, Leader of the House)).
For the sake of completeness it should be recorded that pt IIIBA was amended in 2008 by the Revenue Laws Amendment Act 2008 (WA) (the 2008 amendments). By that Act, par (b) of the definition of 'land' was amended by deleting 'of ownership' and inserting instead 'of an entitlement'. A new s 76(7A) was also inserted. It provides:
(7A)In determining the entitlement of an entity to land for the purposes of section 76AI, 76AL, 76AP, 76AS, 76ATB, 76ATE, 76ATI or 76ATL, if ‑
(a)the entity has an entitlement to something that is part of land as a fixture; and
(b)that entitlement is, or purports to be, separate from the ownership of the rest of the land,
the entity is to be regarded as having an entitlement to land to the extent of its entitlement to the fixture.
The pipelines owned by the appellants are the subject of pipeline licences under the PP Act. 'Pipeline' is defined in the PP Act as not only the pipe or system of pipes, but a range of other associated infrastructure related to the system of pipes. The 'associated pipeline infrastructure' referred to in the facts are accepted by the parties as comprising pipelines under the PP Act. Section 6 prohibits the construction and operation of a pipeline except pursuant to a licence.
Section 12 permits the granting of a licence subject to conditions. Section 12(3) provides:
Subject to subsection (4), the licence is subject to a condition that the licensee shall not commence or cause to be commenced the construction of the proposed pipeline specified therein over any part of the licence area unless he has first acquired all the lands in that part of the licence area or a lease, licence or other authority over the lands and acquired and registered all such easements over those lands as are necessary for him to lawfully construct that pipeline over those lands or part thereof and to have the right of access thereto.
Subsection (4) permits the Minister to consent to the construction of a proposed pipeline pending the registration of a relevant easement.
Under s 57 of the PP Act, an authorised pipeline remains the property of the licensee. It provides:
57. Pipelines to remain property of owner
(1)Notwithstanding any Act or rule of law to the contrary, any pipeline constructed under the authority of this Act shall remain the property of the licensee whether or not the pipeline is affixed to any land and whether or not the licence granted in respect of the pipeline has been wholly or partly cancelled.
(2)The licensee, in maintaining or operating any pipeline in respect of which a licence is issued under this Act, shall do as little damage as is possible and shall make full compensation to the owner of, and any party having an interest in, land for any damage sustained by them in consequence of the exercise of any power by the licensee in maintaining or operating the pipeline, and the compensation shall in default of agreement between the licensee, the owner or other party, be determined by a court of competent jurisdiction.
At one point the PEP and BEP cross the DBNGP Access Corridor, which is a corridor of land 30 m wide in respect of which rights are conferred under the DBP Act.
Section 28 of the DBP Act provides:
28.The meaning of 'State corridor rights'
(1)State corridor rights are an interest in land in the DBNGP corridor and the extent of the interest is such that, if State corridor rights are held in land, neither conferring rights under section 34 nor exercising any right conferred under that section would injuriously affect any right, title, or interest in the land.
(2)State corridor rights may be taken or acquired as described in section 29(2).
The relevant minister may acquire State corridor rights by agreement or compulsory acquisition (s 29(2)).
Section 34 of the DBP Act enables the Minister to confer rights in respect of land in the 'DBNGP corridor' for the purpose of constructing and operating any pipeline for transporting gas. The Tribunal concluded that the rights enjoyed by EEPP conferred under s 34 amounted to an interest in land. Section 40 of the DBP Act at the relevant time provided:
40.Property in things on the land
Anything that a holder of rights conferred under section 34 or a nominee places on land in the DBNGP corridor in accordance with those rights ‑
(a)does not become a part of the land, regardless of whether it is of the nature of a fixture;
(b)is capable of being assigned separately from the land; and
(c)may be removed from the land by, or with the authority of, the owner of that thing.

The grounds of appeal

EEPP's grounds of appeal are as follows.
1.The Tribunal erred in law by misconstruing s 76AP(2) of the Act in that:
(a)the Tribunal wrongly held that, on its proper construction, the effect of that provision is that a corporation which holds a beneficial estate or interest in land to which a thing is affixed is to be regarded as having full ownership of the thing, regardless of whether or to what extent the beneficial interest in the land confers a beneficial interest in the thing; and
(b)the Tribunal should have held that, on the true effect of that provision, a beneficial interest in land only includes an interest in a thing attached to the land, if at all, where and to the extent that the beneficial interest in land itself confers a beneficial interest in the thing.
2.As a result of the error described in ground 1, the Tribunal erred in law in finding that the following were land to which EEPP was entitled, within the meaning of s 76AP(2)(a):
(a)the PEP and associated pipeline infrastructure in the area of the PEP easements;
(b)the PHEP and associated pipeline infrastructure in the subleased area of the GP leases;
(c)the BEP and associated pipeline infrastructure in the area of the BEP easement; and
(d)the PEP, BEP and associated pipeline infrastructure in the DBNGP Access Corridor.
Ground 1 is repeated in EEWA's appeal. Ground 2 is in terms that, as a result of the error in ground 1, the Tribunal erred in finding that the WLPNS and associated infrastructure in the area the subject of the miscellaneous licence was land to which the appellant was entitled within the meaning of s 76AP(2)(a) of the Act. Ground 3 in both appeals was abandoned at the hearing (ts 54).

Notices of contention and cross‑appeal

The respondent contended that the Tribunal erred in law in that it wrongly held that the PEP, BEP, PHEP and WLPNS and associated pipeline infrastructure, to the extent they occupied physical space under the natural surface of the land the subject of the PEP easements, BEP easement, the sublease of the GP leases, miscellaneous licence and DBNGP Access Corridor, were not 'land' to which EEPP and EEWA were entitled within the meaning of s 76AP(2).
The respondent contends that, to the extent the specified pipelines and associated infrastructure occupied physical space under the natural surface of the land, they were land to which EEPP and EEWA were entitled within the meaning of s 76AP(2) regardless of whether they were fixed to any land to which EEPP and EEWA were entitled.
In his cross‑appeal, the respondent contends the Tribunal erred in holding that the PEP and PHEP and associated pipeline infrastructure, to the extent that they occupied physical space under the natural surface of Forrest Lots 255 and 399, were not land to which EEPP was entitled within the meaning of s 76AP(2) of the Act. The respondent contends the pipelines and associated infrastructure under the natural surface of those Lots are land to which EEPP is entitled.

Construction alternatives

The parties between them advanced three alternative constructions of the definition of land in s 76(1) of the Act. It is appropriate to start with the matters upon which the parties agreed. They are, first, that the expression 'anything fixed to the land' in par (b) of the definition of land is not confined to things that would constitute a fixture under the general law (the first proposition). Under the general law, a 'fixture' is personal property that has become so attached to land as to form, in law, a part of the land. Whether personal property has become a fixture depends upon the degree of annexation and the object (purpose) of annexation: TEC Desert Pty Ltd v Commissioner of State Revenue (2010) 241 CLR 576 [24].
Secondly, anything fixed to the land only becomes land for the purpose of par (b) of the definition of land if the relevant corporation has an estate or interest in the land to which the thing is fixed (the second proposition). This is said to be the consequence of the use of the definite article in the statutory expression 'anything fixed to the land'.
The appellant's principal contention is that anything fixed to the land is only included in the definition of land where, and to the extent that, the corporation's beneficial interest in the land itself confers a beneficial interest in the thing. That result depends on the correctness of the second proposition. It also requires that any actual beneficial ownership of the thing be disregarded unless it derives solely from the interest or estate in the land to which it is fixed. Where, as in this case, the ownership of the thing is separate from the ownership of the land, the appellants contend that par (b) of the definition of land requires that the actual (beneficial) ownership of the thing be disregarded. The pipelines would only be within the definition if, disregarding the appellants' ownership thereof under s 57 of the PP Act, the appellants' estate or interest in the land would give rise to a corresponding estate or interest in the thing fixed to it.
The respondent relied on alternative constructions of the definition of land. His primary contention is that (1) anything fixed to land in which the corporation has an estate or interest, whether the thing is beneficially owned by the corporation or a third party, is land; and (2) the thing is deemed to be land to which the corporation is beneficially entitled even if that is not the case.
The respondent's fallback position is that anything fixed to land is land if the corporation is beneficially entitled to both the thing and the land to which it is fixed.
A further alternative construction not supported by any party (the fourth alternative construction) does not depend on the correctness of the second proposition. Under this alternative, par (b) is a separate, independent limb so that a thing fixed to land is itself land under the definition of land in s 76(1).

