RETIREES WA (INC) and CITY OF BELMONT

[2010] WASAT 56

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT:   LOCAL GOVERNMENT ACT 1995 (WA)

CITATION:   RETIREES WA (INC) and CITY OF BELMONT [2010] WASAT 56

MEMBER:   JUDGE J PRITCHARD (DEPUTY PRESIDENT)

HEARD:   22 JULY 2009

30 NOVEMBER 2009

DELIVERED          :   22 APRIL 2010

FILE NO/S:   DR 266 of 2008

BETWEEN:   RETIREES WA (INC)

Applicant

AND

CITY OF BELMONT
Respondent

Catchwords:

Whether land is rateable - How use of land is to be determined - Definition of 'owner' - Charitable purposes - Expert evidence - Ultimate issue - Scheme to provide relief of the aged - Meaning of 'aged' - Land not being used for a public benefit - Property of the Crown - Land used for a public purpose

Legislation:

Charitable Collections Act 1946 (WA)
Charitable Uses Act 1601 (UK)
Housing Act 1980 (WA), s 6(4), s 7, s 7(1), s 11, s 11A, s 11B, s 12A(1)(b), s 12A(3), s 14, s 19(1), s 26, s 28, s 61
Interpretation Act 1984 (WA), s 5
Land Act 1933 (WA)
Local Government Act 1960 (WA), s 532(2)(a)
Local Government Act 1995 (WA), s 1.4, s 6.25, s 6.26, s 6.26(1), s 6.26(2), s 6.26(2)(a), s 6.26(2)(a)(i), s 6.26(2)(a)(ii), s 6.26(2)(g), s 6.26(2)(i), s 6.44, Div 6, Pt 6
Local Government Amendment Bill 2009 (WA), cl 37
Retirement Villages Act 1992 (WA), s 3(1)

Result:

Application for review dismissed
Decisions upheld

Category:    A

Representation:

Counsel:

Applicant:     Mr S Leslie

Respondent:     Ms E Stevenson

Solicitors:

Applicant:     Blake Dawson

Respondent:     McLeods Barristers & Solicitors

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

Allina Pty Limited v Commissioner of Taxation (1991) 28 FCR 203

Brodie v Singleton Shire Council (2001) 206 CLR 512

Central Bayside General Practice Association Limited v Commissioner of State Revenue of the State of Victoria (2006) 228 CLR 168

Chesterman v The Federal Commissioner of Taxation (1925) 37 CLR 317

City of Hawthorn v Victorian Welfare Association [1970] VR 205

Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531

D V Bryant Trust Board v Hamilton City Council [1997] 3 NZLR 342

Dingle v Turner [1972] AC 601

Downey v Trans Waste Pty Limited (1991) 172 CLR 167

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

Grain Elevators Board (Victoria) v Dunmunkle Corporation (1946) 73 CLR 70

Interlego AG v Croner Trading Pty Limited (1992) 39 FCR 348

Joseph Rowntree Memorial Trust Housing Association Ltd v Attorney General [1983] 1 All ER 288

Lloyd v Federal Commissioner of Taxation (1955) 93 CLR 645

Murphy v The Queen (1989) 167 CLR 94

Naxakis v Western General Hospital (1999) 197 CLR 269

Oppenheim v Tobacco Securities Trust Co Ltd [1951] AC 297

Port Kennedy Resorts Pty Ltd v The City of Rockingham [2000] WASCA 423; (2000) 112 LGERA 296

Re Compton [1945] Ch 123

Re Glyn's Will Trusts, Public Trustee v Attorney General [1950] 2 All ER 1150

Re Income Tax Acts (No 1) [1930] VLR 211

Re Mead's Trust Deed; Briginshaw and Ors v National Society of Operative Printers and Assistants and Anor [1961] 2 All ER 836

Re Payling's Will Trusts; Armstrong v Payling and Ors [1969] 3 All ER 698

Re Wall (1889) 42 Ch D 510

Royal National Agricultural and Industrial Association v Chester (1974) 3 ALR 486

Salvation Army (Victoria) Property Trust v Shire of Fern Tree Gully (1952) 85 CLR 159

Shire of Ashburton v Bindibindi Community Aboriginal Corporation [1999] WASC 108

Smith and City of Wanneroo [2008] WASAT 182

State Electricity Commission of Victoria v City of South Melbourne (1968) 118 CLR 504

State Government Insurance Office v City of Perth (1987) 71 LGRA 123

Strathalbyn Show Jumping Club Inc v Mayes [2001] SASC 73

Swan Yacht Club Inc v Town of East Fremantle [2005] WASCA 99; (2005) 30 WAR 193

Thompson v Federal Commissioner of Taxation (1959) 102 CLR 315

Trecap Pty Ltd and City of Swan [2006] WASAT 142

Trustees of Church Property of the Diocese of Newcastle v Lake Macquarie Shire Council [1975] 1 NSWLR 521

Uniting Church Homes (Inc) and City of Stirling [2005] WASAT 191

West Australian Baptist Hospital & Homes Trust Inc v City of South Perth [1978] WAR 65

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. Retirees WA, an incorporated, not-for-profit association, manages and administers a number of retirement villages in Western Australia, including a retirement village in Rivervale.  The retirement village in Rivervale was established and is managed pursuant to a joint venture agreement between Retirees WA and the Housing Authority (formerly the State Housing Commission).  The City of Belmont assessed the land on which the retirement village is built as liable to council rates under the Local Government Act 1995 (WA) and issued rates notices for the 2006/2007 and 2007/2008 rating periods.  These notices were issued to the Department of Housing.  The notices were forwarded to Retirees WA on instructions from the Department.  Retirees WA objected to the assessment on the basis that the land was not rateable land under s 6.26(2)(g) of the Act because it was used for a charitable purpose.  The City of Belmont disallowed that objection.  Retirees WA sought a review of that decision by the Tribunal.

2. The grounds for the review were that the land was not rateable under s 6.26(2)(g) because it was being used exclusively for charitable purposes, namely the relief of the aged, or that the land was not rateable under s 6.26(2)(a)(i) of the Act because it was being used for a public purpose.  In the alternative Retirees WA contended that if the land was rateable, and if, as the City contended, the residents were properly considered the owners of the land, the rates notices had been wrongly addressed to the Department of Housing.

3. The Tribunal considered how the use of the land was to be determined for the purposes of s 6.26 of the Local Government Act 1995 (WA).  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.  An alternative argument dealt with by the parties was that use was to be determined by reference to the use by the 'owner' of the land.  The Tribunal did not accept that that was the correct approach but nevertheless looked at the use of the land by the 'owner' of the land.  The Tribunal found that the Housing Authority was the owner pursuant to paragraph (a)(i) of the definition of 'owner' in s 1.4 of the Act.  Even on that approach the Tribunal concluded it was necessary to take into account all of the circumstances surrounding the owner's use.  The Tribunal found that whether one approached the question of use of the land by focusing on the actual use of the land, or on the owner's use of the land, in the context of all the surrounding circumstances the conclusion as to the use of the land was the same.  The Tribunal concluded that the land was used as a retirement village to provide accommodation to members of Retirees WA, all of whom were aged pensioners and no longer engaged in full­time employment.  The purpose and terms of the use of the land for a retirement village derived from the joint venture agreement pursuant to which Retirees WA managed and maintained the retirement village as agent for the Housing Authority.

4. The Tribunal then looked at whether the land was the property of the Crown which was used or held for a public purpose so that it was not rateable land under s 6.26(2)(a)(i).  The Tribunal found that the land was the property of the Crown, but that the land was not used for a public purpose during the rating periods, and therefore did not fall within s 6.26(2)(a)(i) of the Act.

5. 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 not-for-profit 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.

6. As for the alternative ground of review, namely that the rates notice issued by the City was wrongly addressed, Retirees WA sought only to rely on this round of review in the event that the residents of the retirement village were found to be the 'owners' of the land. As such a finding was not made, the Tribunal did not need to deal with this additional ground of review.

7. Having found that although the land was the property of the Crown it was not used for a public purpose, and that the land was not used exclusively for charitable purposes during the rating periods, the Tribunal determined that the land was rateable land during those periods and dismissed the review.

The application before the Tribunal

1. Retirees WA (RWA) is an incorporated association which operates on a not­for­profit basis.  It manages and administers 16 retirement villages in the Perth metropolitan area and in the South West of Western Australia.  One of those retirement villages (Retirement Village) is located at 10 ­ 16 Francisco Street, Rivervale (Land).  The Retirement Village comprises 12 two­bedroom units. 

2. RWA manages and administers the Retirement Village pursuant to a joint venture agreement (JVA) into which it entered with the State Housing Commission in 1995. At the time RWA was known as the Australian Pensioners League WA Division (Inc). The State Housing Commission is now known as the Housing Authority: s 6(4) of the Housing Act 1980 (WA) (Housing Act). (In the JVA, the State Housing Commission was referred to as 'Homeswest' and when referring to clauses in the JVA in these reasons, I have retained that terminology, but otherwise have referred to the Housing Authority.)

3. RWA manages and administers the Retirement Village on behalf of the joint venture (JVA cl 14.1).  Under the JVA, RWA is entitled, on behalf of Homeswest, to enter into a contract (residence contract) with a member of RWA which entitles that member to occupy a unit in the Retirement Village (JVA cl 13.8).  Each residence contract entitles a resident to reside in a unit at the Retirement Village for the lifetime of that resident, provided that the resident is able to care for him or herself.

4. The Retirement Village is regulated by the Retirement Villages Act1992 (WA) and a memorial has been lodged against the title to the Land to reflect its use for the purposes of a Retirement Village subject to that Act.

5. The City of Belmont assessed the Land as liable to council rates for the 2006/2007 and 2007/2008 financial years (the rating periods) under the Local Government Act 1995 (WA) (LG Act).  It issued a rates notice for each rating period to the Department of Housing (which it considered to be the body responsible for administering the Housing Authority), but forwarded that notice to RWA because the Department instructed it that under the JVA, RWA was liable to pay the rates for the Land. 

6. RWA objected to the assessment on the basis that the Land is not rateable land under the LG Act because it is used for a charitable purpose.  On 26 June 2008 the City disallowed the objection.  RWA seeks a review of that decision by the Tribunal.

7. Under the LG Act, local governments are permitted to charge rates on land which is 'rateable land'.  The general position is that all land is rateable land, but land in certain categories is declared not to be rateable land: s 6.26(1) and s 6.26(2) of the LG Act.  RWA's case on the review was that the Land is not rateable land because it falls within either of two categories of land which is not rateable, namely land which is the property of the Crown and is being used or held for a public purpose, or land which is used exclusively for charitable purposes. 

8. Each of those categories of non­rateable land is premised on the 'use' of the land for a particular purpose.  That gave rise to an issue as to how the use of the Land was to be determined.  In addition, in view of a submission by the City that the residents of the units should be regarded as the 'owners' of the Land, RWA was granted leave to amend its grounds for the review to include an additional and alternative ground in the following terms:

   In the alternative, if the residents are the owners of the Land, pursuant to s1.4 of the LG Act, then the rating notice was wrongly addressed and served on the applicant (or alternatively the Department of Housing and Works) and should have been addressed and served on each of the residents.

