Murray Darling Community Care Incorporated and Coomealla Aboriginal Housing Company Ltd v Wentworth Shire Council
[2000] NSWLEC 236
•11/07/2000
Land and Environment Court
of New South Wales
CITATION: Murray Darling Community Care Incorporated and Coomealla Aboriginal Housing Company Ltd v Wentworth Shire Council [2000] NSWLEC 236 PARTIES: No 30215 of 1999
APPLICANT
Murray Darling Community Care IncorporatedRESPONDENT
Wentworth Shire CouncilNo 30216 of 1999
RESPONDENT
APPLICANT
Coomealla Aboriginal Housing Company Ltd
Wentworth Shire CouncilFILE NUMBER(S): 30215 of 1999 and 30216 of 1999 CORAM: Pearlman J KEY ISSUES: :- Ratings Appeal - whether land used or occupied for the purposes of a public benevolent institution - costs - whether exceptional circumstances LEGISLATION CITED: Local Government Act 1993 s 494, s 556(1)(h), s 574(1)(a) CASES CITED: Aboriginal Hostels Ltd v Darwin City Council (1985) 55 LGRA 415;
Coomealla Aboriginal Housing Co Ltd v Wentworth Shire Council (1998) 101 LGERA 10;
Coomealla Aboriginal Housing Co Ltd v Wentworth Shire Council (1999) 106 LGERA 266;
Maclean Shire Council v Nungera Co-operative Society Ltd (1995) 86 LGERA 430;
Toomelah Co-operative Ltd v Moree Plains Shire Council (1996) 90 LGERA 48DATES OF HEARING: 28/08/2000 DATE OF JUDGMENT:
11/07/2000LEGAL REPRESENTATIVES: RESPONDENT
APPLICANTS
Mr T F Robertson
SOLICITORS
Martins
Mr C J Leggat (Barrister) with Ms L M Byrnes (Barrister)
SOLICITORS
Buckworth, Keady & Chalker
JUDGMENT:
IN THE LAND AND
30215 of 1999 and 30216 of 1999
ENVIRONMENT COURT Pearlman J
OF NEW SOUTH WALES 7 November 2000
No 30215 of 1999
- Applicant
- Respondent
No 30216 of 1999
- Applicant
Respondent
Introduction
1. These are two appeals, heard together by leave, against the imposition of rates for the 1999/2000 rating year levied on a large number of properties located in south western New South Wales.
2. The appeals are brought under s 574(1)(a) of the Local Government Act 1993 (“the LG Act”) on the ground that each of the properties is exempt from rates because each of them falls within in s 556(1)(h) of the LG Act, which exempts from all rates (except specified water and sewerage rates):
(h) land that belongs to a public benevolent institution or public charity and is used or occupied by the institution or charity for the purposes of the institution or charity;
3. It is common ground that each of the applicants, Coomealla Aboriginal Housing Company Ltd (“Coomealla”) and Murray Darling Community Care Incorporated (“Murray Darling”) (collectively “the institutions”) is a public benevolent institution. The only issue is whether the properties are being used or occupied for the purposes of the institutions.
Findings of fact
4. The Coomealla claim is made in relation to six properties at Wentworth, six properties at Buronga, ten properties at Dareton, one property at Gol Gol, and one property at Pomona, a total of 24 properties in all (“the Coomealla houses”). The Murray Darling claim is made in relation to one property at Pomona (“the Murray Darling house”).
5. Attached for the sake of precision is a list (annexure “A”) of the Coomealla houses and the Murray Darling house (collectively, “the houses”). This is necessary because there have been some changes to the properties in respect of which the class 3 proceedings were instituted in each case. The Coomealla proceedings initially referred to 27 houses. By leave granted on 4 August 2000, the house at 103 Adams Street, Wentworth was deleted from that list, leaving 26 houses in the list. During the hearing, leave was granted to delete the house at 95 Wilkes Street, Wentworth from the list, leaving 25 houses in the list. Furthermore, the house at Lot 17A Darling Road, Pomona had been included in the Coomealla claim, but, as I later mention, it is now included in the Murray Darling claim. Although no formal deletion of that house from the Coomealla list was sought by the applicant, I have omitted it from the list, leaving a total of 24 houses in respect of which the Coomealla claim is made.
6. The Murray Darling claim was initially made in respect of two houses at Coomealla. By leave granted on 4 August 2000, those houses were deleted from the claim and Lot 17A Darling Road, Pomona was included.