Transposition of definition into s 76AP(2)

The function of a statutory definition is to provide an aid in construing the statute. The proper course is to read the words of the definition into the relevant provision and then construe the latter: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568 [12].
In this case, the definition of 'land' is to be transposed into the definition of 'land‑holder', which is one of the gateway requirements for liability to duty under pt IIIBA of the Act. The transposition of the four alternative constructions in s 76AP(2)(a) are as follows. The words in brackets are the extended definition of 'land', with clarifications and additions thereto in italics.
The appellants' construction
A corporation is a land‑holder for the purposes of this Division if at the time of a relevant acquisition ‑
(a)it is beneficially entitled to land [including a mining tenement or any estate or interest in land or any estate or interest in a mining tenement and anything fixed to the land the subject of the mining tenement or estate or interest, including anything that is, or purports to be, the subject of ownership separate from the ownership of the land where and to the extent that the beneficial interest in the land itself confers a beneficial interest in the thing] situated in Western Australia and the unencumbered value of the land is not less than $1 000 000 …
The respondent's preferred construction
A corporation is a land‑holder for the purposes of this Division if at the time of a relevant acquisition ‑
(a)it is beneficially entitled to land [including a mining tenement or any estate or interest in land or any estate or interest in a mining tenement and anything fixed to the land the subject of the mining tenement or estate or interest, including anything that is, or purports to be, the subject of ownership by the corporation or by another person separate from the ownership by the corporation of the land] situated in Western Australia and the unencumbered value of the land is not less than $1 000 000 …
According to the respondent, this construction is intended to capture 'things' to which the corporation is not beneficially entitled, provided the thing is fixed to land owned by the corporation.
The respondent's fallback construction
A corporation is a land‑holder for the purposes of this Division if at the time of a relevant acquisition ‑
(a)it is beneficially entitled to land [including a mining tenement or any estate or interest in land or any estate or interest in a mining tenement and anything fixed to the land the subject of the mining tenement or estate or interest including anything that is, or purports to be, the subject of ownership by the corporation separate from the ownership by the corporation of the land the subject of the mining tenement or estate or interest] situated in Western Australia and the unencumbered value is not less than $1 000 000 …
The fourth alternative construction
A corporation is a land‑holder for the purposes of this Division if at the time of the relevant acquisition ‑
(a)it is beneficially entitled to land [including a mining tenement or an estate or interest in land or any estate or interest in a mining tenement or anything fixed to land, including anything that is, or purports to be, the subject of ownership separate from the ownership of the land to which it is fixed] situated in Western Australia and the unencumbered value of the land is not less than $1000000.

The proper construction of 'land' and 'land‑holder'

Against that background, I turn to the construction of the defined terms 'land' and 'land‑holder'. The definition of 'land' in s 76(1) is inclusive, which is an indication that it is not intended to be exhaustive. The word 'includes' is generally used if it is intended to enlarge the ordinary meaning of the word. Land in its ordinary meaning refers to its tangible, material (corporeal) existence, being the surface of the earth, the soil beneath and the airspace above it.
The existence and content of the extensions to the definition of 'land' in s 76(1) of the Act support the view that the ordinary meaning of 'land' is intended rather than its general law meaning or the meaning given to the same term in s 5 of the Interpretation Act 1984 (WA). For instance, par (a) of the definition which includes the estates and interests, legal and equitable, that a person may own in land, captures part of the general law meaning of land.
Further, the incorporation of a definition of land specifically in and for pt IIIBA of the Act, and the different extensions of the ordinary meaning of 'land' in the Interpretation Act, lead me to conclude that the definition of land in the Act is intended to cover the field to the exclusion of the definition in the Interpretation Act. In that event, the definition of 'land' in the Interpretation Act has no application to pt IIIBA (s 3(1)). However, as there is no definition of 'estate' in the Act, the (wide) definition of that term in s 5 of the Interpretation Act applies.
The ordinary meaning of 'land' is extended in s 76(1) to include a 'mining tenement', as that term is defined in the Mining Act. Section 8 of the Mining Act defines 'mining tenement' to include both the relevant licences and leases granted under the Mining Act and the specified piece of land in respect of which the mining tenement is granted or acquired.
Paragraph (a) of the definition of land is intended to apply back to the opening words of the definition, that is, to land in its ordinary (corporeal) meaning and to a mining tenement.
As to par (b), the word 'fixed' is intended to refer to a physical connection between the thing and the land. Accordingly, land is used in par (b) in its ordinary (corporeal) meaning. The paragraph includes, but is not confined to, fixtures in the general law sense.
The next construction issues are as follows:
1.is par (b) a separate, independent (stand‑alone) limb of the definition of land or ancillary, and if so, to what;
2.what is the scope and effect of the separate ownership inclusion in par (b), which in turn raises the meaning of the term 'ownership' in that paragraph;
3.does the scope of the separate ownership inclusion in par (b) have any material effect on the scope or application of s 76AP(2) of the Act.
These issues are interrelated. I propose to start with the second. Separate ownership prima facie includes 'different' ownership and 'different' owners. The term 'ownership' in par (b), in context, includes ownership of an estate or interest falling short of ownership of the 'thing' or the land to which it is fixed. A corporation that owns or has an interest in land can have an interest in a thing fixed to that land even if the thing is owned by a third party. The background to the introduction of pt IIIBA provides valuable insight into the legislative intent. Around the time of the insertion of pt IIIBA into the Act in 1987, it was not uncommon for parties to enter into transactions intended to separate ownership of fixtures from the ownership of the land. This was done by means of hire purchase transactions or transactions for the sale and lease back of fixtures: see Emanuel (Rundle Mall) Pty Ltd v Commissioner of Stamps (1986) 41 SASR 122; Commissioner of Taxation v Metal Manufactures Ltd (2001) 108 FCR 150 (transaction in 1988). However, there was at the time, and still is, doubt as to whether separate ownership of fixtures is legally possible: TEC Desert Pty Ltd v Commissioner of State Revenue [52].
The language of the separate ownership inclusion in par (b) is also wide enough to include a situation where ownership of the thing is completely separate from ownership of the land, in the sense that there is no relevant common owner of an interest in the thing and an interest in the land to which it is fixed. This is necessary for both the respondent's preferred construction (which captures all things fixed to land in which the corporation has an estate or interest even if it has no estate or interest in the thing itself) and the fourth construction alternative (which captures things owned by a corporation even if it has no estate or interest in the land to which it is fixed).
However, the separate ownership inclusion cannot be construed in isolation from the balance of par (b) of the definition of land and s 76AP(2). The first issue set out above raises the meaning of the definite article in the expression 'the land' where it first occurs in par (b).
The matters in pars (a) and (b) of the definition of land in s 76(1) are not conjunctive in form. Contrast subpars (i) and (ii) of par (b) of the definition of 'mining tenement' in s 76(1) of the Act. An estate or interest in land is 'land' whether or not anything is fixed to the land.
However, the parties contend that the use of the definite article before the word 'land' where it first appears in par (b) is an intended reference back to the land referred to in par (a) of the definition, with the consequence that par (b) is conjunctive with par (a).
The central question is whether the definite article is intended to have any real work to do. On one view the expression 'the land' may mean nothing more than anything fixed to the earth or the ground. If that is so, par (b) means 'anything fixed to land'. On this construction, the 'thing' itself is land, and the land itself and the thing fixed to it can be in completely different ownership. Thus, a 'thing' that is not land in its ordinary or general law meaning would be land under the definition in s 76(1) even if the corporation had no estate or interest in the land to which it is fixed. In that situation, the land to which the thing is fixed would be excluded from the calculation of value.
However, ordinarily the definite article is used to indicate a particular instance of a noun. In the context of the definition of land in s 76(1), that would in my view be a reference back to that which precedes it in the definition of land. Understood in that sense, the effect is that par (b) is not an independent, stand‑alone limb of the definition but an add‑on to the stand‑alone limbs of the definition. The stand‑alone limbs are (1) land (ordinary meaning); (2) mining tenement; and (3) any estate or interest in (1) or (2). Paragraph (b) is referring to a physical connection between the thing and the land in (1), (2) and (3).
Thus the definition of 'land' means:
-land (ordinary meaning) and anything fixed to the land;
-a mining tenement and anything fixed to the mining tenement;
-an estate or interest in land and anything fixed to the land;
-an estate or interest in a mining tenement and anything fixed to the mining tenement.
On the facts in this case, the relevant stand‑alone limb is par (a) of the definition of land with the add‑on in par (b) which, when transposed into s 76AP(2)(a), would read:
A corporation is a land‑holder for the purposes of this Division if at the time of a relevant acquisition ‑
(a)it is beneficially entitled to an estate or interest in land and anything fixed to the land ...
In my view, that is the intended meaning of the expression 'the land' when it first appears in par (b) of the definition of 'land'. That construction of the text is consistent with the purpose of pt IIIBA in which the primary focus is on ownership of real property. This construction of par (b) as ancillary to the stand‑alone limbs of the definition has the effect of excluding the fourth alternative construction.
The final issue is whether the requirement in s 76AP(2) for a 'beneficial entitlement' applies to the stand‑alone limbs of the definition of land as well as anything fixed thereto. That is the clear implication of the text and purpose of the definition of land‑holder. The scope of s 76AP(2) is not to be enlarged simply because of the potential width of the separate ownership inclusion in par (b) of the definition of land. That would be the tail wagging the dog. I address the issue further in the analysis of the respondent's preferred construction.
I turn now to the various construction alternatives. The construction contended for by the appellants finds no support in the text of the relevant provisions or their purpose. It requires that additional words be read into the definitions of land and land‑holder. It is a contrived construction aimed at narrowing the scope of the 'land rich' provisions of the Act. There is no justification in the language or purpose of pt IIIBA for putting to one side and ignoring a corporation's actual separate beneficial ownership of a thing fixed to land which the corporation owns or in which it has an interest. Further, a beneficial interest in the land itself is only capable of conferring a beneficial interest in a thing fixed to it where the thing is a fixture under the general law. This practical limitation is inconsistent with the concession that par (b) is intended to have a wider operation than the general law.
I have concluded that the fourth alternative construction is not consistent with the text or purpose of the definitions of land and land‑holder. I have reached that conclusion without reference to the 2008 amendments which inserted s 76(7A). However, if the fourth alternative construction is correct, it would not have been necessary to insert s 76(7A) in pt IIIBA. The court would then have to determine what if any reliance could be placed on the 2008 amendments in construing s 76AP(2) as at the time of the relevant acquisition in June 2004. As to which, see Grain Elevators Board (Vic) v Dunmunkle Corporation (1946) 73 CLR 70, 85 ‑ 86; Hunter Resources Ltd v Melville (1988) 164 CLR 234, 253 ‑ 255; Downey v Trans Waste Pty Ltd (1991) 172 CLR 167, 177 ‑ 178; Commissioner of State Revenue (Victoria) v Pioneer Concrete (Vic) Pty Ltd (2002) 209 CLR 651 [52].

