Retirees WA (Inc) and City Of Belmont - [2012] WASAT 190

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: LOCAL GOVERNMENT ACT 1995 (WA)

CITATION: RETIREES WA (INC) and CITY OF BELMONT [2012] WASAT 190

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD: 22 JUNE 2012

DELIVERED : 12 SEPTEMBER 2012

FILE NO/S: DR 23 of 2012

BETWEEN: RETIREES WA (INC)
Applicant
AND
CITY OF BELMONT
Respondent

Catchwords:

Local government Rates Incorporated association which controls, manages and administers notforprofit retirement village under joint venture agreement with Housing Authority on land owned by Housing Authority made objection to rate record on basis that land is used exclusively for charitable purposes, namely, relief of the aged Objection disallowed Whether incorporated association has standing to seek review of decision even if it did not have authority to lodge objection Whether incorporated association has implied agency under joint venture agreement to make an objection to rate record Whether land used exclusively for charitable purposes Whether purpose for which land is used is for public benefit Accommodation of persons aged 55 years or older, and not working or working 20 hours or less or working more than 20 hours for no more than four months in a calendar year

Legislation:

Code of Fair Practice for Retirement Villages 1993 (WA)
Local Government Act 1995 (WA), s 6.26, s 6.44, s 6.76, s 6.77
Retirement Villages Act 1992 (WA)
Retirement Villages Regulations 1992 (WA)
State Administrative Tribunal Act 2004 (WA), s 5, s 27(2), s 29(1), s 29(3), s 73

Result:

Application for review allowed
Objection to rate record upheld

Category: B

Representation:

Counsel:

Applicant: Mr JCW Skinner
Respondent: Mr KM Pettit SC with Ms E Stevenson

Solicitors:

Applicant: Jackson McDonald
Respondent: McLeods Barristers & Solicitors

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

Retirees WA (Inc) and City of Belmont [2010] WASAT 56; (2010) 70 SR (WA) 330
South Sydney District Rugby League Football Club Ltd v News Ltd & Ors [2000] FCA 1541; (2000) 177 ALR 611
Uniting Church Homes (Inc) and City of Stirling [2005] WASAT 191

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Retirees WA (Inc) sought review by the Tribunal of the decision of the City of Belmont to disallow its objection to the rate record for the 2011/2012 financial year in respect of land owned by the Housing Authority and comprising a retirement village controlled, managed and administered by Retirees WA (Inc) under a joint venture agreement with the Housing Authority. Retirees WA (Inc) contended that the land was not rateable land, under s 6.26 of the Local Government Act 1995 (WA), because it was used exclusively for charitable purposes, namely, the relief of the aged, during the 2011/2012 financial year.
In a previous decision, the Tribunal had determined that the land was not used exclusively for charitable purposes during the 2006/2007 and 2007/2008 financial years, because accommodation at the retirement village was provided only to members of Retirees WA (Inc), and members of Retirees WA (Inc) are not a sufficient segment of the community to amount to the public for the use of the land to be for a public benefit and hence, relevantly, charitable.
Retirees WA (Inc) subsequently amended its Constitution and the terms of residents' contracts to enable any 'Eligible Person', that is, any person aged 55 years or older, and not working or working no more than 20 hours per week or working more than 20 hours per week for no more than four months in any calendar year, to lease units in retirement villages owned and/or managed by it and to enable tenants who cease to be members of Retirees WA (Inc) to remain in occupation of their unit.
An objection to a rate record can only be made to a local government under s 6.76 of the Local Government Act 1995 by 'the person named in the rate record as the owner of the land or by the agent or attorney of that person'. The Tribunal determined that the joint venture agreement impliedly constituted Retirees WA (Inc) as the Housing Authority's agent to make an objection to the rate record. This is because that function falls squarely within Retirees WA (Inc)'s role of management and administration of the retirement village on behalf of the joint venture and control and management of the retirement village for the benefit of the tenants and the joint venture, and because Retirees WA (Inc) (and thus, indirectly, the residents), rather than the Housing Authority, is required to pay rates under the joint venture agreement. The Tribunal therefore determined that Retirees WA (Inc) has standing to seek review of the decision to disallow its objection to the rate record.
The Tribunal also determined that there was relevantly a material change in circumstances in the use of the land between the 2006/2007 and 2007/2008 financial years, and the 2011/2012 financial year. In particular, because accommodation of units was open to any Eligible Person, irrespective of whether he or she was a member of Retirees WA (Inc), and because a tenant could cease to be a member of Retirees WA (Inc) and still remain in occupation of their unit, in the 2011/2012 financial year, the beneficiaries of the use of the land were a sufficient section of the community to amount to the public. As the provision of accommodation at the retirement village during the 2011/2012 financial year had the requisite element of public benefit, the Tribunal determined that the land was used exclusively for charitable purposes and was therefore not rateable land under s 6.26 of the Local Government Act 1995 during that financial year.
The application for review was allowed and the objection made by Retirees WA (Inc) to the rate record in respect of the land for the 2011/2012 financial year was upheld.

