Port Kennedy Resorts Pty Ltd v The City of Rockingham

[2000] WASCA 423

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE FULL COURT (WA)

CITATION:   PORT KENNEDY RESORTS PTY LTD -v- THE CITY OF ROCKINGHAM [2000] WASCA 423

CORAM:   PIDGEON J

IPP J
PARKER J

HEARD:   20 SEPTEMBER 2000

DELIVERED          :   22 DECEMBER 2000

FILE NO/S:   FUL 7 of 2000

BETWEEN:   PORT KENNEDY RESORTS PTY LTD

Appellant

AND

THE CITY OF ROCKINGHAM
Respondent

Catchwords:

Local Government - Rating - Crown land being held on licence under a development agreement - Whether held for a public purpose - Whether occupied or unoccupied

Legislation:

Local Government Act 1995, s 6.26, s 6.41

Port Kennedy Development Agreement Act 1992

Result:

Appeal dismissed

Representation:

Counsel:

Appellant:     Mr J C Giles

Respondent:     Mr L A Tsaknis

Solicitors:

Appellant:     Solomon Bros

Respondent:     Gibson Tovey Mills

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

Goulburn City Council v Haines (1992) 78 LGERA 281

Pexco Pty Ltd v Shire of Leonora (1984) 54 LGRA 428

State Government Insurance Office v City of Perth (1990) 71 LGRA 123

Statewide Roads Ltd v Holroyd City Council (1996) 39 NSWLR 115

Sydney City Council v Garbett Pty Ltd (1993) 80 LGERA 289

Sydney City Council v University of Technology, Sydney (1992) 78 LGERA 200

Case(s) also cited:

Attorney General for the State of Victoria v Black [1959] VR 45

Australian Broadcasting TGribunal v Bond (1990) 170 CLR 321

Beach v Trims Investments Ltd [1960] SASR 5

Caltex Properties Ltd (In Liq) v Love, unreported; SCt of WA; Library No 970237; 14 May 1997

Chaffey and Anor v Commissioner of Taxes (1890) 24 SALR 66

Glenn v Federal Commissioner of Land Tax (1915) 20 CLR 490

Lloyd v Robinson (1962) 107 CLR 142

Metropolitan Gas Co v Federated Gas Employees' Industrial Union (1924) 35 CLR 449

Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611

Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845

Nicholas & Ors v State of Western Australia [1972] WAR 168

NLS Pty Ltd v Hughes (1966) 120 CLR 583

President etc, Shire of Wimmera v Brimacombe (1897) 23 VLR 217

Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355

Radaich v Smith (1959) 101 CLR 209

Redland Shire Council v Stradbroke Rutile Pty Ltd (1974) 133 CLR 641

Renstone Nominees Pty Ltd v Metropolitan Region Planning Authority (unreported, Town Planning Appeal Tribunal, 17 June 1986)

Robertson v Deputy Federal Commissioner of Land Tax (1941) 65 CLR 338

Ross v R (1979) 25 ALR 137

Sydney City Council v Garbett (1993) 80 LGERA 289

The Wanneroo Roads Board v Gibbs (1905) 7 WALR 190

The Warden, Councillors and Electors of the Municipality of Esperance v Hay (1912) 8 Tas LR 47

Union Trustee Co of Australia Ltd v Federal Commissioner of Taxation (1915) 20 CLR 526

Western Australia v Dale (1996) 15 WAR 464

Xu v Minister for Immigration & Multicultural Affairs (1999) 168 ALR 621; 95 FCR 425

1. PIDGEON J:  The appellant is developing a holiday resort on crown land at Port Kennedy.  It is doing this as the permitted assignee of an agreement entered into by the assignor with the State of Western Australia.  This agreement was ratified by the Port Kennedy Development Agreement Act 1992 and a copy of the agreement is contained in the schedule to that Act.  When the development of any portion of the land reaches a certain stage, the respondent is entitled to have transferred to it a crown lease for 50 years, or in respect of some of the land, a freehold title. 