Under the respondent's preferred construction, a thing fixed to a corporation's land is taken into account in determining value even if the corporation has no beneficial entitlement to the thing. The respondent says the corporation is 'deemed' to have a beneficial entitlement in the thing fixed to the land. The implication of a deemed entitlement does not sit well with the presence of an express deeming provision in relation to entitlement in s 76AP(4) of the Act. Further, the requirement of a beneficial entitlement provides a necessary yardstick for assessing the value of the corporation's interest in the 'thing'. In this way there may be multiple, but not overlapping, interests in the same 'thing'. I am satisfied that the intention of s 76AP(2) is to determine value by bringing to account the value of the corporation's beneficial entitlement to land and things fixed thereto.
In my view, the respondent's fallback construction correctly captures the essence and intended effect of the definitions of land and land‑holder in pt IIIBA of the Act. I would transpose the defined term 'land' slightly differently to reflect the reference in par (b) back to all stand‑alone limbs, but with no different result. If a corporation has a beneficial entitlement to land and a beneficial entitlement to a thing fixed to that land, the value of the corporation's beneficial entitlement to the thing is included in the calculation of value under s 76AP(2) regardless of the basis or source of the beneficial entitlement to the thing. I would dismiss the appeal.

Notices of contention and cross‑appeal

The notices of contention do not need to be determined as a result of the outcome of the appeals. However, they were fully argued and overlap with the cross‑appeal.
The outcome of the contention and cross‑appeal does not depend on whether or not the appellants had an estate or interest in the land itself. In essence, the respondent contends that pipelines under the natural surface of the land are 'land' in its ordinary meaning. No claim is made that the pipelines are an estate or interest in land.
The respondent claims this outcome is supported by authority, in particular the North Shore Gas Co Ltd v Commissioner of Stamp Duties (1940) 63 CLR 52 (First North Shore Gas case), and that this case is distinguishable from Commissioner of Main Roads v North Shore Gas Co Ltd (1967) 120 CLR 118 (Second North Shore Gas case) and Asciano Services Pty Ltd Chief Commission of State Revenue (NSW) (2008) 235 CLR 602. It is necessary to refer to the detail of these decisions.
The question in the First North Shore Gas case was whether an agreement for the sale of a gas company's assets as a going concern, so far as it related to the mains and service pipes, was an agreement for the sale of 'goods, wares, or merchandise' under the stamp duty legislation that applied at the time. Legislation authorised the gas company to place the pipes in the soil of public and private land, to remove them, to control them and to retain the ownership and possession of them. Rich J said:
Does this result in their continuing to belong to the legal category of personal chattels in which they fell before they were placed in the ground? On the whole I think that we should hold that they lost that character. They were dealt with in a fashion which, apart from specific legislative provision, would give them the same legal character as the soil in which they were placed for the purpose of the classification of things into chattels personal and realty. The statute prevents many of the consequences which would ensue from such a transition from the category of chattels personal to that of land, but it stops short of preventing the transition itself.
Dixon J reasoned along the same lines. He said:
Every physical characteristic, therefore, tends to place the mains and service pipes in the same category as the soil from which, without disintegration or disconnection, they are inseparable. Two legal qualities belong to the pipes which ordinarily do not belong to part of the soil, viz, the existence of independent ownership in another person and removability. But these qualities arise from statutory provisions, and removability at all events is a well-known characteristic of tenants' fixtures, which until removal are considered part of the realty. I do not think that these statutory legal qualities are enough to put the buried apparatus out of the classification to which otherwise it would belong. The mains and service pipes are fixtures, and in my opinion are not chattels personal.
In the Second North Shore Gas case the question in issue was whether the respondent was entitled to compensation for the value of its mains and service pipes in land compulsorily taken by the appellant under public works legislation. The majority (Barwick CJ, McTiernan, Kitto and Taylor JJ) identified the relevant question as being whether the mains and pipes, or the space occupied by them 'constituted an interest in land' (125). The majority held that the answer to that question was determined solely by reference to the legislation regulating the gas company's rights, entitlements and powers. Under the legislation the mains and pipes were the property of the gas company. The majority held that the legislation was not intended to confer on the gas company any interest in the land in which the mains and pipes were embedded (128). Windeyer J noted that the question for determination in the First North Shore Gas case was entirely different than the question he was considering. He said it was not what description should be given to the mains and pipes in the ground but whether the respondent had an estate or interest in the land in which they were embedded. He accepted that the space of the earth occupied by a pipe when embedded in the soil (not the pipe) was land, but that did not mean that the gas company had an estate or interest in the land (132).
The First and Second North Shore Gas cases were considered by the High Court in Asciano Services. New South Wales legislation implemented a scheme for the commercial use of railway infrastructure previously the subject of a public monopoly. Rail infrastructure facilities (which included, inter alia, tunnels) were vested in a statutory corporation (RAC) and the land to which the facilities were attached was owned by a separate statutory authority. Some members of the court below had decided that some of the rail infrastructure facilities were land (Chief Commissioner of State Revenue v Pacific National (ACT) Ltd (2007) 70 NSWLR 544 [21] ‑ [29]). The High Court said nothing was to be gained from a consideration of the rights of the owner of the rail infrastructure facilities by reference to principles relevant to land under the general law, relying with approval on the Second North Shore Gas case. The High Court said the gas company's claim for compensation in the Second North Shore Gas case failed 'because the pipes were held not to be land and its rights in them not an interest in land within the meaning of the statute authorising resumption and requiring the payment of compensation' [27]. The High Court continued:

The property owned and vested in RAC, and the rights it has with respect to land in connection with its functions, were provided by the [Act]. The Act disclosed no intention that the vesting of the rail infrastructure facilities in RAC was to carry with it rights or legal consequences other than those identified in the scheme of the Act [29].

The respondent claims the High Court in Asciano erred in its statement that the claim in the Second North Shore Gas case failed because the pipes were held not to be land. Although that was not identified by the High Court in the Second North Shore Gascase as an issue, that conclusion is implicit in its reasoning. Moreover, even assuming the correctness of the respondent's claim, it has no impact on the outcome of the notices of contention or cross‑appeal.
The issue in s 76AP(2) of the Act is whether the appellants were 'beneficially entitled' to land as defined. The notion of 'beneficially entitled' requires that the corporation have beneficial ownership of, or an estate or interest in, the pipelines said to constitute land. Whether and if so what type of interest the appellants have in the pipelines is answerable solely by reference to the provisions of the PP Act. Section 57 of the PP Act deals with ownership of the pipelines (the 'thing'), not the land in which they are embedded. The general law cannot intrude to change the character of the pipelines from personal to real property. What is implicit in s 57 of the PP Act is made explicit in s 40(a) of the DBP Act. However, pt IIIBA of the Act can, and does, treat the pipelines as land when fixed to land in which the licensee has a beneficial entitlement.
I would dismiss the notice of contention and the cross‑appeal.
BUSS JA: These appeals raise questions as to the proper construction of s 76AP(2) of the Stamp Act 1921 (WA) (the Act), as in force on 2 June 2004, read with the applicable definitions of 'entitled' and 'land' in s 76(1) of the Act.
The appellant in CACV 36 of 2010 (EEPP) is, and was at all material times, the owner of the Pilbara Energy Pipeline (PEP), the Port Hedland Extension Pipeline (PHEP) and the Burrup Extension Pipeline (BEP) and, in the case of each pipeline, associated pipeline infrastructure.
The appellant in CACV 37 of 2010 (EEWA) is, and was at all material times, the owner of the Wodgina Lateral Pipeline Northern Section (WLPNS) and associated pipeline infrastructure.

At all material times, EEPP and EEWA had property in the pipelines and associated infrastructure independently of any interests in the land to which those things were affixed. Property was conferred on or reserved to EEPP and EEWA by s 57(1) of the Petroleum Pipelines Act 1969 (WA) and s 40 of the Dampier to Bunbury Pipeline Act 1997 (WA).
At all material times, the appellants' relevant tenure was as follows:
(a)EEPP: easements with respect to the PEP and the BEP and, in each case, associated infrastructure;
(b)EEPP: sub‑lease of parts of general purpose leases, granted under the Mining Act 1978 (WA), with respect to the PHEP and associated infrastructure; and
(c)EEWA: sub‑licence of miscellaneous licence, and beneficial interest in miscellaneous licence, granted under the Mining Act, with respect to the WLPNS and associated infrastructure.