Introduction

Under s 6.26(1) of the Local Government Act 1995 (WA) (LG Act), all land within a local government district is rateable land, except as provided elsewhere in s 6.26. Section 6.26(2)(g) of the LG Act provides that 'land used exclusively for charitable purposes' is not rateable land.
Retirees WA (Inc) (Retirees WA) controls, manages and administers a retirement village, on a notforprofit basis, on land owned by the Housing Authority at Nos 10 16 Francisco Street, Rivervale (land) (retirement village), pursuant to a joint venture agreement entered into in 1995 between the predecessor of the Housing Authority, the State Housing Commission, and Retirees WA, then known as the Australian Pensioners' League WA Division (Inc) (JVA). The retirement village is located within the local government district of the City of Belmont (City or Council).
Section 6.76(1) of the LG Act states, in part, that:
A person may, in accordance with this section, object to the rate record of a local government on the ground
(a)that there is an error in the rate record
…
(ii)on the basis that the land or part of the land is not rateable land;
…
Section 6.76(3) of the LG Act states that:
An objection under subsection (1) may be made by the person named in the rate record as the owner of land or by the agent or attorney of that person.
On 20 October 2011, Retirees WA made an objection to the rate record of the City in respect of the land for the 2011/2012 financial year on the ground that there is an error in the rate record, on the basis that the land is not rateable land, because it is used exclusively for charitable purposes, namely, the relief of the aged. On 22 November 2011, the Council disallowed the objection. On 15 December 2011, the City advised Retirees WA of the decision to disallow the objection and that 'if you wish to object to the [decision], you may [do so] by making an application to the State Administrative Tribunal (SAT) within 42 days of the date of this letter'. This latter advice was clearly a reference to the right of review conferred by s 6.77 of the LG Act, which is in the following terms:
Any person who is dissatisfied with the decision of a local government on an objection by that person under section 6.76 may, within 42 days (or such further period as the State Administrative Tribunal, for reasonable cause shown by the person, allows) after service of notice of the decision, apply to the State Administrative Tribunal for a review of the decision.
On 23 January 2012, Retirees WA commenced this proceeding for review of the Council's decision to disallow Retirees WA's objection to the rate record under s 6.77 of the LG Act.
The following two issues arise for determination in this review:
1)Does Retirees WA have standing to seek review of the Council's decision to disallow Retirees WA's objection to the rate record?
2)During the 2011/2012 financial year, was the land used exclusively for charitable purposes and, therefore, not rateable land, under s 6.26(2)(g) of the LG Act?

Previous Tribunal proceeding

In 2006 and 2007, Retirees WA made objections, under s 6.76(1)(a)(ii) of the LG Act, to the rate record of the City in respect of the land for the 2006/2007 and 2007/2008 financial years, on the basis that the land was not rateable land under s 6.26(2)(g) of the LG Act, because it was used exclusively for charitable purposes. The City disallowed the objections and Retirees WA sought review by the Tribunal under s 6.77 of the LG Act. The applications for review were heard by Deputy President Judge J Pritchard (as her Honour then was) on 22 July and 30 November 2009 and decided by her Honour on 22 April 2010 see Retirees WA (Inc) and City of Belmont [2010] WASAT 56; (2010) 70 SR (WA) 330 (Retirees WA No 1).
Retirees WA contended in the previous proceeding that the land was not rateable land under s 6.26(2)(g) of the LG Act, because it was being used exclusively for charitable purposes, namely, the relief of the aged. Retirees WA also contended that the land was not rateable land under s 6.26(2)(a) of the LG Act, which relevantly provides that 'land which is the property of the Crown and … is being used or held for a public purpose' is not rateable land. In the alternative, Retirees WA contended that, if the land was rateable land, and if, as the City argued, the residents of the retirement village were properly considered to be the 'owners' of the land for the purposes of the LG Act, then the rates notices had been wrongly addressed to the Department of Housing.
In Retirees WA No 1, the Tribunal determined, at [48], that the 'owner' of the land during the rating periods in question, for the purposes of the LG Act, was the Housing Authority and, at [64] [66], that land owned by the Housing Authority is 'the property of the Crown', within the meaning of s 6.26(2)(a) of the LG Act. However, for reasons set out at [67] [74], the Tribunal found that the land was not 'used … for a public purpose' during the relevant rating periods and that, therefore, it was not subject to the exemption in s 6.26(2)(a) of the LG Act. As, under s 6.44 of the LG Act, 'the owner for the time being of land on which a rate … has been imposed is liable to pay the rate … to the local government', and as the Housing Authority was held to be the 'owner' of the land for the purposes of the LG Act, the Tribunal determined that the rates notices had not been wrongly addressed.
In relation to the issue of whether the land was not rateable land, on the basis that it was being used exclusively for charitable purposes, under s 6.26(2)(g) of the LG Act, the Tribunal 'concluded that use should be determined by looking objectively at the actual use of the land during the rating period, taking into account the circumstances surrounding that use of the land': at [3]. The Tribunal summarised its decision in relation to this issue at [5] as follows:
The Tribunal considered whether the land was used exclusively for charitable purposes, so that it was not rateable land under s 6.26(2)(g). The Tribunal held that that question fell to be determined by identifying what were the needs of the aged and whether those needs were met through the use of the land. The Tribunal formed an overall judgment, taking into account factors including the facilities provided on the land, the benefits flowing to aged persons from residency in the accommodation provided, the constating instruments, namely the joint venture agreement and the constitution of Retirees WA, and the charitable and notforprofit status of Retirees WA. The Tribunal found that a number of these factors supported the conclusion that the land was used for a scheme for the relief of the needs of the aged. However, in order to fall within the category of land used for charitable purposes it was also necessary for Retirees WA to demonstrate that the use of the land was for a public benefit. The Tribunal was not persuaded that the purpose for which the land was used in the rating periods was for a public benefit. The Tribunal found that accommodation at the retirement village was provided only to the members of Retirees WA, and that membership of that association was dependent on the determination of members of the executive of the association in accordance with the constitution of the association. In view of this conclusion, the Tribunal held that the land could not be said to be exclusively used for charitable purposes so as to fall within the exception in s 6.26(2)(g) of the Act.

