Quality Parks Pty Limited v Maclean Shire Council

[2002] NSWLEC 77

Reported Decision: 120 LGERA 272

Land and Environment Court

of New South Wales

CITATION:	Quality Parks Pty Limited v Maclean Shire Council [2002] NSWLEC 77
PARTIES:	APPLICANT: Quality Parks Pty Limited RESPONDENT: Maclean Shire Council
FILE NUMBER(S):	30078 of 2001
CORAM:	Bignold J
KEY ISSUES:	Rating :- exemption claimed for Crown land leased to operate caravan park-whether lease for "private purposes"-whether land a public place or used for public reserve.
LEGISLATION CITED:	Local Government Act 1993, s 555, 556, 574
CASES CITED:	Brush Park Bowling Club Ltd v Ryde Municipal Council (1970) 19 LGRA 380; Equestrian Sports Centre v Campbelltown City Council (1987) 9NSWLR 126; Metropolitan Water Sewerage and Drainage Board v Botany Municipal Council (the Lakes Golf Club case) (1935) 12 LGRA 116; Randwick Corporation v Rutledge (1959) 102CLR 54; Statewide Roads Ltd v Holroyd City Council (1996) 39 NSWLR 115; Sydney City Council v Garbett Pty Ltd (1993) 80 LGERA 289; Throsby v Wingecarribee Shire Council (1956) SR (NSW) 293
DATES OF HEARING:	15 February 2002
DATE OF JUDGMENT:	05/17/2002
LEGAL REPRESENTATIVES:	APPLICANT: Mr R Horsley, Barrister SOLICITORS Allen Duggan Associates RESPONDENT: Mr C Dimitriadis, Barrister SOLICITORS Pickering Priestley

JUDGMENT:

IN THE LAND AND

Matter No. 30078 of 2001

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

17 May 2002

QUALITY PARKS PTY LIMITED

Applicant

v

MACLEAN SHIRE COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. This is an appeal pursuant to the Local Government Act 1993, s 574 (the LG Act) against the levying of a rate and the levying of a charge as specified in a Rate Notice issued on the Applicant by the Respondent on 23 July 2001 for the rate year commencing on 1 July 2001 in respect of land comprising some 2.2 ha, situate at Yamba known as “Calypso Caravan Park” being part of Crown Reserve 81523 (the subject land).

2. The appeal against the levy of the rate is on the ground that the subject land is not rateable and the appeal against the levy of the charge is on the ground that the subject land is not subject to the charge.

3. The Applicant claims that the subject land is (i) exempt from “all rates” by virtue of the LG Act, s 555(1)(a); and (ii) exempt from “all rates, other than water supply special rates and sewerage special rates” by virtue of the LG Act, s 556(1)(a) and s 556(1)(b). The latter claim is obviously an alternative claim.

4. The LG Act, s 555(1)(a) relevantly provides—
(i) The following land is exempt from all rates:
(a) land owned by the Crown, not being land held under a lease for private purposes.

5. The LG Act, s 556(1) relevantly provides:

The following land is exempt from all rates, other than water supply special rates and sewerage special rates:

(a) land that is a public place;

(b) land used for a public reserve and vested in the Crown a public body or trustee.

6. The Respondent disputes all of these claims to exemption from rates.
B. THE DISPUTED ISSUES

7. The issue in dispute concerning the rate exemption claimed by virtue of s 555(1)(a) is limited to the question whether the subject land is “held under a lease for private purposes”, it being an agreed fact that the subject land is relevantly (i) “land owned by the Crown”; and (ii) “held under a lease”.

8. The issue in dispute concerning the rate exemption claimed by virtue of s 556(1)(a) is whether the subject land is relevantly a “public place” as that term is defined in the Dictionary to the LG Act.

9. The issue in dispute concerning the rate exemption claimed by virtue of s 556(1)(b) is whether the subject land is relevantly “used for a public reserve”.