The acquisition of the issued share capital in each of EEPP and EEWA

On 2 June 2004, Epic Energy Pty Ltd acquired all of the issued share capital in each of EEPP and EEWA from Epic Energy (WA) Investments Pty Ltd, an unrelated corporation.

The statement under s 76AN of the Act, the stamp duty assessments, the objections and the review

On 9 August 2004, each appellant lodged a statement in the approved form with the respondent (the Commissioner) under s 76AN of the Act together with the relevant acquisition documents.
On 24 July 2007, the Commissioner assessed each of the appellants to stamp duty in respect of the change in ownership of their shares on the basis that each of them was a 'land‑holder' within s 76AP(2) of the Act. EEPP was assessed for duty of $7,310,110 and EEWA for duty of $380,770.
On 4 October 2007, each appellant lodged an objection to the assessment. On 28 May 2008, the Commissioner disallowed the objections.
On 28 July 2008, each appellant lodged an application with the State Administrative Tribunal (the Tribunal) to review the Commissioner's objection decision.
The Tribunal determined, as a preliminary issue, whether each of the appellants was a 'land‑holder'.
The Tribunal held that where an appellant had an interest in land, such as an easement, and the pipeline was fixed to the land the subject of that interest, the pipeline was 'included in the interest [in] land to which [the appellant was] beneficially entitled' [3]. The pipeline in question was, in these circumstances, 'land' to which the relevant provisions of pt IIIBA of the Act applied [3]. Where, however, an appellant had no 'identifiable interest' in the land to which a part of the pipeline was fixed, that part of the pipeline was not 'land' for the purposes of pt IIIBA [3].

The appeals, the notices of contention and the cross‑appeal

The appellants have appealed to this court under s 43A of the Taxation Administration Act 2003 (WA) against the Tribunal's decision.
The Commissioner relies on a notice of contention in each appeal. The Commissioner has also cross‑appealed to this court against the Tribunal's decision in relation to EEPP.

The relevant provisions of the Act

The applicable provisions of the Act are those in force on 2 June 2004, when Epic Energy Pty Ltd acquired the shares in question. I will set out the relevant provisions as in force on that date.
Part IIIBA of the Act is headed, 'Duty on change of control of certain land‑owning corporations'.
Section 76 of the Act defines various terms used in pt IIIBA. By s 76(1), in pt IIIBA, unless the contrary intention appears, relevantly:
chattels means goods, wares or merchandise … and includes an estate or interest in them;
…
entitled means beneficially entitled, and entitlement has a corresponding meaning;
land includes a mining tenement, and also includes ‑
(a)any estate or interest in land; and
(b)anything fixed to the land including anything that is, or purports to be, the subject of ownership separate from the ownership of the land;
…
mining tenement means ‑
(a)a mining tenement held under the Mining Act 1978 being a mining tenement within the meaning of that Act or the Mining Act 1904;
(b)a mining tenement or right of occupancy continued in force by section 5 of the Mining Act 1978; and
(c)a tenement, right or interest that is ‑
(i)similar to a tenement or right referred to in paragraph (a) or (b); and
(ii)held under the law of another State, a Territory, the Commonwealth or another jurisdiction.
Division 3 of pt IIIBA is headed, 'Corporations incorporated, or taken to be registered, outside Western Australia, and certain other companies not within Division 2'. Division 3 comprises s 76AN ‑ s 76AS.
Each of EEPP and EEWA will be a corporation to which div 3 applies if, at the material time:
(a)it was registered outside Western Australia (s 76AP(1)(a)); and
(b)it was a 'land‑holder' within s 76AP(2) (s 76AP(1)(c)).
It is not in dispute that EEPP and EEWA are, and were at all material times, registered in the Australian Capital Territory.
Section 76AP(2) provides:
A corporation is a land‑holder for the purposes of this Division if at the time of a relevant acquisition ‑
(a)it is entitled to land situated in Western Australia and the unencumbered value of the land is not less than $1 000 000, or it is entitled to land situated in Western Australia as a co‑owner of the freehold or of a lesser estate in the land and the value of the whole of the freehold or lesser estate is not less than $1 000 000; and
(b)the value of all land to which the corporation is entitled, whether situated in Western Australia or elsewhere, is 60% or more of the value of all property to which it is entitled, other than property directed to be excluded by subsection (3),
or if the Commissioner determines that paragraphs (a) and (b) would have applied to the corporation at the time of the relevant acquisition but for a transaction, or series of transactions, which in the Commissioner’s opinion had as its purpose, or one of its purposes, the defeat of the object of this Division.
By s 76AP(5), in determining the entitlement of an entity to land for the purposes of, relevantly, s 76AP:
(a)if the entity has contracted or agreed to acquire an interest in land, that contract or agreement is to be regarded as having been completed even if it has not yet been completed; and
(b)if the entity has contracted or agreed to dispose of an interest in land but that contract or agreement has not yet been completed, that contract or agreement is to be disregarded.
Section 76AU(1) makes provision for the reassessment of duty where, relevantly, a contract or agreement brought to account under s 76AP(5) is rescinded, annulled or otherwise terminated without being completed.
By s 76AN(1), where by a relevant acquisition a person acquires a majority interest or a further interest in, relevantly, a corporation to which div 3 applies, the corporation shall, within two months after the acquisition, lodge a statement with the Commissioner in respect of that acquisition.
As I have mentioned, on 2 June 2004 Epic Energy Pty Ltd acquired all of the issued share capital in each of EEPP and EEWA. Each of those acquisitions was a 'relevant acquisition' (see s 76AQ) because Epic Energy Pty Ltd thereby acquired a 'majority interest' (see s 76AR(2)) in EEPP or EEWA, as the case may be.
By s 76AO(1), a s 76AN statement is chargeable, in accordance with s 76AS, with duty at the rate provided for in item 4(1) of the Second Schedule to the Act, calculated on its 'dutiable value'.
In the present case, the relevant 'dutiable value' is determined under s 76AS(2): see s 76AO(1)(a). By s 76AS(1), 'dutiable value' is defined as the value, free of encumbrances, of 'the land and chattels situated in Western Australia to which the corporation is entitled'.

The relevant provisions of the Mining Act

Section 8(1) of the Mining Act provides in effect that a general purpose lease and a miscellaneous licence granted or acquired under that Act are 'mining tenements', and that a 'mining tenement' also includes 'the specified piece of land in respect of which the mining tenement is so granted or acquired'.

The relevant provisions of the Interpretation Act 1984 (WA)

Section 5 of the Interpretation Act 1984 (WA) provides that, in the Interpretation Act and every other written law, relevantly:
estate in relation to land, includes any legal or equitable estate or interest, easement, right, title, claim, demand, charge, lien, or encumbrance in, over, to, or in respect of the land;
…
land includes buildings and other structures, land covered with water, and any estate, interest, easement, servitude or right in or over land.
By s 3(1) of the Interpretation Act, relevantly, the definitions in s 5 apply to every written law unless, in relation to a particular written law:
(a)express provision is made to the contrary; or
(b)in the case of an Act, the intent and object of the Act or something in the subject or context of the Act is inconsistent with such application; or
(c) …

The relevant provisions of the Petroleum Pipelines Act

Section 57(1) of the Petroleum Pipelines Act provides:
Notwithstanding any Act or rule of law to the contrary, any pipeline constructed under the authority of this Act shall remain the property of the licensee whether or not the pipeline is affixed to any land and whether or not the licence granted in respect of the pipeline has been wholly or partly cancelled.
The term 'pipeline' is defined broadly in s 4(1). It includes, relevantly, each pipeline and associated pipeline infrastructure the subject of these appeals.
Property in the pipelines and associated pipeline infrastructure is conferred by s 57(1), and not by virtue of any licences granted in respect of the pipelines and pipeline infrastructure, and irrespective of whether or not the pipelines and associated pipeline infrastructure are affixed to any land.
The relevant facts relating to the pipelines owned by EEPP and EEWA are set out in the reasons of McLure P.

The relevant provisions of the Dampier to Bunbury Pipeline Act

By s 34 of the Dampier to Bunbury Pipeline Act, the Minister was empowered to confer rights in respect of land in the DBNGP Access Corridor for the purpose of constructing and operating any pipeline for transporting gas.

At the material time, s 40 of the Dampier to Bunbury Pipeline Act provided:
Anything that a holder of rights conferred under section 34 or a nominee places on land in the DBNGP corridor in accordance with those rights ‑
(a)does not become a part of the land, regardless of whether it is of the nature of a fixture;
(b)is capable of being assigned separately from the land; and
(c)may be removed from the land by, or with the authority of, the owner of that thing.
The relevant facts relating to the DBNGP Access Corridor and the rights conferred by the Minister on EEPP in connection with the land in that corridor are set out in the reasons of McLure P.