Subsequent changes

At a Special General Meeting of the members of Retirees WA held on 28 June 2010, various amendments were made to Retirees WA's Constitution in an effort to address the reasons why the Tribunal had determined in Retirees WA No 1 that the purpose for which the land was used in the rating periods in question in that case was not for a public benefit and that, consequently, the land was not used exclusively for charitable purposes during those financial years. In particular, the amendments to the Constitution altered the objects and powers of Retirees WA to enable it to provide accommodation, including by way of the grant of leases, in units in retirement villages owned and/or managed by Retirees WA, to all 'Eligible Persons'. The term 'Eligible Person' is defined in cl 2.1 of Retirees WA's Constitution to mean:

Any person who is:
(a)not less than 55 years old; and
(b)not working or working 20 hours or less per week in paid employment or is working more than 20 hours per week in paid employment for a continuous period of no more than four months in any calendar year.

The amendments to Retirees WA's Constitution made on 28 June 2010 also provided that 'Any eligible person qualifies to be a General Member of [Retirees WA]' (cl 3.1(a)). However, the Constitution does not compel an Eligible Person who is accommodated or wishes to be accommodated in a retirement village owned and/or managed by Retirees WA to become or to remain a member of Retirees WA.
On 28 June 2010, Retirees WA also wrote to all residents of retirement villages owned and/or managed by it in relation to changes to the terms of their resident's contract with Retirees WA in accordance with 'a new policy regarding eligibility for tenancy'. The letter stated, in part, as follows:
The effect of this new policy is that, from the date of this letter, you are no longer required to be a member of [Retirees WA] in order to be eligible to be a tenant of a unit of the retirement village. At present, pursuant to the terms of your resident's contract, only members of [Retirees WA] are entitled to be tenants of the retirement village.
Under the new policy, in order to be eligible to enter into a lease you (and future residents) must be:
(a)not less than 55 years old; and
(b)working 20 hours or less per week in paid employment or is [sic] working more than 20 hours per week in paid employment for a continuous period of no more than four months in any calendar year.
…
By waiving the requirement that residents must be members of [Retirees WA], aged persons who are non-members of [Retirees WA] and not working full-time will be entitled to enter into long-term leases of retirement village units owned and/or managed by [Retirees WA] and tenants will no longer be required to be a member of [Retirees WA].
…
Since 28 June 2010, the residents of only two of the 12 units at the retirement village have changed, with new residents commencing a tenancy of Unit 2 on 18 February 2011 and a new resident commencing a tenancy of Unit 10 on 30 August 2011 (this resident sadly passed away on 19 November 2011). Therefore, during the 2011/2012 financial year, 10 of the 12 units in the retirement village were occupied by the same tenants who had occupied those units prior to the amendment of Retirees WA's Constitution and residents' contracts on 28 June 2010. In order to be granted their leases, these residents had to be members of Retirees WA, and, prior to 28 June 2010, in order to continue to be accommodated in their units, these residents had to remain members of Retirees WA.

Does Retirees WA have standing to seek review of the City's disallowance of the objection?

As noted earlier, s 6.77 of the LG Act confers a right of review to the Tribunal upon '[a]ny person who is dissatisfied with the decision of a local government on an objection by that person under section 6.76'. As also noted earlier, s 6.76(3) of the LG Act provides that an objection under s 6.76 'may be made by the person named in the rate record as the owner of land or by the agent or attorney of that person'.
The Housing Authority is named in the rate record as the owner of the land. Although the City accepted and determined the objection made by Retirees WA, and although the City advised Retirees WA that it has a right of review of the Council's decision to the Tribunal, in this proceeding the City contended that Retirees WA does not have standing to seek review of the Council's decision to disallow the objection under s 6.77 of the LG Act, because Retirees WA did not have authority to make an objection that there is an error in the rate record under s 6.76 of the LG Act.
Mr JCW Skinner, counsel for Retirees WA, advanced two alternative submissions in support of the contention that Retirees WA has standing to seek review of the decision to disallow the objection, even though Retirees WA is not named in the rate record as the owner of the land.
First, Mr Skinner submitted that, the City having received an objection made by Retirees WA and having made a decision on that objection, 'the requirements of section 6.77 of the LG Act in order for [Retirees WA] to apply to the Tribunal are satisfied there has been a decision by the [City] on an objection by [Retirees WA] under s 6.76'. Mr Skinner submitted that 'the Tribunal's jurisdiction on review under section 6.77 of the LG Act is then to review the decision by the [City] on the objection'. Indeed, Mr Skinner submitted that the Tribunal does not have jurisdiction under s 6.77 of the LG Act to determine whether a lawful objection has been made to a local government under s 6.76 of the LG Act. He submitted that the determination of whether there is an objection under s 6.76 of the LG Act 'is an administrative decision by the City' and that 'it is not for SAT to review the administrative decision as to whether an objection was made for the purposes of section 6.76'.
In contrast, Mr KM Pettit SC, who appeared with Ms E Stevenson on behalf of the City, submitted that the Tribunal necessarily has jurisdiction to determine whether a matter is within jurisdiction and that, under s 6.77 of the LG Act, 'the jurisdictional fact is: was there a "decision of a local government on an objection by [the applicant] under section 6.76", not simply was there a decision of a local government'.
In my view, Mr Skinner's first submission is incorrect for three reasons.
First, as Mr Pettit emphasised, s 6.77 of the LG Act confers a right of review in respect of a 'decision of a local government on an objection by [the applicant] under section 6.76'. The Tribunal necessarily has jurisdiction to determine whether an application made to it falls within its jurisdiction. If a decision has been made by a local government that is not, in fact, 'on an objection by [the applicant] under section 6.76', because the objection was not made by the owner of the land named in the rate record or by the agent or attorney of that person, then the applicant does not have a right of review conferred by s 6.77 of the LG Act, and the Tribunal does not have jurisdiction to entertain the application.