2. On 24 June 1997, the respondent, the local shire, issued to the appellant a rate notice for portion of the land the subject of the agreement and which was still unalienated crown land. Some of the land in the notice was in the course of being developed by the appellant under the terms of the agreement. The notice issued for the period 12 August 1996 to 30 June 1997. The appellant objected to the notice on two alternate grounds. The first was that the land was not rateable land within the meaning of s 6.26 of the Local Government Act 1995. The alternate ground was that the appellant was not the owner or occupier of the land within the meaning of s 6.41. The first claim, that it is not rateable land, is made on two bases. The first basis is that it is Crown land which is unoccupied and the second basis is that it is being used or held for a public purpose.

3. The Land Valuation Tribunal found that the land was occupied by the appellant but upheld the contention that it is not rateable as it is crown land being held for a public purpose.  The Tribunal also dealt with the alternate claim and held that, if it is rateable land, the notice was properly sent to the appellant.

4. The Shire appealed to Wheeler J.  An appeal from the determination of the Land Valuation Tribunal does not lie to a Judge of the Supreme Court unless the decision involves a question of law (Land Valuation Tribunals Act 1978, s 35(2)). Her Honour dealt with it as a question of law involving the interpretation of s 6.26. Her Honour allowed the appeal as she considered that the land is rateable land and that it did not come within the exemption of being held for a public purpose. There was a contention before her Honour that the Tribunal was wrong in law in finding that the land was occupied and in holding that the appellant was the person to whom the notice should issue. Her Honour upheld the Tribunal's finding on each of these questions.

5. The grounds of appeal against the decision of Wheeler J raise the same questions as the initial objections to the notice.  There is further matter raised by ground 5  with which I shall later deal.

Public purpose

1. Section 6.26 provides that all land in a district is rateable land subject to the exceptions in the section. Sub-section 2 contains the exceptions to be considered and reads:

   "(2)The following land is not rateable land -

   (a)land which is the property of the Crown and -

   (i)is being used or held for a public purpose or

   (ii)is unoccupied …"

2. The appellant in its submissions as to the public purpose of the land refers to what it is required to provide on the land. The land adjoins the sea. The appellant, as the assignee under an agreement with the State of Western Australia, is required to construct a modern holiday resort. This includes constructing adjacent to the shore a breakwater and a small boat harbour, but the land on which this is being constructed is not the subject of the rate notice. The greater portion of the land in the notice is designated as leasehold land and is land to which the appellant, if it carries out the agreement, will become entitled to as crown leases. The appellant is required to erect on this land 140 self‑contained family units which will be leased or hired to persons wishing to have a holiday in the holiday resort. The appellant must construct on the leased land a town centre to contain, amongst other things, a tavern, a restaurant, food outlets, a newsagency, a pharmacy, a liquor store, some boutiques and sporting goods shops. It must build a multi‑purpose hall for meetings, receptions and public entertainment. Other buildings the appellant must build on the leased land are a large building for combined surf lifesaving, sailing club, first aid station and a fully equipped child minding facility. In addition to this, the appellant is required to construct in the town centre administration offices to accommodate government officials from departments such as the Fisheries Department, the Department of Marine and Harbours, the Education Department and the Department of Conservation and Land Management. This building is to house the Port Controller and the Port Kennedy Management Board, a body incorporated under the Act to carry out functions set out in the Act. The appellant is also required to provide, on the leased land, residential accommodation for staff working in the town centre.

3. The next important matter is that the appellant is required to construct on the leased land two 18 hole golf courses of a high standard.  One of these golf courses is to be a public course and the other is for use by guests of a hotel to which I shall shortly refer and which the appellant is required to construct on the land referred to as freehold land.  The appellant is to construct for the public golf course a club house with change room, showers and toilets, a professional shop, restaurant and bars.