The issues before the Tribunal

The fundamental issue before the Tribunal was whether each of the appellants was a 'land‑holder' within s 76AP(2) of the Act.
There were three subsidiary issues.
The first subsidiary issue was whether certain property of each of the appellants was 'fixed' within the meaning of that term as used in the definition of 'land' in s 76(1) of the Act. Eventually, the appellants conceded that the property in question was 'fixed' for the purposes of that definition.
The second subsidiary issue was expressed as follows:
Issue 1.2: Did each of the following thereby constitute 'land' to which EEPP was entitled (within the meaning of s 76AP(2)(a) Stamp Act)?
(a)The [Pilbara Energy Pipeline (PEP)] and associated pipeline infrastructure in the area of the [easements referred to in Statement of Agreed Facts (SAF) paragraphs 66 ‑ 68 (PEP Easements)].
(b)The PEP and associated pipeline infrastructure in [Forrest Location 255 referred to at SAF paragraphs 96(c) and 97 (Duke Energy Lease Area)]. This raises a further issue:
(i)Did EEPP have an equitable sublease of [part of] the Duke Energy Lease Area?
(c)The PEP and associated pipeline infrastructure in Forrest Lot 399.
(d)The [Port Hedland [Extension] Pipeline (PHEP)] and associated pipeline infrastructure in the [sublease of the general purposes leases referred to in SAF paragraphs 112113 (PHEP GPL Sublease Area)].
(e)The PHEP and associated pipeline infrastructure in the HBI Terminal Station.
[(ea)The PHEP and associated pipeline infrastructure in the Duke Energy Lease Area.]
(f)The [Burrup Extension Pipeline (BEP)] and associated pipeline infrastructure in the area of [easement referred to in SAF paragraphs [123-124] (BEP Easement)]. This raises a further issue:
(i)What is the relevance (if any) of the BEP Easement being unregistered as at 2 June 2004?
(g)The PEP, BEP and associated pipeline infrastructure in [the area referred to in SAF paragraph 128 (DBNGP Access Corridor)].
(h)The [Wodgina Lateral Pipeline Northern Section (WLPNS)] and associated pipeline infrastructure in the areas the subject of the [miscellaneous licence L45/108 referred to in SAF paragraph 138 (which is the subject of the licence and trust referred to in SAF paragraphs 139140) (WLPNS Miscellaneous Licence)].
The third subsidiary issue was this:
Issue 3: Was the following property of the [appellants] 'land' (within the meaning of that term in s 76(1) Stamp Act) by reason that it occupies the physical space under the ground:
EEPP
(a)PEP underground pipes.
(b)Cathodic Protection System (CPS).
(c)PHEP underground pipes.
(d)BEP underground pipes.
EEWA
(e)WLPNS underground pipes.

The decision and reasoning of the Tribunal

The Tribunal set out, in its reasons, a submission made by counsel for the Commissioner as to the proper construction of s 76AP(2) of the Act, read with the applicable definitions of 'land' and 'entitled' in s 76(1) of the Act. This submission was referred to as the 'characterisation approach':
The [Commissioner] does not contend that the pipelines by themselves constitute an estate or interest in land. Rather, he contends that PEP easements constitute an interest in land and thus 'land' to which the applicants are entitled, and that the pipelines are included in that land because they are fixed to it (and thus caught by [b] of the definition of 'land' in s 76(1) of the Stamp Act).
He contends that Pt IIIBA of the Stamp Act clearly contemplates that a thing may be fixed to a mining tenement or a lesser estate or interest than fee simple, with the result that the value of that mining tenement or estate or interest to which a corporation is entitled for the purposes of s 76AP(2) must be determined on the basis that the thing forms part of the mining tenement or estate or interest. He argues that, in those areas where the PEP is fixed to land which is the subject of a PEP easement, and is also the subject of a pastoral lease (which only confers upon the lessee the right to use the land for pastoral purposes and does not give rise to any right of ownership in the PEP) the PEP must be characterised as being fixed to the PEP easement [41] ‑ [42].
The Tribunal said that the 'characterisation approach' contended for by the Commissioner was the 'correct approach' [50].
However, the Tribunal went on to say that the definition of 'land' in s 76(1) of the Act, in referring to 'anything fixed to the land', requires that 'the thing concerned be fixed to land to which the relevant corporation is beneficially entitled' [55]. It added that s 76AP(2) 'would not be enlivened where a corporation merely had a beneficial entitlement to something fixed to land in respect of which the corporation had no estate or interest' [55]. The Tribunal then said:
In my view, however, para (b) of the definition of land does operate to include something fixed to land in respect of which the corporation concerned has an estate or interest less than freehold, including an interest as grantee of an easement [56].
A little later, the Tribunal elaborated:
Reading s 76AP(2) and the definitions in s 76(1) together, a corporation is a landholder where it is beneficially entitled to an interest in land, which includes anything fixed to the land the subject of that interest (assuming the land has the threshold value). Once the item is found to be relevantly fixed, the fact that there is some source of rights in relation to the thing which derives from something other than the interest in the land does not result in the thing ceasing to be part of the land for the purposes of Pt IIIBA [58].
The Tribunal also dealt with an alternative submission made by the Commissioner that, 'even if the pipelines are fixed to an estate or interest in land, the pipelines are themselves "land to which the [appellants] are entitled''' [78]. The reasoning advanced by the Commissioner in support of his alternative submission was that 'the pipelines in this case are "land" not because they are affixed to land, but because, by analogy with ratings cases, the [appellants] were in occupation of a portion of the substratum of the earth being that substratum through which the pipelines run' [78].
After referring to Commissioner of Main Roads v North Shore Gas Co Ltd [1967] HCA 41; (1967) 120 CLR 118 and Alinta DEGP Pty Ltd v Wellington Shire Council [2005] VSC 307; (2005) 141 LGERA 187, the Tribunal rejected the Commissioner's alternative submission. It said:
Taken separately, the pipelines with which we are concerned in this matter are not, by themselves, land even though the substratum of earth through which they pass is land [84].
According to the Tribunal:
[T]he pipelines are land for the purposes of the definition in s 76 of the Stamp Act where they pass through (and thus are fixed to) land in respect of which the applicants have a beneficial interest, for example the land the subject of the PEP easements. The pipeline is not land to which the applicants are beneficially entitled where the applicants have no interests in the land through which the pipeline passes, such as the Duke Energy Lease Area [85].
The Tribunal decided (and it is not in dispute before this court) that:
(a)The PEP and associated pipeline infrastructure were fixed to the land the subject of the PEP Easements [52].
(b)The PEP Easements were an interest in land [53].
(c)EEPP was beneficially entitled to the interest in the land which the PEP Easements conferred [54].
The Tribunal made similar findings in relation to:
(a)The PHEP and associated pipeline infrastructure within, relevantly, the area of the PHEP GPL Sublease Area [12], [87].
(b)The BEP and associated pipeline infrastructure within the area of the BEP Easement [12], [87].
(c)The PEP and the BEP and associated pipeline infrastructure in the DBNGP Access Corridor [12], [87].
(d)The WLPNS and associated pipeline infrastructure within the area of the WLPNS Miscellaneous Licence [12], [87].
The Tribunal held that the following constituted 'land' to which EEPP was 'entitled', within s 76AP(2) of the Act:
(a)the PEP and associated pipeline infrastructure within the area of the PEP Easements [12], [98];
(b)the PHEP and associated pipeline infrastructure within, relevantly, the area of the PHEP GPL Sublease Area [12], [98];
(c)the BEP and associated pipeline infrastructure within the area of the BEP Easement [12], [98]; and
(d)the PEP and the BEP and associated pipeline infrastructure within the DBNGP Access Corridor [12], [98].
Also, the Tribunal held that the 'land' to which EEWA was 'entitled', within s 76AP(2) of the Act, included the WLPNS and associated pipeline infrastructure within the area of the WLPNS Miscellaneous Licence [12], [98].
However, the Tribunal held that:
(a)the PEP, the BEP and the PHEP underground pipelines and associated infrastructure, to the extent they occupied physical space under the natural surface of the land the subject of the PEP Easements, the BEP Easement, the PHEP GPL Sublease Area and the DBNGP Access Corridor; and
(b)the WLPNS underground pipelines and associated infrastructure, to the extent they occupied physical space under the natural surface of the land the subject of the WLPNS Miscellaneous Licence,
were not thereby 'land' to which EEPP or EEWA, as the case may be, was 'entitled', within s 76AP(2) of the Act [97].

The grounds of appeal

Each of EEPP and EEWA relies on two grounds of appeal.
Ground 1 relied on by each of EEPP and EEWA is identical. It alleges that the Tribunal misconstrued s 76AP(2) of the Act in holding that the effect of that provision was that a corporation which holds a beneficial estate or interest in 'land' to which a thing is affixed is to be regarded as having full ownership of the thing, regardless of whether or to what extent the beneficial interest in the land confers a beneficial interest in the thing. Ground 1 also alleges that the Tribunal should have held that the effect of s 76AP(2) is that a beneficial interest in 'land' only includes an interest in a thing attached to the land, if at all, where and to the extent that the beneficial interest in land itself confers a beneficial interest in the thing.
Ground 2 relied on by EEPP alleges that, as a result of the error described in ground 1, the Tribunal erred in making the findings outlined at [128] above. Ground 2 relied on by EEWA alleges that, as a result of the error described in ground 1, the Tribunal erred in making the findings outlined at [129] above.
Originally, each of EEPP and EEWA relied on a third ground of appeal, but this was abandoned at the hearing.