9. These reasons for decision address the following issues:

   1.How is use of the Land to be determined for the purposes of s 6.26 of the LG Act?

   2.Is the Land the property of the Crown which is being used or held for a public purpose so that it is not rateable land under s 6.26(2)(a)(i) of the LG Act?

   3.Is the Land used exclusively for charitable purposes so that it is not rateable land under s 6.26(2)(g) of the LG Act?

   4.If the Land is rateable land, were the rates notices wrongly addressed?

10. The parties agreed a statement of facts for the purposes of the determination of the issues in the review (Agreed Facts).  In so far as these reasons refer to factual matters, they are drawn from the Agreed Facts.  In addition, each party called an expert witness to give evidence in relation to the question of whether the Land is used for charitable purposes.

How is the use of the Land to be determined?

1. The exemptions in s 6.26(2)(a)(i) and s 6.26(2)(g) of the LG Act are premised on land being used for a particular purpose. 

2. The City contends that in order to determine the use of the Land, it is necessary to look at the use of the Land by the 'owner' of the Land as that term is defined in s 1.4 of the LG Act.  The City relies on the decision of Deputy President Judge Chaney (as he then was) in Smith and City of Wanneroo [2008] WASAT 182 (Smith) in support of that submission.  On that approach, the City contends that the residents under the residence contracts are to be regarded as the 'owners' of the Land, and the use of the Land is to be determined by having regard to their use of the Land.  In contrast, RWA contends that in order to determine the use of the Land, it is not necessary to determine the 'owner' of the Land under s 1.4 of the LG Act.  Instead, RWA says it is necessary to determine how the Land was actually being used during the rating period to which each rates notice applies.  If the use by the 'owner' is relevant, however, RWA says that it should be regarded as the 'owner' of the Land as that term is defined in s 1.4 of the LG Act.

3. For the reasons outlined below, the use of the Land should not be determined by focusing on the use by the person who is the 'owner' of the Land as that term is defined in s 1.4 of the LG Act.  Instead, the use of the Land should be determined by looking objectively at the actual use of the Land during the rating period.  Although the use of the Land by the occupant of the Land will be relevant, it is also appropriate to take into account the circumstances surrounding that use of the Land.

(a)  Determining the use of land for the purpose of s 6.26 of the LG Act

1. The question of how land is 'used' for the purpose of the exceptions from rateable land in s 6.26 has been addressed, either expressly or implicitly, in three cases in the Supreme Court or the Court of Appeal. Each of these cases concerned the application of s 6.26(a)(i) of the LG Act or its predecessor s 532(2)(a) of the Local Government Act 1960 (WA) which was in relevantly identical terms. Given that s 6.26(2)(g) of the LG Act also refers to land used for a particular purpose, the same approach should be used in determining the use of land for the purposes of that provision.

2. In State Government Insurance Office v City of Perth (1987) 71 LGRA 123 (SGIO) at 133 Franklyn J held that in determining whether land was used for a public purpose under the predecessor to s 6.26(a) of the LG Act, the section '[did] not qualify the 'use' in question as being the use to which it is put by the appellant or the Crown in whatever guise, but looks only to the 'use' to which it, being land the property of the Crown, is being put'.

3. In Port Kennedy Resorts Pty Ltd v The City of Rockingham [2000] WASCA 423; (2000) 112 LGERA 296 (Port Kennedy Resorts) the question of how the use of land was to be determined under s 6.26(2)(a) of the LG Act was not expressly considered. However, Parker J (at [33]) noted that s 6.26(2)(a) of the LG Act was in broader terms than its predecessor s 532(2)(a) of the Local Government Act 1960 (WA) because it now refers to land 'held' for a public purpose as well as land 'used' for a public purpose. His Honour noted that this had the effect of 'broadening the rating exception to cover some Crown land not actually in use but which is held ready for an identified purpose'. Implicit in that observation is the view that the term 'used' in s 6.26(2)(a) refers to the actual use of the land during the rating period for which rates have been levied. Parker J then went on to refer, with apparent approval, to the observations of Franklyn J in SGIO to which I have already referred.

4. In Swan Yacht Club Inc v Town of East Fremantle [2005] WASCA 99; (2005) 30 WAR 193 (Swan Yacht Club) at 201 Pullin JA (with whom Wheeler JA and Roberts­Smith JA agreed) held that determining whether land was 'used' for a public purpose under s 6.26(2)(a)(i) required an examination of the evidence as to the use to which the land was put during the period for which rates were levied.

5. In each of these cases, the Court focused on the actual use of the land during the rating period for which rates had been levied.  In each case, that involved looking at the use of the land by the occupant of the land and the circumstances governing that use of the land.  There was no express suggestion, and nor does it appear to be implicit in the reasoning in any of these cases, that that determination was to be made by looking at the use of the land by the 'owner' of the land as that term is defined in s 1.4 of the LG Act (or its predecessor). 

(b)  Is use by the 'owner' relevant?

1. The City relied on the decision in Smith to suggest that a different approach should be taken to determining how the Land was being used during the rating period. In that case, Deputy President Chaney (at [49] ­ [58]) took the view that 's 6.26(2)(a)(i) is directed to the use or holding of the land by the person liable for rates, namely the owner of the land for the purposes of the [LG Act]', as that term was defined in s 1.4 of the LG Act. His Honour reached this view having regard to the terms of s 6.26(2)(a)(ii) and to the observations in SGIO, Port Kennedy Resorts and Swan Yacht Club which I have set out above. 

2. I am respectfully unable to agree with his Honour's reasoning, for three reasons.  First, I do not read the cases relied upon by his Honour as supporting the conclusion that the use of land is to be judged by having regard to the use of the land by the 'owner' at the relevant time.

1. Secondly, the terms of s 6.26(2) do not provide support for incorporating considerations of the 'owner' into that provision.  Section 6.26(2) itself does not make reference to the 'owner' of the land.  It refers only to land 'used' for particular purposes.  According to the Australian Oxford Dictionary (2nd Ed, 2004), the word 'use' has a variety of meanings, including, as a verb, 'cause to act or serve for a purpose; bring into service; avail oneself of'.  Further, s 6.26(2)(a) requires that the land is 'being used' which directs attention to the present use of the land at the relevant time.  It is possible that land may be used for more than one purpose at any particular time, and that this might involve different users of the land.  If it is necessary to determine use by reference to use by a particular person, then the use contemplated in s 6.26(2) seems more likely to comprehend the use by the person in occupation of the land at the relevant time.  In SGIO Franklyn J held (at 133) that the construction he preferred, namely to focus on the actual use of the land, rather than on use by a particular party, was 'consistent with the purpose of the exemption, it being a fact that the Crown may make available its property to another so that it may be used for a public purpose'. In addition, given that s 6.26(2)(a) refers to land which is the 'property of the Crown', and in doing so avoids any reference to the term 'owner', it is difficult to see the rationale for incorporating the concept of the 'owner' of the land into that provision for the purpose of determining the 'use' of the land.

2. Thirdly, the term 'owner' is used in the LG Act for a particular purpose, namely to identify the person liable to pay rates: s 6.44 of the LG Act.  Having regard to the broader statutory context, it appears the question of who is liable to pay rates need not be considered unless and until it has been determined that land is 'rateable land' for the purposes of the LG Act.  That this is so is confirmed by the fact that in one respect the definition of 'owner' relies on a pre­existing judgment as to whether the land is rateable.  The definition of 'owner in s 1.4(a)(ii) refers to land the subject of a lease or tenancy agreement 'which in the hands of the lessor is not rateable land under this Act, but which in the hands of the lessee or tenant is by reason of the lease or tenancy rateable land under this Act'.  That suggests that the question whether land is rateable should be determined before the need arises to identify the person liable to pay the rates. 

3. Lest I am wrong in this conclusion, and because the issue occupied a considerable proportion of the submissions made by the parties, I have also considered the use of the Land by the 'owner'.  That first requires the identity of the 'owner' to be determined.

(c)  Who is the 'owner' of the Land?

1. RWA contends that it is the 'owner' of the land under either paragraphs (a)(i), (c) or (d) of the definition of 'owner'.  The City contends that the residents of the units in the Retirement Village are the 'owners' under paragraph (d) of the LG Act.  Initially the City contended in the alternative that the residents were the 'owners' under paragraph (a)(ii), but it subsequently conceded, correctly, in my view, that this paragraph did not apply.  (As I have already noted, the City's contention that the residents of the Retirement Village are the 'owners' was at odds with the fact that it issued the rates notice to the Department of Housing, care of RWA, rather than to the residents individually.  However, counsel for the City submitted that given the limited amount of information that the City has in relation to the use of land, its practice is to issue rating notices to the registered proprietor of rateable land, and to reconsider the question of the 'owner' of the land if an objection is made by the registered proprietor.)

2. I am unable to accept the submissions of either party as to the 'owner' of the Land.  For the reasons outlined below, I have concluded that the 'owner' of the Land is the Housing Authority, under paragraph (a)(i) of the definition of 'owner' in s 1.4 of the LG Act. 

(i)  Definition and background facts

1. It is convenient to commence by setting out the parts of the definition of 'owner' in s 1.4 of the LG Act upon which the parties relied:

   owner, where used in relation to land ­

   (a)means a person who is in possession as –

   (i)the holder of an estate of freehold in possession in the land, including an estate or interest under a contract or an arrangement with the Crown or a person, by virtue of which contract or arrangement the land is held or occupied with a right to acquire by purchase or otherwise the fee simple;

   (ii)a Crown lessee or a lessee or tenant under a lease or tenancy agreement of the land which in the hands of the lessor is not rateable land under this Act, but which in the hands of the lessee or tenant is by reason of the lease or tenancy rateable land under this or another Act for the purposes of this Act;

   …

   (c)where, under a licence or concession there is a right to take profit of Crown land specified in the licence or concession, means the person having that right;

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

   …

2. In order to determine the 'owner' of the Land, I also take into account the following facts.  The State Housing Commission (now the Housing Authority) is the registered proprietor of an estate in fee simple in the Land.  Under the JVA, Homeswest arranged and financed the design and construction of the Retirement Village.  RWA made an election to have the use of all of the units in the Retirement Village for the purpose of accommodating its members in return for paying Homeswest for the cost of the design and construction of each of those units and a proportion of the cost of the design and construction of the village as a whole (JVA cl 13.4, Annexure C to the Agreed Facts).  The JVA expressly provides that Homeswest remains the registered proprietor of the Land, and of all estates, interests and rights of any kind in the Land and that RWA 'has no estate, interest or right of any kind whatsoever in the Land': JVA cl 5.1, Annexure C to the Agreed Facts. 

