Rapp and Commissioner Of State Revenue
[2006] WASAT 135
•26 MAY 2006
RAPP and COMMISSIONER OF STATE REVENUE [2006] WASAT 135
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 135 | |
| TAXATION ADMINISTRATION ACT 2003 (WA) | |||
| Case No: | DR:640/2005 | 4 APRIL 2006 | |
| Coram: | MR D R PARRY (SENIOR MEMBER) | 26/05/06 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application for review dismissed Decision of respondent affirmed | ||
| B | |||
| PDF Version |
| Parties: | MYNA FRANCES AND ROY VERNON RAPP COMMISSIONER OF STATE REVENUE |
Catchwords: | Taxation Land tax Whether land exempt Whether land is dedicated to public purposes Whether land is used for public purposes Land within Priority 2 Underground Water Pollution Control Area proclaimed under Metropolitan Water Supply, Sewerage, and Drainage Act 1909 (WA) Land zoned "Resource" under local scheme Purpose of Underground Water Pollution Control Area and zoning to protect Perth's drinking water supply Dwelling and hobby farm permitted land uses Limited range of other uses discretionary land uses after referral to Waters and Rivers Commission Whether protection of underground water is a public purpose Words and phrases: "dedicated to", "public purpose", "used for" |
Legislation: | City of Cockburn Town Planning Scheme No 3, cl 4.3.1, cl 5.10.11(d), cl 8.2.1(i) Interpretation Act 1984 (WA), s 17, s 32(1) Land Tax Assessment Act 2002 (WA), s 7(1), 17, s 33, s 34, s 36, s 37, s 37(b), s 38(2)(b), s 39A(2)(c), s 41, Pt 3 Div 4 Local Government Act 1960 (WA), s 532(2) Local Government Act 1995 (WA), s 6.26(2)(a)(i) Metropolitan Region Scheme Metropolitan Water Supply, Sewerage, and Drainage Act 1909 (WA), s 57A(1) Metropolitan Water Supply, Sewerage, and Drainage By-laws 1981 (WA), bl 5.1 bl 5.6 State Administrative Tribunal Act 2004 (WA), s 3(1) Statement of Planning Policy No 2.3 – Jandakot Groundwater Protection Policy, cl 9, cl 11 Statement of Planning Policy No 2.7 – Public Drinking Water Source Policy Taxation Administration Act 2003 (WA), s 37(2), s 40(1), s 43(1)(b) |
Case References: | Byrne Bros Pty Ltd v City of Maryborough (1984) 53 LGRA 383 Council of the City of Newcastle v Royal Newcastle Hospital (1959) 100 CLR 1 Port Kennedy Resorts Pty Ltd v City of Rockingham (2000) 112 LGERA 296 Randwick Municipal Council v Rutledge & Ors (1959) 102 CLR 54 State Government Insurance Office v City of Perth (1987) 71 LGRA 123 Swan Yacht Club Inc v Town of East Fremantle (2005) 30 WAR 193 Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566 New South Wales Aboriginal Land Council v Minister for Natural Resources (The Tredega Claim) (1986) 59 LGRA 318 Williams v The Attorney-General for New South Wales; ex rel Cocks and Ors (1913) 16 CLR 404 |
Orders | 1. The application for review is dismissed.,2. The decision of the respondent to disallow the applicants' objection to the land tax assessment issued 16 September 2004 in relation to properties including Lot 21 on plan 15754 at Lot 21 Boeing Way, Jandakot, Lot 7 on diagram 64197 at 43 Prinsep Road, Jandakot, and Lot 8 on diagram 65283 at 8 Mason Road, Jandakot, is affirmed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TAXATION ADMINISTRATION ACT 2003 (WA) CITATION : RAPP and COMMISSIONER OF STATE REVENUE [2006] WASAT 135 MEMBER : MR D R PARRY (SENIOR MEMBER) HEARD : 4 APRIL 2006 DELIVERED : 26 MAY 2006 FILE NO/S : DR 640 of 2005 BETWEEN : MYNA FRANCES AND ROY VERNON RAPP
- Applicants
AND
COMMISSIONER OF STATE REVENUE
Respondent
Catchwords:
Taxation Land tax Whether land exempt Whether land is dedicated to public purposes Whether land is used for public purposes Land within Priority 2 Underground Water Pollution Control Area proclaimed under Metropolitan Water Supply, Sewerage, and Drainage Act 1909 (WA) Land zoned "Resource" under local scheme Purpose of Underground Water Pollution Control Area and zoning to protect Perth's drinking water supply Dwelling and hobby farm permitted land uses Limited range of other uses discretionary land uses after referral to Waters and Rivers Commission Whether protection of underground water is a public purpose Words and phrases: "dedicated to", "public purpose", "used for"