Second, under s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the Tribunal's function in review proceedings is 'to produce the correct and preferable decision at the time of the decision upon the review'. 'Correct' means, or at least includes a requirement, that the decision must be legally correct. Moreover, under s 29(1) of the SAT Act, the Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, 'functions and discretions corresponding to those exercisable by the decisionmaker in making the reviewable decision'. The Tribunal cannot, therefore, make a decision that is legally incorrect or one that the original decisionmaker could not have lawfully made (unless an enabling Act would provide otherwise see s 5 of the SAT Act which is not relevantly the case). As the Council could not have lawfully entertained (and allowed or disallowed) an objection that was purportedly made under s 6.76 of the LG Act by a person who is not named in the rate record as the owner of the land or by the agent or attorney of that person, neither can the Tribunal on review.
Third, in a review case within jurisdiction, the Tribunal may:
…
(a)affirm the decision that is being reviewed; or
(b)vary the decision that is being reviewed; or
(c)set aside the decision that is being reviewed and
(i)substitute its own decision; or
(ii)send the matter back to the decisionmaker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,
and, in any case, may make any order the Tribunal considers appropriate. (s 29(3) of the SAT Act)
The 'decision that is being reviewed' in this proceeding is the decision of the Council to disallow the objection made by Retirees WA that there is an error in the rate record. The order sought by Retirees WA in this proceeding is for that decision to be set aside and for the Tribunal to substitute its own decision upholding Retirees WA's objection to the rate record. However, the Tribunal can only make the order sought by Retirees WA if the Tribunal may substitute its own decision on Retirees WA's objection, which necessarily requires that Retirees WA had made a lawful objection to the City under s 6.76 of the LG Act in the first place.
Alternatively, Mr Skinner submitted that Retirees WA was, at the time it made the objection to the rate record, the agent of the Housing Authority for the purpose of making an objection to the rate record and was, therefore, permitted to do so under s 6.76(3) of the LG Act. In particular, Mr Skinner submitted that the predecessor of the Housing Authority conferred, and Retirees WA accepted, an implied agency to make an objection to the rate record, in consequence of the following four provisions of the JVA:

a)clause 14.1, which provides that Retirees WA 'will manage and administer each Village on behalf of the Joint Venture and will attend to all matters relating to the proper management and administration of each Village';
b)clause 14.2, which provides that, for the purposes of the Retirement Villages Act 1992 (WA) (RV Act), the Retirement Villages Regulations 1992 (WA) (RV Regulations) and the Code of Fair Practice for Retirement Villages 1993 (WA) (RV Code), Retirees WA 'will be deemed to be the administering body (as that term is defined in the [RV] Act) for each Village';
c)clause 15.1(c), which obligates Retirees WA to 'control and manage the Village, including all Units in the Village and the common property, for the benefit of all Tenants of the Village and for the benefit of the Joint Venture'; and
d)clause 15.1(k), which obligates Retirees WA to 'pay all rates, taxes and levies in respect of the Village and the Units in the Village'.

