Fly By Night Musicians Club Limited v City of Fremantle - [2004] WASCA 161

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: FLY BY NIGHT MUSICIANS CLUB LIMITED -v- CITY OF FREMANTLE [2004] WASCA 161

CORAM: LE MIERE J

HEARD: 11 MARCH 2004

DELIVERED : 5 AUGUST 2004

FILE NO/S: SJA 1126 of 2003

BETWEEN: FLY BY NIGHT MUSICIANS CLUB LIMITED
Appellant
AND
CITY OF FREMANTLE
Respondent

ON APPEAL FROM:
Jurisdiction : WESTERN AUSTRALIAN LAND VALUATION TRIBUNAL
Coram :MR P McGOWAN (CHAIRMAN)
DR P A ADDISON (MEMBER)
MR R J PRIEST (MEMBER)

Citation Number : [2003] WALVT 10
File Number : Appeal No 34 of 2002-2003

Catchwords:

Appeal - Land Valuation Tribunal - Whether rates legally levied - Whether property belonged to the National Trust - Error of law - "Land" - "Real property" - Statutory interpretation - Court not at liberty to consider statutory provision to be of no effect - Court to give effect to statutory provision - Whether power to lease creates an interest in land - "Interest in land" - Land which is rateable land is physical land itself, not interest in land - "Belonging to"

Legislation:

Interpretation Act 1984 (WA), s 5

Land Administration Act 1997 (WA), s 3, s 46(5)
Local Government Act 1995 (WA), Pt 6 Div 6

National Trust of Australia (WA) Act 1964 (WA), s 17

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S P Crabb
Respondent: Mr J C W Skinner

Solicitors:

Appellant: Clayton Utz
Respondent: McLeod & Co

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

Hornsby Council v Roads & Traffic Authority of New South Wales (1997) 41 NSWLR 151
Uniting Church in Australia Property Trust (NSW) v Kogarah Municipal Council (1986) 61 LGRA 154

Case(s) also cited:

Australian Rice Holdings Pty Ltd v Commissioner of State Revenue (2001) 48 ATR 498
Bropho v State of Western Australia (1990) 171 CLR 1
Burt v Commissioner of Taxation (1912) 15 CLR 469
Eastman v Director of Public Prosecutions (ACT) (2003) 77 ALJR 1122
Edinburgh Street Tramways Company v Torbain (1877) 3 App Cas 58
Joyce v Ashfield Municipal Council (1959) 4 LGRA 195
Ku-ring-gai Municipal Council v McIntosh (1936) LGR (NSW) 82
Macbeth & Co v Chislett [1910] AC 220
Maroney v R (2003) 78 ALJR 51
Myerson v Collard & The Commonwealth (1918) 25 CLR 154
News Ltd v South Sydney District Rugby League Football club Ltd (2003) 77 ALR 1515
R v Hall (1822) 1 B&C 123; (1822) 107 ER 47
R v Lawrence & Justices of the Peace of the City of Liverpool (1883) 11 QBD 638
Shell-Mex and BP Ltd v Clayton (Valuation Officer) [1956] 1 WLR 1198
Shire of Ashburton v Bindibindi Community Aboriginal Corp (2001) 6(2) AILR 18
The Attorney General v The Oxford, Worcester and Wolverhampton Railway Company and Ors (1862) 7 H&N 840; 158 ER 707
Trustees of Church Property of the Diocese of Newcastle v Lake Macquarie Shire Council [1975] 1 NSWLR 521

LE MIERE J: The appellant has appealed to this Court against the determination of the Land Valuation Tribunal to the effect that rates have been legally levied against the appellant in respect of the land situated at 1 Holdsworth Street, Fremantle.