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Legislation:
City of Cockburn Town Planning Scheme No 3, cl 4.3.1, cl 5.10.11(d), cl 8.2.1(i)
Interpretation Act 1984 (WA), s 17, s 32(1)
Land Tax Assessment Act 2002 (WA), s 7(1), 17, s 33, s 34, s 36, s 37, s 37(b), s 38(2)(b), s 39A(2)(c), s 41, Pt 3 Div 4
Local Government Act 1960 (WA), s 532(2)
Local Government Act 1995 (WA), s 6.26(2)(a)(i)
Metropolitan Region Scheme
Metropolitan Water Supply, Sewerage, and Drainage Act 1909 (WA), s 57A(1)
Metropolitan Water Supply, Sewerage, and Drainage By-laws 1981 (WA), bl 5.1 bl 5.6
State Administrative Tribunal Act 2004 (WA), s 3(1)
Statement of Planning Policy No 2.3 – Jandakot Groundwater Protection Policy, cl 9, cl 11
Statement of Planning Policy No 2.7 – Public Drinking Water Source Policy
Taxation Administration Act 2003 (WA), s 37(2), s 40(1), s 43(1)(b)
Result:
Application for review dismissed
Decision of respondent affirmed
Category: B
Representation:
Counsel:
Applicants : Mr JCW Skinner
Respondent : Ms RC Panetta
Solicitors:
Applicants : Jackson MacDonald
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Byrne Bros Pty Ltd v City of Maryborough (1984) 53 LGRA 383
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Council of the City of Newcastle v Royal Newcastle Hospital (1959) 100 CLR 1
Port Kennedy Resorts Pty Ltd v City of Rockingham (2000) 112 LGERA 296
Randwick Municipal Council v Rutledge & Ors (1959) 102 CLR 54
State Government Insurance Office v City of Perth (1987) 71 LGRA 123
Swan Yacht Club Inc v Town of East Fremantle (2005) 30 WAR 193
Case(s) also cited:
Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566
New South Wales Aboriginal Land Council v Minister for Natural Resources (The Tredega Claim) (1986) 59 LGRA 318
Williams v The Attorney-General for New South Wales; ex rel Cocks and Ors (1913) 16 CLR 404
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Summary of the Tribunal's decision
1 Two taxpayers sought review of the disallowance of their objection to a land tax assessment. They argued that the land was exempt as it is dedicated to and used for a public purpose, namely protection of underground water for human consumption. They contended that the land is dedicated to that purpose by virtue of a number of statutory provisions which significantly restricted their private rights in favour of public interests. They argued that the land is used for that purpose by the retention of natural vegetation on it.
2 The Tribunal determined that the land is not dedicated to the purpose of protection of underground water. Dedication could not be effected by statutory instruments which restricted, in part or wholly, the taxpayers' ability to develop and use their land. Furthermore, the land was capable of development and use for a limited range of purposes.
3 The Tribunal determined that the land is not used for the purpose of protection of underground water by the retention of natural vegetation.
4 Finally, the Tribunal determined that protection of underground water for human consumption is a public purpose.
5 The application for review was dismissed and the original decision was affirmed.
Introduction
6 These proceedings involve an application brought by Mr and Mrs Rapp pursuant to s 40(1) of the Taxation Administration Act 2003 (WA) (TA Act) for review of the Commissioner of State Revenue's (Commissioner) decision to disallow their objection to an assessment of land tax for the 2004/2005 financial year. The assessment to which Mr and Mrs Rapp object is in respect of three properties which they own, namely Lot 7 on diagram 64197 which is known as 43 Prinsep Road, Jandakot (Lot 7), Lot 8 on diagram 65283 which is known as 8 Mason Road, Jandakot (Lot 8), and Lot 21 on plan 15754 which is known as Lot 21 Boeing Way, Jandakot (Lot 21). The three properties are collectively referred to in these reasons as "the land".