Mr Pettit made essentially four submissions in opposition to Retirees WA's contention that the JVA confers an implied agency upon it to make an objection to the rate record on behalf of the Housing Authority under s 6.76 of the LG Act.
First, Mr Pettit relied on the terms of cl 24 of the JVA which concerns the relationship of the parties to the JVA. Clause 24.1 of the JVA provides that the relationship of the parties is 'one of joint venturers only' and 'limited to carrying out the Purpose', namely, 'the construction and management of one or more Villages as may be agreed by the Parties' (cl 1 of the JVA).
Clause 24.2 of the JVA states as follows:
Nothing in this Document constitutes a relationship between the Parties as partners, quasipartners or members of an association, or any other relationship in which a party may be liable generally for the debts, act [sic] or omissions of another party.
Clause 24.3 of the JVA states as follows:
Except as provided for in this Document, nothing in this Document constitutes a Party the general agent or representative of the other Party.
Mr Pettit also referred to cl 13.8 of the JVA, which permits Retirees WA 'on behalf of [the Housing Authority] [to] enter into a Resident's Contract with any [Retirees WA] member', and cl 16.19(b) of the JVA, which requires Retirees WA 'on behalf of [the Housing Authority] [to] assume responsibility for and [to] perform as far as possible all [the Housing Authority's] obligations under the [RV Act], the [RV Regulations] and the [RV Code]', as examples of express agencies conferred by the Housing Authority on Retirees WA under the JVA. However, the fact that cl 24.3 of the JVA states that 'nothing in this Document constitutes a Party the general agent or representative of the other Party' does not mean that the JVA cannot create a specific agency relationship between the parties. Furthermore, the fact that the JVA confers express agencies by the Housing Authority on Retirees WA does not mean that, properly interpreted, the JVA does not confer an implied agency.
Second, Mr Pettit submitted that the JVA does not confer an implied agency for Retirees WA to lodge an objection to the rate record on the basis that the land is not rateable land, because it is used exclusively for charitable purposes, because any implied agency to make an objection to the rate record under the JVA cannot extend to an objection which involves a breach of the JVA. Mr Pettit pointed out that cl 16.1 of the JVA provides that Retirees WA 'may not enter into a Resident's Contract except under clause 13.8 or clause 13.9', and that, under these clauses, Retirees WA may, on behalf of the Housing Authority, only enter into a Resident's Contract 'with any [Retirees WA] Member' or, if Retirees WA does not elect to take and use all of the Units in a Village, then, at the Housing Authority's direction, 'with any person entitling that person to occupy a Housing Authority Unit'. Mr Pettit argued that the basis of Retirees WA's objection to the rate record in this case, namely, that the land is used exclusively for charitable purposes during the 2011/2012 financial year, owing to the fact that during that year any Eligible Person (whether or not a member of Retirees WA) could be accommodated on the land, involves a breach of cl 16.1 of the JVA, and therefore that any implied agency under the JVA does not extend to the objection made by Retirees WA to the City.
However, as Mr Skinner submitted, if Retirees WA is in breach of the JVA by entering into leases with any Eligible Person (and not merely members of Retirees WA or other persons at the Housing Authority's direction), that is a matter for enforcement by the Housing Authority, not a matter that limits an implied agency to lodge an objection to the rate record if the land is, in fact, not rateable land, because it is used exclusively for charitable purposes. Even if the exclusive use of the land for charitable purposes involves a breach of the JVA, the use means that the land is not rateable land under the LG Act, and the owner is, therefore, not liable to pay rates under s 6.44 of the LG Act. Thus, if the land is not rateable land because it is used exclusively for charitable purposes, even if the use involves a breach of the JVA, the Housing Authority has a right of objection under s 6.76 of the LG Act to the rate record, on the ground that there is an error in the rate record, on the basis that the land is not rateable land. If there is an implied agency under the JVA conferred by the Housing Authority on Retirees WA to make an objection to the rate record on behalf of the Housing Authority, the implied agency extends to any circumstance in which the principal could, itself, make an objection to the rate record.
Third, Mr Pettit submitted that there is 'nothing about a duty to pay rates that could imply an agency to challenge the rate record' and referred to the 'vast array of circumstances' in which a tenant may be responsible for outgoings, and possibly rates, rather than the landlord. However, Retirees WA's contention that there is an implied agency conferred by the JVA for it to lodge an objection to the rate record on behalf of the Housing Authority under s 6.76 of the LG Act is not based merely on Retirees WA's obligation to pay all rates in respect of the retirement village under cl 15.1(k) of the JVA, but also on the appointment of Retirees WA to manage and administer the retirement village on behalf of the Joint Venture, to attend to all matters relating to the proper management and administration of the retirement village, and to control and manage the retirement village for the benefit of the village and for the benefit of the Joint Venture (cl 14.1 and cl 15.1(c) of the JVA). Although a tenant may also be liable to pay rates under a lease, the position of Retirees WA is fundamentally different under the JVA in relation to the control, management and administration of the retirement village on behalf of the joint venture, to the position of a tenant under a lease.
Finally, Mr Pettit referred to the 'extensive powers given to [Retirees WA] in clause 15.2' of the JVA in respect of the retirement village and observed that the list of express powers does not include the power to make an objection to the rate record of a local government. However, the absence of any express reference to a power to make an objection to the rate record of a local government under cl 15.2 of the JVA does not preclude an implied agency from being conferred by the JVA.
The principles in relation to whether a relationship of principal and agent exists between parties were summarised by Finn J in South Sydney District Rugby League Football Club Ltd v News Ltd & Ors [2000] FCA 1541; (2000) 177 ALR 611 at [131] [137]. As his Honour recognised at [136], agency involves a fiduciary relationship between two persons, one of whom expressly or impliedly consents that the other should act, subject to its control or direction, on its behalf, so as to effect its relations with third parties, and the other of whom similarly consents so to act or acts.
In my view, cl 14.1 of the JVA, which obligates Retirees WA to 'manage and administer [the retirement village] on behalf of the Joint Venture and [to] attend to all matters relating to the proper management and administration of [the retirement village]', cl 15.1(c) of the JVA, which obligates Retirees WA to 'control and manage the [retirement village] … for the benefit of all Tenants of the Village and for the benefit of the Joint Venture', and cl 15.1(k) of the JVA, which obligates Retirees WA to pay all rates in respect of the retirement village, together impliedly constitute Retirees WA as the Housing Authority's agent to make an objection to the rate record of a local government on the ground that there is an error in the rate record on the basis that the land, or part of the land, is not rateable land under s 6.76 of the LG Act. This is because, in my view, the making of an objection to the rate record under s 6.76 of the LG Act on behalf of the Housing Authority as the landowner falls squarely within Retirees WA's role of management and administration of the retirement village on behalf of the Joint Venture and control and management of the retirement village for the benefit of the tenants and the Joint Venture, and because Retirees WA (and thus, indirectly, the residents), rather than the Housing Authority, is required to pay rates under the JVA.
It follows that Retirees WA has standing to seek review of the decision of the Council to disallow the objection that Retirees WA made to the rate record in respect of the land for the 2011/2012 financial year.