4. In the rate notice a smaller portion of the land is referred to as the freehold land to which the appellant, progressively, can obtain freehold titles.  The appellant is to construct on portion of this land serviced holiday units with vehicle access.  It is also required to construct on the freehold land a five star hotel  with 225 guests' rooms and club facilities for the private golf course. There is some further land on which the appellant must construct roads, cycle ways, toilets, barbecues and some other facilities.  This land will always remain with the Crown.  I understand from what we were told, at the hearing, that this land is not covered in the rate notice.  The fact as to whether or not some or all of this land is in the notice would not, I consider affect the issue.  The company must also provide and construct electrical, water, sewerage, telephone and other services which would extend to the land in the notice.

5. Mr Giles, for the appellant, referred to the public nature of what the appellant is required to carry out.  He also referred to the Second Reading Speech of the Minister for State Development when introducing the Port Kennedy Development Agreement Bill into the Parliament.  The Minister explained that during the Second World War the land was used as a practice anti‑aircraft artillery range.  As early as 1971 the area was planned as a recreational resort with a yacht club, hotel, shopping facilities and holiday accommodation.  He explained how the agreement was entered into with the appellant's predecessor in title.  The Minister then told the House that the reason for the development was to create a comprehensive recreational and leisure centre on coastal Crown land for use by the people of Western Australia, and by national and international tourists at a minimal cost to the State.  It is submitted further that it is not open to compare the works the appellant is required to carry out with what is expected of a subdivider by reason of the sanction the appellant is under.  The agreement can be terminated on default and the appellant could lose title.  It is pointed out that some of the things the appellant is required to do under the agreement go beyond the type of conditions that can be imposed by the Western Australian Planning Commission on a private subdivision.

6. The Tribunal said that the public purpose must be the predominant or primary use and in determining the purpose for which the land is held or used, the objective purpose for which the lease or licence is held is to be considered.  This was based on what was said in Statewide Roads Ltd v HolroydCity Council (1996) 39 NSWLR 115 and, also, as to the former proposition, by what was said by Franklyn J in State Government Insurance Office v City of Perth (1990) 71 LGRA 123.

7. The Tribunal said that the mere fact that a private benefit or a profit making by the lessee would not prevent the land falling within the exception so long as the private purpose is ancillary or incidental to the public purpose.  The Tribunal said that the critical factor to be determined is whether the essential purpose of the appellant's licence to enter is the facilitation of private enterprise in the class of activity in which the Crown then was ordinarily involved or whether the licence involved the government using resources of the private sector in order to provide necessary infrastructure to the public which the government was then unable to provide.  The Tribunal said that, having regard to the evidence, the nature of the agreement and the works required to be done, it accepted the submission that the appellant, during the construction phase, holds the land principally for a public purpose.  It said that, in particular, the extent to which the appellant was required to undertake total involvement of the project together with the express purpose of the government in seeking to develop the area and secure and preserve environmental parks that will vest in the Crown, and at the same time create a major tourist and leisure facility for the benefit of the public of Western Australia, leads to the conclusion that the project is principally directed to engaging the private sector to provide necessary public facilities that the government could not otherwise then provide.  The type of facilities to be provided included, harbour and marine facilities, the government office buildings, roadwork, and community halls. The Tribunal said that recreation facilities are in the province of the government to provide.  It said that the fact that there are some private benefits, in so far as during the construction phase, capital is applied by the appellant with a view to profit to be realised from the subsequent sale of freehold land ceded to it, does not prevent the sale being used for public purposes.  It concluded  by saying that during the construction phase, the appellant held the land principally for a public purpose.