The notices of contention

The Commissioner asserts in the notices of contention that the Tribunal should have held that:
(a)the PEP, the BEP and the PHEP underground pipelines and associated infrastructure, to the extent they occupied physical space under the natural surface of the land the subject of the PEP Easements, the BEP [Easement], the PHEP GPL [Sublease Area] and the DBNGP Access Corridor; and
(b)the WLPNS underground pipelines and associated infrastructure, to the extent they occupied physical space under the natural surface of the land the subject of the WLPNS Miscellaneous Licence,
were thereby 'land' to which EEPP or EEWA, as the case may be, was 'entitled' within s 76AP(2), regardless of whether they were fixed to any land to which it was entitled.

The grounds of the cross‑appeal

The grounds of the cross‑appeal reproduce, in substance, the assertions made by the Commissioner in the notices of contention, but, in relation to the PEP and the PHEP underground pipelines and associated infrastructure, solely to the extent they occupied physical space under the natural surface of Forrest lots 255 and 399.

The modern approach to statutory construction

The modern approach to statutory construction is purposive. The statutory text is the surest guide to the Parliament's intention. A decision as to the meaning of the text must begin by considering the context, in its widest sense. This will include the general purpose and policy of the provision. See Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby & Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan & Kiefel JJ); Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510 [82] (Crennan & Bell JJ).

The purpose or object of pt IIIBA of the Act

Part IIIBA of the Act was inserted by the Stamp Amendment Act 1987 (WA). The effect of introducing pt IIIBA was to charge duty on the change of control of certain land-owning corporations at the rate of duty applicable to a conveyance on the sale of land under s 74(1) of the Act. Previously, duty on a transfer of shares in a corporation had been charged at a significantly lower rate. In Commissioner of State Taxation v Nischu Pty Ltd (1991) 4 WAR 437, Pidgeon J explained the purpose or object of the Parliament in introducing pt IIIBA, as follows:
The purpose and object underlying these amendments was to equalise the burden of stamp duty so that persons who acquired the benefit of land by having transferred to them the whole of the shares in a company that owned the land, when that was substantially the only asset of the company, would be required to pay ad valorem conveyance duty in a similar way as if the land had been transferred from one individual to another. Prior to the amendment, if land was owned by a company and if that was the only asset of the company, considerable duty would be saved by transferring to a purchaser the whole of the shares in the company instead of transferring the land. The purchaser would have acquired the land albeit under a company structure. If a company owned other substantial assets the procedure would be less likely to be used as the shareholders would be less likely to be parting both with the land and the other assets at the same time. The legislature aimed, therefore, to cover the situation where the land holding of the company was 80 per cent [sic: now 60%] or more of the value of the whole of its property. It did not apply if the value of the land was less than $1,000,000 (457).

The expansive nature of the definitions of 'land' in s 76(1) of the Act and 'land' and 'estate' in s 5 of the Interpretation Act

The word 'include' primarily has an expansive function. Usually, a definition which states that a word includes specified matters reveals a Parliamentary intention to add the meanings given in the definition to the ordinary meaning of the word. Often, the added meaning is not otherwise within the ordinary meaning. The ordinary meaning is amplified to the extent specified. See Sherritt Gordon Mines Ltd v Federal Commissioner of Taxation [1977] VR 342, 353 (McInerney J).
Sometimes, however, 'includes' has been taken to have an exhaustive function where it appears from the context that the Parliamentary intention was to confine the ordinary meaning of the word to the meaning conveyed by the matters specified in the definition.
In Hook v Rolfe (1986) 7 NSWLR 40, 49 ‑ 50, Samuels JA said:
'Includes' is a word of extension and not of restrictive definition. In R v Hermann (1879) 4 QBD 284 at 288, Lord Coleridge CJ observed:
' … The words "shall include" are not identical with, or put for "shall mean". The definition does not purport to be complete or exhaustive. By no means does it exclude any interpretation which the sections of the Act would otherwise have, it merely provides that certain specified cases shall be included.'
Hence 'includes' denotes a legislative intention to enlarge the ordinary meaning of the word defined, unless, perhaps, the items included in the definition would fall within it. In that case the definition, though introduced by the word 'includes', might be regarded as exhaustive; YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395 and R v McN [1963] SR (NSW) 186; 80 WN 608 are cases in which different results followed the application of Lord Watson's latitudinarian test in Dilworth v Commissioner of Stamps [1899] AC 99 at 105 ‑ 106. Dr D C Pearce in his Statutory Interpretation in Australia, 2nd ed (1981) at 115 ‑ 118, favours the view that 'includes' should not generally be regarded as introducing an exhaustive definition, and quotes from Lord Selborne LC in Robinson v Barton-Eccles Local Board (1883) 8 App Cas 798 at 801:
' … An interpretation clause of this kind [ie one which uses the word "includes"] is not meant to prevent the word from receiving its ordinary, popular, and natural sense whenever that would be properly applicable; but to enable the word as used in the Act, when there is nothing in the context or the subject matter to the contrary, to be applied to some things to which it would not ordinarily be applicable.'
See also R v Tkacz [2001] WASCA 391; (2001) 25 WAR 77 [45] ‑ [58] (Malcolm CJ).
In the present case, it is plain that the Parliament, by using 'includes' in the definitions of 'land' in s 76(1) of the Act and 'land' in s 5 of the Interpretation Act, intended either to enlarge the ordinary meaning of 'land' or to put beyond doubt that a particular concept or thing constitutes 'land', rather than to provide an exhaustive definition. Also, it is plain that the Parliament, by using 'includes' in the definition of 'estate' in s 5 of the Interpretation Act, intended either to enlarge the ordinary meaning of 'estate' or to put beyond doubt that a particular concept is an 'estate', rather than to provide an exhaustive definition.
A mining tenement has been characterised as personal property. See TEC Desert Pty Ltd v Commissioner of State Revenue [2010] HCA 49; (2010) 241 CLR 576 [27] ‑ [39] (French CJ, Gummow, Heydon, Crennan & Kiefel JJ). Also, absent a statutory provision to the contrary, the common law of fixtures determines whether anything fixed to land is part of the land. See, generally, TEC Desert [22] ‑ [26].
It is readily apparent, in these circumstances, that the Parliament included the definition of 'land' in s 76(1) of the Act to ensure, amongst other things, that mining tenements and things fixed to land are 'land' for the purposes of s 76AP(2) and the other provisions of pt IIIBA.
The definition of 'land' in s 5 of the Interpretation Act must be read with the definition of 'estate' in s 5 of that Act. The definition of 'land' in s 5 includes any 'estate' in or over land. There is significant overlap between the definition of 'estate' and the second part of the definition of 'land' in s 5.
The definition of 'land', as expanded by the definition of 'estate', in s 5 of the Interpretation Act is not materially different from the definition of 'land' in s 21(1) of the Interpretation Act 1987 (NSW), the current New South Wales Act, by which:
'land' includes messuages, tenements and hereditaments, corporeal and incorporeal, of any tenure or description, and whatever may be the estate or interest therein.
In Re Lehrer and The Real Property Act 1900 - 1956 [1961] SR (NSW) 365, Jacobs J observed in relation to the definition of 'land', as defined in s 21(e) of the Interpretation Act 1897 (which was in substantially the same terms as the definition of 'land' in s 21(1) of the current New South Wales Act):
With these meanings in mind it will be observed how wide is the definition of land in the Interpretation Act of 1897. The word includes freehold and leasehold, corporeal and incorporeal interests of every description. The estate in fee simple at law or in equity, the other estates of freehold, whether in possession or remainder, the leasehold, whatever be the term, all are included. Undoubtedly the lease or conveyance of an upper chamber would come within the definition. But there would also come within the definition every interest which in law is, or savours of, realty. Probably the easement, and certainly the profit a prendre and the rent charge, are 'land' within the definition in s 21(e) (370 ‑ 371).
See also Glentham Pty Ltd v City of Perth [1986] WAR 205, 206 ‑ 207 (Burt CJ).

Where general words have an accepted legal meaning, they should be interpreted according to that meaning, unless the relevant context requires a different meaning: Sterling Nicholas Duty Free Pty Ltd v The Commonwealth [1971] 1 NSWLR 353, 358 ‑ 359. Accordingly, when construing the definitions of 'land' in both s 5 of the Interpretation Act and s 76 of the Act, the ordinary meaning, upon which both definitions may be taken to expand, is the 'general law meaning' referred to in [205] above.
In my view, the inclusive definition of 'land' in s 76 of the Act does not operate to preclude the definition of 'land' in s 5 of the Interpretation Act applying to the operative provisions of pt IIIBA. There is no express provision in the Act negativing the Interpretation Act definition, and albeit that there is a considerable degree of overlap between the two definitions, there is no inconsistency, for present purposes, within the meaning of s 3(1) of the Interpretation Act .
Accordingly, incorporeal hereditaments are picked up by the word 'land' in s 76AP(2)(a) both via subpar (a) of the definition of 'land' in s 76, and via s 5 of the Interpretation Act.
Further, no inconsistency arises in applying the Interpretation Act definition of 'estate' to subpar (a) of the definition of 'land' in s 76 of the Act.