7 Lot 7 has an area of approximately 8 hectares and, as at 30 June 2004, contained two dwelling houses which Mr and Mrs Rapp
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- rented out, bush tracks providing access to the dwelling houses, and natural vegetation. Lot 8 has an area of approximately 8 hectares and, as at 30 June 2004, contained only bush tracks and natural vegetation. Lot 21 has an area of approximately 2.1 hectares and, as at 30 June 2004, was undeveloped. An aerial photograph shows that Lot 21 contained natural vegetation over more than half of its area. The remainder of Lot 21 appears to have been cleared, although Mr and Mrs Rapp maintain that, if this is the case, the clearing occurred before they purchased the property.
8 Other allotments in the vicinity of Lot 21 appear to be similarly sized. The aerial photograph shows that a number of these properties, including the adjoining property to the north, have been developed with large dwelling houses, pools and outbuildings in a retained bush setting. These properties present in the aerial photograph as rural residential allotments.
9 As at 30 June 2004, the land was located within the Jandakot Underground Water Pollution Control Area (Jandakot PCA) proclaimed under s 57A(1) of the Metropolitan Water Supply, Sewerage and Drainage Act 1909 (WA) (MWSS&D Act). More specifically, as at 30 June 2004, the land was part of an area designated as "Priority 2 Jandakot Groundwater Protection Area". It is common ground that the purpose of the proclamation of Jandakot PCA is to protect Perth's drinking water supply drawn from the Water Corporation's production bores. As at 30 June 2004, the land was zoned "Rural Water Protection" under the Metropolitan Region Scheme (MRS) and "Resource" under the City of Cockburn Town Planning Scheme No 3 (TPS 3). As at 30 June 2004, the land was also subject to Statement of Planning Policy No 2.3 Jandakot Groundwater Protection Policy (SPP 2.3) and Statement of Planning Policy No 2.7 Public Drinking Water Source Policy (SPP 2.7). Because of the proclamation of Jandakot PCA, the land was also subject to Bylaws 5.1 5.6 of the Metropolitan Water Supply, Sewerage and Drainage Bylaws 1981 (WA) (MWSS&D Bylaws). The effect of these various provisions was that, as at 30 June 2004, the ability of Mr and Mrs Rapp to develop and use the land was significantly restricted.
10 Mr and Mrs Rapp contend that the effect of the provisions referred to in the previous paragraph is that the land was exempt from land tax for the 20042005 assessment year by virtue of s 36 of the Land Tax Assessment Act 2002 (WA) (LTA Act). Section 36 is in the following terms:
(Page 6)
- "Land is exempt for an assessment year if
(a) at midnight on 30 June in the previous financial year, it is dedicated to, or vested in trustees for, the purposes of a zoological garden, an agricultural, pastoral or horticultural show, a historical society, a public museum or other public purposes; and
(b) it is used for those purposes."
11 The "public purpose" to which Mr and Mrs Rapp contend the land is dedicated, and for which they contend it is used, as at midnight on 30 June 2004, is protection of underground water.
12 In order for Mr and Mrs Rapp to succeed in this review, they must satisfy the Tribunal (TA Act s 37(2)) of each of the following three matters:
1. As at midnight on 30 June 2004, the land "is dedicated to" protection of underground water;
2. As at midnight on 30 June 2004, the land "is used for" protection of underground water; and
3. The Protection of underground water is a "public purpose" within the meaning of s 36 of the LTA Act.
13 The Tribunal will address each of these matters in turn.
14 Pursuant to s 43(1)(b) of the TA Act, the Tribunal is constituted by a senior member, as defined in s 3(1) of the State Administrative Tribunal Act 2004 (WA), who is a legal practitioner, as defined in that subsection.
Is the land "dedicated to" protection of underground water?