Agreed Facts and Issues

The hearing before the Tribunal proceeded on the basis of agreed facts and issues:
"1.The Property in question is located at 1 Holdsworth Street, Fremantle and is Reserve No 46289 under s 41 of the Land Administration Act1997 (WA) ("Property").
2.The Property is the subject of a Management Order under s 46(1) of the Land Administration Act dated 8 September 2000, placing the care, control and management of the Property with the National Trust of Australia (WA) ("NTA"). A copy of the Management Order is attached to the appellant's documentation dated 5 September 2003 and a further copy is attached to this document as Attachment 1.
3.The Property is leased by the NTA to the appellant pursuant to a lease dated September 2002. A copy of the first three pages of the lease is attached to the appellant's documentation dated 5 September 2003. The appellant has declined the respondent's request to provide a full copy of the lease to be attached to this document.
4.Section 6.26(2)(j) of the Local Government Act 1995 (WA) provides that "land which is exempt from rates under any other written law" is not rateable land for the purposes of the Local Government Act.
5.Section 17(1) of the National Trust of Australia (WA) Act 1964 provides that "No rate or tax shall be made, charged or levied under any law of the State on or in respect of any real property or chattel real belonging to the Trust".
6.There is no definition of the term "belongs to" in the National Trust of Australia (WA) Act.
7.Section 46(5) of the Land Administration Act provides that a Management Order made under s 46(1) "does not create any interest in Crown land in the relevant reserve in favour of the management body of that reserve."
8.Section 1.4 of the Local Government Act contains definitions of various terms for the purposes of the Local Government Act. Paragraph (d) of the definition of "owner" provides that "where a person is lawfully entitled to occupy land which is vested in the Crown, and which has no other owner according to par (a), (b) or (c) of this definition", "owner" means the person so entitled to possession.
9.There is no other owner of the Property according to paragraph (a), (b) or (c) of the definition of "owner" in s 1.4 of the Local Government Act.
10.The issues for determination by the Tribunal are as follows:
(a)whether the Property "belongs to" the NTA for the purposes of s 17(1) of the National Trust of Australia (WA) Act by virtue of the Management Order under s 46 of the Land Administration Act.
(b)whether the Property "belongs to" the NTA for the purposes of s 17(1) of the National Trust of Australia (WA) Act by reference to par (d) of the definition of "owner' in s 1.4 of the Local Government Act.
11.It is accepted by the respondent that if the Property "belongs" to the NTA then it is exempt from rates under s 6.26(2)(j) of the Local Government Act.
12.It is not contended by the appellant that the Property is exempt from rates other than under s 6.26(2)(j) of the Local Government Act."

Further Evidence

On the hearing of this appeal, the appellant, by consent, tendered in evidence two further exhibits. Exhibit 1 consists of two documents. The second document is a copy of an instrument by which the Minister for Lands created "Reserve No 46289 for the purpose of Heritage Place". The first document is a copy of a Management Order by which the Minister for Lands ordered that "the care, control and management of [Reserve 46289] be placed with [the National Trust of Australia (WA)] for the purpose for which the land is reserved under s 41 of the Land Administration Act, and for purposes ancillary or beneficial to that purpose subject to the conditions stated". The conditions include a grant of the power to lease for designated purposes for a term not exceeding 21 years, subject to the approval of the Minister.
The Tribunal considered that the question to be determined was whether it could be said that the property at 1 Holdsworth Street, Fremantle (the Property) belonged to the National Trust of Australia (WA) (the National Trust).
The Tribunal answered that question as follows:
"In this case the position seems comparatively clear. "Belongs to" necessarily has an element of proprietary ownership or a proprietary aspect to it. The limitations of the management order immediately militate against such a conclusion as far as the National Trust of Australia is concerned. Its interest, to use the expression guardedly, is that which is entirely created by but at the same time constrained by the management order under s 46(1) of the Land Administration Act. Its interest, again using the expression guardedly, is no more and no less than that which is created by the Management Order. It cannot, in our view, in those circumstances, lead to the result that this is property which belongs to the National Trust of Australia."
The Tribunal then considered a second argument advanced by the appellant. The argument involves an analysis of "owner". The appellant did not pursue that argument on the hearing of the appeal.
The Tribunal concluded that the rates have been appropriately and legally levied against the appellant.