Section 76AP(2)(a) - overview

Section 76AP(2)(a), read with the definition of 'entitled' in s 76, provides, in effect, relevantly, that a corporation is a landholder if at the time of the relevant acquisition it is beneficially entitled to land and the unencumbered value of the land to which it is entitled is not less than $1 million.
As the definition in s 76 makes clear, the beneficial entitlement with which s 76AP(2)(a) is concerned is not confined to a beneficial entitlement to an estate or interest in 'land' in its ordinary legal sense. The chapeau of the definition of 'land' in s 76 expands the meaning of 'land', to which s 76AP(2) applies, to include personalty in the form of 'a mining tenement' (as defined).
The reference to a beneficial entitlement to land would, without further statutory definition, prima facie, be understood to refer to a beneficial entitlement to an estate or interest in land. Subparagraph (a) of the definition of 'land' in s 76, expressly confirms this to be so in the case of s 76AP(2)(a).
It is the manner in and extent to which subpar (b) of the definition of 'land' in s 76 operates upon the word 'land' in s 76AP(2)(a) around which much of the debate in this appeal revolved. One measure of common ground is that the words 'anything fixed' in subpar (b) are agreed by the parties as, in effect, enlarging upon the common law meaning of 'fixture', by avoiding the need to establish the objective intention with which the item was put in place, which is required in the case of fixtures under the general law: TEC Desert v Commissioner of State Revenue [24].

The appellants' construction

On the appellants' construction, the effect of subpar (b) is that anything fixed to land is only included in the definition of 'land' where, and to the extent that, the corporation's beneficial interest in the land itself confers a beneficial interest in the thing.
On the appellants' construction, subpar (b) of the definition of 'land' is to be read in its application to s 76AP(2)(a) as though it said:
•anything fixed to the corporation's estate or interest in land where and to the extent that, were it not for the corporation's separate ownership or purported separate ownership of the thing, the corporation's estate or interest would itself, under the common law, confer on the corporation the ownership of the thing fixed.
In this regard, the appellants note that at common law, the extent to which an estate or interest in land may confer an estate or interest with respect to something that is fixed to the relevant land necessarily depends upon the nature and extent of the estate or interest in land itself, and submit that (written submissions pars 26 ‑ 27):
In essence, a fiction is adopted, namely disregard of separate ownership of the thing that is fixed to land. However, the ordinary legal consequences that would flow from the adoption of that fiction are not modified. Those legal consequences depend upon the nature and extent of a corporation's estate or interest in the relevant land.
Thus, the purpose of requiring that the separate ownership of the thing fixed to land must be disregarded, is to enable the thing fixed to become part of the relevant land for the purposes of [pt IIIBA] of the Stamp Act. That is, by requiring that the separate ownership be disregarded, a thing fixed to land is treated as being part of the land to which it is fixed, so that a corporation which holds an estate or interest in such land may thereby have an estate or interest in the thing which is fixed to the land.
Accordingly, in relation to the pipelines in question, the appellants contend (written submissions par 33):
On the proper construction of s 76AP(2), where a corporation has a beneficial freehold interest in land to which is affixed a pipeline, that beneficial entitlement to the freehold interest must be regarded as including a beneficial entitlement to the fixture. That is so because of the provisions of the Stamp Act [subpar (b) of the definition in s 76] and regardless of whether the corporation separately owned the pipeline. (original emphasis)
The appellants' construction reads a great deal into the words in subpar (b), to the extent that it effectively neutralises any force to be derived from the words in s 76: 'land includes ... (b) anything fixed to the land ... '. On the appellants' construction, 'land' does not include anything fixed to the land except in circumstances of a most limited kind.
The words of qualification contended for do not appear expressly in subpar (b), either on its own or when inserted into the language of s 76AP(2)(a). Nor are the words of qualification required by necessary implication.
Further, whilst I accept that by virtue of the inclusionary words in subpar (b) in the definition of 'land' in s 76, the holder of an estate in fee simple cannot contend that a fixture is not 'land' because its beneficial interest in the fixture is said to derive not from the fee simple, but from some other source or transaction, it would, in my view, be an inversion, and subversion, of the natural sense of subpar (b) if the words of inclusion were to be used to exclude the ordinary meaning of the words used to identify its subject matter - 'anything fixed to the land'.
Moreover, in practical terms, subpar (b) would only operate, on the appellants' construction, on estates in fee simple. However, as explained in more detail later in these reasons, the definition of 'land' in s 76 in its application to the operative provisions in pt IIIBA concerns more than estates in fee simple. It includes lesser estates and interests in realty (including incorporeal hereditaments) as the second part of s 76AP(2)(a) expressly confirms.
Not only is the appellants' construction inconsistent with 'land' including lesser estates and interests in realty, but it is also inconsistent with 'land' including personalty in the form of a mining tenement.
There appears to me to be no warrant in the language to read subpar (b), in its application to s 76AP(2)(a), in the circumscribed way for which the appellants contend.

The respondent's preferred construction

The respondent contends, in effect, that the definition of 'land' in s 76, and in particular subpar (b) thereof, means that in its application to s 76AP(2)(a) in respect of realty:
•'land' includes an estate or interest in realty; and
•anything which is fixed to any corporeal realty the subject of the corporation's estate or interest is deemed to be 'land' to which the corporation is beneficially entitled, whether or not the thing fixed is, or purports to be, the subject of ownership by any other person or the subject of ownership by the corporation itself, albeit separate from its ownership of the estate or interest in the corporeal realty.
This is what may be called the 'the respondent's preferred construction'. The respondent's preferred construction appears to be that adopted by the Tribunal below: Epic Energy (WA) One Pty Ltd and Commissioner of State Revenue [2010] WASAT 37 [33], [42], [50], [58] ‑ [60].
On the respondent's preferred construction, 'land' as defined is no longer the mere object of the corporation's entitlement for the purposes of s 76AP(2)(a), but becomes the vehicle for extending the scope of the corporation's entitlement to something to which it is not entitled. That effects a substantive change to the meaning of s 76AP(2)(a), which, in terms, operates 'if' the corporation 'is' entitled to land. If s 76AP(2)(a) were intended to operate 'if' the corporation 'is or is deemed to be', entitled to land, one would expect an express reference to that, either in the substantive provision itself or in an express deeming provision of which s 76AP(4) is an example.
The respondent's preferred construction involves discerning the statutory device of 'deeming' in the absence of express words and when the implication is not clear.
I do not accept the respondent's preferred construction. I also note that a construction along the lines of the respondent's preferred construction was not accepted by Barker J in Origin Energy Power Ltd and Commissioner of State Revenue [2007] WASAT 302 (see [271] below).

The fourth construction

A further possible construction, the 'fourth construction', was not advanced by either party and the court has not had the benefit of detailed submissions, or informed and proper debate, about the potential merits or otherwise of the fourth construction. It was raised, in exchange with counsel, from the bench.
The fourth construction, as I understand it, would have the result that anything fixed to any corporeal land is 'land' within the meaning of the s 76 definition, by, in effect, treating the definite article where it appears before 'land' in the first line in subpar (b), as either surplusage, or as synonymous with the word 'any'.
In my view, subpar (b) ought not be read as though the definite article were not there, or as though it means 'any'. The language of subpar (b) is distinctive within the definition of 'land' in s 76. It plainly does not follow the language of the chapeau and subpar (a) in that it introduces the word 'land' explicitly by reference to the definite article. This suggests that the definite article is intended to be used in its conventional sense and is intended to make a material contribution to the meaning of subpar (b).
As presently advised, I would not favour the fourth construction.