(ii)  Paragraph (c) does not apply

1. Contrary to RWA's submission, the definition of 'owner' in paragraph (c) is clearly inapplicable in the present case.  The Land does not form part of the 'Crown lands', which are defined in s 1.4 of the LG Act, because it is land which is the subject of a grant of fee simple. 

(iii)  Paragraph (d) does not apply

1. The definition of 'owner' in paragraph (d) is also inapplicable in the present case.  It refers to land which is 'vested in the Crown'.  The City contended that the residents of the units in the Retirement Village were the 'owners' under paragraph (d) because they were lawfully entitled to occupy the Land, and the Land was vested in the Crown.

2. RWA also relied on paragraph (d) for its contention that it was lawfully entitled to occupy the Land and that the Land was vested in the Crown.  RWA relied on Shire of Ashburton v Bindibindi Community Aboriginal Corporation [1999] WASC 108 (Bindibindi) at [8] ­ [12] as supporting its contention that it was the 'owner' of the Land under paragraph (d).

3. In my view, the construction of paragraph (d) which was adopted in the Bindibindi case is contrary to the contentions of both RWA and the City.  The Bindibindi case concerned the question whether land was rateable when it had been set apart as a reserve and subsequently vested in the Bindibindi Community Aboriginal Corporation under the Land Act 1933 (WA) for the purpose of the 'use and benefit of Aboriginal inhabitants'. The Shire argued, amongst other things, that the Bindibindi Corporation was the 'owner' of the land pursuant to paragraph (d) of the definition of 'owner' in s 1.4 of the LG Act.

4. In Bindibindi at [8], Wheeler J accepted that the expression 'vested in the Crown', as it is used in paragraph (d), was one 'which, while probably not a term of art, has long been understood as encompassing all land of which the Crown holds what would now be described as 'radical title'.' Land of that kind is necessarily unalienated land, and therefore excludes land the subject of a grant of freehold title. As the Land is the subject of a grant of freehold title, it is not 'vested in the Crown' for the purposes of paragraph (d) of the definition of 'owner'.

5. Further, paragraph (d) only applies if the Land has no other owner according to paragraph (a), (b) or (c) of the definition of 'owner' and as I explain below, I have reached the view that paragraph (a)(i) of the definition applies.

(iv)  Paragraph (a)(i) applies

1. The definition of 'owner' which is applicable on the facts of this case is that in paragraph (a)(i).  However, I am unable to accept RWA's contention that it is the 'owner' under paragraph (a)(i) for the following reasons. 

2. First, RWA is clearly not the 'holder of an estate of freehold' in the Land. 

3. Secondly, RWA does not obtain any estate in the Land by virtue of its role under the JVA.  The JVA expressly provides that when RWA enters into a residence agreement with one of its members it does so on behalf of Homeswest: JVA cl 13.8, Annexure C to the Agreed Facts.  RWA therefore acts as the agent for the Housing Authority.  In doing so, it cannot be said that RWA is in possession of any estate in the Land.  Furthermore, as cl 5.1 of the JVA makes clear, RWA does not hold 'any estate, interest or right of any kind whatsoever' in the Land under the JVA.

4. Thirdly, RWA is not 'in possession' as 'the holder of an estate of freehold in possession' in the Land.  It contends that it is the manager of the Retirement Village and has a present right of enjoyment of the Land for the benefit of its members.  RWA also contends that it is in possession because under the JVA it has the use of the units in the Retirement Village for its members, it derives an income from the proceeds of each lease and when a unit is vacated by a resident, RWA enters physical possession of the unit pending the sale of the leasehold interest to another member of RWA. 

5. It appeared to be implicit in RWA's contention that it is possible to divorce the requirement of being 'in possession' in the opening words of paragraph (a) of the definition of 'owner' from the phrase '[as] the holder of an estate in freehold in possession' in paragraph (a)(i).  RWA also appeared to equate the words 'in possession' with actual possession.  The words 'in possession' in paragraph (a) do not bear this meaning.

6. In Trecap Pty Ltd and City of Swan [2006] WASAT 142 at [26] Senior Member Parry held that the words 'in possession' in both the introductory words to paragraph (a) of the definition of 'owner' and in subparagraph (a)(i) bear their technical or legal meaning. Senior Member Parry relied on the decision of the High Court in Glenn v The Federal Commissioner of Land Tax (1915) 20 CLR 490 at 496 and 498 (Griffith CJ) and at 500 and 501 (Isaacs J) in which it was held that the words 'in possession' indicate that the owner of land has a present right of beneficial enjoyment of that land, as opposed to an estate in expectancy (such as in remainder or reversion), and that an estate in possession does not denote either the right or fact of actual possession of the land.

7. Accordingly, Senior Member Parry held (at [29]):

   Where used in the expression 'an estate of freehold in possession in the land' in subpar (i) of the definition of 'owner', the words 'in possession' both denote an estate of freehold which is not 'in remainder' or 'in reversion', and which gives a present right of enjoyment. …  Where the words 'in possession' are used in the introductory words to par (a), they denote an estate of which some person has the present right of enjoyment.  In neither place do the words 'in possession' mean 'in actual possession'.

8. In my view, the 'owner' of the Land during the rating periods was the Housing Authority.  The Housing Authority is the holder of an estate of freehold in the Land.  It is a body corporate (s 7(1) of the Housing Act 1980 (WA)) and is therefore a 'person' for the purposes of the definition in paragraph (a)(i): s 5 of the Interpretation Act 1984 (WA). 

9. The grant of a lease over land does not deprive the registered proprietor of the present enjoyment of that land, even though the registered proprietor does not, as a result of the lease, retain the actual possession of the land.  The Housing Authority is therefore in possession as the holder of an estate of freehold in possession in the Land, in that it has a present right of beneficial enjoyment in the Land, as opposed to an estate in expectancy, such as in remainder or reversion. 

10. Accordingly, if it is necessary to have regard to the use of the Land by the 'owner' of the Land, the 'owner' in the present case is the Housing Authority, by virtue of paragraph (a)(i) of the definition of 'owner'.  However, the use of the Land by the Housing Authority must be viewed in the context of the circumstances surrounding that use.

(v)  Later amendment of the LG Act – 'owner'

1. For completeness, it is appropriate to briefly address an argument advanced by RWA which relied on cl 37 of the Local Government Amendment Bill 2009 (WA).  The Bill was passed by Parliament and was assented to on 16 September 2009.  Clause 37 of the Bill has since been proclaimed.  It is appropriate to refer to this amendment not for the precise purpose for which RWA raised it (namely to counter the City's argument that the residents of the Retirement Village are the 'owners') but in order to deal more generally with RWA's submission that the amendment was relevant to the construction of the definition of 'owner' in this case. 

2. Clause 37 of the Bill amended s 6.25 of the LG Act to include a definition of 'owner' in the following terms:

   owner –

   (a)in relation to land in a retirement village as defined in the Retirement Villages Act 1992 means –

   (i)the owner, as defined in that Act section 3(1); or

   (ii)a mortgagee in possession of the land; or

   (iii)a trustee, executor, administrator, attorney or agent of a person mentioned in this paragraph who is in possession of the land;

   (b)otherwise has the meaning given in section 1.4.

3. 'Owner' is defined in s 3(1) of the Retirement Villages Act 1992 (WA) as meaning 'a person who alone or with others is registered as the proprietor of an estate in fee simple'.

4. The definition of 'owner' in s 6.25 applies to Div 6 of Pt 6 of the LG Act and therefore applies to s 6.44 of the LG Act, which imposes liability for rates on the 'owner' of the land. 

5. The amendment is not retrospective in its operation.  It will apply to rates notices issued after the commencement of the amendment.  It is therefore not applicable to the rates notices issued in this case.

6. However, RWA submitted that the amendment made by the Bill was relevant to the construction of the term 'owner' in s 1.4 of the LG Act for two reasons.  First, RWA noted that the Explanatory Memorandum for the Bill specified that the amendment of s 6.25 to include a definition of 'owner' was 'necessary to clarify that 'lease for life' residents are not liable for the payment of rates.  This is a technical amendment to clarify this issue based on recent interpretation of the Act.'  RWA submitted that the intention of the amendment was therefore to make clearer the position under the LG Act.  Secondly, RWA submitted that the amendment was relevant because the City's submission that the residents of the Retirement Village were the 'owners' according to the definition in s 1.4 of the LG Act could not succeed in the future.

7. The City submitted that the recent interpretation of the LG Act referred to in the Explanatory Memorandum was contained in some legal advice to the effect that the definition of 'owner' in s 1.4 of the LG Act could be interpreted in a way which would make the holder of a 'lease for life' in a retirement village the person liable to pay the rates.  The City submitted that the amendment did not demonstrate any 'Parliamentary intent' in regard to whether residents of retirement villages should pay rates.  Instead, the City submitted that the amendment demonstrates an intent to protect the capacity of local governments to recover rates under the LG Act by ensuring that rate liability is attached to the title of the land in question.  That is, the amendment will prevent a title holder from claiming that he or she is not liable to pay rates on the basis that the residents of the retirement village are liable to pay the rates.

8. It is permissible to have regard to an amendment in the interpretation of an earlier provision of an Act: Grain Elevators Board (Victoria) v Dunmunkle Corporation (1946) 73 CLR 70. It may also be possible to obtain an insight into the reasons for the amendment of a provision by referring to Hansard: see, for example, Downey v Trans Waste Pty Limited (1991) 172 CLR 167 at 177 ­ 178 (Dawson J). However, if reliance is to be placed on an amending statute in interpreting an earlier statute, care must be taken to ensure that the words in the later statute have not been inserted to remove possible doubts as to the meaning of the original statute: Allina Pty Limited v Commissioner of Taxation (1991) 28 FCR 203 at 212, and Interlego AG v Croner Trading Pty Limited (1992) 39 FCR 348 at 382 (Gummow J).

9. Having regard to the Explanatory Memorandum, this appears to be a case in which the amendment was made to remove possible doubts about the way the definition of 'owner' in s 1.4 would be interpreted.  The amendment of the LG Act appears to have been a response to the potential for the LG Act to be interpreted so that the residents of retirement villages were considered the 'owners'.  That does not mean that the definition of 'owner' in s 1.4 prior to the amendment can, or should, be understood as necessitating the conclusion that residents of the Retirement Village are the 'owners' of the Land.  All that can be concluded from the amendment is that Parliament wished to exclude the possibility that the definition of 'owner' might be construed in such a way that residents of a retirement village were considered the 'owners' of land. 

(d)  Use of the Land during the rating periods

1. On the approach I prefer, to determine the use of the Land the focus of the inquiry should be on the actual use of the Land.  That will involve considering the use of the Land by its occupants during the rating periods.  As I have said, that analysis should also take into account the surrounding circumstances.  If the use by the Housing Authority, as the owner of the Land, is considered, the surrounding circumstances are also relevant.