15 Mr JCW Skinner, counsel for Mr and Mrs Rapp, submits that, in consequence of the provisions referred to at [9] above, at midnight on 30 June 2004, the land "is dedicated to" the public purpose of protection of underground water. He submits that these provisions identify a limited area of land, which has the special characteristic of being within the Jandakot public groundwater supply mound, and impose special requirements and restrictions on the land which do not apply to land which does not have this special characteristic. Mr Skinner submits that "[v]arious rights that would otherwise be enjoyed or able to be exercised by [Mr and Mrs Rapp] as the owners of the land are precluded or
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- restricted, thereby subtracting from their ownership of the land, in favour of public rights attaching to the protection of the underground public water supply". The consequence is that the land is set apart for, or required to be used for, the purpose of protecting the underground public water supply and, therefore, "dedicated to" that purpose.
16 Ms RC Panetta, counsel for the Commissioner, submits that the words "dedicated to" connote "exclusivity". In order for land to be "dedicated to" protection of underground water, the land must be set apart exclusively for that purpose. Although the provisions relied on by Mr and Mrs Rapp significantly restrict the purposes for which the land can be developed and used, they do not preclude the land from being used for some purposes other than protection of underground water.
17 The words "dedicated to" are not defined in any relevant legislation. It is common ground that the words are to be given their ordinary meaning. The verb "dedicate" is relevantly defined in The Macquarie Dictionary (Macquarie, 4th Edition, 2005) as "to give up wholly or earnestly, as to some person or end; set apart or appropriate" (page 377) and in The Australian Oxford Dictionary (Oxford University Press, 2nd Edition, 2004) as "(foll. by to) devote (especially oneself) to a special task or purpose" (page 328). "Devote" means to "apply or give over (resources etc. or oneself) to (a particular activity or purpose or person)" (The Australian Oxford Dictionary, page 346). Similarly, GN Williams J determined in Byrne Bros Pty Ltd v City of Maryborough (1984) 53 LGRA 383 at 390 that "[t]he word "dedicate" … ordinarily … implies that something has been "set apart" (cf. Shorter Oxford English Dictionary)".
18 The Tribunal considers that, as at 30 June 2004, the land is not "dedicated to" the protection of underground water for each of two reasons.
19 First, "dedication" involves an action or at least an intention on the part of the owner of the land. It cannot be effected by statutory instruments which restrict, in part or wholly, the ability of the owner to develop and use the land. "Dedication" involves the "giving up wholly or earnestly" or the "giving over" of land to a particular purpose or end. Mr and Mrs Rapp's argument is, in substance, that rights which they would otherwise have enjoyed in relation to the land have been statutorily taken away. "Dedication" involves the "giving up", not the "taking away", of land.
(Page 8)
20 Second, as Ms Panetta submits, while development and use of the land is significantly restricted by the provisions referred to at [9] above, it is not the case that the land cannot be put to any use other than protection of underground water. It cannot, therefore, be said that, as at 30 June 2004, the land is "given up wholly or earnestly", "set apart" or "devoted"/"given over" to that purpose.
21 Clause 4.3.1 of TPS 3 states that "[t]he Zoning Table indicates, subject to the provisions of the Scheme, the uses permitted in the Scheme Area in the various zones". The Zoning Table indicates that, in the "Resource" zone, "[d]evelopment and use of land is to be in accordance with … Statement of Planning Policy No. 6 Jandakot Groundwater Protection Policy gazetted on 12 June 1998", which is now SPP 2.3. Clause 11 of SPP 2.3 states that "[t]he objective in relation to land uses over public groundwater is to control and manage future land uses to achieve acceptable levels of risk for contamination". The clause also provides that "[t]he land uses and equivalent annotations listed in Table 1 should be reflected in local government town planning scheme zonings which correspond to the MRS 'Rural Water Protection' zone". Table 1, which is headed "Land Use Suitability for the Rural Water Protection Zone", lists the land uses "dwelling", "fodder and pasture" and "hobby farm" as uses that are permitted. Table 2, which is headed "Requirements of the Water and Rivers Commission for Priority 2 Water Source Protection Areas", states that an application for approval of these land uses is not required to be referred to the Water and Rivers Commission for advice, although a licence for groundwater abstraction is required from the Commission. Table 1 also states that the local government may, at its discretion, but after having due regard for the advice from the Water and Rivers Commission, permit "home-business" and "home occupation" land uses. In addition, the effect of cl 5.10.11(d) of TPS 3 and Tables 1 and 2 of SPP 2.3 is that the local government may, at its discretion, but after having due regard for the advice from the Water and Rivers Commission, permit "equestrian activity" land use on Lots 7 and 8, which have areas in excess of 4 hectares, although nutrient loadings in groundwater recharge must comply with water quality objectives.
22 Although the MWSS&D By-laws embody an additional layer of development controls "so as to prevent or inhibit contamination" of underground water in the Jandakot PCA (By-law 5.1.1), the By-laws do not preclude the use of the land, with consent of the local government, for any of the land uses referred to in the previous paragraph. Furthermore, although SPP 2.7 identifies as its objective "to ensure that land use and
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- development within [Public Drinking Water Source Areas] is compatible with the protection and long-term management of water resources for public water supply" and states that Priority 2 source protection areas "are managed in accordance with the principle of risk minimisation and so conditional development is allowed", it does not preclude the carrying out of the land uses referred to earlier, with the consent of the local government.
23 Therefore, as at midnight on 30 June 2004, the land was capable of development and use for a limited range of purposes, three of which were "permitted" land uses. Indeed, cl 8.2.1(i) of TPS 3 provides that the erection on a single lot of a single house, including extensions and ancillary outbuildings, with an area of less than 100 square metres and a wall height not exceeding 3.0 metres, within a building envelope applying to the lot in the "Resource Zone", does not require the planning approval of the local government. A dwelling house which exceeds 100 square metres, although a "permitted" category of land use, requires development approval of the local government. As noted earlier in these reasons, as at 30 June 2004, two dwelling houses existed on Lot 7, and several dwelling houses on bush blocks existed in the vicinity of Lot 21.
24 It follows that Mr and Mrs Rapp have not satisfied the Tribunal in relation to the first matter. In consequence, the application for review must be dismissed and the decision of the Commissioner affirmed.
Is the land "used for" protection of underground water?
25 It is strictly unnecessary to decide the second and third matters. However, as these issues were debated at length and are of wide significance, the Tribunal will address them.
26 Mr Skinner submits that the land "is used for" protection of underground water by being retained in a virgin state. He stresses that cl 9 of SPP 2.3 states that "the retention of native vegetation … is beneficial in protecting and maintaining the quality of the groundwater resource" and, indeed, is "fundamental to the objectives of the Policy", which include "to maintain or increase natural vegetation cover over the Policy Area". Mr Skinner relies on the decision of the Privy Council in Council of the City of Newcastle v Royal Newcastle Hospital (1959) 100 CLR 1, in which Lord Denning held, at 4, that "[a]n owner can use land by keeping it in its virgin state for his own special purposes".
27 Ms Panetta submits that, as at midnight on 30 June 2004, the land was not being "used" by keeping the natural vegetation, but "rather it is a
(Page 10)
- case of nonuse". Ms Panetta submits that "use" in s 36 requires a "conscious undertaking" by the landowner. She draws particular attention to the scheme of the legislation, under which liability for land tax rests with the landowner: LTA Act s 7(1). She submits that, in this context, each of the categories of exemption set out in Pt 3 of the Act involves a conscious undertaking by the landowner. In particular, s 36 requires that the "use" must be by the landowner.
28 The Tribunal considers that, although land may be "used" for a purpose by being retained in a virgin state, if that retention is itself conducive to achieving the purpose in question, s 36 requires that land be "used for" the purpose by the owner or occupier of the land. Land can only be said to be used for a particular purpose if there is a conscious intention by the owner or occupant to use the land for the purpose. As Franklyn J observed in State Government Insurance Office v City of Perth (1987) 71 LGRA 123 at 135, in relation to s 532(2) of the Local Government Act 1960 (WA), which provided that land was not rateable property if it was the property of the Crown and "is being used for a public purpose", "the word 'purpose' used in the section refers to the object with which the occupant of the land used such land in pursuing its activities" (emphasis added).