Grounds of Appeal

On appeal, the appellant argued that the Tribunal erred in law in failing to find that the Property is real property, or alternatively a chattel real, belonging to the National Trust, within the provisions of s 17 of the National Trust of Australia (WA) Act 1964 (the National Trust Act). The appellant submitted that by reason of the provisions of s 17 the respondent cannot legally levy rates on, or in respect of, the Property. Consequently, the appellant argued the respondent cannot legally levy rates against the appellant in respect of the Property.
Secondly, the appellant argued that the Tribunal erred in law in having regard to s 46(5) of the Land Administration Act, which provides that a management order does not create any interest in Crown land in favour of the Management Body of the reserve in that:
(a)The definition of "interest" in s 3 of the Land Administration Act expressly excludes "care, control and management of a reserve";
(b)the effect of the Management Order was to vest "care, control and management" of the Property in the National Trust;
(c)whether or not the National Trust had an "interest" in the Property, as defined in s 3 of the Land Administration Act, was not an issue which properly arose for determination.
Thirdly, the appellant argued that the Tribunal erred in law in directing itself that the question was whether the Property belonged to the National Trust of Australia. It was the appellant’s contention that the correct question was whether the respondent was purporting to levy rates on, or in respect of, real property, or alternatively on, or in respect of, a chattel real, "belonging to" the National Trust within the provisions of s 17(1) of the National Trust Act.
Fourthly, the appellant argued that the Tribunal erred in law in determining that the expression "belonging to" as provided for in s 17(1) of the National Trust Act requires an element of proprietary ownership or a proprietary aspect to it in that, properly construed, the expression contains no such requirement.
Fifthly, the appellant argued that the Tribunal erred in law in failing to find that the care, control and management of the Property vested in the National Trust had a proprietary aspect to it in that the National Trust was the lessor of the Property pursuant to the lease.
Sixthly, the appellant argued that the Tribunal erred in law in determining that the appellant is not an "owner" of the Property, as provided for in s 1.4 of the Local Government Act 1995 because it did not occupy the Property under a guise consistent with its aims and objectives in that there was no evidence before the Tribunal to support such a finding. As I have said, the appellant did not pursue that argument on appeal.

Legislative Framework

Rates may be made by a local government authority and levied on all rateable land within its area: Local Government Act, Pt 6 Div 6. All land within a local government area is rateable unless it is exempt from rating: Local Government Act, s 6.26(1). Land within a local government area may be exempt from rating: Local Government Act, s 6.26(2).
It is "land" that is rateable and "land" that may be exempt from rating. Section 5 of the Interpretation Act provides that in every written law "land" includes buildings and other structures, land covered with water, and any estate, interest, easement, servitude or right in or over land.

The National Trust Act

The long title of the National Trust Act is "an Act to establish and incorporate and confer powers upon the National Trust of Australia (WA) and for incidental and other purposes." The primary object of the Trust is to establish a public educational institution for the purpose of educating the public and to encourage public interest and knowledge of places and things which are of national or local importance by reason of educational, historic, architectural or other specified characteristics. The objects of the Trust are set out in the Schedule to the Act.
Object (l) is "…to take such steps as may be necessary or desirable to manage and preserve the buildings, places or things of national or local importance as [are] from time to time owned by or under the control of the Trust." Thus, the Act contemplates the Trust having control of, as well as owning, buildings or places.
Object (r) is to "…maintain and manage, either alone or jointly with any Local Government or other local authority … any building or place or things of national or local importance… " From this it may be inferred that the Act contemplates the Trust maintaining or managing buildings or places without necessarily being the owner of such buildings or places.
Object (t) is to "…charge such fees for admission to lands and buildings vested in it or under its control as the Trust thinks fit." Again, this shows that the legislature contemplated the Trust having lands and buildings under its control as well as having such land or buildings vested in it.
Object (x) is to "…sell, lease, exchange or otherwise dispose of any real or personal property of the Trust."