2. Whether one approaches the analysis by focusing on the actual use of the Land taking into account the use by the occupants, or by the owner's use of the Land, in the context of the surrounding circumstances, in this case the conclusion as to the use of the Land is the same.  The Land is used as a retirement village in which accommodation is provided for the residents of the 12 units which comprise the Retirement Village.  The surrounding circumstances include the fact that the Retirement Village exists as a result of the JVA between the Housing Authority and RWA, and is a product of their joint enterprise in relation to the Land.  Pursuant to the JVA, RWA manages the Retirement Village.  RWA's duties under the JVA include, amongst other things, to control and manage the Retirement Village for the benefit of all tenants and for the benefit of the joint venture, to maintain and keep in good repair the Village, the units in the Village, and the common property in the Village, and to pay all rates, taxes and levies in respect of the Retirement Village and the units in the Village (JVA cl 15.1, Annexure C to the Agreed Facts). 

1. The residents of the Retirement Village are all retired from full time work and all of them are pensioners.  The tenants are eligible to lease the units because they are all members of RWA.  The tenants lease the units on a 'lease for life' basis, which reflects the fact that the tenancy does not have a fixed term.  The tenancy may, however, come to an end in certain circumstances, including if the tenant ceases to be a member of RWA, or ceases to be able to live independently. 

2. I have referred to other aspects of the use of the Land of particular relevance to s 6.26(a)(i) and s 6.26(2)(g) in the course of the analysis below.

During the rating periods, was the Land the property of the Crown which was being used or held for a public purpose, so that it was not rateable land under s 6.26(2)(a)(i) of the LG Act?

Was the Land the property of the Crown during the rating periods?

1. As I have noted above, the Housing Authority (formerly the State Housing Commission) is the registered proprietor of an estate in fee simple in the Land.  RWA contends that the Land is the property of the Crown for the purposes of s 6.26(2)(a) of the LG Act.  Counsel for the City conceded that that is so.  That concession was properly made for the following reasons.

2. The determination of the question whether land registered in the name of any particular body or corporation is 'the property of the Crown' in the present context requires consideration of the statute which is said to bring about that result: State Electricity Commission of Victoria v City of South Melbourne (1968) 118 CLR 504 at 510 (Barwick CJ, McTiernan, Taylor and Menzies JJ) and SGIO at 127 ­ 128 (Franklyn J). The statute in the present case is the Housing Act.

3. The Housing Authority is a body corporate with a legal personality independent of the Crown (s 7 of the Housing Act). It is able to purchase land for the purposes of the Housing Act: s 19(1) of the Housing Act. The Housing Act does not expressly provide that land owned by the Housing Authority is owned by the Crown. However, the Housing Authority is an agent of the Crown in right of the State (s 7 of the Housing Act) and has all the powers, privileges, rights and remedies of the Crown (s 12 of the Housing Act). In addition, it is subject to a large degree of control and direction by the responsible Minister in respect of its implementation of the Housing Act and the performance of its functions under that Act (see, for example, s 11, s 11A, s 11B, s 12A(1)(b) and s 12A(3), s 14, s 19(1), s 26, s 28 and s 61 of the Housing Act). These considerations support the view that land owned by the Housing Authority can properly be regarded as the property of the Crown.

Was the Land being used for a public purpose during the rating periods?

1. In order to determine whether land is used for a 'public purpose' under s 6.26(2)(a) of the LG Act it is necessary to consider not just the use of the Land, but the object of that use: SGIO at 135 (Franklyn J). For the use to be for a 'public purpose' it must relate or pertain to the people of the State or of some particular region or locality as a whole. It must involve the provision of some service, utility or benefit to the public which would not be otherwise provided, and which is not provided on a profit­making basis. Swan Yacht Club at [25] (Pullin JA, Wheeler JA and Roberts­Smith JA agreeing), Port Kennedy Resorts at [34] (Parker J, Ipp J agreeing) and SGIO at 135 (Franklyn J).

2. As I have noted above, during the rating periods the Land was used as a retirement village to provide private accommodation for the tenants who leased each of the units.  The use of the Land did not provide a service or benefit to the public, but rather only a benefit to the small number of individual tenants.  Furthermore, that use clearly did not relate to the people of the State or to the people of some particular region or locality as a whole.  In SGIO Franklyn J held (at 137) that it had been correctly conceded in that case that in so far as the SGIO had let areas of the buildings on the land in question to private persons, those areas could not be said to be used for public purposes and were rateable.

3. RWA argues that the land is used for the provision of housing for retirees, and that it is therefore used for a public purpose.  I am unable to agree with that conclusion.  In order to be eligible to reside in one of the units in the Retirement Village, each resident had to be a member of RWA.  RWA sought to argue that it is an association that all members of the public will ultimately be entitled to join (upon reaching 55 years of age, and not in full time employment) and that therefore the use of the Land benefits the public.  That does not answer the point.  In order to be eligible to reside at the Retirement Village, it is not sufficient simply to be eligible to join RWA, but rather each resident is required to be a member of RWA.  Membership of RWA requires the payment of a membership fee, in addition to meeting the age and employment criteria for membership.  Furthermore, members may be admitted to membership, or suspended or expelled, at the discretion of RWA's Chief Executive Officer (CEO) or a disciplinary panel: see cl 7.1, 7.3, 8.2, 8.4 and 12 of the Constitution of RWA, Annexure A to the Agreed Facts. 

4. A similar argument was rejected in Swan Yacht Club. The argument in that case was that although the predominant use of the land was as a yacht club, from which members of the public were excluded, nevertheless the land was used for a public purpose because members of the public could pay a small fee to join the yacht club and thereby gain access to all of the land. The Court (Pullin JA at [45], Wheeler and Roberts­Smith JJA agreeing) held that in that event, those persons would not gain access to the land as of right, but only because they were members of the yacht club and subject to the direction of its committee.

5. RWA sought to rely on the decision in Bindibindi in support of its contention that the Land was being used for a public purpose.  The issue in that case was whether the benefit provided to aboriginal people as a result of the use of the land in question was of a sufficiently 'public' nature to be considered charitable.  The Bindibindi decision does not provide support for RWA's contention.  It concerned the application of s 6.26(2)(g) of the LG Act, and its facts were very different from those in the present case.  In that case it was held (at [34]) that the use of the land benefited a significant proportion of the local community and that the benefit was therefore of a sufficiently 'public' nature to be considered charitable.  In the present case, there are only 12 units at the Retirement Village.  The essentially private benefit which is given to each of the small number of individuals who occupy those units is not consistent with the Land being used for a public purpose.  

6. Even if the question is approached solely by reference to the Housing Authority's purpose in using the Land, the conclusion is the same.  The fact that an agent of the Crown uses land for one of its purposes does not mean that that land is used for a public purpose.  'Governmental purposes' cannot be equated with 'public purposes' because governments often engage in activities and enterprises pursuant to a government purpose which are not a public purpose of the kind discussed above: SGIO at 134 (Franklyn J).

7. Furthermore, the purpose behind the Housing Authority's use of the Land can be discerned from the JVA.  The recitals to the JVA indicate that RWA wished to construct and manage one or more retirement villages principally to accommodate its members, and that Homeswest was prepared to finance the construction of one or more such villages on its own land 'principally to accommodate [RWA's] members'.  In entering into the JVA, the Housing Authority's purpose appears to have been to provide accommodation in a way which was principally directed to benefit the members of RWA rather than members of the public. 

8. Accordingly, in my view, the Land was not used for a public purpose during the rating periods, and is therefore not subject to the exception in s 6.26(2)(i) of the LG Act.

During the rating periods, was the Land being used exclusively for charitable purposes, so that it was not rateable land?

'Charitable purposes'

1. RWA contends that during the rating periods, the Land was used exclusively for charitable purposes, and was therefore not rateable pursuant to the exception in s 6.26(2)(g) of the LG Act.  RWA contends that the Land was used for charitable purposes because it was being used to provide relief for the aged. 

2. The words 'charitable purposes' are not defined in the LG Act.  It is, however, well accepted that the meaning of the word 'charitable' when used in a statute should be understood in its technical legal sense, namely by reference to the spirit and intendment of the preamble to the Charitable Uses Act 1601 (the Statute of Elizabeth I) or the categories of charity set out in Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531: see Chesterman v The Federal Commissioner of Taxation (1925) 37 CLR 317, Salvation Army (Victoria) Property Trust v Shire of Fern Tree Gully (1952) 85 CLR 159 at 168 (Dixon, Williams and Webb JJ) and Central Bayside General Practice Association Limited v Commissioner of State Revenue of the State of Victoria (2006) 228 CLR 168 at 178 ­ 9 (footnote 28) (Gleeson CJ, Heydon and Crennan JJ). This meaning has been attributed to the word 'charitable' in the LG Act: West Australian Baptist Hospital & Homes Trust Inc v City of South Perth [1978] WAR 65 (WA Baptist Hospital & Homes) at 68; Uniting Church Homes (Inc) and City of Stirling [2005] WASAT 191 (Uniting Church Homes) at [93] ­ [95].

3. The preamble to the Statute of Elizabeth I sets out a long list of charities, including, relevantly for present purposes, 'the relief of aged, impotent and poor people': see G. Dal Pont, Charity Law in Australia and New Zealand,2000 at 46 ­ 47. 

4. There have been many cases, including some in this Tribunal, which have examined whether land is used, or particular gifts bequested or trusts established, for charitable purposes and specifically for the relief of the aged.  Counsel very helpfully directed my attention to many of these cases.  However, in my view, none of these cases is sufficiently similar on its facts to be determinative of the present case. 

5. As a result, it is necessary to resolve this case by the application to the facts of the general principles governing charitable purposes. 

6. Before turning to those general principles, it is convenient to make some general observations about the expert evidence on which the parties relied in relation to the question of charitable use.

Expert evidence

1. The parties each relied on the evidence of an expert witness.  RWA called Professor Barbara Horner who was the inaugural director of the Freemason's Centre for Research into Aged Care Services (later the Centre for Research on Ageing) in the Faculty of Health Science at Curtin University from 2000, and since 2008 has been a Professor and the Dean of Research and Graduate Studies in the Faculty of Health Sciences.  The City called Professor Duncan Boldy, who has been a Professor in the School of Public Health at Curtin University since 1991 and a Professor within the Centre for Research on Ageing at Curtin University since 1999.  Each witness provided a written witness statement, then conferred to produce a joint statement of the areas of agreement and disagreement between them.  They also gave concurrent evidence on the review hearing.

2. Ultimately the evidence of the witnesses was of limited assistance in determining the issues in the present case because much of their evidence dealt with matters which were not relevant to the issues arising in this case other than by way of background or general context, such as the concept of a 'retirement village' as that is understood in the aged care industry, and their opinions on whether the Retirement Village has the characteristics and provides the benefits that are generally considered necessary for a 'retirement village' as that concept is understood in the aged care industry.

3. One of the areas upon which there was disagreement between the witnesses was the extent to which they considered they could give an opinion on whether the facilities, services and benefits provided to residents of the Retirement Village constituted relief of the aged.  Professor Boldy did not consider the Retirement Village to be a 'retirement village', according to the understanding of that concept in the aged care industry.  However, he accepted that that did not mean that a facility like the Retirement Village did not prove relief for the aged.  Professor Boldy did not, however, express a view as to whether the Retirement Village in fact provided relief for the aged, because he did not consider that it was within his role as an expert to express an opinion on that question.