Was the land used exclusively for charitable purposes and therefore not rateable land during the 2011/2012 financial year?

In Uniting Church Homes (Inc) and City of Stirling [2005] WASAT 191 (Uniting Church Homes), the Tribunal said the following in relation to the expression 'charitable purposes' in s 6.26(2)(g) of the LG Act, at [93] [97]:
If there is an island in the sea of uncertain principle in the area of taxation statutes and their application to charities, it is that an enquiry into whether 'the purposes of any given trust or institution are charitable' is to be decided by 'reference to the preamble of the Charitable Uses Act 1601  "the Statute of Elizabeth I" '. That this has been the case '[f]or the best part of four centuries', and continues to be the case, is a situation described as 'almost incredible to anyone not familiar with this branch of the … law': The Incorporated Council of Law Reporting for England and Wales v Attorney-General [1971] 3 All ER 1029 at 1037, per Sachs LJ, also citing at 1038, the Scottish Burial case [1968] AC 138 at 151, per Lord Upjohn.
The very first charitable purpose referred to in the Statute of Elizabeth I was 'for releife of aged impotent and poore people'. It is universally acknowledged that the 'modern' interpretation and application of the preamble to the Statute of Elizabeth I is to be found in the following guidance of Lord Macnaghten in Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531 at 583:
'"Charity" in its legal sense comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads. The trusts last referred to are not the less charitable in the eye of the law, because incidentally they benefit the rich as well as the poor, as indeed, every charity that deserves the name must do either directly or indirectly.'
There is no doubt that, in the present context, the expression 'charity' and its alternative or related word forms are words of art with a technical legal meaning, not a popular meaning, and are determined by the application of the principles set out above: see, for example, Salvation Army (Vic) Property Trust v Shire of Fern Tree Gully (1952) 85 CLR 159 at 173 175; West Australian Baptist Hospital & Homes Trust Inc v City of South Perth [1978] WAR 65 at 68 (FC). Thus, a housing scheme for the aged that charged 'an economic consideration for a charitable service' does not cease, thereby, to be considered as charitable: Joseph Rowntree Memorial Trust Housing Association Ltd v Attorney-General [1983] 1 All ER 288 at 299 (Peter Gibson J).
Insofar as charities for aged persons are concerned putting to one side, for the moment, what is precisely meant by 'the aged' a clear line of authority exists (mostly in analogous local government rating cases) that relieving the disabilities of old age by itself and 'of its very nature falls within the ambit of the preamble to the [Statute of Elizabeth I]': West Australian Baptist Hospital & Homes Trust Inc v City of South Perth [1978] WAR 65 at 72 (FC). See also: City of Hawthorn v Victorian Welfare Association [1970] VR 205 at 209 (FC); Trustees of Church Property of the Diocese of Newcastle v Lake Macquarie Shire Council [1975] 1 NSWLR 521 at 524 (Moffitt P), 533 534 (Hutley JA); and Hilder v Church of England Deaconess' Institution Sydney Ltd [1973] 1 NSWLR 506 at 512 (Street CJ).
In West Australian Baptist Hospital & Homes Trust Inc v City of South Perth (supra), at 72, the Full Court said:
'The disabilities of old age are too well known to require proof; as Hutley JA stated in Trustees of Church Property of the Diocese of Newcastle v Lake Macquarie Shire Council [supra, at 533]: "The burdens of the aged, including the well-to-do and wealthy aged are many: loneliness, inability to usefully employ their superannuated leisure, being but a few."'
In Retirees WA No 1, having found that the facilities, services and benefits for residents of the retirement village on the land provide relief for the disabilities of old age, the Tribunal said the following at [155] [160] in relation to the requirement recognised in case law that the purposes for which land is used must be for the 'public benefit' in order for the land to be used for charitable purposes:
In addition to the requirement that the purpose for which the Land is used be within the spirit and intendment of the Statute of Elizabeth I, it is also necessary that that purpose must be for the public benefit in order that the Land may be said to be used for charitable purposes: Royal National Agricultural and Industrial Association v Chester (1974) 3 ALR 486 at 487 488 (McTiernan, Menzies and Mason JJ).
In the case of gifts or charities for the relief of poverty, the longstanding historical approach has been that the requirement of a public benefit which is ordinarily required for a charitable purpose is not essential: Dingle v Turner [1972] AC 601. Although the relief of the poor appears in the same subcategory within the preamble to the Statute of Elizabeth I as relief of the aged and of the impotent, the disjunctive construction of those terms has meant that the exception from the rule regarding public benefit has been confined to relief of the poor: see G. Dal Pont, Charity Law in Australia and New Zealand, 2000, at 123 and the cases cited at footnote 106; see also the discussion in H. Picarda, The Law and Practice Relating to Charities, (2^nd ed, 1995) at 39. It has therefore been held that charitable gifts for the relief of the aged must satisfy the requirement of public benefit: City of Hawthorn at 207 (Smith J, Pape J and Gillard J agreeing).
The requirement that there be a 'public' benefit means that the benefit must be directed to the general community or to a sufficient section of the community to amount to the public: Lloyd v Federal Commissioner of Taxation (1955) 93 CLR 645 at 662 (McTiernan J), 667 (Fullagar J) and at 670 671 (Kitto J); Thompson v Federal Commissioner of Taxation (1959) 102 CLR 315 at 321 (Dixon CJ, Fullagar J and Kitto J agreeing), and at 327 (Menzies J). The general rule is that if the group of beneficiaries is distinguishable from other members of the community by a relationship with a particular individual or entity, whether as a result of family ties, or through contract, or by their employment or by membership of an association, that group will not be considered to constitute the public: Re Compton [1945] Ch 123 and Oppenheim v Tobacco Securities Trust Co Ltd [1951] AC 297; see also Thompson v Federal Commissioner of Taxation (1959) 102 CLR 315 (Thompson) at 321, 323 (Dixon CJ, Fullagar J and Kitto J agreeing), and at 328 329 (Menzies J).
In Thompson, Dixon CJ (with whom Fullagar J and Kitto J agreed) approved the observations of Lowe J in Re Income Tax Acts (No 1) [1930] VLR 211 (Re Income Tax) at 222 223, where his Honour observed:
Having regard to the composition of the public, certain large groups may readily be recognized, the members of which have a common calling or adhere to a particular faith or reside in a particular geographical area. There is no bar which admits some members of the public to those groups and rejects others. … A club, a literary society, a trade union may all have numerous members, but I think that none of these could properly be called a section of the public. They stand on the other side of the line. The distinguishing feature of each of these latter bodies is that it is an association which takes power to itself to admit or exclude members of the public according to some arbitrary test which it sets up in its rules or otherwise. Each of them does oppose a bar to admission within it. It is not one of the groups into which the community as a matter of necessary organization or by convention is divided, but it is in a sense an artificial entity which exists for the benefit of its members as members thereof and not as members of the public.
However, drawing a line between groups of beneficiaries which will be equated with the general public and those which will not is not always easily accomplished: see, for example, Strathalbyn Show Jumping Club Inc v Mayes [2001] SASC 73 (Strathalbyn) at [95] [96] (Bleby J) and see also the discussion in G. Dal Pont, Charity Law in Australia and New Zealand, 2000, at 20.
In Thompson[,] a majority of the High Court (Dixon CJ, Fullagar J and Kitto J agreeing) held that a gift to schools which was restricted to the children of certain members of a masonic order was not a gift for a public educational purpose, because persons could be admitted to the Masonic order only by the election of the existing members as provided by the rules adopted by that order. However McTiernan J and Menzies J dissented. Menzies J (at 332) rejected the view that because membership of the masons depended upon the consent of its existing members, that group could not be regarded as a section of the public. He concluded (at 333) that the children of freemasons did constitute a section of the public because of their number, and because he did not consider that it would accord with common understanding to regard masons as belonging to a private association.