10. The issue in dispute concerning the appeal against the levy of charges is encompassed by the issues in dispute concerning the claimed rate exemption for the subject land. The resolution of those issues will also resolve the appeal against the levy of charges because annual charges may only be levied on “rateable land” which receives the service (the LG Act, s 501(3)). Section 503(2) empowers a council to levy a charge for a service supplied to non-rateable land but the charge is limited to the “recovery of the actual cost of providing the service to that land”.
C. THE RELEVANT FACTS

11. The parties have helpfully jointly tendered a Statement of Agreed Facts supplemented by documentary materials (Exhibit 1) and the following summary of relevant primary facts derives from that documentary material.

(1) The Applicant has been the lessee of the subject land since 19 April 1991 when it obtained an assignment of the original lease of the majority of the area comprising the subject land which had been granted by the Respondent in 1960 and when it also obtained a lease of some small additional areas also within Crown Reserve No 81523 (which had been added to the Crown Reserve in years subsequent to its original creation in 1959).

(2) The Applicant, as lessee of the subject land, conducts thereon the business of a caravan park utilising a number of buildings and facilities (including residential accommodation, comprising cabins, apartments, villas and powered and un-powered caravan sites and tent sites) that have been developed on the subject land since the original lease was granted, and charges guests typical commercial rates for comparable holiday accommodation situate in NSW coastal towns.

(3) The subject land is included in the area of some 6 acres that was reserved from sale for the public purpose of “public recreation” (Reserve No 81523) pursuant to Notice under the Crown Lands Consolidation Act 1913, s 28 published in Government Gazette No 41 of 10 April 1959.

(4) Pursuant to the Public Trusts Act 1897, s 3, Crown Reserve No 81523 was by Notice published in Government Gazette No 89 of 14 August 1959 vested in the Council of the Shire of Maclean as trustee under that Act with express power “subject to the written consent of the Minister for Lands….to lease the whole or any parts of the land at such rent for such purposes during such terms and subject to such provisions and conditions as the Minister approves”.

(5) By Deed dated 29 August 1960, the Council, with the written consent of the Minister, leased the subject land for a term of 28 years.

The recitals to that Deed included the following:

(a) The Lessor is Trustee of certain lands in the Parish of Yamba County of Clarence notified on 10th April 1959 as Reserve 81523 for Public Recreation known as Ford Park.

(b) The Lessor has resolved that the said lands shall be developed and that facilities shall be provided thereon for the use of the Public.

(c) The Lessor has resolved that such development and facilities shall be provided and thereafter managed by private enterprise.

Pursuant to cl 9 of the Deed, the lessee was required to develop the subject land within the first 12 months of the lease term (by the erection of “ toilet and showers buildings ” and laundries and “ fire places for cooking purposes ”). Pursuant to cl 10 , the lessee was empowered to undertake other developments eg the erection of a managers’ residence, a wading pool, cabins, kiosk and office.

Clause 15 of the deed provided as follows:


The Lessees shall allow the members of the public free access to or through the demised lands at all times provided that at the expiration of the said period of twelve calendar months or upon the completion of the said works in Clause 9 hereof whichever shall earlier occur the lessees may charge such fees as the Lessors shall deem reasonable for camping and car parking thereon and for the use of the facilities provided by the Lessees.

(6) By Deed of Variation dated 11 October 1969, the term of the original lease was extended so as to expire on 29 August 2004 .

(7) Pursuant to the Crown Lands Act 1989, s 92, a Reserve Trust under the name Ford Park Reserve Trust was appointed in respect of Crown Reserve No 81523 and the Council of the Shire of Maclean was appointed as manager of the Reserve Trust.