7. Affidavit and oral evidence about the houses was given by Mr G Milne who is the administrator of both the institutions. No contrary evidence was adduced by the council, and Mr Milne’s evidence was not shaken in cross-examination. From his evidence, I make the following findings of fact:
(a) Coomealla and Murray Darling are respectively the registered proprietors of the Coomealla houses and the Murray Darling house;
(b) Each of the houses is let to a person or family who are members of the Aboriginal community. Four of the Coomealla houses are occupied by adults alone; the remaining 20 Coomealla houses are occupied by adults and children, the children ranging in number from two to six;
(c) A rent of $80 per week is charged, which is approximately half of the commercial market rent charged for similar rental housing in the area. Most of the tenants are, however, in arrears in the payment of rent. Only four of the occupants of the 24 Coomealla houses have paid rent up to date, and the occupant of the Murray Darling house is also in arrears;
(d) Most of the tenants are pensioners or in receipt of some other social security benefit. Only seven of the tenants of the Coomealla houses are employed, and the tenant of the Murray Darling house is also employed. One of those eight tenants is in receipt of an income of about $28,000 per annum, and another of about $22,000 per annum, but there was no evidence about the extent of the income of the other employed tenants;
(e) The criteria which the directors of each of the institutions adopt for the purpose of leasing one of the houses is whether the member or family of the Aboriginal community is experiencing poverty, distress, misfortune or helplessness. Preference is given to families, and particularly those with children. Most of the tenants are personally known to Mr Milne, and he is a position to assess their need against the criteria I have mentioned. In some cases, however, the prospective tenant is not known to the directors, and that tenant is interviewed by them in order to establish compliance with the criteria mentioned.
8. Coomealla appears to be incorporated as a limited company. A copy of its memorandum of association was attached to Mr Milne’s affidavit. That document relevantly provides as follows:
2. The objects of the Company are to relieve the poverty, sickness, destitution, distress, suffering, misfortune or helplessness of needy members of the aboriginal or torres strait islander communities through:
(b) To provide or assist in providing of emergency and temporary accommodation.(a) To rent, let, licence, provide housing, accommodation, premises, land, property real and personal and services;
9. Murray Darling appears to be an incorporated association. Its memorandum of association was also attached to Mr Milne’s affidavit. It also contains a statement of the general objective of Murray Darling as being “to relieve the poverty, sickness, destitution, distress, suffering, misfortune or helplessness of needy members of the Aboriginal or Torres Strait Islander communities” but it does not contain clauses similar to clauses (a) and (b) of the Coomealla memorandum of association. Nonetheless, it contains the following general clauses:
(h) To attract funding to provide health, aged, disability care, financial counselling and support and for any other purpose that promotes a healthier community for Aboriginal and Islander people.(c) To provide and maintain buildings and grounds for education, recreation, health, arts, crafts and culture, child minding, legal offices, disability services or any other community purpose …
The legal approach to the issue
10. The issue with which the Court is concerned in this case is whether the houses are “used or occupied … for the purposes of” each of the institutions. The relevant date at which this issue is to be determined, by reference to facts as they exist upon that date, is the first day of the ratings period, which in this case is 1 July 1999 (see Coomealla Aboriginal Housing Co Ltd v Wentworth Shire Council (1998) 101 LGERA 10 at 16).
11. In Aboriginal Hostels Ltd v Darwin City Council (1985) 55 LGRA 415, Nader J was concerned with a similar provision in the Local Government Act 1982 (NT). His Honour at p 427 outlined the proper approach to the issue as follows:
The question whether the land is used or occupied for the purposes of a public charity is determined by comparing the purposes of the trust as evinced in the relevant instruments with the actual use to which the land is put. If the land were used for purposes falling outside the ambit of the trust it could not be said to be used for the purposes of the charity even though its legal title might be vested in the trustee …
12. The test enunciated by Nader J in the passage I have quoted was applied by Stein J in Toomelah Co-operative Ltd v Moree Plains Shire Council (1996) 90 LGERA 48 at 56.
13. In this case, therefore, it is necessary to have regard to the memorandum of association of each of the institutions in order to ascertain the purposes of each institution. The purpose of each institution is specified as being to relieve the poverty, sickness, destitution, distress, suffering, misfortune or helplessness of needy members of the Aboriginal or Torres Strait Islander communities. It is then necessary to compare the actual use to which each of the houses is put, as clearly, the institutions themselves do not “occupy” the houses.
Use and occupation of the houses
14. It would be inappropriate to provide a type of check list of the factors necessary to determine actual use because each claim for exemption must be considered on its own facts. But there are some pertinent indicia. In order to meet the purpose of the institutions, the houses must be occupied by members of the Aboriginal or Torres Strait Islander communities. Those members must be in need by reason of some or all of the specified circumstances, and the provision of accommodation in the houses must be directed to the relief of those circumstances.