4. In contrast, Professor Horner provided her opinion on whether the Retirement Village provided relief for the aged.  Professor Horner concluded that the Retirement Village provided a scheme for the aged 'that encompasses a community environment, stability, and security that contributes to the quality of life of its members; and that residents select the [Retirement Village] for the 'relief for the aged' that it provides': Exhibit 6 at 6.

5. The different approach taken by the witnesses reflects the question whether an expert witness may give opinion evidence as to the 'ultimate issues' which a court or tribunal is required to determine.  The issue has not been finally determined by the High Court.  In Murphy v The Queen (1989) 167 CLR 94 at 110 ­ 111 Mason CJ and Toohey J doubted whether there existed an absolute rule precluding an expert witness from expressing a view as to the ultimate issue. So too did Deane J (at 127). On the other hand, Callinan J has expressed the view that a court should generally uphold an objection to such evidence: Naxakis v Western General Hospital (1999) 197 CLR 269 at [110] and Brodie v Singleton Shire Council (2001) 206 CLR 512 at [355]. Another approach has been that an expert may not give an opinion on an ultimate issue where that involves the application of a legal standard: see Cross on Evidence at [29125] and the authorities cited therein.

6. The ultimate issue on which Professor Horner expressed an opinion, namely whether the facilities, services and benefits provided to residents at the Retirement Village constitute relief of the aged may be likened to the application of a legal standard because it involves the application of the legal requirements for 'relief of the aged'. 

7. The approach I have taken to this aspect of Professor Horner's evidence (to which the City made no objection) and to the evidence of both witnesses in so far as it dealt with matters that bear upon the ultimate issue in this case, is to form my own opinion as to whether the facilities, services and benefits provided to residents of the Retirement Village provide relief for the needs of the aged.  However, I have taken into account the evidence of Professor Boldy and Professor Horner to assist me in identifying the needs of the aged, and in determining whether any of those needs are met by the facilities, services and benefits provided to residents of the Retirement Village.

Changing approaches to the provision of accommodation and support for the aged

1. Professor Horner and Professor Boldy noted that the ageing population in Australia over the next 30 years will create an increased demand for accommodation which meets the needs of older Australians.  That will create (and already has created) a need for flexibility in the kind of accommodation which is designed and built to meet the needs of older Australians, and a greater variety in the style of facility, and associated services provided. 

2. One example of this changing approach is the recent trend to provide accommodation for aged people in what have been described in Australia as 'independent living units'.  In Uniting Church Homes the Tribunal found that the retirement villages in that case were examples of 'independent living units'. The Tribunal noted (at [32] ­ [34]) that:

   [t]he term 'independent living unit' is used in Australia to refer to supported housing provided for older people, which is typically purpose­built so as to be largely 'barrier-free', with appropriate railings, bathroom and other facilities.  Independent living units are often, although not necessarily, co-located with a hostel and/or nursing home.  'Support' can take a variety of forms, including delivered services from a hostel/nursing home, on-site staff, or community services, and the provision of an emergency alarm system.

   Independent living units are designed to permit 'ageing in place' as a resident's care needs increase. …

   … While independent living units are 'independent', compared to institutional care, they are occupied by older people increasingly 'dependent' on support services.  People currently entering independent living units tend to be more dependent than in earlier times, because of the increasing emphasis on more extensive community care services.  They are also more likely to remain in their independent living units for the rest of their lives, and not 'transfer' to a higher level of care in a hostel or nursing home.

3. The facilities, services and benefits provided for residents in the Retirement Village are quite different from those considered by the Tribunal in Uniting Church Homes.  This is a matter which was the subject of agreement between Professor Duncan Boldy and Professor Barbara Horner.  For that reason, the decision of the Tribunal in Uniting Church Homes is not determinative of this case.

4. Much of the evidence given by Professor Boldy and Professor Horner discussed the concept of a 'retirement village'.  In his witness statement, Professor Boldy stated that 'retirement villages … often contain a range of accommodation options, including nursing home beds, hostel beds and independent living units': Exhibit 5, para 8.  He stated that 'while retirement villages (including those consisting of independent living units only) are very diverse they all typically have a distinctive social environment related to their village character, with organised communal, recreation and social activities': Exhibit 5, para 16.  However, Professor Boldy accepted that the label 'retirement village' has been applied to a range of accommodation facilities for older people, so that it is difficult to now say what is and what is not a 'retirement village'. 

5. Professor Horner agreed with this observation.  Her evidence was that although there has been a trend towards a village concept of accommodation for older people, there are now 'a variety of facilities and lifestyle options to attract people.  Retirement villages do not all provide care services nor access to on­site care centres.'  She noted that 'while care services, usually viewed to be 'nursing and/or personal care' are a component of some retirement villages, this is not true for all retirement villages' (exhibit 6, page 5).

6. This evidence suggests that in considering the cases dealing with the provision of relief of the aged through accommodation for the aged it is necessary to bear in mind the changing approaches to meeting the needs of the aged in relation to accommodation.  In this respect, I note also that 'the legal concept of 'charity' and 'charitable' is not static, but moves, changes and evolves with the prevailing ideas about social values and attitudes in the society in question': G. Dal Pont, Charity Law in Australia and New Zealand, 2000 at 10 and the cases cited therein.

Was the Land used to provide relief of the aged?

1. In order to determine whether the Land was used for a charitable purpose on the basis that it was used to provide relief of the aged it is necessary to consider the following issues:

   (a)What are the needs of the aged that may require relief?

   (b)Does relief for the aged also require the alleviation of poverty?

   (c)Was the accommodation in the Retirement Village provided for 'aged' persons?

   (d)Did the provision of accommodation in the Retirement Village to members of RWA constitute a scheme for the provision of relief for the aged?

(a)  What are the needs of the aged that may require relief?  Expert evidence and case law

1. The needs of the aged have been identified in the authorities as including isolation, loneliness, insecurity, the risk of being without prompt medical or other help in case of need, and an inability to employ their superannuated leisure (Trustees of Church Property of the Diocese of Newcastle v Lake Macquarie Shire Council [1975] 1 NSWLR 521 at 524 (Moffitt P) and at 533 (Hutley JA)), the need for protection against the dangers and distresses incident to living alone (City of Hawthorn v Victorian Welfare Association[1970] VR 205 (City of Hawthorn) at 209 (Smith J, Pape and Gillard JJ agreeing)) and the need for fraternity, belonging, respect, mutual activities, interaction, and security (D V Bryant Trust Board v Hamilton City Council [1997] 3 NZLR 342 (D V Bryant Trust Board) at 349 (Hammond J)).

2. The evidence given by Professor Boldy and Professor Horner dealt with the reasons why people move into retirement villages, and what they look for in retirement villages.  These reasons and criteria permit some inferences to be drawn about the needs of the ageing population which it is perceived will be met by living in accommodation for aged persons.  In his witness statement (Exhibit 5, paras 17 ­ 19) Professor Boldy stated that:

   older people typically move into retirement villages (including those consisting entirely of independent living units) either because something changes in their residential environment, or their health or social circumstances, or they anticipate that a change will occur soon.  The literature refers to these as 'triggering mechanisms' or 'pull' and 'push' factors … .  Pull factors can be motivators such as a person wanting to move to a better location.  Push factors can be described as 'assistance factors' where people are pushed to move to a retirement village as a result of declining wealth, widowhood or concerns about their ability to manage in their home in the community.

   Retirement villages usually offer more manageable housing, a relatively independent lifestyle, a supportive social environment, and some degree of health support that many older people tend to find attractive.

   Declining health, which often leads to increased difficulties with maintaining independence and managing home maintenance, and widowhood are other key reasons why older people move into retirement villages.  Concerns about personal security, neighbourhood factors, and a desire to be independent of family members for care and support also influence the decision of some people to move into retirement villages.

3. Professor Horner noted (Exhibit 6, pages 3 ­ 4) that:

   the retirement industry seeks to develop sites based on principles of social interaction as well as appropriate housing design.  … Lawton identifies a number of characteristics that an individual will consider in a retirement village:  health support, companionship, independent dwelling characteristics, dwelling affordability (cost), village amenities, village facilities and village location. …

   According to Lawton, well-being for older people involves a balance between two sets of needs:  on the one hand, the increased need for physical, social and emotional security, and on the other hand, the need for challenge, growth and variety of experiences.

4. Professor Horner also referred to her own research in 2005 which looked at the key elements of quality of life for residents living independently in a retirement village in Perth.  She noted (exhibit 6, page 4) that:

   Key elements as identified by participants living in a retirement village relate to stability and security, but also included factors associated with the physical environment, personal situation, and a desire to remain in their own homes.  Although many of the units were old, small and rather close together, the ability to walk around, to stay in their own unit and tend to their own garden, was important to them.  …

   … The key elements were identified as stability within their personal situation (financial and health) and security within the community environment.  They did not identify the age of the building, access to, or involvement with organized activities (resident committee) or a central meeting place, as necessarily important.

5. This evidence suggests that in addition to the needs of the aged identified in the authorities to which I have referred can be added the need for the stability and security of long term accommodation which is affordable, which will permit independent living for as long as possible, which is low maintenance or which involves assistance with maintenance, and which offers a supportive social environment.

(b)  Does the relief of the aged also require the alleviation of poverty?

1. The evidence was that entry into a residence contract for a lease for life over a unit in the retirement village required the payment of a not insignificant lump sum (in 1996 this was $68,000).  In addition, under the terms of the lease, residents are required to pay 'maintenance rent' which covers the cost of the external maintenance of the units, the upkeep of the gardens and common property, the payment of insurance, administration costs, any rates and taxes and common area electricity:  para 17 of the Agreed Facts.

2. RWA submitted that that requirement to pay a lump sum upon entry into a residence contract did not prevent the use of the Land being described as charitable. 

3. The charitable purpose described as 'the relief of aged, impotent and poor people' in the Statute of Elizabeth I has been construed disjunctively, so that relief of the aged need not be confined to relief of aged people who are also poor: Re Glyn's Will Trusts, Public Trustee v Attorney General [1950] 2 All ER 1150; WA Baptist Hospital & Homes at 68 ­ 69.

4. The fact that each resident was required to pay a lump sum upon entry into the residence contract and to pay weekly maintenance fees, and thus to contribute to the cost of their accommodation, does not, of itself, preclude the conclusion that the Land is used for a charitable purpose: Joseph Rowntree Memorial Trust Housing Association Ltd v Attorney General [1983] 1 All ER 288 at 295, 298, 299 (Peter Gibson J); WA Baptist Hospital & Homes at 68 ­ 69.

(c)  Was the accommodation in the Retirement Village provided for 'aged' persons?