8. Her Honour considered that the Tribunal placed undue emphasis on the history of the project and the objectives outlined by the Minister.  She said they were relevant but are not determinative.  She considered that the Tribunal erred further in considering the purpose for which the entire area, encompassed by the Agreement, was held rather than look into the area which was the subject of the rate notice.  In particular, the conservation zones and boat harbour are not included in the rate notice.  She considered that the boat harbour was a sufficiently discreet and self‑contained portion of the development to make it permissible to exclude it from the relevant area.  Her Honour then set out what was required to be provided on the land the subject of the rate notice.  She said that the majority of these activities are the types of services which are ordinarily privately provided in Australia.  Her Honour said that the ultimate occupiers are in some few cases to occupy the facilities for public purposes, but she said it appeared to be contemplated that they will do so by entering into lease agreements of the type ordinarily entered into with private providers of these services.  She then referred what was to be done on the private land.  Her Honour said that, taken as a whole, it appeared to her that the purpose of the Agreement was, initially, to get an essentially private development "off the ground" and thereafter to ensure that development continued.  She said that the purpose of the Agreement and the purpose of the appellant's occupation was, at the relevant time, currently a private one.

9. Her Honour examined a number of cases referred to her involving uses of the land and statutes that had some similarity, but with a number of differences to the matter now under consideration.  She saw these of little assistance and reached her conclusion by interpreting the words in the statute

10. In my view, the answer to the question lies in interpreting the statute and in particular, the following words  sub-para 2(a)(i) "is being used or held for a public purpose".  The cardinal rule of construction is that the words should be construed according to the intention expressed in the enactment itself.  The word "public" can have a number of meanings and these would be governed by the context.  I consider that the ordinary and natural meaning of the word "public" having regard to the intention of the enactment, is a purpose shared by or open to all. 

11. The land not in the rate notice can be looked at to see if it assists in determining the purpose of the land the subject of the rate notice. The Tribunal considered the purpose of the licence to enter. Section 6.26 refers to the purpose for which the land, as distinct from the licence, is being used or held. I agree with the Tribunal and her Honour that the purpose to be determined is the predominant purpose for which the land is being used or held. If the predominant purpose is a public purpose, then the fact of an incidental purpose of profit making would not affect the question. Her Honour, earlier, in suggesting a possible analysis, referred to a limited number of "core" functions which are in democratic communities regarded as essential functions of the government.

12. In my view there are certain functions carried out by the government which are necessary to enable the community to function.  These include the providing of roads and public parks.  These are facilities available to all and are seen as a public purpose within the ordinary meaning of the word.  I would see the intention of the enactment as being that the words "public purpose" shall have their ordinary and natural meaning. 

13. The appellant's predominant purpose is a commercial one.  It is an enterprise being conducted for their profit.  The providing of facilities of this type to enable persons to spend leisure and vacation time is a common type of commercial facility.  The providing of this type of facility, although it is for recreation, is not the type of recreation normally provided by the government.  Although it is open to ratepayers to use the facility and to hire accommodation, it would not be expected that it would be used to a great extent by ratepayers or by members of the public in the area.  In my view it would be well beyond the intent of the enactment and the ordinary natural meaning of the words to say that the land is being used or held for a public purpose.

Whether unoccupied

1. If land, the property of the Crown, is unoccupied, then it is not rateable by reason of (a)(ii) of (2) of s 6.26. The appellant, pursuant to cl 8, has the benefit of an exclusive licence for it and its agents, contractors and employees to enter, with all necessary vehicles, plant and equipment upon the land. This operates, in respect of each piece of land, from the commencement of the assignment until the appellant obtains a leasehold or freehold title to that land. The submission in support of its being unoccupied land is that the appellant is given no more than an exclusive licence to enter. It is claimed that it is exclusive only in the sense that the Crown cannot give a licence to another. A principal claim is that the licence does not give it any right of occupancy. It is submitted further that for rating purposes there is a long line of authority which says that the land to be rateable on the basis of its being occupied denotes a requirement of exclusive possession.

2. The question for immediate decision is whether the land comes into the category of not being rateable land by reason of its being crown land which is unoccupied.  This does not necessarily involve the question of exclusive possession.  That is a matter to be considered in determining the next question, namely, that if it is rateable land, is the appellant a person liable to pay the rate.  The question is simply whether it is crown land that is unoccupied.  This normally is a question of fact.  It would also become a question of law in this particular case as the Tribunal found, in effect, that the appellant could not carry out the agreement unless it was in occupation and, in addition, the intent of the licence granted was to give the contracting party a right to occupation.