15. The houses are occupied by persons who are members of the Aboriginal community. Their need has been established in each case by the directors of the institution. That assessment of need is largely corroborated by the fact that most of the tenants are receiving a pension or other social security benefit, and an inference can thereby be drawn that poverty or destitution are circumstances which apply to them. Their need is relieved by the provision of housing accommodation at a less than market rate.
16. Mr Leggat, appearing for the council, submitted that there was no probative evidence from which the Court could be satisfied that the houses were used for the purposes of the institutions, but he did not descend to any detail as to how the evidence was insufficiently probative. Indeed, as the case progressed, it became clear that the only matter of doubt in these proceedings was whether it could be said that the houses occupied by persons in employment were used for the purpose of each institution. Mr Leggat raised that matter of doubt, but the council furnished no evidence which would support a claim that the occupants of the houses were not in need. Whether particular persons are in need is a question of fact ( Maclean Shire Council v Nungera Co-operative Society Ltd (1995) 86 LGERA 430 per Handley JA at p 435) and “ ‘poverty’ need not be abject poverty or destitution” (per Stein J in Toomelah v Moree Plains at p 57). There was no suggestion in this case that persons with incomes of approximately $22,000 or $28,000 are well off by Australian standards (cf Handley JA in Maclean v Nungera at p 435) and there was no evidence of the incomes of the other employed tenants. Indeed, so far as concerns those tenants whose incomes were in evidence, an inference is available that their respective incomes were hardly ample as they were supporting in each case both a number of adults and children.
17. For all these reasons, I am satisfied that the houses fall within the exemption provided in s 556(1)(h) of the LG Act, and the appeal in each case should be upheld. The parties, however, argued the question of the costs of the appeal, and it is to that question that I now turn.
Costs
18. Clause 10A of Practice Direction 1993 (which was inserted in 1996) relevantly provides as follows:
10A The practice of the Court is that no order for costs is made in … rating appeals … in class 3 of the Court’s jurisdiction, unless the circumstances are exceptional.
19. Each party claims an order for costs in its favour and each contends that the circumstances are exceptional.
20. By way of general background, it is appropriate to mention the previous litigation between Coomealla and the council. In Coomealla Aboriginal Housing Co Ltd v Wentworth Shire Council (1998) 101 LGERA 10 (“the first Coomealla case”), Bignold J declined to make any order to the effect that the properties the subject of those proceedings were exempt from rates for the year commencing 1 July 1997 upon the basis of a finding that Coomealla was not a public benevolent institution (the constitution of Coomealla has now changed and the issue of whether or not it is a public benevolent institution has not been raised in these proceedings). His Honour, however, expressed the obiter remark at p 18 that, had Coomealla in fact been such an institution, he would have been satisfied that the particular properties were used or occupied for the purpose of that institution.
21. In Coomealla Aboriginal Housing Co Ltd v Wentworth Shire Council (1999) 106 LGERA 266 (“the second Coomealla case”) Coomealla appealed against the refusal of the council to exempt certain properties from rates for the year commencing 1 July 1998. By consent, orders were made in favour of Coomealla, and the only matter in issue was the question of costs, which was heard and determined by Sheahan J, who declined to make any order as to costs.
22. I now turn to the relevant background facts to the current litigation. The solicitors for Coomealla made a claim to the council on 23 July 1999 for exemption from rates for the year commencing 1 July 1999. They stated in their letter that Coomealla “will continue to operate the said properties in the same manner and purpose as the previous year.” The council’s solicitors responded on 12 August 1999, seeking clarification of details of the properties in respect of which the claim for exemption was made. They also sought completion of what appears to be a standard questionnaire in relation to the claim for exemption. Coomealla’s solicitors responded on 16 August 1999, clarifying the details which had been sought, but stating that the answers to the questionnaire “were provided to you at the hearing of the application for rates exemption for the period 1998/9” through the affidavit and oral evidence of Mr Milne in the second Coomealla case. Nevertheless, Coomealla’s solicitors did furnish a response to the questionnaire on 17 August 1999. The council’s solicitors responded on 19 August 1999. There is some confusion in this letter as to the correct date of the council’s meeting at which Coomealla’s claim was considered, but it appears to have been dealt with at a meeting on 18 August 1999 and the council, at that meeting, resolved it would “not consider the various applications until it is clear which registered proprietor and which properties exemption is being sought”. Coomealla lodged its class 3 application on 19 August 1999.
23. The background facts to the Murray Darling claim are different. Its claim for exemption from rates for the year commencing 1 July 1999 was made in respect of two properties at Coomealla, as I have earlier indicated. At its meeting on 18 August 1999, the council noted that the claim had been made too late for consideration at that meeting, and it deferred consideration until the meeting scheduled for September 1999, resolving that, in the meantime, it would seek legal advice as to the validity of the claim. No evidence was furnished as to whether or not the council gave further consideration to the claim, but, in any event, Murray Darling commenced its class 3 proceedings on 19 August 1999. As it turned out, however, its claim in respect of those two properties was, as I have earlier indicated, abandoned, and a claim in respect of Lot 17A Darling Road, Pomona was substituted.