1. The opportunity to reside in the units on the Land is only afforded to members of RWA: para 16 of the Agreed Facts, cl 13.8 of the JVA, Annexure C to the Agreed Facts.  RWA's Constitution defines a 'Member' as including a 'General Member' and an 'Auxiliary Member'.  A 'General Member' is a person who, in addition to meeting other requirements, is over the age of 50 years: cl 6.1, Annexure A to the Agreed Facts.  An 'Auxiliary Member' is a person who does not qualify to join RWA as a General Member, but whose membership with RWA is current: cl 6.2.1, Annexure A to the Agreed Facts.  Annexure B to the Agreed Facts is a pamphlet entitled 'Member's Benefits and Information'.  That document notes that Auxiliary Members include persons who do not qualify to be General Members because they are less than 50 years old. 

2. There is no suggestion in RWA's Constitution that the benefits said to flow to Members from membership of RWA apply only to General Members.  On the contrary, according to Annexure B to the Agreed Facts, payment of RWA's membership fee permits Members to enjoy all of the benefits of membership.  It thus appears that Auxiliary Members are entitled to enjoy all of those benefits available to General Members, including the opportunity to apply to live in a retirement village operated by RWA. 

3. The fact that, at least in theory, residence at the units is open to persons over 50 years of age, but also to persons under 50 years of age, raises the question of whether it can be said that the Land is being used for the relief of the 'aged'. 

4. In times past, when the average life expectancy was significantly shorter than it is today, and when there did not exist the advanced medical knowledge and treatment for the physical ailments and diseases which affect the human body as it ages, it may have been easier to identify a particular age above which all persons could be regarded as 'aged'.  For example, in Re Wall (1889) 42 Ch D 510 at 512 a gift to benefit persons of 50 years of age or more was held to be a gift for the aged.

5. Even if it were once possible to identify a particular chronological age by which a person would be 'aged', that task now appears much more difficult.  As Professor Horner pointed out in her evidence, the ageing population is not one homogenous group and there are varying opinions in academic circles and in the community generally as to what is 'aged'.  Professor Horner suggested that there were three age groups which could be considered: 45 ­ 64 years (middle age); 65 – 79 (younger old) and 80 years and above (older old).  In addition, as Professor Horner noted, attainment of a particular chronological age does not necessarily mean that a person will manifest particular signs of ageing or of infirmity, so that 'some 55 year olds could present as 'older' than people who are 75 years of age'.

6. Were it the case that the units in the Retirement Village were leased to tenants who were less than 50 years of age (such as Auxiliary Members of RWA), I would have some difficulty in concluding that that involved the provision of accommodation for the 'aged':  cf Uniting Church Homes at [16]; D V Bryant Trust Board at 350 (Hammond J). However, in the present case, it is unnecessary for me to deal with the question. In this case, the evidence was that during the rating periods, all of the residents in the Retirement Village were over 55 years of age, and all were aged pensioners. The average age of residents occupying the units was approximately 75 years old: para 24 ­ 25 of the Agreed Facts.

7. Accordingly, the preferable course is to leave for another day the determination of the question of the chronological age at which a person can be said to be 'aged'.  It is sufficient for present purposes to proceed on the basis that on the evidence in this case, there can be no doubt that the provision of accommodation in the Retirement Village is for 'aged' persons. 

(d)  Was the Land used for providing relief for the aged?

1. The word 'relief' implies that the persons to whom the charity is directed have a need attributable to their condition (in the present case, their age), that that need requires alleviating, and that those persons could not alleviate, or would find difficulty in alleviating, that need themselves, from their own resources: Joseph Rowntree Memorial Trust at 295 (Peter Gibson J).  Accordingly, what is provided must be directed to the alleviation of a need of the aged which they may have difficulty in alleviating by themselves. 

2. The question whether land on which retirement villages were situated was used for the relief of the aged was considered by the Tribunal in Uniting Church Homes.  In that case, the Tribunal concluded that that question required an 'overall judgment' having regard to a range of factors, including the facilities provided on the land, the benefits flowing to aged persons by reason of residency in the kind of accommodation provided, including in 'independent living units', and other factors relevant to the purpose for which the land was used, namely the constating instruments of the operators of the retirement villages, the charitable nature of the operators of the retirement villages and the not­for­profit basis on which the retirement villages were operated.

3. I have referred to these factors below.

(i)  The facilities, services and benefits provided to residents of the Retirement Village

1. RWA contends that the Land is used for charitable purposes because the Land is used to provide affordable housing by way of long term leases to retirees, and because some of the features of the Retirement Village, and certain services RWA provides to the residents, provide relief for the aged residents of the Retirement Village.  The City contends that the facilities offered at the Retirement Village, and the services provided by RWA, do not provide relief for the aged.  It contends that the services provided to the residents of the Retirement Village are no different to the services which would be provided by the management body of any strata company. 

2. I have considered these facilities and services below.  In my view (save where I have indicated to the contrary) they can be taken into account as part of the circumstances surrounding the use of the land by the residents as the occupants, or by the Housing Authority as the owner.

•  Physical features of the Retirement Village

1. The Retirement Village comprises 12 two­bedroom units.  RWA focuses on providing reasonably priced housing to pensioners without all of the facilities, and therefore without all of the costs, of accommodation provided by some private sector operators.  For that reason, the facilities at the Retirement Village do not extend beyond the individual units.  There is no hostel or aged care facility attached to the Retirement Village.  Nor are there any communal facilities such as a club area, dining room or kiosk for residents: para 29 of the Agreed Facts.  There is no resident caretaker or staff.  The units are not barrier-free, nor are they fitted with physical supports for aged persons who may also be infirm.  The standard of accommodation provided at the Retirement Village was described as being at the lower end of the market. 

2. The provision of a resident caretaker or staff, or of nursing facilities or of meals for residents are not essential for a finding that accommodation for the aged provides relief for the aged.  In Re Payling's Will Trusts; Armstrong v Payling and Ors [1969] 3 All ER 698 a testator left a cottage on trust to be used as a home for aged persons. The evidence was that it was practicable to convert the cottage into four small flats to be used by aged persons but without the provision of a resident caretaker or the provision of meals or other care, and on the basis that the residents would cover the cost of their own maintenance apart from the accommodation. The question which arose was whether in these circumstances the trust was a valid charitable trust. It was held that it was. Buckley J (at 700) held that to provide the aged with rent free accommodation was a charitable purpose.

3. In Joseph Rowntree Memorial Trust the plaintiffs wished to build small self-contained accommodation for sale to elderly people on long leases in consideration of a capital payment under five different schemes.  Under one of those schemes, the dwellings consisted of flats or bungalows designed for the needs of the elderly which would be sold to persons of retirement age in need of accommodation at a cost to the tenant of 70% of the cost of the premises.  On the death of the tenant, the lease could be assigned to the tenant's spouse or an eligible family member, or alternatively if the lease could not be assigned, or if the tenant became incapable of managing their own affairs, the lease would revert to the Association and the outgoing tenant or their estate would receive 70% of the then market value of the property.  There would be no warden for the property, and the flats would not have alarm systems.  The plaintiffs sought a determination of whether any or all of the schemes for accommodation were charitable.  Peter Gibson J held (at 300) that the schemes, including the scheme to which I have referred, were charitable in law.  In particular he held that the presence or absence of warden services, provided that the accommodation was designed to meet the special needs of the elderly tenants, was not essential to the charitable nature of the scheme.

4. Similarly, in D V Bryant Trust Board the question was whether land on which was situated a retirement village for aged persons was being used for a charitable purpose and therefore non-rateable. The retirement village comprised 32 self­contained units. Although the retirement village contained some amenities such as a social hall, a magazine and book library and some outdoor activities, there were no nursing facilities and the residents were responsible for the preparation of their own meals. Hammond J held that the land was being used for the provision of relief for the aged, and amongst other things held (at 350) that the fact that there were no nursing facilities or other care of that kind on site was not fatal to the claim that relief for the aged was provided.

5. On the other hand, each unit has a security door, which was installed to improve the security of residents:  para 29 of the Agreed Facts.  In addition, each unit has a duress alarm, which if activated turns on an alarm and flashing light outside the unit.  As there is no resident manager on site, the activation of the alarm simply alerts other residents to the fact that the resident of that unit needs assistance.  If a resident wishes, and is willing to pay to do so, the alarm can be linked to an external monitoring service:  para 27 of the Agreed Facts. 

•  Services provided by RWA to the residents

1. RWA sought to rely on the fact that it provides a number of services to its members, and that these are able to be enjoyed by the residents of the Retirement Village because they are members of RWA.  Those services include membership of a social club, which provides members with the opportunity to attend a variety of social outings, performing and visual arts events in a group with others of a similar age and with similar interests, and membership of a local branch, which provides an opportunity for members to socialise and participate in a number of recreational activities: para 8 of the Agreed Facts.  However, in recent times the participation of residents in branch activities has been limited: para 20 of the Agreed Facts. 

2. I do not place any weight on the services provided to RWA members generally, for two reasons.  First, the services are not provided by RWA to the residents as residents, but rather are simply available to them as members of RWA.  Secondly, in its capacity as the manager of the Retirement Village pursuant to the JVA, RWA does not appear to take any active steps to encourage residents to participate in any social activities which RWA may offer.  In my view, therefore, there is an insufficient connection between the provision of these services and the use of the Land.  

3. However, RWA provides other services to the residents of the Retirement Village.  RWA provides the external maintenance of the units and of the common property and the grounds of each unit, using the maintenance fund to which each resident contributes: para 27(a) of the Agreed Facts.  RWA also provides general maintenance of the inside of the units, as requested by the residents.  RWA provides these maintenance services pursuant to its obligations under the JVA.  The evidence was that strictly speaking, the cost of this maintenance was borne by each resident, but on some occasions RWA performs this work without charge: para 27(b) of the Agreed Facts.  There was evidence that RWA has, at its cost, repaired internal walls, leaking taps, security doors and electrical fans, replaced a hot water system, cracked toilets, kitchen fan covers, pergolas, smoke alarms, carpets and tiles, installed new shower heads in units and hard­wired smoke alarms to all units, carried out minor repairs to gutters, re-hung doors, and attended to other items not strictly covered by the Maintenance Fund: para 8 of the Witness Statement of Mrs Marjorie Woodward and para 10 of the Witness Statement of Ms Margaret Thomas, the CEO and Chief Financial Officer of RWA.

•  Companionship and a sense of community

1. RWA contends that the residents of the Retirement Village have the benefit of companionship and a sense of community and mutual support arising from living with persons of similar age. 

1. The evidence supported this contention: para 20 of the Agreed Facts and para 11 of the Witness Statement of Mrs Marjorie Woodward, Annexure F to the Agreed Facts.  There was evidence that different groups of residents regularly meet on a social basis:  para 10 of the Witness Statement of Mrs Marjorie Woodward, Annexure F to the Agreed Facts.  There was also evidence that there is a residents' committee at the Retirement Village, which meets every 3 months to discuss maintenance and other issues of concern to residents, and which provides an opportunity for residents to socialise: para 7 of the Witness Statement of Mrs Marjorie Woodward, Annexure F to the Agreed Facts. 