(8) The recitals to the lease dated 19 April 1991 granted to the Applicant in respect of additional lands included in Crown Reserve No 81523 include the following:

(e) The Lessee herein has taken an assignment of that part of the Reserve for use as a caravan park
The Lease granted to the Applicant was for a term commencing on 19 April 1991 and expiring on 29 August 2004. Clause 14 of the Lease provided as follows:
It is agreed between the parties that should the Lessee wish to carry out development of improvements or recreational activities or garden and beautification works within the Calypso Caravan Park it will prepare a Plan of Management with respect to the caravan park so as to provide details of such works and the proposed time span for same and will submit same to the Second lessor and obtain the Second lessor’s approval of same.

12. It is from these primary facts that ultimate facts relevant to the issues in dispute must be inferred. These ultimate facts will be found when considering separately each of the three bases for the claimed exemption from rates.

D. CLAIM TO EXEMPTION BASED UPON s 555(1)(a) OF THE LG ACT

13. The parties, in their competing submissions have referred to the series of reported decisions of the Court of Appeal on the meaning and application of the Local Government Act 1919 s 132(1)(g)(i) (the statutory predecessor and counterpart to the Local Government Act, s 555(1)(a)) in the decade commencing in 1987. Those decisions are collected and discussed in the last of the reported decisions of the Court of Appeal, in this series—Statewide Roads Ltd v Holroyd City Council (1996) 39 NSWLR 115—where Clarke JA, in giving the majority judgment of the Court stated at 117:

It is possible to discern from these decisions a structured approach which a court should adopt when deciding whether the exemption is available. Specifically, in Goulburn City Council v Haines , Mahoney JA suggested (at 286) that:…In approaching the application of s 132(1)(g)(i) to particular facts, the courts have found it necessary to consider, inter alia, three matters: whether the purpose for which the land is held is essentially that of the lessor or the lessee; how that purpose is to be evidenced; and what is, within the provision, the meaning of private . This analysis was also adopted by Priestley JA in Sydney City Council v Garbett Pty Ltd (at 294).

14. As to the first matter (whose purpose—the lessor’s or lessee’s?) Clarke JA held at 118 that “it is not simply a matter of looking at the purpose of the lessee—it is also necessary to look at the objective purpose for which the lease is held” which involved examining the reasons why the lease arrangements were utilised. His Honour acknowledged that the answer to both enquiries concerning the purposes and motivations of the lessee and the lessor may be the same (as was found in that case).

15. Clarke JA at 118 noted that the next step was for the court “to determine how the purpose of the lease is to be evidenced or ascertained”. In this respect, his Honour continued:

It is generally accepted that where the provisions of the lease stipulate the purpose for which the lessee is to hold the land, that will ordinarily be determinative of the issue. However, if the purpose is not specified or that specification is not conclusive, the purpose may be inferred from what has been said by the parties and the context in which the lease has been granted, or by reference to what the lessee is actually doing on the land in question

16. Applying this approach to the primary facts in the present case, I must now determine what is the purpose for which the subject land is held under the lease.

17. As the primary facts have indicated, the original lease has since its grant in 1960, been oftentimes varied and assigned. A consideration of the overall effect of the relevant “lease” documents adequately reveals and evidences the purpose for which the subject land is held under the lease arrangements. That revealed purpose was for the subject land (comprising most of the area constituting Crown Reserve 81523) to be originally developed as a caravan park facility and thereafter to be so operated by the lessee on a commercial basis. This clearly was a twofold purpose—the original lessee fulfilled the first purpose of developing the subject land by providing what may be described as basic and simple caravan park facilities typical of similar facilities established in the 1960’s in coastal NSW towns. The second purpose of commercially operating the developed facilities has continued during the past 40 years since the original primitive facilities were developed within the first year of the term of the original lease.

18. The present day facilities existing on the subject land are far more enhanced in their provision of a range of coastal holiday accommodation and facilities, compared with the more primitive facilities which were the obligation of the original lessee to develop within the first 12 months of the term.