24. In the light of the facts and circumstances I have outlined, the parties’ respective submissions may be briefly outlined. Mr Robertson, for the institutions, submitted that the circumstances were exceptional, in that there was no plausible justification for the council not to uphold each claim for exemption from rates, since all the information necessary to substantiate those claims had been furnished in response to the inquiries from the council’s solicitors. He also drew attention to the fact that the necessary information had not changed from the information available to the council for the previous rating year, that all relevant material could have been gleaned from the affidavit sworn by Mr Milne in the second Coomealla case, and that the council’s attitude showed that it was likely to keep on refusing the institutions’ claims for exemption every year.
25. Mr Leggat submitted that the council was entitled to consider the claims for exemption from rates afresh at the commencement of the rating year, despite a similar claim having been upheld in respect of the previous year as a consequence of the second Coomealla case. Mr Leggat also submitted that the facts upon which the respective claims could be based was not furnished until Mr Milne gave oral evidence at the hearing and, in conformity with the submissions he had earlier made, he reiterated that sufficiently probative evidence has still yet been furnished.
26. I do not find any of the circumstances to be exceptional within the terms of the Court’s Practice Direction. Section 494 of the LG Act requires a council to make and levy an ordinary rate for each year. It is entitled, in my opinion, to satisfy itself each year of an entitlement to exemption from rates, and it is not restricted from considering the matter afresh simply because land was exempt from rates for the previous year. Furthermore, the council was entitled to satisfy itself as to precisely which properties were the subject of the institutions’ claims for exemption from rates. Considering the ambiguities which were clarified by the correspondence between the respective solicitors as well as the discrepancies in the list of houses to which I have referred, the council was clearly obliged to make further inquiries. In satisfying itself as to the basis for exemption, the council was not bound to rely simply on evidence furnished by Mr Milne in the second Coomealla case. Indeed, although that evidence was actually adduced shortly before 1 July 1999 (being the relevant date in these proceedings), it related to facts and circumstances pertaining to the year commencing 12 months previously. The council’s resolution of 18 August 1999 could have been better expressed, but it reflected a continuing concern with precisely which properties were the subject of the claim. There is nothing exceptional in the conduct of the council in refusing to be satisfied that it had sufficient information upon which to base an exemption from rates, even though on appeal its stance was not upheld.
27. Nor are there any exceptional circumstances so far as regards the institutions. They were entitled to appeal. They did so with alacrity, but that is not an exceptional circumstance, especially as, according to the evidence of Mr Milne, the imposition of rates causes severe hardship because their funds are limited.
28. I decline for these reasons to make any order for costs.
Orders
29. I have concluded, for the foregoing reasons, that the houses the subject of these two appeals constitute in each case land used or occupied for the purposes of Coomealla and Murray Darling respectively, and that, accordingly, each applicant is entitled to the exemption provided by s 556(1)(h) of the Local Government Act 1993.
30. In each of the proceedings numbered 30215 of 1999 and 30216 of 1999, I make the following orders:
(1) The appeal is upheld.
(2) The exhibits may be returned.
(3) I make no order as to costs.
Annexure “A”
List of properties to which these proceedings relate
No 30215 of 1999
Murray Darling Community Care Incorporated v Wentworth Shire Council
Lot 17A Darling Road, Pomona 2648
No 30216 of 1999
Coomealla Aboriginal Housing Company Ltd v Wentworth Shire Council
155 Adams Street, Wentworth 2648
42 Crane Drive, Buronga 2739
82 Tapio Street, Dareton 2717
21 Crane Drive, Buronga 2739
29 Adelaide Street, Wentworth 2648
19 Devenport Street, Dareton 2739
35 Devenport Street, Dareton 2739
10 Friel Street, Buronga 2739
12 Friel Street, Buronga 2739
8 Hawdon Street, Dareton 2717
13 Millie Street, Dareton 2717
6 Mitchell Avenue, Dareton 2717
12 Avoca Street, Dareton 2717
57 Mitchell Avenue, Dareton 2717
44 Pitman Avenue, Buronga 2739
1 Pooley Street, Buronga 2739
22 Riverview Drive, Dareton 2717
20 Riverview Drive, Dareton 2717
4 Shannon Street, Wentworth 2648
14 Shannon Street, Wentworth 2648
97 Wilkes Street, Wentworth 2648
38 William Street, Wentworth 2648
83 Wood Street, Gol Gol 2738
34 Neilpo Road, Pomona 2648
1
2
1