2. There was no evidence that RWA organises or provides any practical support for social activities between residents of the Retirement Village.  Nevertheless, in my view, the companionship, sense of community, mutual support and social interaction between residents of the Retirement Village should properly be seen as a benefit that arises from living at the Retirement Village. 

3. I am unable to agree with the City that any such benefit does not exceed that which might accrue to a resident of any strata titled unit complex.  There was no evidence about the benefits which residents of a strata titled unit complex would derive from living in such a complex.  Living in a strata titled complex involves living in relatively close proximity with others, but residents of a strata title complex may not have anything in common apart from their shared address.  In my view, the fraternity that is enjoyed by residents of the Retirement Village derives, on the evidence, from living near to persons of a similar age, who are all retirees, and who are all members of RWA.  The benefit of that fraternity is attributable to the fact that under the JVA the accommodation is provided only for Members of RWA, who are therefore of a similar age and who are retirees. 

•  Affordable and long term housing

1. RWA contended that one of the most important benefits provided to residents of the Retirement Village is affordable housing by way of a long term lease for aged persons.  The lease is granted by the Housing Authority through its agent RWA. 

2. The lease for life in fact provides two benefits:  affordable accommodation and the stability and security of long term accommodation.

3. First, as to the affordability of the accommodation, there was evidence before the Tribunal about the cost to residents of entering into a residence contract for a unit at the Retirement Village.  Entry into the residence contract requires residents to make an ingoing payment.  Most of the residence contracts were entered into prior to 1999.  The residence contract provided in evidence indicated that in 1996 that ingoing payment was $68,000: Annexure E to the Agreed Facts. 

4. When a resident's occupancy of the unit is terminated, RWA is to arrange for a further lease (described in the documents as a 'resale') of the unit.  The amount of the 'resale' of the unit is to be determined by reference to the market price.  The outgoing resident will then receive an outgoing payment based on a formula set out in the residence contract.  The outgoing resident receives an amount equal to the proceeds of the 'resale' of the lease, less deductions for two things.  An 'ingoing retention' payment is deducted, which is an amount equal to 5% of the 'sale' proceeds for each year of the term of the residence contract, up to a maximum amount equal to 30% of the 'sale' proceeds.  In addition, a 'refit fee' is deducted, which is calculated at 1% per year of the original ingoing cost.  Accordingly, if a resident vacated a unit after six years, the resident would receive 70% of the 'resale' value less the 'refit fee':  para 21 of the Agreed Facts. 

5. The evidence included examples of how these calculations might apply, based on an ingoing cost of $68,000, and an estimated inflation figure and an estimated increase in 'resale' value of 3% per year.  For example, if a resident vacated a unit after one year, it is estimated that the resident would receive an outgoing payment of $65,858, representing a cost to the resident of $2,142 over that year.  If a resident vacated a unit after five years, it is estimated that the resident would receive an outgoing payment of $55,723, representing a cost to the resident of $12,277 over the five years.  If a resident vacated a unit after 10 years, it is estimated that the resident would receive an outgoing payment of $57,170, representing a cost to the resident of $10,830 over the 10 years.  If a resident vacated a unit after 15 years, it is estimated that the resident would receive an outgoing payment of $63,959, representing a cost to the resident of $4,041 over the 15 years:  Annexure E to the Agreed Facts. 

6. The only additional charge that residents are required to pay under the residence contracts is what is described as 'maintenance rent' every four weeks.  That charge covers property maintenance and village management, including the outside maintenance of units, insurance, common area electricity costs, upkeep of grounds, external painting of units and so on.  If council rates are payable, they will be payable from the maintenance rent also.  The maintenance rent is based on budgeted expenses over the course of the financial year.  The evidence was that RWA is under pressure from residents not to increase the amount of the maintenance rent:  para 17 of the Agreed Facts.  The current rent is $165 per month:  para 8 of the Witness Statement of Mrs Marjorie Woodward, Annexure F to the Agreed Facts. 

7. Having regard to the quantum of the maintenance rent charged in respect of the property, and to the return that a resident (or his or her estate) is likely to receive upon vacating the property, it is apparent that the cost to residents of the accommodation at the Retirement Village is very modest. 

8. Secondly, residents of the Retirement Village derive the security and stability of long term accommodation, because the residence contract gives the resident a right to occupy the unit specified in the contract during his or her lifetime, provided that the resident is able to care for him or herself, subject to the conditions in the residence contract: cl 2.1 and 2.2 of the sample residence contract, Annexure E to the Agreed Facts.  RWA is not permitted to terminate the resident's occupation of the unit without the resident's agreement:  cl 10 of the sample residence contract, Annexure E to the Agreed Facts. 

9. However, residents are only permitted to reside at the Retirement Village if they are able to maintain themselves independently: Disclosure Statement for Residents, Annexure E to the Agreed Facts.  If residents require a 'carer' on a short or long term basis, the Carer is permitted to reside in the resident's unit for the time required (Disclosure Statement for Residents, Annexure E to the Agreed Facts), but a resident is not permitted to continue to reside in a unit in the Retirement Village if he or she is unable to care for him or herself: cl 2.1 of the sample residence contract, Annexure E to the Agreed Facts.  If a resident is unable to take care or him or herself, and has to seek alternative accommodation in a nursing home, RWA is not obliged to provide that alternative accommodation:  clause 6 of the sample residence contract (Annexure E to the Agreed Facts). 

10. Although residents of the Retirement Village may not be able to continue to reside at the complex in the event that they are unable to live independently they nevertheless enjoy the benefit of the security of the lease for life for such period as they are capable of independent living. 

(ii)  Constating instruments

1. In Uniting Church Homes (at [42] ­ [47], and at [100] ­ [101]) the Tribunal took into account the not-for-profit nature, charitable status and objectives of the operators of the retirement villages, as disclosed by their constating instruments in particular, in forming its overall judgment that the land on which those retirement villages were situated was used for providing relief of the aged, and therefore for charitable purposes.

2. The document which is of primary assistance in ascertaining the purpose of the use of the Land is the JVA.  It records the joint intent of Homeswest and RWA in the construction and management of the Retirement Village.  The recitals to the JVA indicate that RWA wished 'to have constructed and to manage one or more retirement villages principally to accommodate APL's members' and Homeswest was 'prepared to finance the construction of one or more retirement villages on Homeswest land principally to accommodate APL members'.  Homeswest and RWA entered into the JVA for the construction and management of one or more retirement villages, which includes the Retirement Village: paras A ­ C of the JVA, Annexure C to the Agreed Facts. 

3. Because the Retirement Village was constructed principally for the accommodation of RWA's members, and because some of RWA's members are 'aged', then the JVA provides some support for the conclusion that the purpose behind the construction and management of the Retirement Village on the Land was to assist aged persons. 

4. RWA submitted that its constating instruments also supported the conclusion that the Land is used for the provision of relief of the aged.  The City argued that RWA's constating instruments were not relevant because RWA was not the 'owner' of the Land, and its purpose in participating in the use of the Land was irrelevant. 

5. I am unable to accept the view that RWA's constating instruments are entirely irrelevant.  As I have noted above, I have reached the view that circumstances surrounding the use of the Land, whether by the occupants or by the Housing Authority as owner, are relevant to determining 'use' for the purposes of s 6.26(2)(g).  Those surrounding circumstances include the fact that an objective of the JVA is that accommodation in the units is provided to RWA's members.  Residence at the Retirement Village is dependent on membership of RWA and RWA's purposes in providing accommodation for its members through the JVA (which object is common to the Housing Authority under the JVA) are in my view of relevance in discerning the purpose for which the Land was to be used under the JVA. 

6. The City contends that RWA's objects under its Constitution do not focus on the provision of relief of the aged. RWA's objects do not expressly include the establishment of retirement villages or other aged care facilities. However, the establishment of such facilities is clearly a way in which the objects set out in clause 4.1 of RWA's Constitution might be achieved. RWA's objects include 'to provide facilities for Members to meet with the aim of providing fellowship and to relieve and alleviate loneliness, poverty, sickness, suffering and distress, destitution or helplessness and generally to act in a benevolent manner for the benefit of Members' and 'to provide members with access to support, products and services aimed to enhance the quality of life or assist Members in making decisions aimed at improving or enhancing the quality of life of Members': cl 4.1 of RWA's Constitution, Annexure A to the Agreed Facts.

7. RWA's Constitution also contemplates that it will establish aged care facilities in that it requires that the management and control of the affairs and business of aged care facilities or services established by RWA be vested in its Finance and Administration Committee: cl 15 of RWA's Constitution, Annexure A to the Agreed Facts. 

8. In addition, RWA's objects include providing certain kinds of facilities and services for its Members, many of whom are clearly 'aged'.  Whether a particular activity which is pursued by RWA in pursuit of its objects can be said to be for the relief of the aged will ultimately depend on other factors relating to the actual facilities established.  Nevertheless, RWA's constating instrument provides some support for the conclusion that the Land is used for the relief of the aged.

(iii)  Charitable and not-for-profit status of RWA

1. In Uniting Church Homes the Tribunal took into account, in its overall judgment about the use of the land, the fact that the operators of the retirement villages in that case were not­for­profit organisations, and were registered as public benevolent institutions for tax purposes. 

2. RWA is in a similar position.  It is a registered charitable organisation for the purposes of the Charitable Collections Act 1946 (WA) and it is classified for tax purposes as a charitable institution: para 6 of the Agreed Facts. The City submitted that these considerations were irrelevant to determining the use of the Land. It submitted that the fact that RWA had a charitable status for the purpose of other, unrelated legislation (and on the basis of criteria unrelated to the present case) did not mean that the Land was being used for a charitable purpose here.

3. The considerations to which RWA points do not, of themselves, establish that the Land is used for the relief of the aged, or indeed for other charitable purposes.  However, in my view they nevertheless form part of the factual context in which the Land is used, and assist in making an 'overall judgment' about the use of the Land. 

4. It is also part of the factual context that RWA is a not­for­profit organisation.  The evidence was that the ingoing retention sum retained by RWA when a resident vacates a unit in the Retirement Village includes a profit component: cl 21(b) of the Agreed Facts.  However, the evidence was that to the extent that any profit is derived by RWA from the leasing of the units, it is applied in pursuit of the objects set out in RWA's Constitution.  RWA's Constitution provides that it shall apply its property and income solely towards the promotion of its objects:  cl 4.2 of the Constitution of RWA, Annexure A to the Agreed Facts.  There was evidence that RWA's focus is on providing affordable housing to retirees, particularly pensioners, and that it is presently building a new 80 unit retirement village. 

5. The receipt of lump sum ingoing payments, provided that these are not applied as profit, does not preclude a finding that accommodation for the aged is for the relief of the aged.  I note that in WA Baptist Hospital & Homes land on which was situated a home for aged persons was held to be used to provide relief for the aged. Amongst other things, the Court held (at 68 ­ 69) that the receipt by the plaintiff of lump sum ingoing payments from the residents did not deprive the use of the land of its charitable purpose because the plaintiff's constitution prohibited it transferring any income received to other persons by way of profit.