19. Accordingly, and in a real sense, the identified twofold purpose (for which the subject land was held under lease) has long since become only the single purpose of commercially operating the established caravan park facility on the subject land, since the original development of the subject land that was required of the original lessee has long since been undertaken and the facilities so provided have long since been enhanced and upgraded by the development additional facilities, including accommodation in holiday apartments or villas.

20. Accordingly, I infer from the primary facts and in particular from the express terms of the “lease” documents that the purpose for which the subject land was held under lease was for the land to be developed within the first 12 months of the term by the original lessee with fairly basic caravan park facilities and thereafter to be operated commercially by the lessee as a caravan park. Moreover, I infer also from those primary facts that the purpose for which the subject land is presently held under lease is the commercial operation of the upgraded and enhanced caravan park/holiday accommodation facilities. Such purposes, as I have found them, were and are the purposes of both the lessee and the lessor. It was via the lease arrangements that the lessor secured the implementation of its decision to have Crown Reserve 81523 developed to provide caravan park facilities, and thereafter to be operated in a commercial caravan park and it was via the same lease arrangements that the original lessee and his successors (the assignees) have continued to secure their purpose of operating a commercial caravan park on the subject land.

21. To the extent that it is necessary or relevant to consider the facts of the actual use made of the subject land, those facts entirely reflect and support the purposes of the lease arrangement that are revealed in the lease documents, which I have identified.

22. The remaining matter concerns the meaning of “private” in s 556(1)(a). This has proved to be a difficult question in the series of Court of Appeal decisions which have considered it and the later decisions have significantly qualified the clear-cut approach adopted by McHugh JA in Equestrian Sports Centre v Campbelltown City Council (1987) 9NSWLR 126 at 133:

When an individual or group of people obtains a profit, benefit or advantage from the use of land which is denied to the public or a section of the public, a claim for exemption under s 132(1)(g)(i) fails.

23. McHugh JA’s approach was consistent with the approach taken with respect to this particular rate exemption in the earlier decisions in Metropolitan Water Sewerage and Drainage Board v Botany Municipal Council (the Lakes Golf Club case) (1935) 12 LGRA 116 and Brush Park Bowling Club Ltd v Ryde Municipal Council (1970) 19 LGRA 380, involving respectively the development on Crown lands of a privately operated golf course and a bowling club.

24. If these earlier decisions were applied to the present case, the conclusion that the lease of the subject land is for “private purposes” would be inevitable and obvious.

25. The qualification to the approach exemplified in McHugh J’s judgment in the Equestrian Centre case is founded upon the recognition first expressed in Haines that the purpose of the lessor in leasing premises may be different from the purpose of the lessee in holding the premises, and in such a case, whereas it does not necessarily follow that the lessor’s purpose must be adopted as the purpose for which the lease is held, there will be cases where the lessor’s purpose relevantly is held to be the purpose to which the lease is held and any different purpose of the lessee (including the obtaining of a profit, benefit or advantage under the lease) will be properly held to be subsidiary or ancillary to the public (or Crown) purpose. Thus, in Haines it was held that the relevant purpose for which the lease was held was the public purpose of the Crown in relation to the operation of the police force by providing official living quarters for the policemen who were the lessees of the residential premises. However, in Haines Mahoney JA (with whose judgment the other members of the Court agreed) concluded his judgment with the following passage at 288 which emphasises the cruciality of the relevant factual circumstances in any given case where rate exemption is claimed—

How these principles operate in particular factual context will, of course, depend on the circumstances. Thus, in granting a lease of land, the Crown may have a public purpose, for example, the introduction of social stability or the like by having men or families live in a particular area: it may grant leases to achieve that public purpose. But, as far as concerns the men or the families, they may have no knowledge or concern with that; the purpose for which they hold the land may be, in the circumstances, merely the private purpose of accommodation and shelter. The public purpose of the Crown may have no part in their holding of the land.