29 In this case, neither the owner nor the occupant of any part of the land used it for the purpose of protection of underground water. Rather, Lot 7, which was tenanted, was used by the occupants for residential purposes in a bush setting, or rural residential use, and Mr and Mrs Rapp did not use Lot 8 or Lot 21 for any purpose. The retention of natural vegetation surrounding the dwelling houses on Lot 7, and on Lots 8 and 21, did not involve a use of that land by the owner or occupier, but rather, as Ms Panetta submits, is a case of a "nonuse".
30 Finally, in relation to this matter, the parties debated the question of the extent to which land must be used for a public purpose in order to satisfy s 36. Mr Skinner submits that the fact that other provisions of the LTA Act which confer exemptions from land tax liability require that the use be "solely" (see s 34, s 37(b), s 38(2)(b) and s 39A(2)(c)) or "solely or principally" (see s 41) for a nominated purpose, whereas s 36 simply requires that the land be used for the purpose, indicates that the extent of use required by s 36 is less than "solely" or "principally". He submits that, at its highest, s 36 requires that the use for the relevant purpose be the "predominant" use, or, alternatively, it might be sufficient that it is "not incidental" use. The alternative submission that the minimum
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- threshold of relevant use is "not incidental" is based on an alternative submission made by the Commissioner "that the public purpose use not be merely incidental or inconsistent with the main use of the land".
31 The Tribunal considers that the extent of use required for a relevant purpose by s 36 is that the use must be the predominant, main or primary use of the land: State Government Insurance Office v City of Perth at 134; Randwick Municipal Council v Rutledge & Ors (1959) 102 CLR 54 at 94. The alternative submission of the parties that the use must be "not incidental" appears to be based on a misunderstanding of a passage in the judgment of Windeyer J in Randwick Municipal Council v Rutledge at 94. His Honour said:
"Even without such words [namely "exclusively", "solely" or "only"], an exemption from rating based upon use or occupation for a particular purpose or in a particular manner can only apply when the property is so used that it can properly be described as used for that purpose or in that manner, any other user being merely incidental, or at least not inconsistent with such main user."
32 His Honour did not consider that a use which is not merely incidental or inconsistent with the main use of the land would be sufficient. Rather, his Honour considered that the converse is the case; the use for the relevant purpose must be the main user, with "any other user being merely incidental, or at least not inconsistent with" the use.
33 It follows that, had Mr and Mrs Rapp satisfied the Tribunal that the land was dedicated to protection of underground water, the application for review would have failed in relation to the second matter.
Is protection of underground water a "public purpose"?
34 Mr Skinner submits that the use of land for the purpose of protection of underground water satisfies the definition of "public purpose" stated by Franklyn J in State Government Insurance Office v City of Perth at 135 as follows:
"For a purpose to be a 'public purpose' … it must be a purpose that 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,
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- although profitability might well flow from charges or fees imposed or moneys collected or earned in respect of such provision. Such a definition accords with activities which are traditionally the province of government and with the meaning of the word 'public'."
35 This definition was adopted by the Full Court of the Supreme Court of Western Australia in Port Kennedy Resorts Pty Ltd v City of Rockingham (2000) 112 LGERA 296 at [34] in relation to s 6.26(2)(a)(i) of the Local Government Act 1995 (WA), which exempts land which is the property of the Crown and "is being used or held for a public purpose" from constituting rateable land. The definition was recently endorsed, in relation to the same provision, by the Western Australian Court of Appeal in Swan Yacht Club Inc v Town of East Fremantle (2005) 30 WAR 193 at [25].
36 Ms Panetta submits that protection of underground water is not a "public purpose" contemplated by s 36 for each of two reasons.
37 First, she relies on the principle of statutory interpretation that general matters are constrained by reference to specific matters: see Statutory Interpretation in Australia by DC Pearce and RS Geddes (Butterworths, 5th Edition, 2001) at [4.19] [4.20]. She submits that the "genus" established by the specific types of public purposes referred to in s 36 is "public purposes where the public are able to access the land and be present on the land". Protection of underground water is not such a "public purpose".