(iv)  Did the provision of those facilities, services and benefits provide 'relief'of the needs of the aged? 

1. The facilities, services and benefits which I have outlined above address the needs of the aged.  The security features of each unit address the need for a sense of physical security for aged persons.  The ongoing maintenance of the Retirement Village, and more importantly the maintenance work carried out by RWA without payment from individual residents, or through recourse to the maintenance fund, address the need of aged persons for low maintenance accommodation.  The fact that the units are leased only to aged persons, all of whom are of a similar age, are retirees, and are members of RWA, facilitates the sense of community, companionship and mutual support which is experienced by residents of the units and in turn addresses the needs of aged persons for fraternity, a sense of belonging, and interaction.  The lease for life which is granted to residents addresses the need of aged persons for stability and security of accommodation, while the modest cost of residing at the Retirement Village addresses the need of aged persons for affordable housing.  In view of the evidence, I have concluded that the aged residents of the Retirement Village would have difficulty in alleviating these needs themselves, and that is why the residents have sought accommodation at the Retirement Village. 

2. The provision of these facilities, services and benefits to the aged residents of the Retirement Village, pursuant to the JVA between the Housing Authority and RWA, RWA's objects relevant to the JVA, RWA's charitable status for other purposes, and the not­for­profit nature of RWA's activities, lead me to the overall judgment that the use of the Land for the Retirement Village pursuant to the JVA can properly be described as providing a scheme for the relief of the needs of the aged. 

3. The fact that the Retirement Village does not have all of the features of the independent living units the subject of the decision in Uniting Church Homes or of more traditional retirement villages, does not preclude the conclusion that the facilities, services and benefits which are provided are for the relief of the aged.  As counsel for RWA submitted, it would be incongruous if a retirement village that provided a broad range of services to aged persons, but at a higher cost (which was therefore not accessible to many aged persons of modest means) was regarded as the pursuit of a charitable purpose, but a retirement village which provided more basic accommodation to aged persons at a much lower cost (and therefore on a much more accessible basis) was not regarded as the pursuit of a charitable purpose because of its more limited facilities. 

4. It is appropriate to deal with a final issue which, while not expressly ventilated by the City, might be considered implicit in its submission that the benefits provided to residents at the Retirement Village are no more than would be enjoyed by residents of a strata titled complex.  That issue is the question whether the relief which is provided needs to be real, as opposed to fanciful, trifling or insubstantial.  This criterion was applied by Hammond J in D V Bryant Trust Board (at 350). If that is a criterion which must be met in order that a benefit may be regarded as being for a charitable purpose, then for the reasons I have already given, in my view that criterion is met in this case.

(v)  The requirement of a public benefit - is there a public benefit here?

1. 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).

2. 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 sub-category 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).

3. 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 TrustCo 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).

1. 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.

2. 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. 

3. 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.

4. The City contends that the requirement that there be a public benefit is not met in this case because the Land is used only for the benefit of members of RWA and not for the benefit of the public.  The City submits that it is apparent from RWA's constating instrument that the services it provides are confined only to its members, rather than to members of the public. 

5. RWA contends that there is a sufficient public benefit in this case because all members of the public who reach 50 years of age and who are not in full time employment are eligible to join RWA.  RWA submitted that its members can be considered a section of the public because it is an organisation that all members of the public will ultimately be entitled to join. 

6. I am not persuaded that the purpose for which the Land is used in the present case is for the public benefit.  The evidence was that only financial members of RWA are eligible to enter into a residence contract for a unit in the Retirement Village: cl 2.2 of the Disclosure Statement which accompanies the sample residence contract, Annexure E to the Agreed Facts.   Accordingly, the beneficiaries of the use of the Land are confined to people who are members of RWA.  It is therefore necessary to consider whether the members of RWA constitute a section of the public as to permit the conclusion that use of the land is for a public benefit. 

7. Although it is the case, at least in theory, that all members of the public will ultimately be entitled to join RWA, provided they reach 50 years of age and cease full­time employment, that is not the end of the matter.  RWA's Constitution provides that a person who wishes to become a member must submit an application form, which shall be considered by the CEO of RWA, and which 'may be accepted or rejected by the CEO at the CEO's discretion': cl 7.1 of the Constitution of RWA, Annexure A to the Agreed Facts.  Prior to the rejection of any application, the Finance and Administration Committee is required to ratify the CEO's decision: cl 7.3 of the Constitution of RWA, Annexure A to the Agreed Facts.

8. Continuing membership of RWA is dependent upon the member's payment of the annual fees levied by RWA.  Failure to do so will result in the member being 'deemed to be un-financial and such person's rights as a Member may be suspended at the CEO's discretion until payment … is received': cl 8.2 and cl 8.4 of the Constitution of RWA, Annexure A to the Agreed Facts.  In addition, RWA may expel or suspend a member's membership for conduct by the member which is considered to be 'damaging, detrimental, contrary or prejudicial to the interests of RWA': cl 12 of the Constitution of RWA, Annexure A to the Agreed Facts.  On its face, the power to reject applications for membership, and the grounds for expelling a member, appears to involve a wide measure of discretion. 

9. The fact that RWA has the power to admit or exclude members in accordance with the tests set out in its Constitution suggests that RWA is a body of the kind referred to by Lowe J in Re Income Tax as not constituting a section of the public.  In this respect, this case is more akin to cases involving sporting associations, such as Strathalbyn esp at [103] ­ [110] (Bleby J) and to cases concerning trusts for the benefit of members of trade unions, such as Re Mead's Trust Deed; Briginshaw and Ors v National Society of Operative Printers and Assistants and Anor [1961] 2 All ER 836 esp at 840 ­ 841 (Cross J). The fact that RWA makes the benefits of accommodation in the Retirement Village available only to its members, rather than to the broader community of pensioners and retirees, also supports the conclusion that at least in so far as the provision of accommodation at the Retirement Village is concerned, RWA is more analogous to a voluntary organisation which provides benefits for its members.

10. RWA submitted that the right to exclude members did not deprive the purpose for which the Land was used of the requisite public benefit element.  RWA relied on the decision in Bindibindi for the proposition that the provisions of its Constitution concerning the expulsion of members must be read in conjunction with the Constitution as a whole, including RWA's objects, and that those objects included the advancement of retirees generally. In Bindibindi, Wheeler J expressed the view that construing the rules of the Bindibindi Corporation in this way might lead to a much narrower application of the power to expel members than the broad terms of that power might have otherwise suggested. 

11. In my view, the decision in Bindibindi does not assist RWA, for three reasons.  First, Justice Wheeler did not decide Bindibindi on the basis of the proposition on which RWA now seeks to rely. Instead, she held (at [33] ­ [34]) that there was a sufficiently public element to the benefit provided because accommodation on the land was open to all Aboriginal people eligible for membership of the Bindibindi Corporation, that accommodation was generally allocated in the order of application to both members of the Corporation and to persons who were not members, but eligible to be members, and that this group constituted a sufficiently significant proportion of the local community so as to be considered public in nature. In the present case the benefit provided by accommodation at the Retirement Village is open only to members of RWA.

12. Secondly, the rules of the Bindibindi Corporation are not set out in the judgment, and it cannot be assumed that RWA's Constitution can be construed in the same way that Wheeler J suggested might be open in relation to the rules of the Bindibindi Corporation.

13. Thirdly, when RWA's objects are considered it is far from clear that they would lead to a narrow construction of the power to suspend or expel members under RWA's Constitution.  RWA's objects are very broad indeed.  Its objects include objects which directly benefit its members, such as providing facilities for its members to meet with the aim of providing fellowship and alleviating loneliness: cl 4.1.1 of RWA's Constitution, Annexure A to the Agreed Facts.  However, its objects also include objects which may indirectly benefit its members, but which are primarily directed to further the wider interests of pensioners and retirees, such as its object to 'assist, protect and further the interests of pensioners … and persons retired from full time employment' and 'to encourage assist and promote sound public awareness pertaining to all aspects of aged, widow, disability, support pensioners, superannuants and self funded retirees': cl 4.1.3 and 4.1.3 of RWA's Constitution, Annexure A to the Agreed Facts. 

14. It is not immediately obvious how these broad objects would impact on the construction of the power to reject applications for membership, or to expel or suspend members, of RWA.  That is particularly the case in relation to the power to expel or suspend a member, which may be exercised in response to conduct by a member which is considered by the members of the Disciplinary Panel to be 'damaging, detrimental, contrary or prejudicial to the interests of the Organisation'.  Counsel for RWA did not make submissions as to how the power to reject an application for membership, or to expel or suspend a member, would be construed when read in conjunction with the objects of RWA.  In addition, there was no evidence in relation to the manner in which the power to reject applications for membership, and to expel or suspend members, is applied.  

15. 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. 

(vi)  Exclusive use

1. The parties differed on the question of the purpose for which the Land was used, but there was no suggestion that the Land was not used exclusively for that purpose.  Accordingly, had I reached the conclusion that the Land was used for a charitable purpose I would have concluded that it was used exclusively for that purpose. 

(vii)  Conclusion – was the Land used exclusively for a charitable purpose?

1. The Land is used exclusively for the purpose of providing a scheme for the relief of the aged, through the provision of accommodation which provides relief for some of the needs of the aged.  However, my conclusion that that purpose is not for a public benefit means that the Land cannot be said to be used exclusively for charitable purposes so as to fall within the exception in s 6.26(2)(g) of the LG Act. 

If the Land is rateable land were the rates notices wrongly addressed?

1. As I noted at the outset of these reasons, in the course of the hearing, RWA was given leave to rely, in the alternative, on an additional ground of review which contended that the rate notices were addressed to the wrong party. 

2. Copies of the rate notices for the rating periods were not included in the materials before the Tribunal.  I have set out above the City's submissions in relation to the issue of the rate notices to the Department of Housing, although the notices were in fact sent to RWA.

3. RWA sought to rely on this additional ground of review only in the event that the residents of the Retirement Village were found to be the 'owners' of the Land.  Save to note that the 'owner' of the Land is in fact correctly described as the Housing Authority, and not the Department of Housing, it is unnecessary in the circumstances to deal with this additional ground of review. 

Conclusion and Orders

1. During the rating periods, the Land was not used for the purposes described in s 6.26(2)(a)(i) or s 6.26(2)(g) of the LG Act and accordingly the Land was rateable land during those periods.

2. I make the following orders:

   1.The application for review is dismissed.

   2.The decision of the City of Belmont dated 26 June 2008 to disallow the objection made by Retirees WA (Inc) to the rate record for the 2006/2007 and 2007/2008 rating years in respect of the land at 10­16 Francisco Street, Rivervale is affirmed.

I certify that this and the preceding [179] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUDGE J PRITCHARD, DEPUTY PRESIDENT