Issue to be Determined

The question raised by this appeal is whether the respondent is purporting to levy rates on or in respect of real property or a chattel real belonging to the National Trust.
The expression "real property" refers to land and interests in land. The term originated in the forms of action available through the medieval common law courts. In a "real action", the remedy was recovery of the subject matter of the dispute itself. In practice, the only property which came within the real actions was property in land, hence property in land became known as "real property". In actions for recovering other forms of property, the interest holder was only able to commence an action in personam and the defendant could elect either to return the property in dispute or pay monetary compensation. An important exception to this generalisation was the leasehold estate in land, which was treated in law as personal property, or more precisely as a "chattel real". Today, leasehold interests are treated for most purposes as real property: "Halsbury's Laws of Australia", 355‑10.
The Tribunal held that the Trust has no interest in the land because of s 46(5) of the Land Administration Act.
The Trust's rights and interests in or in relation to the Property are created by the Management Order made under s 46(1) of the Land Administration Act. Section 46(5) of the Act provides:
"An order made under subs (1), (2), (3) or (3a) does not create any interest in Crown land in the relevant reserve in favour of the management body of that reserve."
The appellant argued that the Tribunal erred in law in having regard to s 46(5) of the Land Administration Act in finding that the Management Order did not create an interest in Crown land in favour of the management body, the National Trust. The appellant points to the definition of interest in s 3 of the Act. That definition excludes "care, control and management of a reserve" from the definition of "interest" in relation to Crown land. The conjunction of s 46(5) and the definition of "interest" in s 3 creates some superficial confusion.
The Management Order conferred on the National Trust the right or obligation of care, control and management of the reserve. The definition of "interest" in s 3 of the Land Administration Act expressly excludes "care, control and management of a reserve". If that definition was to be substituted for "interest" in s 46(5) of the Land Administration Act, then subs 46(5) would have no meaning or effect. As a general principle, a Court is not at liberty to consider any statutory provision to be superfluous or of no effect. Subsection 3(1) of the Land Administration Act provides that the words there defined have the defined meaning "unless the contrary intention appears". In my view, a contrary intention appears in s 46(5).
In my view, the purpose of s 46(5) of the Act is to provide that a Management Order placing the care, control and management of a reserve in a management body does not create any interest in Crown land in the reserve in favour of the management body of the reserve.
The appellant argues that the power of the appellant to grant a lease of the Property constitutes an interest in the land. The order of the Minister that conferred on the appellant the power to grant a lease of the Property is an order made under s 46(3) of the Act. Section 46(5) expressly states that an order made under subs (3) does not create any interest in Crown land in the relevant reserve in favour of the management body of that reserve. In my view, this reinforces the view that the purpose of s 46(5) is to provide that a Management Order, including an order conferring on the management body the power to lease the reserve, does not create any interest in Crown land in the relevant reserve in favour of the management body. In my view, the Tribunal was correct in coming to that view and Ground 2 of the appeal is not made out.
If s 46(5) of the Land Administration Act does not have the effect that I have set out, then the rights of the National Trust in relation to the reserve may be an interest in land.
In Hornsby Council v Roads & Traffic Authority of New South Wales (1997) 41 NSWLR 151, the New South Wales Court of Appeal considered whether the Hornsby Council's rights in relation to certain land constituted an interest in land for the purposes of the Land Acquisition (Just Terms Compensation) Act1991 (NSW). The land was Crown land reserved from sale or lease for the purpose of public recreation under the Crown Lands Consolidation Act 1913 (NSW). Although no trustee had been appointed to care for and manage the land, s 48 of the Local Government Act 1993 (NSW) charged the Council with the control of certain public reserves. The Council argued that its interest in land derived from one or both of two factors, the first being its function of control conferred by s 48, and the second being its right to lease, and enjoy the rent of, the park, as conferred by s 46.
The New South Wales Court of Appeal found that the right of control did not constitute a relevant interest in land. The definition of interest in land in the New South Wales Act included "an easement, right, charge, power or privilege over or in connection with, the land". Meagher JA held that the sole connection between the Council and the land was the "rather glancing" connection that the Council had the care, management and control of the land under the provisions of the Local Government Act. His Honour held that such a right was not the sort of right which amounted to an interest in land. His Honour held that some limitation must be placed on the words of the definition. Whilst a wide range of rights fell within the definition, they must be limited to proprietary or quasi‑proprietary rights less than a fully fledged estate, that is, easements, charges, profits à prendre, licences coupled with interests, etcetera. However, Meagher JA held that a power to lease land is an "interest" within the statutory definition.
The rights or interests of the National Trust in or in relation to the Property created by the Management Order may be an interest in land. However, if that is so then the relevant property belonging to the National Trust is its rights and interests created by the Management Order. That which would be exempted from rates by s 17(1) of the National Trust Act would be the interest of the National Trust, not the land at 1 Holdsworth Place. In this context "land" refers to the physical land, the surface of the earth, the soil beneath it, the airspace above it and all things growing on or affixed to the soil including buildings.