38 Second, Ms Panetta submits that the scheme of the LTA Act indicates that the words "other public purposes" are not intended to expand the effect of the provision beyond the type of public purposes which are specifically enumerated. Ms Panetta notes that the heading of Div 4 of Pt 3 which forms part of the statute: Interpretation Act 1984 (WA) (Interpretation Act) s 32(1) is "Crown land and other land used for public purposes", and submits that the nine sections which fall within Pt 3 Div 4 each concern Crown land or land used for specifically identified public purposes. For example, s 33 concerns land owned by certain educational institutions, s 34 concerns land used for public or religious hospitals and s 37 concerns land owned by public charitable or benevolent institutions and used for public charitable or benevolent purposes.
(Page 13)
39 In reply, Mr Skinner submits that s 17 of the Interpretation Actoverrides the principle of statutory interpretation relied on by Ms Panetta. Section 17 provides that, in a written law passed or made after the commencement of the Interpretation Act, the words "'or', 'other', and 'otherwise' shall be construed disjunctively and not as implying similarity unless the word 'similar' or some other word of like meaning is added". The LTA Act was passed after the commencement of the Interpretation Act.
40 Mr Skinner also submits that, although it is arguable that a public purpose specifically referred to in another section in Pt 3 Div 4 of the LTA Act would be impliedly excluded from the ambit of the words "other public purposes" in s 36, the purpose of protection of underground water is not such a purpose.
41 The definition of public purpose stated by Franklyn J in State Government Insurance Office v City of Perth, and recently endorsed at the highest level in this State for rating purposes, also applies for the purposes of s 36 of the LTA Act. Section 17 of the Interpretation Act has the effect that the words "other public purposes" in s 36 of the LTA Act are not restricted by the specific types of public purposes enumerated earlier in the section. Furthermore, although the words "other public purposes" arguably exclude the public purposes expressly referred to in sections of Pt 3 Div 4, other purposes which satisfy those words are contemplated by the section. The Tribunal is unable to discern a legislative intention to exclude public purposes which are not expressly referred to in Div 4 from the ambit of s 36.
42 The Tribunal considers that the protection of underground water used for Perth's drinking water is a purpose which relates or pertains to the people of the Perth region as a whole, and so relates or pertains in the sense of the provision of a utility to the public which would not be otherwise provided, and which is not provided with the primary purpose of producing profit. The protection and provision of drinking water is an essential public purpose.
Conclusion
43 The Tribunal has determined that, at midnight on 30 June 2004, the land the subject of the land tax assessment is not "dedicated to" the purpose of protection of underground water. Dedication cannot be effected by statutory instruments which restrict, in part or wholly, the ability of the owner to develop and use land. At its highest, such instruments would involve the "taking", not the "giving up", of land
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- for the purpose. Furthermore, the land is not dedicated to the purpose, because it is capable of use and development for a limited range of purposes, including residential purposes in the manner that Lot 7 and lots in the vicinity of Lot 21 are developed and used.
44 The Tribunal has also determined that, at midnight on 30 June 2004, the land is not "used for" the purpose of protection of underground water. Use of land for a purpose under s 36 of the LTA Act necessarily involves "use" by the owner or occupier of the land for the purpose. Although land can be used for a purpose by being retained in a natural state, the land was not relevantly used by the owners or occupiers for that purpose. Lot 7 was used for rural residential purposes, whereas Lots 8 and 1 were not relevantly used for any purpose.
45 Finally, the Tribunal has determined that the protection of underground water for public water supply is an essential public purpose.
46 In consequence of the Tribunal's determination in relation to the first and second matters, the application for review must be dismissed, and the decision of the Commissioner to disallow Mr and Mrs Rapp's objection to the assessment of land tax in relation to the land for the 2004/2005 financial year is affirmed.
Orders
47 The Tribunal makes the following orders:
1. The application for review is dismissed.
2. The decision of the respondent to disallow the applicants' objection to the land tax assessment issued 16 September 2004 in relation to properties including Lot 21 on plan 15754 at Lot 21 Boeing Way, Jandakot, Lot 7 on diagram 64197 at 43 Prinsep Road, Jandakot, and Lot 8 on diagram 65283 at 8 Mason Road, Jandakot, is affirmed.
- I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER
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