26. In Sydney City Council v Garbett Pty Ltd (1993) 80 LGERA 289, Priestley JA (with whose judgment the other members of the Court agreed) applied the Haines approach to determining the purpose for which the lease was held in the following passages at 297 which illustrate that there can co-exist a relevant public purpose and private purpose for which the land is held:

The public purpose of the DHA stated in the agreements of providing an international standard tourist hotel at Darling Harbour is a public purpose of providing a private sector international standard tourist hotel; that is, a public purpose of seeing that private enterprise contributes to tourist facilities. In the construction phase all risk capital is supplied from the private sector with a view to the private sector profit hoped to be made from subsequent operation of a tourist hotel conducted by the private sector.

It seems to me a proper presumption that all Crown leases under which land is held for private purposes must have a level of public purpose in them, in that the Crown must be assumed to be granting the lease in the general public interest. Thus in every case involving land held for private purposes under s 132(1)(g)(i) there will be a public purpose involved at some level. The exemption is nevertheless denied to land held for private purposes, so by the terms of the section itself the existence of a public purpose is not of itself inconsistent with there being a simultaneous exemption-denying private purpose.

Adopting Mahoney JA’s observation in Haines (set out at 296 above) that the function of s 132(1)(g)(i) is to exempt Crown land where the purpose of the Crown in holding it is the kind of public purpose which the Crown ordinarily performs it seems to me that, if it is right to recognise in the present case, as I do, that the public purpose of the DHA to be found in the instruments by which the land has been held is the public purpose in aid of tourism, of setting in motion a private project which the Crown has not contemplated as being one which it ordinarily performs, then the conclusion follows that the lands in question in the present case were held by the lessees for private purposes.

27. Finally, in Statewide Roads (where the purpose of the lease was “the financing, design, construction, operation, maintenance and repair of toll roads” (see at 119), Clarke JA in applying the Haines approach said at 120:

The aim of the inquiry is not to determine whether the leasing of the operations of toll roads is a purpose ordinarily performed by the Crown. Rather, the issue is whether the function or purpose which is the subject of the lease can be characterised as such. The presence or absence of any legislative charter, scheme or power for the leasing out of the toll roads is therefore not relevant to the inquiry. In addition, there is no requirement that the activity involved be a traditional government function. The question is simply whether the construction and operation of roadways or tollways is a purpose that the Crown ordinarily performs. The answer to this question can only be yes.

28. Having so concluded, Clarke JA then proceeded to examine the question whether other features of the lease arrangement which contemplated the recoupment by the lessee of production costs and the ultimate making of a profit, had the effect of rendering the purpose of the lease “private” rather than public, with his Honour reaching the following conclusion at 122/123:

Unlike Sydney City Council v Garbett Pty Ltd , I do not think this case can be characterised as one which involved the government getting a private sector project off the ground. It involved the government using the resources of the private sector in order to provide necessary infrastructure to the public which the government did not itself have the financial resources to construct. Certainly, one of the end objectives of the lease is that the lessees would earn a profit from the operation of the toll roads, but I do not think that this private purpose means that the land was held for private purposes . The terms of the lease and its political setting make it clear that the purpose of the lease was to finance the construction and operation of part of a system of highways available for use by the public. The private benefit expected by the lessees is subservient or ancillary to that public use.

29. Having regard to these decisions of the Court of Appeal since Haines, the question arises whether the facts of the present case are susceptible of an analysis that concludes that the purpose for which the subject land is held under lease is a public (or Crown) purpose, notwithstanding the existence of the obvious element of private benefit or advantage enjoyed by the lessee in conducting the commercial caravan park/holiday accommodation on the subject land?

30. The Applicants, relying upon the recitals to the original lease and cl 9 requiring the original development of the basic caravan park facilities on the subject land and cl 15 requiring free public access to or through the demised premises, submits that the purpose (for which the subject land is held under the lease is a “public purpose” (albeit that purpose was unspecified)).

31. In my judgment, this submission must be rejected for the following reasons:

(i) It has not been established that use of the subject land as a caravan park is relevantly a “ public purpose ”. The use of land for a caravan park/holiday accommodation is not a use for a public purpose either in general or for the particular public purpose of “ public recreation ”.

(ii) The commercial operation of the caravan park/holiday accommodation is not for a public purpose.

(iii) Even if there had been a relevant public purpose in originally developing the Crown Reserve with caravan park facilities, that public purpose was fully achieved when the facilities were created in 1961—the commercial operation of those facilities since that time (including the subsequent enhanced and improved facilities that currently exist on the subject land) is not in fulfilment of that, or any other, public purpose.

(iv) Even if there was a public purpose involved in the original development of the Crown Reserve with caravan park facilities and in the operation of those facilities, the development (both originally and continuing) would nonetheless be a private project of the kind that the Crown does not ordinarily perform.

(v) The fact that the lease arrangements involve limited access rights in favour of the public does not alter the essential character of the private use of the subject land as a commercially operated caravan park/holiday accommodation cf the Lakes Golf Club; the Brush Park Bowling Club; and the Equestrian Centre cases which all involved some elements of limited public access to the relevant facilities; and where it was nonetheless held in each case that the land was held under lease for private purposes.

32. In my judgment, my finding that the purpose of the lease under which the subject land is held was for the initial establishment, and subsequent operation of a commercial caravan park/holiday accommodation leads to the self-evident additional finding that that purpose is for private purposes.

33. For all the foregoing reasons, I hold that the Applicant has not established its claim to rate exemption on the basis of the LG Act, s 555(1)(a)
E. CLAIM TO EXEMPTION BASED UPON s 556(1)(a) OF THE LG ACT

34. The Dictionary to the LG Act includes the following definition of “public place” which applies by force of s 3 of the Act:

public place means:

(a) a public reserve, public bathing reserve public baths or public swimming pool, or

(b) a public road, public bridge, public wharf or public road-ferry, or

(c) a Crown reserve comprising land reserved for future public requirements, or

(d) public land or Crown land that is not:


(i) A Crown reserve (other than a Crown reserve that is a public place because of paragraph (a), (b) or (c)) or

(ii) a common, or

(iii) land subject to the Trustees of Schools of Arts Enabling Act 1902, or

(iv) land that has been sold or leased or lawfully contracted to be sold or leased, or


(e) land that is declared by the regulations to be a public place for the purposes of this definition.

35. A number of the terms embodied in this definition are themselves defined in the Dictionary, including the following definition of “public reserve” which is the particular aspect of the exemption conferred by s 556(1)(a) relied upon by the Applicant—

public reserve means:

(a) a public park, or

(b) any land conveyed or transferred to the council under section 340A of the Local Government Act 1919, or

(c) any land dedicated or taken to be dedicated as a public reserve under section 340C or 340D of the Local Government Act 1919, or

(d) any land dedicated or taken to be dedicated under section 49 or 50, or

(e) any land vested in the council, and declared to be a public reserve, under section 37AAA of the Crown Lands Consolidation Act 1913, or

(f) any land vested in the council, and declared to be a public reserve, under section 76 of the Crown Lands Act 1989 or

(g) a Crown reserve that is dedicated or reserved:

(i) for public recreation, or

Crown Lands Act 1989,

being a Crown reserve in respect of which a council has been appointed as manager of a reserve trust for the reserve or for which no reserve trust has been established, or
(h) land declared to be a public reserve and placed under the control of a council under section 52 of the State Roads Act 1986 , or

(i) land dedicated as a public reserve and placed under the control of a council under section 159 of the Roads Act 1993,

and includes a public reserve of which a council has the control under section 344 of the Local Government Act 1919 or section 48, but does not include a common.

36. In respect of the definition of “public reserve”, the Applicant relies upon par (g). Here again it is necessary to refer to another definition contained in the Dictionary to the Act, namely “Crown reserve” which is defined as having—

the meaning given to reserve in section 78 of the Crown Lands Act 1989

37. The Crown Lands Act 1989, s 78 contains the following definition of “reserve”—

reserve means land which is dedicated or reserved under this Act or which immediately before the commencement of this section was a reserve within the meaning of Part 3B of the Crown Lands Consolidation Act 1913, not in either case being:

(a) a common within the meaning of the Commons Regulation Act 1898,

(b) land within the meaning of the Trustees of Schools of Arts Enabling Act 1902, or

(c) land, or land of a class, in respect of which an order under section 79 is in force.

38. This definition itself directs attention to other provisions of the Crown Lands Act 1989 or to the antecedent Crown Lands Consolidation Act 1913. It is not necessary to look to the detail of these provisions because of the existence of the savings and transitional provisions contained in Schedule 8 to the Crown Lands Act 1989, cl 1 of which is in the following terms:

(1) A dedication or reservation in force or taken to be in force under a repealed Act immediately before its repeal has effect as if it had been made under this Act.

(2) The dedication or reservation:


(a) is for the same purpose and on the same terms as the original dedication or reservation, and

(b) dates from the date of the original dedication or reservation.


(3) This clause applies whether or not the original reservation was temporary.

39. The combined effect of this savings provision and the definition of “reserve” in the Crown Lands Act 1989, s 78 is that the reservation from sale for the purpose of public recreation of Reserve 81523 by Notice published in Government Gazette No 41 of 10 April 1959 pursuant to the Crown Lands Consolidation Act 1913, s 28 is that the subject land is relevantly (i) a “reserve” within the meaning of s 78 of the Crown Lands Act 1989 and (ii) a Crown reserve that is reserved for public recreation within the meaning of “public reserve “contained in the Dictionary to the LG Act.

40. In so concluding, I note the fact earlier found that the Respondent has been appointed manager of the reserve trust for Reserve 81523, thereby fulfilling the final requirement of the definition of “public reserve” contained in the Dictionary to the LG Act.

41. The Respondent seeks to avoid the conclusion that the subject land is a “public reserve” and hence a “public place” within the meaning of each of those defined terms (and accordingly is exempt from rates by virtue of s 556(1)(a)) by contending that there are reasons of context and subject matter that exclude the application of the definition of “public reserve” to the proper construction of the phrase “land that is a public place” occurring in s 556(1)(a).

42. The definitions of “public reserve” and “public place” contained in the Dictionary to the LG Act apply to the construction of s 556(1)(a) “except in so far as the context or subject matter otherwise indicates or requires” vide the Interpretation Act 1987, s 6.

43. The immediate context of s 556(1)(a) is of course the provisions of s 556 providing for a limited rate exemption for particular classes or descriptions or types of land. The wider context is the full rate exemption for particular classes, descriptions or types of land contained in the LG Act, s 555 and these two provisions for rate exemption for certain lands are in the context of the LG Act, Pt 6 of Ch 15 dealing with “rateable land” with s 554 providing—

All land in an area is rateable unless it is exempt from rating.

44. It is apparent from a consideration of the wider context that there is some degree of overlap in the classes or descriptions or types of land that are exempt from rates. This is demonstrated by the facts of the present case where the three bases for rate exemption contain an obvious degree of overlap.

45. The immediate context of s 556 itself reveals that the subject matter of land “used for a public reserve” is exempt from rates by virtue of s 556(1)(b). (This provision re-enacts s 132(1)(c) of the Local Government Act 1919 which was the subject of the oft cited decision of the High Court of Australia in Randwick Corporation v Rutledge (1959) 102CLR 54).

46. The existence of s 556(1)(b) which confers rate exemption on land “used for a public reserve” (see Rutledge and Throsby v Wingecarribee Shire Council (1956) SR (NSW) 293) is a consideration of context and subject matter which raises a significant doubt as to the application of the defined term “public reserve” to the separate rate exemption that is provided by s 556(1)(a) where that exemption is based, not upon the use of land as a public reserve, but simply upon the status of land as a “public reserve”. Can it be reasonably inferred that the legislature intended to confer rate exemption pursuant to s 556(1)(a) upon land having the mere status of “public reserve” when its conferral of rate exemption pursuant to s 556(1)(b) was expressly limited to land “used for a public reserve” (especially in the light of the legislative history of rate exemptions on this basis, that was expounded in the decisions in Throsby and Rutledge)?

47. This strong indication grounded upon considerations of context and subject matter is considerably reinforced by consideration of the definition of “public place” contained in the Dictionary to the LG Act, which I have earlier recited.

48. Consideration of this definition gives the unmistakeable impression that the true essence of the quality or status of land being a “public place” is the entitlement of the public to be on that place and to use and enjoy it—see in this respect the defined terms “public road” and “public wharf” which are included in the definition of “public place”.

49. Since it is clearly possible (as is evidenced by the facts of the present case) for land having the status of public reserve to be leased for private purposes (thereby effectively denying to the public any entitlement to use and enjoy the leased land cf Rutledge at p 80 per Windeyer J) it cannot have been the intention of the Legislature that land having the status of a public reserve, but not available, by virtue of it being leased for private purposes, for use and enjoyment by the public, should have the benefit of rate exemption merely because it enjoyed the status of being a public reserve.

50. For the foregoing reasons, I am satisfied that there are reasons of context and subject matter that exclude the application of the defined term “public reserve” to the proper construction of the rate exemption provided by s 556(1)(a) on the basis that the “land is a public place”.

51. In view of the justified exclusion of the application of the defined term, I would adopt the following conventional Australian understanding of the term “public reserve” as stated in the judgment of Windeyer J in Rutledge at 70:—

The term public reserve —and the word reserve alone, when not controlled by a definition or a context indicative of a different sense—have come to be used in common parlance in Australia in an imprecise way to describe an unoccupied area of land preserved as an open space or park for public enjoyment, to which the public ordinarily have access as of right.

52. An alternative interpretive solution would be to add to the defined term, for reasons of context and subject matter flowing from the language of s 556(1)(a), the qualification that the “public reserve” be not leased or occupied for private purposes thereby denying to the public the entitlement to use and enjoy the public reserve, or to express the necessary qualification positively, by adding to the defined term the requirement that the public reserve be available to the public for use and enjoyment.

53. Having thus construed the rate exemption provided by s 556(1)(a), it follows as a matter of inevitable inference from the primary facts earlier set out, that the subject land is not available for such public use and enjoyment and accordingly I find that the subject land is not relevantly “a public place” within the meaning of s 556(1)(a).

54. Accordingly, the Applicant has not established its claim to exemption based upon s 556(1)(a).
F. CLAIM TO EXEMPTION BASED UPON s 556(1)(b) OF THE LG ACT

55. As earlier indicated, s 556(1)(b) replicates the rate exemption conferred by the Local Government Act 1919, s 132(1)(c). Its meaning was settled by the High Court’s decision in Rutledge which emphasised the two distinct elements of the rate exemption—namely that the land (i) have the required legal status of being a public reserve (eg dedicated or reserved for public recreation); and (ii) be used for that public purpose.

56. Having regard to the primary facts of this case, I find that the subject land is not being “used for a public reserve”. Rather, for the reasons I have given, it is being used for private purposes of the lessee conducting thereon the business of a caravan park/holiday accommodation establishment.

57. Accordingly, the Applicant has not established its claim to rate exemption based from s 556(1)(b).
G. CONCLUSIONS AND ORDERS

58. Since the Applicant has failed in all of its separate claims to rate exemption, its appeal against the levy of rates on the subject land must fail, as does, as a consequence of the subject land being “rateable land” its separate appeal against the levy of charges on the subject land.

59. Accordingly, I make the following orders—

1. Appeal be dismissed.

2. Exhibits be returned.


3. Costs be reserved.