In my view, that is apparent from a number of provisions of the Act. Section 6.26(1) provides that, except as provided in that section, all land in a district is rateable land. Exceptions in subs 6.26(2) refer to land being used or held for particular purposes. Section 6.28 deals with the method of valuation of land to be used by a Local Government as the basis for a rate. In determining the method of valuation of land, regard is to be had to the general principle that the basis for a rate on any land is to be the unimproved value of the land, or the gross rental value of the land. Section 6.41 requires a Local Government to serve a rate notice on the owner or occupier of land. Section 6.43 provides that rates are a charge on the land rated. Section 6.44 provides that the owner for the time being of land on which a rate has been imposed is liable to pay the rate. Section 6.60 provides that, in specified circumstances, the lessee of land may be required to pay the rent to the Local Government in satisfaction of the rate. The provisions of subs 6 of Pt 6 of the Act in effect empower the Local Government to sell the land to recover outstanding rates. In my view, all of these provisions make it clear that the "land" which is rateable is the physical land itself, not an interest in land.
Section 17(1) of the National Trust Act only exempts the land at 1 Holdsworth Place, Fremantle, from rates if that land belongs to the National Trust.
"Belonging to", like all other expressions must take its meaning from its context. In Uniting Church in Australia Property Trust (NSW) v Kogarah Municipal Council (1986) 61 LGRA 154, Bignold J, in the Land and Environment Court of New South Wales, considered the meaning of "land which belongs to any … public charity …" for the purpose of determining whether certain land was exempt from rates under the Local Government Act (NSW) 1919. The appellant claimed exemption from rating for land which it held under lease from the State Rail Authority of NSW and which it used for self‑care units for aged or disabled persons on the basis of need irrespective of race, creed or religion. Bignold J said that there were two issues to be decided, the first of which was: "(in respect of the rating exemption provision in the Local Government Act (NSW) 1919) does the land 'belong to' the applicant?" In addressing that issue, his Honour surveyed a number of authorities in which the phrase "belongs to" had been addressed. His Honour concluded that in the context of the rating provisions, the meaning of the phrase "belongs to" requires a form of proprietorship. His Honour held that the 50‑year leasehold held by the applicant did not fulfil that requirement. The primary or usual meaning of "belong to" is to be the property of. In my view, that is the meaning of "belonging to" in s 17(1) of the National Trust Act.
In my view, the land does not belong to the National Trust by reason only of a Management Order in favour of the Trust in relation to the land. The land belongs to the Crown, notwithstanding that the care, management and control of the land has been vested in the National Trust. The power to lease the land may constitute an interest in the land, but it does not mean that the land belongs to the National Trust. Therefore, the land at 1 Holdsworth Place, Fremantle, does not belong to the National Trust. The rights created by the Management Order are not sufficient to constitute the land "belonging to" the Trust.
In my view, the remaining grounds of appeal are not made out.

Conclusion

For the reasons given, the appeal will be dismissed.