The respondent's fallback construction

In substance, on what may be said to be the respondent's fallback construction, in relation to realty, the effect of the first part of s 76AP(2)(a) (ie, before the reference to co‑ownership), read with the definition of 'land' is, relevantly, as follows.
A corporation is a landholder if it is beneficially entitled to 'land' situated in Western Australia with an unencumbered value of not less than $1 million. 'Land' for this purpose includes:
•an estate or interest in realty situated in Western Australia; and also
•anything fixed to the corporation's estate or interest in the realty.
In the latter case, where the corporation has a beneficial entitlement to the thing fixed to its estate or interest in realty, it matters not whether the thing fixed is, or purports to be, the subject of ownership separate from its ownership of the estate or interest in the realty.
This construction (which I will refer to as the 'fallback construction'), although not also without its difficulties, seems to me to best fit the statutory language, having regard to the following matters.
First, the word 'the' in subpar (b) may be taken to refer to 'land' when it is picked up by, and used within, the operative provisions of pt IIIBA. Accordingly, the words 'the land' in subpar (b), when 'land' is inserted into s 76AP(2)(a), are intended to denote that 'land' which is already identified or under discussion for the purposes of the application of s 76AP(2)(a). In this way, the definite article in subpar (b) is given significance.
Secondly, the opening words of subpar (b), read with the chapeau and subpar (a), contemplate that a thing can be fixed not only to corporeal realty, but also to incorporeal realty, as well as to personalty in the form of a mining tenement. Although there is some awkwardness in the idea that a thing may be 'fixed' to an interest in land, particularly incorporeal realty (the difficulty is less apparent when considering only one estate in fee simple), subpar (b) is evidently required to work in relation to any estate or interest in land, including estates or interests in land less than freehold. Thus, where, for example, there is an estate in fee simple together with a lesser estate or interest such as a leasehold or an easement, questions may arise as to the content and scope of the word 'fixed' and whether the thing is 'fixed', within the meaning of subpar (b), when read within the relevant operative provision, to the freehold, or to the leasehold, or to the easement. The potential for difficulty of characterisation in certain factual situations must be noticed, but is to be acknowledged as a consequence of the language used by the legislature.
Thirdly, the words 'ownership of the land' in subpar (b) are not synonymous with the holding of the estate in fee simple. Whilst the word 'including', and the words following it in subpar (b), address the possibility of a thing which is fixed to the land being owned separately from the 'ownership' of the land to which the thing is fixed, and whilst under the general law relating to realty the word 'ownership' is used to describe the sum of the rights attaching to the holder of an estate in fee simple, the word 'land', nevertheless, includes incorporeal hereditaments as well as personalty in the form of a mining tenement. In this context, the words 'the ownership of the land' in subpar (b) are used to signify, more broadly, the 'ownership' of the estate or interest in the corporeal realty in question, including the 'ownership' of estates and interests less than freehold in nature. That meaning, in its application to s 76AP(2)(a) is consistent with the text of s 76AP(2)(a) which contains express reference to 'freehold or lesser estate'.
Fourthly, the word 'land' in the phrase 'the subject of ownership separate from the ownership of the land' appears to be a reference back to the 'land' to which the thing is fixed. In other words, the inclusionary part of subpar (b) is referring to anything fixed to the land where the thing is, or purports to be, the subject of ownership separate from the ownership of the land to which the thing is fixed. Thus, in the case of incorporeal hereditaments, it includes anything fixed to the incorporeal hereditament which is or purports to be the subject of ownership separate from the ownership of the incorporeal hereditament.
Fifthly, unlike the inclusion in the definition of 'land' of a 'mining tenement', which effects a substantive change in relation to the meaning of 'land' for the purposes of the operative provisions of the Act, the words of inclusion in subpar (b) may be seen to be directed towards avoiding uncertainty or doubt as to the intended application of the opening words of subpar (b) ('anything fixed to the land'); in particular, towards avoiding any uncertainty which might otherwise arise from transactions which purport to effect separate ownership of fixtures from the land to which they are fixed. One result of this, for example, is that the owner of an estate in fee simple who had entered into a transaction with a third party by which the fee simple owner purportedly alienated a fixture and re‑acquired some beneficial interest in it under the transaction, could not contend that the fixture in question was not, properly characterised, 'fixed' to its estate in fee simple.
Accordingly, I would accept the fallback construction in relation to realty. A corresponding meaning is to be given to s 76AP(2)(a) in relation to mining tenements.

Conclusion as to the proper construction of s 76AP(2)(a) and the result of the appeal

I am unable to accept the appellants' construction by reason of the difficulties associated with that construction outlined earlier. Nor do I accept the respondent's preferred construction. The fallback construction seems to me to be the one most closely aligned with the ordinary meaning of the statutory text.
This appeal was fought on the basis that if the court favoured either the respondent's preferred construction or the fallback construction, the appeal would not succeed.
There was no contention by the appellants that, on the facts, the relevant pipelines were not things fixed to the appellants' respective interests in land, or that the appellants were not beneficially entitled to them, for the purposes of the fallback construction.
Accordingly, as I favour the fallback construction, and reject the appellants' construction, I would dismiss the appeal.

The Origin Energy decision and subsequent amendments to the Act

For completeness, I would add that both parties appear to have proceeded on the basis that Barker J (sitting as the President of the State Administrative Tribunal) in Origin Energy decided that 'anything fixed to the land' in subpar (b) only becomes 'land' within the s 76 definition where the relevant corporation has an estate or interest in the land to which it is fixed. That does not seem to me to be what was decided in that case.
Origin Energy concerned the acquisition by Origin Energy of all of the shares in a company which held a 50% interest in a joint venture. The joint venture parties owned and operated an energy plant which was constructed on land pursuant to a licence granted by the sub‑lessee of the land to the joint venture. Clause 6.1 of the licence provided, relevantly, in effect, that notwithstanding that the energy plant may be a fixture, it remained the property of the joint venture. The Commissioner imposed stamp duty on the sale of the shares in the company, on the basis that the company was a 'land‑holder' for the purposes of pt IIIBA. The question for the tribunal was, relevantly, whether the company's interest in the energy plant constituted 'land' within the s 76 definition.
Origin Energy argued that the company only had a right to occupy the land upon which the energy plant was constructed pursuant to the licence granted to it by the sub‑lessee, which did not constitute an interest in land. Further, in relation to subpar (b) of the s 76 definition, Origin Energy advanced a construction consistent with the respondent's 'preferred construction' in this appeal, namely, that subpar (b) operates to 'deem' the holder of an estate or interest in land to own any fixtures attached to the land for the purposes of pt IIIBA, regardless of ownership, and hence, as licensee, subpar (b) had no application to Origin Energy.
The Commissioner, for his part, relied on a number of the authorities referred to in [208] above in support of the proposition that where, pursuant to an agreement, the owner of a fixture purports to assign legal title in the fixture to another person, then the assignee has an equitable proprietary interest in that part of the land constituted by the asset, notwithstanding that legal title in the fixture remains vested in the owner of the land as a matter of law. The Commissioner argued, in effect, that because the joint venture retained ownership of the energy plant pursuant to cl 6.1 of the licence, the company thereby had an interest in the energy plant and that this constituted an equitable interest in 'land' within the meaning of subpar (a) of the s 76 definition. Importantly, Barker J noted [98] that although the Commissioner had himself initially contended that subpar (b) of the s 76 definition was relevant, that submission was later abandoned.

As to Origin Energy's submission, to the effect that the construction which is the respondent's preferred construction in this case applied, Barker J held [85] that it created a statutory fiction which should not be accepted if another construction were available.
As to the Commissioner's submission, Barker J found, relevantly, that unlike the authorities referred to by the Commissioner, cl 6.1 of the licence did not purport to convey the legal interest in the energy plant to the joint venture as opposed to the owner of the land to which it was affixed, and therefore did not create an equitable interest in the land. Rather, it simply assumed a legal property entitlement to the energy plant in the joint venture whose rights, in the event of a dispute, would be determined purely as a matter of contract (see [155] ‑ [160]).
This latter finding simply answered the Commissioner's submission that the joint venture had an 'interest' in land within the meaning of subpar (a) of the s 76 definition. Aside from rejecting the construction known in this appeal as the respondent's 'preferred construction', his Honour did not consider the question of the proper construction, or the potentially applicability, of subpar (b). The question of whether the energy plant could constitute 'land' within the meaning of subpar (b) of the s 76 definition, notwithstanding that the joint venture had no relevant estate or interest in the underlying land, did not arise and was not determined.
It was accepted that Barker J's decision prompted the legislature to amend the Act by inserting s 76(7A) which provides:
31.Section 76 amended
(1)Section 76(1) is amended in paragraph 5 (b) of the definition of 'land' by deleting 'of ownership' and inserting instead ‑
' of an entitlement '.
(2)Before section 76(7) the following subsection is inserted ‑
'
(7A)In determining the entitlement of an entity to land for the purposes of section 76AI, 76AL, 76AP, 76AS, 76ATB, 76ATE, 76ATI or 76ATL, if ‑
(a)the entity has an entitlement to something that is part of land as a fixture; and
(b)that entitlement is, or purports to be, separate from the ownership of the rest of the land,
the entity is to be regarded as having an entitlement to land to the extent of its entitlement to the fixture.
The respondent expressly stated that the amendments are irrelevant to the construction issues in this case (ts 43). The amendment was mentioned in passing by the appellants, but it was not clear to me to what extent, if any, the appellants suggested that the amendments were material to the issues of construction under consideration.
In my view, the construction issues raised in this appeal may be resolved without recourse to a consideration of whether the subsequent amendments cast light on the meaning of the provisions in question at the relevant time.

The construction issue raised in the notice of contention and cross‑appeal

By the notice of contention and cross‑appeal, the respondent contends (written submissions par 20) that:
There is nothing in Part IIIBA which suggests the term 'land' was intended to be limited to mining tenements, estates and interests in land, and things fixed to land the subject of a mining tenement or estate or interest. Accordingly the term 'land' in Part IIIBA should in this respect be interpreted consistently with its established meaning at common law as including an underground pipeline and associated pipeline infrastructure. (emphasis added)
I am in general agreement with the reasons given by McLure P as to why this contention ought not be accepted. I would add that, as explained by Jacobs J in Re Lehrer, the word 'land' at common law prima facie includes structures on the soil, but is not appropriate to describe the structure itself or any part of the structure (see [205] above).
Accordingly, I would also dismiss the notice of contention and cross‑appeal.