As noted earlier, although the Tribunal found in Retirees WA No 1 that the land was used, during the 2006/2007 and 2007/2008 financial years, for a scheme for the relief of the aged, the Tribunal did not consider that the purpose for which the land was used in the relevant rating periods was for a public benefit, with the consequence that it was not relevantly used for the charitable purpose of the relief of the aged. The Tribunal observed, at [164], that 'only financial members of [Retirees WA] are eligible to enter into a resident's contract for a unit in the Retirement Village' and that, accordingly, 'the beneficiaries of the use of the Land are confined to people who are members of [Retirees WA]'. The Tribunal determined that it is 'therefore necessary to consider whether the members of [Retirees WA] constitute a section of the public as to permit the conclusion that use of the land is for a public benefit'.
In its reasoning as to whether members of Retirees WA constitute a section of the public so that it can be found that the use of the land is for a public benefit, the Tribunal emphasised, at [164] [166], that Retirees WA has the power under its Constitution to accept or reject potential members and to expel or suspend a member's membership. The Tribunal considered that these factors indicate that membership of Retirees WA is not a section of the public, but rather, is more analogous to a voluntary organisation which provides benefits for its members. The Tribunal relevantly concluded, at [172], as follows:
In all of the circumstances, the benefits which derive from the provision of accommodation at the Retirement Village do not have the requisite element of a public benefit which is necessary for that use of the Land to constitute a charitable purpose.
Although both of the parties accepted the applicability of the approach and reasoning of the Tribunal in Retirees WA No 1, they disagreed in relation to whether, looking objectively at the actual use of the land during the 2011/2012 financial year, taking into account the circumstances surrounding that use of the land, the land was used exclusively for charitable purposes.
Mr Skinner submitted that the surrounding circumstances governing the use of the retirement village changed materially between the 2006/2007 and 2007/2008 financial years, and the 2011/2012 financial year. In particular, he emphasised the changes to Retirees WA's Constitution and the amendment to all residents' contracts made in June 2010. Mr Skinner submitted that, during the 2011/2012 financial year, all Eligible Persons, that is, all persons aged 55 years or older, and not working or working less than 20 hours per week or working more than 20 hours per week for a continuous period of no more than four months in a calendar year, were eligible to lease units in the retirement village, and that a tenancy would not come to an end simply because a tenant ceased to be a member of Retirees WA. Mr Skinner submitted that Eligible Persons are a sufficient segment of the community to amount to the public so that the purpose for which the land was used during the relevant financial year is for the public benefit, with the consequence that the land was used for charitable purposes.
In contrast, Mr Pettit submitted that the changes to the Constitution and in the terms of the residents' contracts did not change the use of the land determined by looking objectively at the actual use of the land during the rating period. Mr Pettit emphasised that the residents of 10 of the 12 units in the retirement village were the same in 2011/2012 as they were prior to June 2010. The residents of 10 of the 12 units during the 2011/2012 financial year were, therefore, 'chosen from that narrow band of the public', namely, members of Retirees WA, which was determined in Retirees WA No 1 not to be a sufficient segment of the community to amount to the public for the purpose of determining that the land was used exclusively for charitable purposes. Mr Pettit also submitted that, although the terms of the residents' contracts changed on 28 June 2010, 'there is no suggestion in [the letter from Retirees WA to residents] that all residential contracts were to be thrown open for re-allocation under the new policy and constitution'.
In my view, looking objectively at the actual use of the land during the 2011/2012 financial year, taking into account the circumstances surrounding that use of the land, there was a relevantly material change in circumstances in the use of the land between the 2006/2007 and 2007/2008 financial years, and the 2011/2012 financial year. In particular, in my view, during the 2011/2012 financial year, the use of the land for the relief of the aged was directed to a sufficient section of the community to amount to the public. Whereas previously only members of Retirees WA could occupy units in the retirement village, during the 2011/2012 financial year, accommodation of units in the retirement village was open to any Eligible Person, irrespective of whether he or she was a member of Retirees WA. Furthermore, although it is correct that 10 of the 12 units in the retirement village were occupied in the 2011/2012 financial year by residents who, prior to 28 June 2010, were only permitted to enter into occupation and to remain in occupation because they were members of Retirees WA, during the 2011/2012 financial year, they only had to be Eligible Persons and could cease to be members of Retirees WA and still remain in occupation of their unit. Therefore, while, in the case of 10 of the 12 units, the identities of the occupants remained the same during the 2011/2012 financial year as prior to 28 June 2010, their status fundamentally changed from persons who were only permitted to occupy units because they were members of Retirees WA to persons who were permitted to occupy units because they were Eligible Persons and who did not have to be members of Retirees WA. In my opinion, given this fundamental change in status, it was unnecessary for all residential contracts 'to be thrown open for reallocation under the new policy and constitution'.
In my view, Eligible Persons, that is, persons aged 55 years or older, and not working or working 20 hours or less per week in paid employment or working more than 20 hours per week in paid employment for a continuous period of no more than four months in any calendar year, constitute a sufficient section of the community to amount to the public. Eligible Persons are a large group of people forming a section of the community by convention, namely, aged persons who are retired or semiretired. Consequently, the benefits which derive from the provision of accommodation at the retirement village during the 2011/2012 financial year have the requisite element of a public benefit which is necessary for that use of the land to constitute a charitable purpose.
Accordingly, I find that, during the 2011/2012 financial year, the land was used exclusively for charitable purposes and was therefore not rateable land under s 6.26(2)(g) of the LG Act.