3. I consider, in this particular case, that the licence given carries with it a right to exclusive occupation.  A reading of the whole agreement shows that was the intention of the parties.  As the Tribunal observed, sub‑clause 3 of cl 8 provides that the original party to the agreement shall permit the State by its officers, employees, agents and nominees to enter the land the subject of the exclusive licence to inspect the progress of the project.  This clause would not be necessary if the licence did not give exclusive occupation.  In addition, it is clear from the agreement that it was intended that the licence was to carry with it exclusive occupancy as it would be otherwise impossible for the contracting party to carry the agreement out.  The matter goes further as the Tribunal found as a fact that the appellant was in occupation.  The evidence to support this was the extent of the fencing, the notices forbidding entry and the presence of security officers.  There would be no appeal from this finding of fact by the Tribunal.

Whether appellant the occupier for the purpose of receiving the rate notice

1. The final question to determine is whether the appellant is the person liable to receive and to pay the rate notice. Section 6.41 of the Local Government Act provides that a local government is required to give a rate notice to the owner of rateable land. Section 1.4 of the Act provides a definition of owner unless the contrary intention appears. This provides:

   "(d)where a person is lawfully entitled to occupy land which is vested in the Crown, and which has no other owner according to paragraph (a), (b), or (c), means the person so entitled;"

2. The appellant's submission is that this means it must have exclusive occupation. The appellant referred to a number of cases and submitted that a person who is entitled to enter upon land by virtue of a licence to enter, granted by the owner, would not generally be said to occupy that land. The Tribunal considered this question in conjunction with the question as to whether the land was unoccupied crown land and concluded by saying that as the appellant is in occupation of the land " the appellant is the owner for rating purposes". (AB42) It had earlier set out the relevant parts of s 1.4. I would see this as a finding that a rate notice for the land should issue to the appellant as owner within the extended meaning of the term as defined in s 1.4. Wheeler J thought that the Tribunal had not considered this issue (AB12). However she examined the question when considering the notice of contention which was before her. She referred to reasons of Kennedy J in Pexco Pty Ltd v Shire of Leonora (1984) 54 LGRA 428 at 437 whereby his Honour said the question of whether the land was occupied or not is a question of fact. Her Honour referred to the evidence which established the fact that the appellant was in occupation. Her Honour concluded the matter by saying:

   "In my view, the argument that the respondent is not 'the owner' of the land within the meaning of s 1.4 cannot be sustained. Either the respondent is a person lawfully entitled to occupy the land in accordance with subpar (d) of that definition, or, if the licence does not give rights of occupation as extensive as those actually purported to be exercised by the respondent, then the respondent is to that extent a person 'in the unauthorised occupation' of Crown land within the meaning of par (f) of that section."

3. The question is whether the appellant comes within sub-para (d) above. The appellant does come within it as I consider for reasons already given that the appellant is entitled to occupy the crown land concerned. That is sufficient irrespective of whether the appellant is in fact occupying it. It is not suggested, nor could there be, on the facts of this case, any other owner within the meaning of par (a) or (b) of s 1.4. There may be an arguable possibility that the appellant, itself, would come within (c). There is no need to consider this question because if the appellant did come within that sub-para then it would be, by reason of that, the person to receive the rate notice.

Whether there is a later exemption which would cause an incongruity to arise

1. Ground 5 claims that when leasehold titles progressively issue to the appellant, those leases will be exempt from rates and it would be incongruous for the land to be rated at this stage.

1. The lease to which the appellant becomes entitled is a lease for 50 years. The rent for the first 25 years is one peppercorn if and when demanded, and the rent for the second 25 years is a market rental. The submission is that the definition of "Crown lease" in s 1.4 excludes a lease for a peppercorn rental. I do not see how this exclusion would assist the appellant. Section 6.26 does not use the expression "Crown lease". It says that all land is rateable unless it comes within a limited exception. When a Crown lease issues it might be arguable that by reason of the peppercorn rent the appellant might not be a Crown lessee liable to receive a notice by reason of the extended definition of owner contained in s 1.4. If this argument were made good then the definition under (d) of owner, and which I have already set out, would apply. This, also, does not contain the words "Crown lease". I do not propose to examine the question further because even if it were possible to make good the argument that the land would not be rateable when a Crown lease issues, that would not affect the question whether it is rateable at the time the notice issued.

2. I would dismiss the appeal.

3. IPP J:  I agree with the observations of Parker J.  Otherwise I agree with the reasons to be published by Pidgeon J and have nothing further to add.

4. PARKER J:  I have had the advantage of reading in draft the decision which Pidgeon J has now published.  I agree that the appeal should be dismissed but would make the following brief observations.

5. There were three principle issues raised by the grounds of appeal and my observations are confined to aspects of the first of these issues, ie whether the land the subject of the rate notices is exempt from rating by virtue of s 6.26(2)(a)(i) of the Local Government Act 1995 ("the Act") on the basis that at the relevant time it was Crown land being used or held for a public purpose.

6. Section 6.26(2)(a)(i) contemplates that land which is the property of the Crown may be used or held either for "a public purpose" or for some other purpose, ie a non-public purpose or, as some authorities describe it, a private purpose although this latter description may suggest too narrow an understanding of the full range of purposes which are not public purposes.

1. The notion of a public purpose has received a good deal of judicial consideration over the years. No single or settled meaning has been identified but it is clear from the general body of authority that the legislative context may be particularly material. The provision with which this appeal is concerned is in a context in which, by s 6.26(1), all land within a local government district is rateable land. Section 6.26(2) is by way of an exception from the general provision of s 6.26(1) so that inter alia Crown land which is unoccupied or which is being used or held for a public purpose is exempt from rating.  This context does not encourage any generous width of meaning being given to the concept of a public purpose.

2. Section 6.26(2)(a) clearly may be traced, as a matter of legislative history, to its predecessor s 532(2)(a) of the Local Government Act 1960. That provision used similar language and was directed to the same object as s 6.26(2)(a), although the current provision refers to Crown land being "used or held" for a public purpose whereas s 532(2)(a) referred only to Crown land being "used" for a public purpose. The addition of the concept of "held" does have the effect of broadening the rating exception to cover some Crown land not actually in current use but which is held ready for an identified purpose, but that is not presently material.

3. Section 532(2)(a) was considered by Franklyn J in State Government Insurance Office v City of Perth (1990) 71 LGRA 123. His Honour expressed a number of views which remain relevant today to the interpretation of s 6.26(2)(a) of the Act. His Honour said in particular at 133:

   "In my opinion the words of s 532 of the Local Government Act 'and is being used for a public purpose' refers specifically to the use to which the land is being put at the relevant time.  In my view, the section cannot be construed otherwise.  The question is whether such use is 'for a public purpose'.  The section does not qualify the 'use' in question as being the use to which it is put by the appellant or by the Crown in whatever guise, but looks only to the 'use' to which it, being land the property of the Crown, is being put."

   Having considered, but not having accepted, submissions that public purpose was to be equated with governmental purpose (at 134), but having (at 135) found little direct assistance in the authorities, his Honour concluded at 135:

   "In my view the word 'purpose' used in the section refers to the object with which the occupant of the land uses such land in pursuing its activities …  For a purpose to be a 'public purpose' within the meaning of the section, in my view, it must be a purpose which relates or pertains to the people of the State or of some particular region or locality as a whole and so relate or pertain in the sense of the provision of some service, utility or benefit to the public which would not be otherwise provided, and which is not provided with the primary purpose of producing profit, although profitability might well flow from charges or fees imposed or monies collected or earned in respect of such a provision.  Such a definition accords with activities which are traditionally the province of government and with the meaning of the word 'public'."

4. In accordance with that reasoning, in that case his Honour concluded that the land used by the State Government Insurance Office to carry on its statutory insurance functions was not solely or predominantly used for a public purpose within the meaning of s 532(2)(a), although it may have been used for a government purpose, except insofar as portions of those lands were let to other government departments and authorities whose functions were (by concession) within the concept of a public purpose (see 137).

5. The decision in State Government Insurance Office v City of Perth was the accepted state of the law in this State when s 532 and the 1960 Act including s 532 was repealed and replaced by the Act which included s 6.26 without any material change of language for present purposes. I am not presently persuaded that the understanding of Franklyn J of a public purpose ought readily be departed from given this legislative history. For that reason, insofar as Pidgeon J has offered the view that public purpose should be understood in s 6.26(2)(a)(i) as "a purpose shared by or open to all" I would prefer to reserve my position. The meaning suggested by Pidgeon J may not be well adapted for application to a number of possible factual situations including that with which Franklyn J was concerned in State Government Insurance Office v City of Perth.  Further, it may not readily accommodate the notion, that prevails in much judicial authority as to a public purpose, of the traditional province of government, which is a notion which Franklyn J expressly had in mind in his formulation and which notion was considered in this case by Wheeler J.  The difference between the two approaches is not, however, material to the determination of the present appeal.

6. Further, while Franklyn J expressly favoured the view that the relevant use was that of the occupant of the land in pursuing its activities at the relevant time, I note that the reasons of Wheeler J and of the Tribunal in this case had much regard to views which have been developed in a number of New South Wales decisions including Statewide Roads Ltd v Holroyd City Council (1996) 39 NSWLR 115 and Sydney City Council v University of Technology, Sydney (1992) 78 LGERA 200. I note in particular the decision of Priestley JA in Sydney City Council v Garbett Pty Ltd (1993) 80 LGERA 289 at 294-295, adopting earlier reasoning of Mahoney JA in Goulburn City Council v Haines (1992) 78 LGERA 281, which draws attention to what his Honour describes as the different levels of purpose or the differences of purpose that may exist as between the Crown, an occupier of Crown land, and a statute or agreement which makes provision relating to the use of the Crown land.

7. I note that in New South Wales the discussion occurs in a different statutory context and in particular the purpose of the lease pursuant to which land is held is of statutory relevance, whereas in s 6.26(2)(a) of the Act it is the purpose for which the land was being used or held. The distinction between the approach which commended itself to Franklyn J and that which is suggested by the New South Wales authorities is not one which, in my view of the relevant facts, leads to any different result in the present case. If the question is posed at the time of the issue of the rate notice and in respect of the land the subject of the rate notice, as in my view it should be, it appears to me the outcome in this case is the same whichever approach is followed. The predominant purpose both of the Crown and the applicant then being, in my view, as Wheeler J concluded, initially to get an essentially private development of the ground and thereafter to ensure the development continued. Although on either view there were elements of public purpose in the Port Kennedy Development both at a general level and in respect of particular areas of the land, the purpose of the Crown as revealed by the agreement, and the purpose of the appellant, as to the use of the land the subject of the rate notice was, at the time of the rate notice, predominantly or primarily a non-public purpose. Were the reasoning of the New South Wales decisions to be applied there appears to be much by way of analogy to the present case in the reasoning of Priestley JA in the Garbett decision as to the Crown purpose in ensuring the construction and operation of a tourist hotel at Darling Harbour which led his Honour to conclude that the Crown land was held by the lessees for private purposes.

8. In his reasons, Pidgeon J follows the approach suggested by Franklyn J, ie by considering the purpose of the user or holder of the land for the purposes of its activities, which purpose his Honour considered was not a public purpose. I respectfully agree. While I acknowledge with respect the force of the reasoning of the New South Wales decisions at least in the statutory contexts to which they were directed, I am not presently persuaded that in the context of s 6.26(2)(a) it would be necessary to go beyond the predominant or primary purpose of the user or holder of the Crown land at the relevant time.

9. Subject to these observations, for the reasons given by Pidgeon J I would agree that the appeal should be dismissed.