Conclusion

Retirees WA has standing to seek review of the decision of the Council to disallow the objection made by Retirees WA to the rate record of the City in respect of the land, on the ground that there is an error in the rate record, on the basis that the land is not rateable land, because the Housing Authority, as principal, has conferred an implied agency on Retirees WA under the JVA to make such an objection to a relevant local government.
During the financial year 2011/2012, the land was used exclusively for charitable purposes, namely, for the relief of the aged, and was therefore not rateable land under s 6.26(2)(g) of the LG Act.
It follows that the decision by the City to disallow Retirees WA's objection to the rate record in respect of the land under s 6.76 of the LG Act, on the ground that there is an error in the rate record, on the basis that the land is not rateable land, should be set aside and a decision should be substituted that the objection is upheld. Pursuant to s 73 of the SAT Act, an ancillary order should be made requiring the City to correct the rate record and to repay any rates paid by Retirees WA for the land in respect of the 2011/2012 financial year.

Orders

The Tribunal makes the following orders:
1.The application for review is allowed.
2.The decision made by the respondent on 22 November 2011 to disallow the objection made by the applicant to the rate record of the respondent in relation to the property located at Nos 10 16 Francisco Street, Rivervale on the ground that there is an error in the rate record on the basis that the land is not rateable land during the 2011/2012 financial year, is set aside and a decision is substituted that the objection to the rate record is upheld.
3.The respondent is to correct the rate record in respect of the property at Nos 10 16 Francisco Street, Rivervale for the 2011/2012 financial year in accordance with the Tribunal's decision, and is to repay to the applicant any rates paid by the applicant for that land in respect of that financial year.

I certify that this and the preceding [58] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT