SANCTUS NOMINEES PTY LTD and CITY OF WANNEROO
[2018] WASAT 54
•27 JUNE 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: SANCTUS NOMINEES PTY LTD and CITY OF WANNEROO [2018] WASAT 54
MEMBER: SENIOR MEMBER M SPILLANE
HEARD: 15 NOVEMBER 2017, 14 & 15 FEBRUARY 2018
DELIVERED : 27 JUNE 2018
FILE NO/S: DR 416 of 2015
BETWEEN: SANCTUS NOMINEES PTY LTD
Applicant
AND
CITY OF WANNEROO
Respondent
Catchwords:
Land - Rates - Objection to rate record - Whether land is rateable land - Crown land held or used for a public purpose - Lease of submerged land - Seabed - Harbour and private boat pens - Predominant use
Legislation:
Income Tax Assessment Act 1936 (WA)
Interpretation Act 1984 (WA), s 5
Local Government Act 1995 (WA), s 6.26
Tax Assessment Act 1936-1968 (Cth), s 82(2)
Result:
Application unsuccessful
Summary of Tribunal's decision:
Sanctus Nominees Pty Ltd (Sanctus Nominees) is the lessee of the land (seabed) below Mindarie Keys Harbour (Harbour). The lessor is the Minister for Transport, Tourism and Sport. The land is submerged Crown land vested in the City of Wanneroo (City). The lease of the land was entered into in 1995 for a term of 50 years, commencing 6 October 1989 and was assigned to Sanctus Nominees with effect from 7 May 2014.
Contemporaneously with the entry into the lease, the lessor and the original lessee executed a jetty and mooring licence (licence) permitting its holder to construct jetties and moor vessels within the Harbour for the same term as the lease.
Four floating jetties and 250 floating boat pens were constructed within the Harbour before the lease and the licence were assigned to Sanctus Nominees in May 2014.
On 3 August 2015 the City issued a rate notice to Sanctus Nominees in respect of the land for the 2015/2016 financial year. Sanctus Nominees objected to the rate record pursuant to s 6.26 of the Local Government Act 1995 (WA) on the basis that the land is not rateable because it is land which is the property of the Crown and which is being held or used for a public purpose.
By letter of 14 October 2015, the City refused to extend the time to make the objection and disallowed the objection. On 16 November 2015 Sanctus Nominees filed an application to review both those decisions with this Tribunal.
Having heard evidence in the matter and the parties' submissions, the Tribunal decided that:
The time to make the objection should be extended;
The land, being the seabed below the Harbour, is not 'held' primarily or predominantly for a public purpose;
The land being the seabed below the Harbour is not 'used' primarily or predominantly for a public purpose; and
If the use of the Harbour waters are to be considered as the use of the land, then that use is not primarily or predominantly for a public purpose.
The time to make the application was therefore extended but the application for review was dismissed.
Category: B
Representation:
Counsel:
| Applicant | : | Mr S Davis |
| Respondent | : | Mr M Curwood and Mr S De Vita |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | De Vita Legal |
Case(s) referred to in decision(s):
Antonas and Town of Vincent [2006] WASAT 303; (2006) 45 SR (WA) 327
Aydogan and Town of Cambridge & Anor [2006] WASAT 122
Cloverdale v West Coast Council [2016] HCA 15
Cory v Bristow (1877), 2 App. CAS. 262
Dampier Mining v Federal Commissioner of Taxation [1981] HCA 29
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Goldsworthy Mining Ltd v Commissioner of Taxation (Cth) (1975) 132 CLR 463
Goldsworthy Mining Ltd v Federal Commissioner of Taxation (19721973) 128 CLR 199
Mirvac Mandurah Pty Ltd and City of Mandurah [2006] WASAT 44
Newcastle City Council v Royal Newcastle Hospital (1959) 100 CLR 1
Port Kennedy Resorts Pty Ltd v City of Rockingham (2000) 112 LGERA 296
Randwick Municipal Council v Rutledge (1959) 102 CLR 54
Re Caboolture Aero Club (Inc) [1995] 1 Qd R 591
Reid v Western Australian Planning Commission [2016] WASCA 181
Ryde Municipal Council v Macquarie University (1978) 139 CLR 633
Sanctus Nominees Pty Ltd and City of Wanneroo [2015] WASAT 86
State Government Insurance Office v City of Perth (1987) 71 LGRA 123
Swan Yacht Club Inc v East Fremantle Town Council [2005] WASCA 99; (2005) 30 WAR 193
Sydney City Council v University of Technology Sydney (1992) 78 LGRA 200
The Owners of Strata Plan 18449 and the City of Joondalup [2005] WASAT 304; (2005) 150 LGERA 346
WR Carpenter Properties Pty Ltd And Griffin Coal Pty Ltd and Western Australian Planning Commission [2016] WASAT 200
REASONS FOR DECISION OF THE TRIBUNAL:
Background facts
Sanctus Nominees Pty Ltd (applicant) is the lessee of the seabed below Mindarie Keys Harbour (Land or Harbour Bed), the lessor is the Minister for Transport, Tourism and Sport (Minister). The Land is submerged Crown Land which is vested in the City of Wanneroo (respondent).
The lease of the Land was first entered into in 1995 under a Deed of Lease titled 'Mindarie Keys Harbour Bed' dated 19 December 1995 for a term of 50 years commencing 6 October 1989 (Lease or Harbour Bed Lease). The Lease was assigned to the applicant with effect from 7 May 2014.
Contemporaneously with the entry into the Lease, the lessor and the original lessee executed a jetty and mooring licence (Licence) permitting its holder to construct jetties and moor vessels within the Mindarie Keys Harbour (Harbour) for the same term as the Lease.
A number of floating jetties and 250 floating boat pens were constructed within the Harbour before the Lease and the Licence were assigned to the applicant in May 2014.
On 1 August 2014 the respondent issued a rate notice to the applicant in respect of the Land for the 2014/2015 financial year. By letter dated 7 December 2014 the applicant objected to that rate record which objection was disallowed by the respondent on 18 December 2014, following which the applicant applied to this Tribunal for a review of the respondent's decision.
In a decision Sanctus Nominees Pty Ltd and City of Wanneroo [2015] WASAT 86 (2015 decision) delivered on 14 August 2015 the Tribunal dismissed that application for review.
On 3 August 2015 the respondent had issued a further rate notice to the applicant in respect of the Land for the 2015/2016 financial year. By letter dated 7 October 2015 the applicant objected to that rate record and also sought an extension of time in which to object.
By letter dated 14 October 2015 the respondent refused the extension of time and disallowed the objection following which the applicant filed an application with this Tribunal dated 16 November 2015 for a review of the respondent's decision. The Tribunal notes that in the respondent's decision dated 14 October 2015, the address for the Land was described as 11L Syros Court, Mindarie WA 6030.
Issue for determination
The parties agreed that:
The issue for determination by the Tribunal is whether as at the time of completion of the rate record for the 2015/2016 financial period (i.e. as at early August 2015), the subject property was being held or used for a 'public purpose' in accordance with the meaning of s 6.26(2)(a)(i) of the LG Act, such that it is not rateable land.
Although the parties agreed to the substantive issue to be determined, two other matters must also be dealt with.
The first concerns the respondent's submission that the applicant objected on similar grounds to the rate assessment for the 2014/2015 rating period, which objection was also rejected by the respondent and later on review was dismissed by this Tribunal in the 2015 decision. The respondent contends that the Tribunal should follow the Tribunal's findings in the 2015 decision.
In The Owners of Strata Plan 18449 and the City of Joondalup [2005] WASAT 304; (2005) 150 LGERA 346 (The Owners of Strata Plan 18449) at [31] the Tribunal stated:
For reasons of comity and consistency, a member of SAT should … generally follow a decision of another member of the Tribunal (or a member of a former Tribunal which SAT has replaced) that is in point, unless satisfied that the earlier decision was clearly in error: Re Scott and Commissioner for Superannuation (1986) 9 ALD 491 at 499.
…
Such practice has been consistently followed in a number of later decisions of this Tribunal. See: WR Carpenter Properties Pty Ltd And Griffin Coal Pty Ltd and Western Australian Planning Commission [2016] WASAT 200 at [68]; Aydogan and Town of Cambridge & Anor[2006] WASAT 122; Antonas and Town of Vincent [2006] WASAT 303; (2006) 45 SR (WA) 327; and Mirvac Mandurah Pty Ltd and City of Mandurah [2006] WASAT 44.
The applicant submits however, that the factual situation before the Tribunal in the 2015 decision was different and, that on this occasion, there is evidence before the Tribunal which was not before the Tribunal in 2015.
The second matter that must be dealt with is that the applicant's objection to the rate record was made 19 days out of time. The Tribunal will therefore need to consider whether to extend that time.
In Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 (Esther Investments Pty Ltd) at 198 Kennedy J stated as follows:
In Palata Investments Pty Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 946; [1985] 2 All ER 517 at 520, the Court of Appeal accepted that, in relation to an application for an extension of time for appealing, there are four major factors to be considered in the exercise of direction which is conferred upon the court. They are, first, the length of the delay, secondly, the reasons for the delay, thirdly, whether there is an arguable case and, fourthly, the extent of any prejudice to the respondent. There may in a particular case be additional factors, but I accept that the foregoing are the major factors in the present case.
The Tribunal has, on a number of occasions, held that the four factors identified by Kennedy J in that passage are the principal matters for consideration in the exercise of discretion as to whether to extend time.
However, the third issue listed by Kennedy J being 'whether there is an arguable case' will only become apparent after consideration of the substantive issue to be determined.
In the circumstances, the Tribunal will deal with the substantiative issue first before addressing either of those additional matters.
Legal principles
Under the heading 'rateable land' s 6.26 of the Local Government Act 1995 (WA) (LG Act) states:
(1)Except as provided in this section all land within a district is rateable land.
(2)The following land is not rateable land
(a)land which is the property of the Crown and
(i)is being used or held for a public purpose[.]
The parties agree that the Land being the Harbour Bed is the property of the Crown and is leased to the applicant and that the sole question for determination is whether during the relevant rating period:
[T]he Land was being used or held for a public purpose.
In Swan Yacht Club Inc v East Fremantle Town Council [2005] WASCA 99; (2005) 30 WAR 193 (Swan Yacht Club) Pullin J dealt specifically with the test to be applied in such circumstances and stated:
25For a purpose to be a "public purpose" the objector must show that it is a purpose which relates or pertains to the people of the State or of some particular region or locality as a whole, and so relate or pertain in the sense of the provision of some service, utility or benefit to the public which would not be otherwise provided, and which is not provided with the primary purpose of producing profit (although profitability might well flow from charges or fees imposed or monies collected or earned in respect of such a provision). Such a definition accords with activities which are traditionally the province of government and with the meaning of the word "public". This definition of "public purpose" appears in Franklyn J's judgment in State Government Insurance Office v City of Perth (1987) 71 LGRA 123 at 135 and it was adopted by the Full Court of this Court in Port Kennedy Resorts Pty Ltd v The City of Rockingham (supra) at [34].
26In my opinion, a decision about whether or not land is "held", as opposed to 'used', for a public purpose must be ascertained by examining the terms on which the land is held. In this case the subject land is held under the lease and the content of the lease will determine whether the land is held for public purposes or not. The lease must of course be construed in the context of the statutory framework and the terms of the Order in Council. In my opinion, no evidence of the actual use of the land is relevant when considering whether the land is "held" for public purposes.
and in respect to whether the land was 'used' for a public purpose, Pullin J at [32] stated:
… that would 'require an examination of the evidence as to the use to which the subject land was put at the relevant time. The relevant time is the time of completion of the rate record.
Was the subject land 'held for a public purpose'?
As stated above by Pullin J at [26]:
… a decision about whether or not land is 'held', as opposed to 'used', for a public purpose must be ascertained by examining the terms on which the land is held.
Agreed facts
The parties filed with the Tribunal a statement of agreed facts dated 25 October 2016 part of which stated. (Note: some descriptions have been amended for context):
1.The applicant leases an area of 13.3717 hectares of seabed in Reserve 49997 being Lot 11187 on Deposited Plan 16754 and Lot 3000 on Deposited Plan 44439 (the Land). The Land is completely covered by a body of seawater (the Harbour). It has a shore-line of, approximately, 2.7 kilometres.
2.The applicant's occupancy of the Subject Property is pursuant to a lease dated 19 December, 1995 entered into between Reece Allan Waldock, Director General in the Department of Transport of the State of Western Australia for the time being as the delegate of the Minister for Transport (Lessor) and Gumflower Pty Ltd (Gumflower) as lessee for a term for 50 years commencing on 6 October, 1989 (Lease). By a deed of assignment of lease stamped on 10 May 1996 between the Lessor, Gumflower and a number of companies including Sanctus (Mindarie Joint Venture), Gumflower assigned to Mindarie Joint Venture its rights under the lease. By a Deed of Variation and Assignment of Seabed Lease dated 9 April, 2014 between the Lessor, Mindarie Joint Venture as Assignor and the applicant as Assignee, Mindarie Joint Venture assigned to the applicant its leasehold estate in the Land with effect from 7 May 2014.
3.The Land is submerged Crown land vested in the respondent.
4.Contemporaneously with the entry into the Lease, the Lessor and Gumflower executed a document referred to as a Jetty and Mooring Licence (the Licence). The Licence has been assigned on each occasion that the Lease has been assigned and the applicant now holds the Licence.
5.The Licence permits its holder to construct jetties and to moor vessels within the Harbour. Before the assignment of the Lease and the Licence to Sanctus in May 2014, four floating finger jetties and 250 floating boat pens had been constructed within the Harbour and are now owned by the applicant.
…
8.Also situated in the Harbour is a 'wave attenuator' which the applicant has had constructed across its mouth. The wave attenuator is attached to the seabed (i.e. to the Land). It is designed to act as a barrier to storm-generated waves entering the Harbour. It consists of 27 steel piles driven into the seabed, attached to which at the waterline is a steel framed screen which is inset with sheets of vinyl. Construction commenced on 21 July, 2014 and was completed on 21 December, 2014 at a cost of $ 804,088.53 ex GST. It was a condition of the Deed of Variation and Assignment of Seabed Lease dated 9 April, 2014 that the applicant complete the construction of the wave attenuator not later than 31 December, 2014. It was a further condition of that Deed that should construction of the wave attenuator not be completed by 31 December, 2014, the Lessor was then entitled to terminate the Lease forthwith and retake possession of the Subject Property without compensation to the applicant[.]
Rating methodology
In respect of the rating of the applicant's Land, the Tribunal received two affidavits from Ms Carolyn King, Coordinator of rates and accounts for the respondent.
Ms King's first affidavit was dated 22 August 2017 and following questions raised on the first day of hearing, a supplementary affidavit was filed dated 28 December 2017.
Both affidavits were taken into evidence uncontested. At paras 68 of the affidavit of 22 August 2017 Ms King set out how rates were applied and stated:
6.When applying the Differential Rating Category the City takes into account if it is vacant land or improved land (for example the land has buildings or other improvements on it). In the case of 11L Syros Court, Mindarie the 'improvements' consist of boat pens. This information is contained in the valuation information that is supplied by the Valuer General's Office which is attached hereto as Attachment "CK1". The use of the land is also verified by the Geographic Information System aerial mapping.
7.The City only applies a rate on the improved portion of a property and does not apply a rate on the vacant land portion of a property. If a property has improvements on it then the valuation that is supplied by the Valuer General's Office reflects this and an improved differential rating category is applied by the City.
8.In the case of 11L Syros Court, Mindarie the Gross Rental Valuation supplied is for the improvements being the Boat Pens. As a result, the City applied the Gross Rental Valuation Commercial Improved differential rating category as it is a Commercial business being operated by Sanctus Nominees Pty Ltd at the Mindarie Marina, being 11L Syros Court, Mindarie.
In Ms King's further affidavit of 28 December 2017 she clarified what she had intended to say in her earlier affidavit and stated at paras 5-6:
5.What I was intending to say in my earlier affidavit with respect to paragraph [7], was that if a parcel of land did not have any improvements on it, then the entirety of that land would be rated on the basis that it is 'vacant'. As I said at paragraph [8] of my earlier affidavit, the subject property at 11L Syros Court, Mindarie has improvements on it, being boat pens. My understanding is that those boat pens are affixed to the seabed to stop them floating away. The land in question for the rating period at issue was rated on the basis of the rating category 'commercial improved' as set out at paragraph [4] of my earlier affidavit.
6.In calculating rates the City receives data from the Valuer General's Office. In this case the City received a gross rental valuation of the property which was $1,070,000. The rate notice is attached for ease of reference (as Attachment 'A'). The calculation of rates for the subject property was completed by multiplying the gross rental valuation, being $1,070,000, by the rate in the dollar for a 'commercial improved' property as set out in the table to paragraph [4], being 6.8304 which then derives a general rate of $73,085.28.
Applicant's submissions on how the Land is 'held'
The applicant filed written submissions dated 15 November 2016, part of which dealt with how the applicant contended the Land is 'held'. They stated:
41The Land is held under the Lease. As in Swan Yacht Club, the content of the Lease, construed in the context of its statutory framework, should determine whether the Land was and/or is held for public purposes or not.
…
44The terms of the Lease thus become significant.
45According to recital B to the Lease, the original parties to the Lease and the City were party to a "State Agreement" dated 6 December 1985 to enter into a lease of the Land for a term of 50 years at a nominal rent (which rent was agreed to be increased before the Lease was entered into). .
46Following the recitals to the Lease is a statement that it is made "for the purpose of a harbour and associated purposes".
47It may be accepted that the statement of purpose in the Lease does not necessarily determine the purpose for which the Land was leased. The purpose for which land is held must be determined by what the Lease actually effects, not by the manner in which it describes its purpose: Randwick Municipal Council v Rutledge [1959] HCA 63; (1959) 102 CLR 54 (Randwick) at [86].
48However, in the Lease there are other indications that this was indeed the purpose of the Lease:
(a)The Lessee covenants and agrees not to use or permit the use of the Land except for the purposes of a harbour and associated purposes (clause 1(2)(d)).
(b)If the Land ceases to be used for the purpose of a harbour or associated purposes, then the Minister may re-enter and repossess the Land without compensating the Lessee (clause 2(2)).
49Thus the purpose of the Lease is enforced as an obligation on the Lessee, and a right to effectively terminate the Lease is given to the Lessor in the event that the Land is not used for that purpose.
50It is somewhat ambiguous whether "the purposes of a harbour and associated purposes" are public purposes or not. Other terms of the Lease are relevant in this regard:
(a)Throughout the term of the Lease the Lessee must maintain or cause to be maintained, to the reasonable satisfaction of the Minister, the entrance to the Harbour (ie the waters above the Land) to a depth of three metres, and the water depths of the Harbour at not less than the approved design depths for the Harbour (clause 1(2)(b)).
(b)The Lessee must install such navigational aids relative to the operation of the Harbour as may be reasonably required from time to time by the Minister (clause 1(2)(p)).
(c)The Lessee must monitor sediment movement at the Harbour entrance and provide annual reports to the Minister of the sediment movement (clause 1(2)(r)).
51Perhaps most importantly, the Lessee is required at all times during the term of the Lease to ensure that free public access to the surface of the Harbour from the Indian Ocean is permitted, subject to the existence of any permitted buildings and improvements and to the terms of any Jetty or Mooring Licence held by the Lessee (clause 1 (2)(q)).
52Thus, free public access is a requirement of the Lease, subject only to permitted buildings and the terms of any Jetty or Mooring Licence.
53… the Licence entered into at the same time as the Lease, and assigned to Sanctus along with the Lease, permits its holder to construct jetties and moor vessels within the Harbour.
54The Licence is stated in recital D thereto as being "to use the waters of the Harbour for the purpose of mooring vessels" and "for the construction maintenance and use of certain Jetties within the Harbour".
55The Licence allows the Licensee to use 'exclusively' the Harbour for the purpose of mooring vessels" (clause 2.1(a)).
56However, like the Lease, the Licence also requires the Licensee to ensure that public access through and use of the Harbour is not restricted or prevented other than by Mooring Apparatus or moored Vessels (clause 3(k)).
57It may be accepted that the Lease and Licence are granted for various purposes, some of which are plainly public (e.g. free public access to the surface of the Harbour, maintaining water depths to particular levels, installing navigational aids etc), and others of which are potentially public or private (eg mooring vessels, constructing jetties).
58In those circumstances it may be difficult to say that the Land is held for purposes that are predominantly and primarily public.
59However, it is submitted that the balance is tipped by the obligation on Sanctus, contained in clause 9 of the Variation and Assignment of the Lease (by which Sanctus became the Lessee of the Land Bundle item 6), to complete the "Wave attenuation Works" by 31 December 2014 if not completed by the assignor by the date of the assignment, failing which the Lessor could reenter the Land and terminate the Lease without compensation to Sanctus.
60According to clause 9, these works were to comprise a steel breakwater. The purpose of a breakwater is plain from its definition in the dictionary: "a barrier ... which breaks the force of waves, as in the front of a harbour". (Macquarie Dictionary, 5th Ed, 2009).
61… the wave attenuator was designed to act as a barrier to storm-generated waves entering the Harbour.
62It may therefore be inferred that the purpose of the breakwater was not only to protect vessels moored in the Harbour but also to provide shelter to vessels on the ocean in the vicinity of the Harbour.
63This is supported by the fact, apparent from Bundle items 17 to 19, that the Department of Transport classifies the Harbour as "smooth waters" and a "sheltered anchorage".
64The obligation to construct the wave attenuator, enabling the Harbour to offer sheltered anchorage to vessels, combined with the other public purposes evident from the Lease and the Licence referred to above, outweigh the potentially (but not necessarily) private purpose of constructing and operating mooring apparatus and jetties in the Harbour pursuant to the Licence.
65In those circumstances it is submitted that the purposes for which the Land is held are predominantly and primarily public. This becomes clear when one has regard to the various components of a public purpose (see paragraph 34 above). The purposes effected by the Lease, the Licence and the Assignment that Sanctus submits are public - those noted in paragraphs 50(a) to (c), 51, 56 and 59-64 above -
(a)relate or pertain to the people of the State and/or the locality around the Harbour;
(b)this is in the sense of the provision of some service, utility or benefit to the public which would not be otherwise provided: a harbour that is suitable for all vessels, with free public access from the Indian Ocean, which is a sheltered anchorage during stormy weather; and
(c)there is nothing in those documents that indicate that the service, utility or benefit is to be provided for the primary purpose of producing profit, even though the fact that nothing in the Licence prevents, for example, Sanctus from charging fees to those using the jetties, means that profitability might well flow from such charges or fees.
(d)indeed, in regard to paragraph (c) above, it should be noted that all three of the contracts relevant to Sanctus' holding of the Land require payments to be made by Sanctus in order to be able to provide the service, utility or benefit offered by the Harbour, including:
(i)Rent under the Lease,
(ii)Licence Fees under the Licence, and
(iii)In the event that the assignor did not complete the wave attenuation works, the cost of doing so.
Respondent's submissions on how the Land is 'held'
The respondent also filed written submission in respect of this issue dated 15 November 2016 and stated:
32.The two documents which regulate the occupation of the Subject Property are the Lease and the Jetty Licence. There is no reference in those documents to public use and enjoyment.
Relevant terms of the Lease
33.Some of the relevant obligations that fall on Sanctus under the Lease include:
(a)An obligation to duly and punctually pay all rates, taxes, charges, assessments, impositions and outgoings of whatsoever nature that are charged upon the Subject Property (clause l(2)(a) page 4 of Lease);
(b)Maintaining the entrance of the harbour to a depth of 3 metres, and the balance of the harbour at not less than the approved design depths for the harbour (clause l(2)(b) page 4 of Lease);
(c)Performing all requisitions and works in respect of the Subject Property as directed by any council or municipality, local or public authority pursuant to any statute (clause l(2)(e) page 5 of Lease);
(d)Not obstructing or permitting the obstruction of the entrance to the harbour from the Indian Ocean in any way which may be prejudicial to, or endanger, or impede the navigation of such waters in areas required to be open for such navigation, except pursuant to any jetty or mooring licence held by the lessee (clause 1(2)(l) page 8 of Lease);
(e)Install such navigational aids relative to the operation of the harbour as may be reasonably required from time to time by the Minister (clause l(2)(p) page 9 of Lease);
(f)At all times ensure that free public access to the surface waters of the harbour from the Indian Ocean is permitted subject to the existence of any permitted buildings and improvements and to the terms of any jetty licence or mooring licence held by the lessee, provided that the prior approval of the Minister such access may be prohibited for any reasonable purpose and period (clause 1(2) (q) page 9 of Lease). (Original emphasis)
34.The lease also contains a comprehensive indemnity by the lessee in favour of the Minister and the Crown. With respect to that indemnity, see generally clause 1(2) (s) (page 9 of Lease).
35.The obligations on Sanctus to maintain the entrance of the harbour, not permit obstructions of the harbour entrance and installing navigational aids as required by the Minister does not in any way demonstrate (or support a contention) that the Subject Property is held for a public purpose.
Material terms of Jetty Licence
36.With respect to the Jetty Licence, the salient features of the licence include:
(a)A licence to Sanctus to exclusively use the harbour for the purpose of mooring vessels. Various fees are set out for the use of the jetties. The exact quantum of those fees does not appear to be in evidence (see clause 2.1 on page 5 of the document);
(b)There is an obligation to pay all outgoings charged (clause 3(h)). Outgoings is defined to include, rates, taxes, charges, duties and impositions of any kind;
(c)Sanctus is obliged to ensure that public access through and use of the barbette is not restricted or prevented, other than by mooring apparatus or moored vessels (clause3(k));
37.The Jetty Licence has been assigned contemporaneously with the Lease. The two documents run together in tandem.
38.The obligation to ensure that public access through and use of the harbour is not restricted or prevented again does not, on its face, disclose that the Subject Property is held for a public purpose.
Terms of Lease and Jetty Licence do not discern that Subject Property held for public purpose
39.The fact that the lessee must ensure free public access to the surface waters of the harbour from the Indian Ocean, does not indicate that the Subject Property is held for public use or a public purpose. Further, it appears clear that a member of the public is not permitted to moor a vessel to a jetty or mooring facility in the Subject Property without having entered into an appropriate sublease with Sanctus. Such a sublease involves the payment of a fee and is part of a commercial enterprise.
40.Whilst the Property appears to have a significant aesthetic attraction and, at face value, recreational properties and characteristics, it is part and parcel of a commercial centre. Namely, bars, restaurants and other commercial facilities which abut the Subject Property and which pertain to private business.
41.There is no indication within the Lease or the Jetty Licence from which it could be concluded that the Property was held for a public purpose. The Applicant bears the onus of showing that the land was held for a public purpose. If, putting its case at its highest, it is not possible to say whether the Subject Property is held for a public purpose merely by reference to the tenure documents, the objection must fail.
The Tribunal's consideration of how the Land is 'held'
The Lease
On 19 December 1995 in compliance with the terms of a State Agreement titled 'Mindarie Keys Project Agreement' entered into in 1985 (State Agreement), the Minister granted a Lease to the applicant's predecessor in title as outlined by the parties in their statement of agreed facts referred to earlier.
The body of the Lease stated:
… the Minister hereby leases to the Lessee and the Lessee hereby takes on lease from the Minister ALL THAT piece or parcel of land described in the Schedule to this Lease ('the leased premises') but reserving to the minister or ministers of the Crown for the time being empowered to grant them the right to grant such Jetty Licence and Mooring Licence or any one or more of such Licences or combinations thereof as he shall from time to time think fit, including the right for the holders of such Licences to construct Jetties and foundations for Jetties in or on the leased premises and to place Mooring Apparatus on the Harbour. Bed TO HAVE AND TO HOLD the leased premises subject to the covenants and other provisions herein contained and with all the rights powers and privileges conferred by the State Agreement as are applicable to this Lease unto the Lessee for the term of FIFTY YEARS commencing on the 6th day of October 1989 (but terminable and renewable as herein provided) for the purpose of a harbour and associated purposes YIELDING AND PAYING therefor the annual rent of $2,000.00 payable in advance on the date of commencement of the term and thereafter on each anniversary of that date.
(Tribunal's emphasis)
The schedule to the Lease describes 'the leased premises' as:
All that submerged land being the land the subject of Department of Land Administration Miscellaneous Plan No. 1681 but excluding all waters and all air space above the surface of that submerged land[.]
Under the heading 'Lessee's Covenants' the following clauses are noted:
(2)The Lessee shall
(a)duly and punctually pay and discharge all present and future rates and taxes charges assessments impositions and outgoings whatsoever which now are or during the term hereby created shall be payable in respect of or charged upon the leased premises or imposed upon the owner occupier or tenant in respect thereof;
…
(h)not without the previous consent in writing of the Minister first had and obtained reclaim any part of the water area over the leased premises or build on affix to or install on or permit or suffer to be built on affixed to or installed on the leased premises any building structure erection fixture plant equipment or improvement whatsoever (either above or below the surface of the leased premises) or otherwise make or effect any alternation or addition to the leased premises except pursuant to or as authorised by a Jetty Licence or a Mooring Licence …
…
(l)not obstruct or permit to be obstructed the waters and the air space above the leased premise and the entrance to the Harbour from the Indian Ocean with any obstructions which are or may be prejudicial to or endanger or impede the navigation of such waters in areas required to be open for such navigation except pursuant to any Jetty or Mooring Licences held by the Company or the Lessee of temporarily for the purposes of maintenance;
…
(q)at all times during the term hereof ensure that free public access to the surface waters of the Harbour from the Indian Ocean is permitted subject to the existence of any permitted buildings and improvements and to terms of any Jetty Licence and Mooring Licence held by the Company or the Lessee PROVIDED THAT with the prior approval of the Minister such access may be prohibited or restricted from any reasonable purpose and period; and
…
(v)keep and maintain all buildings and structures from time to time erected on the leased premises by or on behalf of the Lessee in good clean and safe repair order and condition to the satisfaction of the Minister[.]
Finally on page 16 of the Lease it declared that 'all rights other than those expressly granted by this Lease are reserved to the Crown' and at cl 2(6)(a) stated that:
[T]he lessee shall be at liberty to construct on or in the leased premises any structures authorised by a Jetty Licence and to place on the leased premises any apparatus authorised by or required for the purposes of a Mooring Licence. All such structures and apparatus shall be Lessee's improvements for the purpose of this Lease.
It is also noted that in the Lease, 'Harbour' is defined to mean:
[T]he whole of the area of water of which the water over the leased premises is part comprising the harbour at Mindarie Keys, the ocean boundary of which is the same as the ocean boundary of the leased premises[.]
By deed entitled 'variation and assignment of sea bed lease' dated 9 April 2014 (deed of assignment), the applicant was assigned the leasehold interest in the subject property as and from 7 May 2014.
At paragraph 9 of that deed of variation under the heading 'Completion of Wave attenuation Works' an additional obligation fell on the applicant which stated:
(a)In this clause:
'Wave attenuation Works' means the installation of a steel breakwater on the Premises in accordance with plans and specifications provided to the Lessor.
(b)The parties acknowledge and agree that:
(i)the Assignor is currently carrying out the Wave attenuation Works;
(ii)if the Assignor does not complete the Wave attenuation Works by the Date of Assignment, the Assignee must at the Assignee's cost and expense complete the Wave attenuation Works to the Lessor's reasonable satisfaction on or before 31 December 2014 or if the Assignee can demonstrate to the Lessor's reasonable satisfaction that the delay was caused by events outside the Assignee's control, then such later date as may be agreed to in writing by the Lessor acting reasonably and the Assignee ('Completion Date').
(c)If the Wave attenuation Works have not been completed to the Lessor's reasonable satisfaction by the Completion Date then this will constitute an event of default under clause 2(2) of the Lease which will entitle the Lessor to enter the Premises and on re-entry the Term will immediately determine and the Lessor will be entitled to enjoy the Premises as if the Lease and this Deed had never been executed and without making any compensation to the Assignee but without prejudice to any right of action of the Lessor against the Assignee in respect of any matter arising under the Lease.
The Licence
A combined jetty and mooring Licence was also granted to the applicant's predecessor in title on the same day the original Lease was granted and which has been assigned on each occasion that the Lease was assigned. The applicant now holds that Licence.
Paragraphs (C) and (D) of the recitals of the Licence state:
C.By paragraph 5(b) of an Agreement dated 6 December 1985 made between Brian Thomas Burke on behalf of the State, the Minister's predecessor in office, the Minister for Transport, the City of Wanneroo, Smith Corporation Pty. Ltd., and others the Minister has agreed to grant licences under the Marine Act for the purpose of mooring vessels within the Harbour and the Jetties Act for the construction, maintenance and use of Jetties within the Harbour.
D.Upon the application of the Licensee the Minister has agreed to grant to the Licensee
(i)a licence to use the waters of the Harbour for the purpose of mooring vessels, and
(ii)a licence for the construction maintenance and use of certain Jetties within the Harbour,
upon and subject to the terms and conditions contained in this Deed.
(Tribunal's emphasis)
At para (2) under the heading 'The Licence' it states:
2.1THE Minister to the extent of his powers in that behalf conferred by the Marine Act and the Jetties Act and subject to the reservations hereafter contained hereby grants to the Licensee
(a)a licence to use exclusively the Harbour for the purpose of mooring Vessels; and
(b)a licence to construct (in accordance with plans and specifications first approved by the Minister) use and maintain the Jetties within the Harbour;
for a term equal to the term of the Harbour Bed Lease granted pursuant to clause 7.1 of the State Agreement and any renewal or extension thereof (but terminable as hereinafter provided) the Licensee paying therefor fees[.]
(Tribunal's emphasis)
At clause (3)(h) under the heading 'Licensee's obligations' it states:
To pay all Outgoings, if any, on the due dates for the payment of them[.]
Outgoings are defined in clause 1(1) of the Licence to mean:
'Outgoings' includes all rates, taxes, charges, duties and impositions of whatsoever kind or nature now or hereafter made, levied, assessed, charged or imposed by or under any Act of the State or the Commonwealth of Australia upon or in respect of the Jetties or any part thereof or upon or in respect of the Harbour or any part thereof and or any activity now or hereafter carried on thereon whether levied or imposed upon or payable by the owner and or occupier[.]
The Licence also placed a number of obligations on the Licensee, one of which at clause (3)(k) stated:
[T]o ensure that public access to and use of the Harbour is not restricted or prevented other than by mooring apparatus or moored vessels.
It is agreed by the parties that for the relevant rating period the applicant had four floating finger jetties which had attached to them approximately 250 floating boat pens with the jetties and the pens being secured by way of piles driven into the Harbour Bed.
The parties also agreed that the Harbour contains approximately 51 private floating jetties reserved for the exclusive use of residential properties that front the Harbour of which there are approximately 90 in total. However, there was no evidence before the Tribunal as to how those jetties were secured.
Other documents
The Tribunal noted that although it was agreed by the parties that the Land is submerged Crown Land vested in the respondent no vesting certificate or details of such vesting was furnished to the Tribunal. However, on examination of the Certificate of Title produced in evidence, it shows that the reserve was vested in the respondent for 'Harbour purposes' in or about 2008/2009.
Further, for the purposes of clarity and understanding, the Tribunal attaches as Annexure A to these reasons the only aerial photograph produced in evidence which shows the entire area of the Harbour including the wave attenuator, jetties and pens.
The ariel photograph was attached as 'Photo 2' to Tab 10 of the Bundle of Agreed Documents received as Exhibit 3. The description of 'Photo 2' at Tab 10 was 'Ariel view of Harbour after installation of Wave attenuation Barrier' and a date of 16 May 2016 (although the Tribunal notes the date on the actual photograph is 23 April 2016).
When considering the contents of the documents just referred to, the Tribunal is mindful of the words of Pullin J in Swan Yacht Club at [26] when he stated:
[T]he content of the lease will determine whether the land is held for public purposes or not. The lease must of course be construed in the context of the statutory framework and the terms of the Order in Council[.]
It is noted that neither the Lease nor the Licence in the present case came into existence in a vacuum; rather they were the result of a State Agreement entered into 10 years earlier in 1985.
In Port Kennedy Resorts Pty Ltd v City of Rockingham (2000) 112 LGERA 296 (Port Kennedy Resorts), a judgment referred to by Pullin J in Swan Yacht Club, the Court of Appeal dealt with a similar large scale development also initiated by a State Agreement and, although the development in that case also included 'a small Harbour' it was not part of the issue before the Court.
That matter had initially been an appeal from the Land Valuation Tribunal, as it then was, to a single Judge of the Supreme Court and later on appeal to the Court of Appeal.
In the reasons of the Court of Appeal Pidgeon J at [13] referring to the findings of Wheeler J at first instance stated:
Her Honour considered that the Tribunal placed undue emphasis on the history of the project and the objectives outlined by the Minister. She said they were relevant but are not determinative[.]
In the present case therefore the Tribunal accepts that the historical documents in this matter such as the State Agreement are 'relevant but not determinative'.
A copy of the State Agreement entered into by the State Government and the original developers in 1985 was before the Tribunal but not referred to in any great detail by the parties.
The recitals to the State Agreement stated:
A.The Company being the registered proprietor of the lands described in Schedule 1 to this Agreement located in the District of Mindarie south of the town site of Quinns Rock in the City of Wanneroo desires to establish a harbour and residential and commercial development on those lands, generally in accordance with the Structure Plan, as the 'Mindarie Keys Project'.
B.The Other Landowners are the purchasers under contracts of the land described in Schedule 2.
C.The Company has carried out extensive investigations into the feasibility of the Project and it has prepared
(i)the Planning Report which has been delivered to the State, the MRPA, the Town Planning Board and the City and adopted by the Town Planning Board on 2 July 1985;
(ii)The ERMP which has been delivered to the EPA.
D.The MRPA rezoned part of the Development Area as 'urban' on 24 April 1985 under s 33A of the Metropolitan Region Town Planning Scheme Act 1959 as published in the Government Gazette on 17 May 1985.
E.Each of the State and the City has agreed to assist the Project upon and subject to the terms of this Agreement.
Attached to the State Agreement at Schedules 4 and 6 were copies of a Combined Form of Jetty and Mooring Licence (Schedule 4) and a Lease (Schedule 6) which, apart from some minor updating of descriptions were executed in nearly the exact form 10 years later on 19 December 1995 and which documents form the legal basis of the applicant's current tenure.
Also attached as either annexures or attachments to the State Agreement were:
1)the plan showing the mooring areas and the jetties (Schedule 1);
2)'Pen Licence' being a sub-licence of certain rights granted by a Combined Jetty and Mooring Licence (Schedule 2);
3)Jetty Licence for breakwater (Schedule 3);
4)Jetty Licence Harbour front properties (Schedule 5);
5)Property Exchange Plan (marked A);
6)Structure Plan (marked B);
7)Sub-division Guide Plan (marked C); and
8)Zoning Plan (marked D).
The State Agreement set out the developer's obligations, one of which was to construct a harbour.
It also contained an obligation on the Minister that if certain conditions were satisfied, to grant to the developer at the time, a lease of the Harbour Bed (in the form set out in Schedule 6) for a term of 50 years with an option to renew for a further 50 years.
There was also an obligation on the Minister for Jetties and Moorings to grant the holder of the Harbour Bed Lease a Combined Jetty and Mooring Licence (in the form set out in Schedule 4) for the construction, maintenance and use of jetties and the exclusive use of the mooring areas within the Harbour for a term equal to the term of the Harbour Bed Lease.
The Harbour Bed Lease as it was described, is the Lease the subject of these proceedings and, as outlined earlier, was granted to the developer in 1995 for a total of 50 years with an option to review for a further 50 years on an annual rent of $500.
A Jetty and Mooring Licence for the exclusive use of the holder of the Harbour Bed Lease was also granted at that time, following which 250 boat pens were constructed and are now operated by the applicant, the successor of the original developer.
The Wave Attenuator referred to earlier, was constructed by the applicant in 2015 following the assignment of the Lease to them.
In Port Kennedy Resorts Pidgeon J stated at [16]:
The land not in the rate notice can be looked at to see if it assists in determining the purpose of the land the subject of the rate notice[.]
The parties described the overall development of the area in their agreed facts at [12] as follows:
At all times since the Lease was assigned to the applicant, Mindarie Marina sits on 45,384 square metres of freehold land all of which is ultimately owned by Visit Mindarie Pty Ltd (Visit Mindarie). The applicant is a wholly owned subsidiary of Visit Mindarie. The said land is in two parcels, being Lots 7001 and 7002 on deposited plan 52654. Visit Mindarie is the registered proprietor of Lot 7001 and the applicant is the registered proprietor of Lot 7002. Lot 7002 shares a common boundary of, approximately, 576 metres with the Land. On Lot 7001 is constructed the Mindarie Marina Hotel and Villas, two taverns (The Indian Ocean Brewing Company and The Boat), three restaurants (The Waterfront Cafe, Shikara Indian Restaurant and Dome Coffee), a dedicated function/conference centre several retail shops and offices. A portion of the Mindarie Keys Marina's boat launching ramp plus a boat refuelling facility is constructed upon Lot 7002. Both Lots 7001 and 7002 have extensive public car parking areas, for which no fee is charged. One portion of the boat launching ramp comprises the freehold land owned by the applicant (Lot 7002) and another portion of the boat launching ramp forms part of the Land leased by the applicant (i.e. part of the ramp that is paved is below the high water mark). Visit Mindarie's land is rated separately from the Land. Visit Mindarie's land is rateable and not subject to any public interest exemption.
Pidgeon J in Port Kennedy Resorts, commenting on how Wheeler J had dealt with that matter at first instance stated at [13]:
…
She considered that the boat harbour was a sufficiently discreet and self-contained portion of the development to make it permissible to exclude it from the relevant area. Her Honour then set out what was required to be provided on the land the subject of the rate notice. She said that the majority of these activities are the types of services which are ordinarily privately provided in Australia. Her Honour said that the ultimate occupiers are in some few cases to occupy the facilities for public purposes, but she said it appeared to be contemplated that they will do so by entering into lease agreements of the type ordinarily entered into with private providers of these services. She then referred to what was to be done on the private land. Her Honour said that, taken as a whole, it appeared to her that the purpose of the Agreement was, initially, to get an essentially private development 'off the ground' and thereafter to ensure that development continued. She said that the purpose of the Agreement and the purpose of the appellant's occupation was, at the relevant time, currently a private one.
In the present case, looking at both the description in the agreed facts of what now exists together with the State Agreement and the detailed attachments to it, it is clear that the construction of the Harbour in the present case was part of a large scale structure plan for the development of a large area of land.
Indeed, details of the structure plan attached to and marked as B to the State Agreement showed a lot yield of 2,500 residential lots over an area of 359.5 hectares together with a high school, two primary schools, a commercial village and marina facilities. By any measure a large scale development of which the Harbour was an integral part.
Furthermore, recital A of the State Agreement outlined earlier, identified that it was in fact the company/developer at the time (defined in the State Agreement as the Smith Corporation Pty Ltd) that:
[D]esires to establish a Harbour and residential and commercial development on those lands.
Recital C confirmed that:
[T]he companies carried out extensive investigations into the feasibility of the project …
Recital E then went on to explain that the State and local authorities had agreed to assist the project and stated:
[E]ach of the State and the City has agreed to assist the project upon and subject to the terms of this agreement.
However, being mindful in the words of Wheeler J that although the State Agreement is relevant, it is not determinative. The critical document to decide whether land the subject of the rate notice is primarily or predominantly held for a public purpose, is the Lease.
Again in Port Kennedy Resorts, Pidgeon J when dealing with the interpretation of whether land 'is being used or held for a public purpose' in that matter stated at [15]:
In my view, the answer to the question lies in interpreting the statute and in particular, the following words of subpar 2(a)(i) 'is being used or held for a public purpose'. The cardinal rule of construction is that the words should be construed according to the intention expressed in the enactment itself. …
The Land in question in the present case is submerged land which the Lease stated 'is for the purpose of a Harbour and associated purposes' and is defined in the Schedule to the Lease as 'the submerged land' but specifically excluded the water and air space above.
In Randwick Municipal Council v Rutledge (1959) 102 CLR 54 (Randwick) at page 86 Windeyer J stated:
[T]he purpose for which land is held must be determined by what the Lease actually effected, not by the manner in which it describes its purpose'.
The Lease at clause (6)(a) also stated:
The Lessee shall be at liberty to construct on or in the leased premises any structures authorised by a Jetty Licence and to place on the leased premises any apparatus authorised by or required for the purposes of a Mooring Licence. All such structures and apparatus shall be Lessee's improvements for the purpose of this Lease.
It is also noted that the obligation in the Lease 'not to obstruct access' related only to the water and air space above the leased premises, each of which were specifically excluded from the leased premises, not the submerged land (i.e. the Harbour Bed) itself. As clause (3)(l) of the Lease stated:
[N]ot obstruct or permit to be obstructed the waters and the air space above the leased premise and the entrance to the Harbour from the Indian Ocean with any obstructions which are or may be prejudicial to or endanger or impede the navigation of such waters in areas required to be open for such navigation except pursuant to any Jetty or Mooring Licences held by the Company or the Lessee of temporarily for the purposes of maintenance[.]
(Tribunal's emphasis)
And at clause (3)(q) it stated:
[A]t all times during the term hereof ensure that free public access to the surface waters of the Harbour from the Indian Ocean is permitted[.]
(Tribunal's emphasis)
Furthermore, even in those circumstances, exceptions were allowed for any obstruction that might be caused by permitted buildings and improvements of the lessee.
The public access at clause (3)(k) of the Licence stated:
[T]o ensure that public access through and use of the Harbour is not restricted and prevented.
(Tribunal's emphasis)
although that clause also included the proviso 'other than by Mooring Apparatus or moored Vessels'.
As set out earlier, 'Harbour' is defined in the Lease to mean:
[T]he whole of the area of water of which the water over the leased premises is part comprising the harbour at Mindarie Keys, the ocean boundary of which is the same as the ocean boundary of the leased premises[.]
(Tribunal's emphasis)
The applicant urged the Tribunal to infer from the terms of the Variation of Assignment of Sea Bed Lease dated 9 April 2014, that the submerged land was held for a public purpose due to the obligation to install a wave attenuator and as outlined above in their Written Submissions at paras 64-65 they stated:
The obligation to construct the wave attenuator, enabling the Harbour to offer sheltered anchorage to vessels, combined with the other public purposes evident from the Lease and the Licence referred to above, outweigh the potentially (but not necessarily) private purpose of constructing and operating mooring apparatus and jetties in the Harbour pursuant to the Licence.
In those circumstances it is submitted that 'the purposes for which the Land is held are predominantly and primarily public'.
However, as detailed later in these reasons, the Tribunal is not satisfied on the evidence before it that the purpose of installing the wave attenuator was for a public purpose and so is not willing to make the inferences or the findings in respect of the wave attenuator urged by the applicant.
Conclusions as to how the Land is 'held'
In both the Lease and the Licence attached to the State Agreement in 1985 and in the actual Lease and Licence entered into some 10 years later, an obligation was imposed on both the lessee and the licensee to pay 'outgoings' which in both documents specifically included 'rates'.
This does not, in the Tribunal's view, support an inference that the use of the Land was to be for a public purpose and therefore exempt from rates. If that had been the intention, it would have been a relatively straight forward process to confirm it in the documents either in 1985 or 10 years later in 1995.
However, what is clear from the documents is that Smith Corporation Pty Ltd, the original landowner and developer, wished to undertake a large residential and commercial development, a core part of which was the construction of a harbour and the Lease and the Licence were part of a structured agreement to facilitate a private endeavour, although it is acknowledged that public use of the harbour waters would also result.
For reasons outlined later in this decision, the relevant land to be considered is the submerged land only excluding the water above it and although it is acknowledged that the applicant has a responsibility to maintain the Harbour (e.g. depth of the Harbour mouth), the relevant documents do not support the contention that the Land is predominantly or primarily held for a public purpose.
Rather, the rights granted to the applicant pursuant to clause 2(6)(1) of the Lease stated:
[T]he lessee shall be at liberty to construct on or in the leased premises any structures authorised by a Jetty Licence and to place on the leased premises any apparatus authorised by or required for the purposes of a Mooring Licence. All such structures and apparatus shall be Lessee's improvements for the purpose of this Lease.
which structures have since been built and are operated by the applicant exclusively, pursuant to the Licence granted and which underpin the applicants substantial commercial activity in the Harbour appear to the Tribunal, to be one of the purposes of the Lease.
Therefore, based on the terms of the Lease, the relevant statutory provisions (and although not determinative, noting the terms of the State Agreement and the history and use of the surrounding land), the Tribunal is not satisfied that the Land the subject of the rate notice, being the 'submerged Land excluding the water and air space above', is either primarily or predominantly 'held' for a public purpose.
Tribunal's consideration of whether the Land is 'used for a public purpose'
As outlined by Pullin J in Swan Yacht Club whether the Land is used for a public purpose requires an examination of the evidence as to the use to which the subject Land was put at the relevant time.
However, in the evidence presented to the Tribunal it was the use of the waters of the Harbour that both parties relied on as evidence to show that the Land either was or was not primarily or predominantly used for a public purpose.
The principle difference between the hearing before Member Eddy in 2015 and the hearing on this occasion was that on this occasion there was actual evidence put before the Tribunal in respect of the wave attenuator which had been constructed since the date of the previous hearing and evidence was also presented regarding the use of the Harbour waters by members of the public which was not before Member Eddy in 2015.
In particular Mr Mark Smith who had been the General Manager of the Mindarie Marina Hotel from February 1999 to April 2016 and who, for 10 of those years was also the General Manager of Mindarie Marina gave evidence as to the public use of the Harbour waters.
The marina business carried on by the applicant was described at para 14 of the agreed facts as:
The website of Mindarie Marina, which promotes the 250 boat pens and boat launching facilities of the Subject Property (as well as its food and beverage outlets, hotel rooms and the businesses of its retail and office tenants), provides as follows (and has done at all times since the Lease was assigned to Sanctus):
Mindarie Marina is a world class facility offering the boating community the option of both long term and casual pen rentals.
We provide the following facilities for the boating community:
•250 fully serviced 10m, 15m, 20m and Catamaran pens
•Casual overnight pens
•Car parking
•Boat ramp and launching facilities
•Diesel and ULP fuel sales
•Fishing charters
•Dive charters
•Toilet and shower facilities
•Laundry facilities
•Free WIFI on the Boardwalk and throughout the hospitality venues
CONTACT
Our office is located at the Mindarie Marina Hotel Reception, 33 Ocean Falls Boulevard, Mindarie
Western Australia 6030
Reception open 7 days from 8am-6pm
Applicant's written submissions in respect of the use of the Harbour waters
The applicant's written submissions in respect of the use of the Harbour waters in part stated (Note: some descriptions have been amended for context):
67Four floating finger jetties and 250 floating boat pens, constructed before the Lease was assigned to Sanctus, were and are located in the Harbour, covering an area of about 12% of the surface area of the Harbour …
….
68Also in the Harbour were and are 51 private floating jetties for the exclusive use of the individual residential properties with a frontage to the Harbour, with licences managed by the Department of Transport, not Sanctus: … It is plain from the aerial photograph of the Harbour (Annexure A) that these pens around the edge of the Harbour cover a minimal proportion of the surface area of the Harbour.
69It follows that the public have free access to the vast majority of the waters in the Harbour.
70Indeed as stated in … parts of the Harbour were and are used by the public for recreational activities including fishing, swimming, kayaking, paddle boarding, boogie-boarding, jetskiing and wind surfing. …
71As can be seen from the aerial photograph there is also ample space in the Harbour for vessels used by members of the public who are not subleasing any of the 250 pens, to enter the Harbour and drop anchor.
72As to the 250 pens, they were and are available for sublease by members of the public for a fee …
…
75Taking into account the above uses of the Land, it is submitted that the Land was, at the relevant time, being used for a purpose that was predominantly and primarily public.
Respondent's written submissions in respect of the use of the Harbour waters
The respondent also filed written submissions in respect of the use of the Harbour Waters stating:
43.According to the website of the facility … various facilities are offered including car parking, fuel sales and retail shops. With respect to the Subject Property the website provides that boat pens are offered for the boating community on a fee for use basis.
44.The Pen Licence conditions confer an absolute discretion on the Applicant to refuse an application for a sub licence. … Accordingly, although members of the public can apply to licence a pen to moor a vessel, there is no absolute right, at face value, for a member of the public to moor their vessel in the moorings on the Subject Property.
45.… the Pen Licence conditions provides that a licensee is not permitted to allow any third party access to the Jetty without that person signing in at the Licensor's office.
46. Sanctus, by its signage, exercises rights and controls over where the members of the public can access the Property for swimming or fishing purposes …
…
48.The relevant time for the determination of whether the Subject Property is used for a public purpose is the completion of the rate record. During the financial year which the rating period related to, the consolidated accounts of Visit Mindarie, the holding company of Sanctus, disclosed that its income from pen fees or mooring fees exceeded $1,338 million. … the scope of the commercial operation and the profits derived from its activities, further support the proposition that the profit-making nature of the operation takes it outside of public purpose. …
49.In the present case, the venture being undertaken from the Subject Property appears to be a commercial venture for private benefit. The use of the surrounding property is relevant for determining the characteristics of the Subject Property. The surrounding property has the public launching facility, car parks, cafes and other commercial operations. The Subject Property, whilst available to members of the public, is one in which boats, yachts and vessels are moored at a jetty or mooring facility for a fee. At face value, the profit-making nature of the operation takes it outside a public purpose.
In considering this issue, a question arises, which although not covered by either of the parties in their written submissions, was raised and discussed during the course of the hearing.
That is, whether the use to be considered is the use of the submerged Land itself rather than the use of the Harbour Waters which cover the submerged Land and which were specifically excluded as part of the Leased Premises in the schedule to the Lease.
The matter was first raised by the Tribunal in an interaction with counsel for the respondent on the second day of hearing which had previously been adjourned for a period to allow additional evidence to be filed. Following counsel for the applicant's opening, the following exchange took place:
THE TRIBUNAL: … The unusual circumstances of this case is that the dry land - and it is identified in the Interpretation Act as land … is covered by water …
…
COUNSEL FOR THE RESPONDENT: … Well, I think there's a tension … this will ultimately be an issue for you, Senior Member - - -
…
COUNSEL FOR THE RESPONDENT: - - - but the lease is only of the land and although we have - and then the licence - the jetty licence gives certain rights to, now, Sanctus to control the jetties on the surface of the water which are then affixed to the land.
…
COUNSEL FOR THE RESPONDENT: But the lease of the land, which is the rateable portion, the City says, excludes the water above. So although there's requirements to allow within the licence, to allow public access over the water, the use that this refers to - this will ultimately be the issue that has to be determined - - -
…
COUNSEL FOR THE RESPONDENT: - - - is that use of the land.
(ts 120-121, 14 February 2018)
After some comments by counsel for the applicant (Mr Davis) the Tribunal put to counsel for the respondent:
THE TRIBUNAL: … what Mr Davis is taking issue with is that your descriptor is effectively - it's just about land, nothing about the water. Right.
…
COUNSEL FOR THE RESPONDENT: Well, the predominant use - will be my ultimate submission, is not a public use. Well, it's not - not held or used …
THE TRIBUNAL: On the harbour or the land?
COUNSEL FOR THE RESPONDENT: Well, both.
Counsel for the applicant then stated:
COUNSEL FOR THE APPLICANT: But the point - this is the point Mr Curwood made with me this morning - as the point is really only just occurring to us - - -
…
COUNSEL FOR THE APPLICANT: The rating is of the land.
…
COUNSEL FOR THE RESPONDENT: Until it occurred to me this morning, I had been equating the surface area of the water as being the land.
…
COUNSEL FOR THE RESPONDENT: Which is an issue for you, ultimately, Senior Member …
(ts 123-124, 14 February 2018)
After some further comment by counsel for the applicant, the Tribunal put to counsel for the respondent:
THE TRIBUNAL: Is that correct, Mr Curwood. You you the use of the water, ie out of depth water, by boats is not using the land.
COUNSEL FOR THE RESPONDENT: Well, it may be. But that was what I was I have only considered this as an issue today.
…
COUNSEL FOR THE RESPONDENT: … I'm not aware of this being considered in any other cases, certainly none that I could find. But it seems that you could ultimately make an assessment that the land, which is the subject of the rating notice, includes all of the water from time to time above it. But that the the only reason this twigged in my mind as an issue was the lease expressly states that the land, the subject of the lease, does not include the water.
And then later counsel stated:
COUNSEL FOR THE RESPONDENT: And and just in case I have I probably haven't been clear, the City's position, irrespective of how the water is defined, is that the objection ought to well, was correctly dismissed because the the land is not predominantly held for public purpose or used, even if it includes the' the surface area of the water …
…
COUNSEL FOR THE RESPONDENT: This is a new issue that it has only been raised today ‑ ‑ ‑
(ts 126-127, 14 February 2018)
On the final day of the hearing 15 February 2018 counsel for the applicant addressed that matter in closing and stated:
There seems to be a suggestion that - or a questioning of whether use of the surface area can even be taken into account. I think that's what I understood from my friend. The lease is of the land and my friend has seized on the fact that, well, on the land you've got these pylons driven into the land - into the seabed, forming an integral part of the jetties which are on the surface - and the boat pens.
And that's a commercial operation, but there's no use of - can we legitimately - it has been suggested that we - or questioned whether we can look at the use on the surface area. It has been assumed that you can look at the use on the surface area for the jetties and the boat pens because there's an attachment to the land, and it has been - but it has been questioned whether we can even rely on the use, even before we get to the issue that he has raised that the use is going to be far less of just people in the harbour and boats in the harbour because this is - you've got jetties there and boats there 24/7.
It's - did my friend call it 'cold hard use', or something, 24 hours a day, seven days a week, and that any other use, even if you're allowed to look at it on the surface, pales into insignificance. …
(ts 212-213, 15 February 2018)
Counsel for the applicant further submitted that the wave attenuator which is also attached to the Harbour Bed is a use that needs to be considered and stated:
Now, it can be inferred that the wave attenuator, in my submission, was installed and is there and constitutes a use of the harbour bed for a public purpose.
…
(ts 213, 15 February 2018)
Counsel for the applicant then went on to explain what other uses of the Land there was if it was only the submerged Land was the issue and stated:
You've got the beach. And I'm looking now at the actual land, and I'm taking up this distinction that my friend referred to. This is a lease after all of the land. This is a rating of the land.
You've got in the lease - unusually, you've got a provision that suggests, contrary to the common law, that it is not a lease of the land and the air above it. It's only the land. This does not include the water, it says, and the sky up to a certain limit. You know, until the aircraft and drones come, or whatever it is. So looking at the land, you've got the jetties, you've got the other private jetties dotted around the edges for the houses. You've got the wave attenuator now in this rating period, and then you've got - looking at what land is there and can be used directly - the beach, and as far as you can wade out and get on your paddle board or SUP or a jetski.
You've got the boat ramp coming down off the car park, part of which goes into the water. That's on the land and that's going to be attached to the land, I assume, because I don't know. Is it realistic though to look at this and say, 'Well, these are the uses of the land that you're allowed to take into account in considering what the purpose of the use of the land is'. Do you only take that? Do you ignore all the activity on the surface? Do you ignore the boats mooring in the jetties?
(ts 213-214, 15 February 2018)
The Tribunal attempted to clarify with counsel for the respondent what the actual proposition the respondent was putting was and stated:
THE TRIBUNAL: Are you putting that precise proposition that that is the way it should be determined?
COUNSEL FOR THE RESPONDENT: Sorry, what proposition?
THE TRIBUNAL: That we should ignore the water completely.
….
COUNSEL FOR THE RESPONDENT: I think it is an issue you do have to deal with, Senior Member, because as Mr Davis has said, the lease expressly excludes the water above it, and I took you to the photograph of the sign that said No Swimming, which was a sign mandated or regulated by the navigable waters regulations and from the Department of Transport from which you can infer that the policing, if you like, of the surface area of the harbour falls upon the Department of Transport.
I haven't found any authorities in the short time it occurred to me, but if the lease does expressly exclude rights with respect to the water above it, some rights are then given back to the lessee by virtue of the jetty licence to exclusively exclude members of the public to the extent it interferes with the rights over the jetties.
There's no other general rights given with respect to the water above the seabed to the lessee, so when you're talking about the exception, we're talking about land. Land could only be defined as the land the subject of the lease. Usually this would never arise because people stand on land where you can't really to the exclusion of standing on the first few metres of the water on the beach. You can't use the seabed.
…
(ts 215-216, 15 February 2018)
The Tribunal then had a further interchange with counsel for the respondent and stated:
Mr Curwood, if you're going to run this - and I know you thought of it yesterday and I respect that. I'm happy to take written submissions on it, but what I'm really concerned about is that somebody has a thought bubble which is interesting, and now we're discussing the land as a vessel to hold water, which in all the cases I've read, I've never seen it anywhere. … so you will have to develop that to some extent. I need your assistance on that, if I put it that way to you, but I will leave that thought with you anyway, and you can contemplate it while we continue with Mr Davis.
(ts 216-217, 15 February 2018)
The Tribunal then had a brief discussion with counsel for the applicant before counsel for the respondent stated:
COUNSEL FOR THE RESPONDENT: Just while my friend is speaking, perhaps one way of dealing with that, because as I said, it was just something that occurred to me and it may be it is correct to describe it as nothing more than a thought bubble, Member, but it does seem ' I accept it's counter intuitive to think about submerged land …
THE TRIBUNAL: My difficulty with it now is that it's out there.
(ts 217, 15 February 2018)
Counsel for the applicant then dealt with the matter in the follow way:
COUNSEL FOR THE APPLICANT: Well, it's out there, and I'm going to deal with it as best I can …
TRIBUNAL: Yes.
COUNSEL FOR THE APPLICANT: … because I had looked what I had looked for is cases where people have used directly submerged land. …
But here I haven't found anything on point …
(ts 217-218, 15 February 2018)
Following that exchange, counsel for the applicant then made submissions regarding the law on the 'use' of the Land, referring to a number of examples and cases and finished by stating:
In Newcastle City Council v Royal Newcastle Hospital, a 1957 High Court case in fact 1957 in the High Court and then 1959 in the Privy Council:
It was held that 291 acres of timbered land surrounding a hospital was 'used' for hospital purposes, even though the land was not put to any physical use by hospital staff or patients. It was sufficient that the land was a barrier to air and noise pollution, and provided a serene environment for patients.
…
Even though a hospital is not going to be built there, it's just going to be next to the hospital to keep it nice and serene, surely, taking a sensible approach to what's meant by use for our purposes in section 6.26 of the Local Government Act, physical use of the harbour waters above the seabed will be relevant and will be considered as use, albeit indirect use, of the seabed itself.
Without the harbour bed that's the actual land in question, there could be no use of the waters. The predominant use of the bed is to, as you described it, Senior Member, a vessel for the water as an alternative to informing the use of the land by reference to what's happening on the harbour waters where the predominant use of the land is to hold the harbour waters.
As an alternative to that, I submit that it's not by any means a stretch to say that use of the harbour waters is, itself, indirectly a use of the land that's holding the harbour waters, and my submission will therefore be that it's appropriate to take account of what's happening to the use, and as I will come to explain, the availability for use of the harbour waters, when considering the use of the land on which the harbour waters are, exist, and could not exist without that land being there.
(ts 222-223, 15 February 2018)
Counsel for the respondent's final comment on the matter was contained in his closing remarks at the very end of the hearing when he stated:
So the first point I want to make is after hearing Mr Davis' submissions about the word 'use'. So you might recall what you described as potentially a thought bubble on my part. I would accept that the thought bubble that I was putting up, which is based around the definition of land and the lease is yes, it's I would accept that using the word 'use' to just be water on the sea bed is too narrow. So to the extent of this issue I withdraw the thought bubble.
(ts 270, 15 February 2018)
Although accepting counsel's invitation, that based on counsel for the applicant's submissions that 'using the word 'use' to just be the water on the seabed is too narrow', might have some initial attraction, the Tribunal is mindful of the words of His Honour Martin CJ in Reid v Western Australian Planning Commission [2016] WASCA 181 at [49] when he stated:
… it is appropriate to emphasise that the course of that reconsideration will require the Tribunal not only to make the findings of fact necessary to ascertain whether the conditions imposed by the Commission can be lawfully imposed, but also to itself consider and produce the correct and preferable decision with respect to the nature and extent of the conditions to be imposed upon the subdivision of the land. I express that view because the reasons given by the Tribunal suggest that it considered the ambit of its review to be limited to the lawfulness of the conditions imposed by the Commission. While that approach might have responded to the nature of the case presented to the Tribunal, the stance adopted by an applicant in any particular case cannot detract from the Tribunal's overriding obligation to 'produce the correct and preferable decision' which must inevitably require a review of the decision on its merits.
(Tribunal's emphasis)
In the circumstances the Tribunal will look at both the use of the submerged Land excluding the water and including the water.
Consideration of the use of submerged Land (excluding the water)
As outlined earlier, the Land in question is the 'submerged Land' and the waters above it are specifically excluded in the description of the Land in the Lease.
Although Land is not defined in the LG Act itself, it is defined in the Interpretation Act 1984 (WA) (Interpretation Act) to mean:
[L]and includes buildings and other structures, land covered with water, and any estate, interest, easement, servitude or right in or over land.
(Tribunal emphasis)
So clearly the submerged Land in the present case being Land covered with water comes within that definition and is, for the purposes of s 6.26(2)(a) of the LG Act, the Land, which if used for a public purpose is not rateable.
In closing submissions, counsel for the applicant had referred to a number of decisions including the High Court case of Ryde Municipal Council v Macquarie University (1978) 139 CLR 633 and in particular made reference to a statement by Gibbs ACJ at [7] where he stated:
No one can doubt that used is a word of wide import and that its meaning in any particular case depends, to a great extent, on the context in which is employed.
Although the parties, in the interchange set out earlier, stated that they were unable to point the Tribunal to any authorities on the subject, the leading text on rating law 'Ryde on Rating', although an English text, deals with the matter in some detail.
At page 251 chapter 11 of the 13th edition under the heading 'Moorings and Floating Vessels' the authors state:
It is well established (a) that the use of land for moorings, or for the anchoring of floating vessels, docks or pontoons, can, if the necessary conditions are satisfied (b), give rise to rateable occupation (c). In particular, such use must be exclusive (d) and sufficiently permanent (e). Any doubts as to this principle were set at rest by the decision of the House of Lords in Cory v. Bristow (f) in 1877, where it was held that the appellants were in rateable occupation of a part of the soil and bed of the river Thames by means of the permanent moorings of two coal derricks, consisting of anchors, stones and fan-shaped screws embedded in the bed of the river.
Then at page 253 under the heading 'Cases where rateable occupation held to exist' the authors quote from the House of Lords decision in Cory v Bristow (1877), 2 App. CAS. 262 stating:
Lord Cairns said (a):
You have here moorings which are clearly fixed into and bedded in the soil of the river Thames, just as much as if piles had been driven ten or twenty deep into the soil, and … if you find any person in occupation of those moorings, and that occupation is a beneficial occupation, the person so occupying is occupying hereditaments within the statues which create chargeability[.]
Although Australian authorities in respect of rating of the seabed or submerged land are limited, the issue of how the seabed and the water above it should be treated, has in fact been dealt with by the High Court in a number of cases in the area of tax legislation
The two leading cases being Goldsworthy Mining Ltd v Federal Commissioner of Taxation (19721973)128 CLR 199(Goldsworthy (1)) and Goldsworthy Mining Ltd v Commissioner of Taxation (Cth) (1975) 132 CLR 463 (Goldsworthy (2)).
Further, on the first morning of the hearing on 15 November 2007, counsel for the applicant when discussing the issue as to whether the Land in question was in fact rateable land, mentioned in passing two further High Court authorities which also touch on the issue namely Dampier Mining v Federal Commissioner of Taxation [1981] HCA 29 (Dampier Mining) and Cloverdale v West Coast Council [2016] HCA 15 (Cloverdale).
In both Goldsworthy (1) and Goldsworthy (2) the appellants held a dredging lease of portion of the seabed of Port Hedland Harbour in the north of Western Australia, which lease also expressly excluded the waters above the surface of the seabed, similar to the circumstances in the present case.
It is noted that although both cases involved the parties seeking deductions under s 82(2) of the Income Tax Assessment Act 1936-1968 (Cth) and did not relate specifically to the rating of land as in the current case, the Court did deal with the issue of the use of the seabed as against the use of the waters above it in the context of those cases.
In Goldsworthy (1) at page 216 Mason J stated:
It may be conceded that ownership of the sea-bed carries with it no rights of ownership of the channel or of the sea above and that the right of navigation in the superjacent waters exists independently and irrespective of the ownership of the sea-bed. Nevertheless the sea-bed has been adapted to a more efficient use and enhanced in value by reason of the dredging. In my view, therefore, the appellant incurred expenditure 'in making improvements ... on land'.
As I have said, the point at which in my opinion the appellant's case fails is when the appellant seeks to show that during the relevant years of income it has used the land leased for the purpose of producing assessable income. The problem is that of showing a relevant use by the appellant of the sea-bed. … When s. 88 (2) speaks of land 'used for the purpose of producing assessable income' it refers to a use by the taxpayer in his capacity as a lessee of that land for the purpose of producing that income. And in my opinion it refers to a use of the land apart from the mere activities and operations which constitute the making of improvements in which the expenditure sought to be deducted has been incurred[.]
Shortly after that His Honour went on to comment in respect of the use of the waters and stated at page 217:
… however, where the superjacent waters form part of the sea, it scarcely seems apt to speak of navigation in those waters as involving a use of the sea-bed. For the appellant it was submitted that there was a use of the sea-bed in that it contained or supported the waters of the navigation channel or harbour. Without the sea-bed, in the form in which it exists there would be no navigation channel or harbour. But in my view this does not supply a sufficient reason for concluding that there was a use of the sea-bed by the appellant or a use for the purpose of producing assessable income.
…
It is a use which is made in the exercise of the public right of navigation, a use not in any respect dissimilar to the use by large ore carriers and other vessels whose owners or operators have no lease of the sea-bed[.]
In Goldsworthy (2) the High Court affirmed the findings of Mason J in Goldsworthy (1) and interestingly distinguished the earlier High Court case referred to by applicant's counsel in the present case regarding the 'use' of land namely Newcastle City Council v Royal Newcastle Hospital (1959) 100 CLR 1 (Newcastle City Council).
In Goldsworthy (2) Barwick CJ at page 467 stated:
In support of the contention that there was some 'passive' use by the taxpayer of the land which it leased reference was made to the Council of the City of Newcastle v Royal Newcastle Hospital (17), in which a claim was made in relation to what was described as the 'intangible' use of land[.]
At page 468 His Honour Barwick CJ stated:
I find myself unable to accept the argument that the combination of what was called the 'active' and 'passive' use of the land leased amounted either to a use of the land for the purpose of s 88(2) or that what was done for the purpose of producing the taxpayer's assessable income[.]
And later in respect of the water in the channel import in Port Hedland His Honour Barwick CJ stated at:
Further, it is my opinion that the use of the water of the channel by the ore carries is not a use by them or by the appellant of the land which contains the channel.
In Goldsworthy (2), Stephen J in agreeing with His Honour Barwick CJ also dealt with the Newcastle City Council case and stated at page 470:
The taxpayer sought to rely upon the concept of passive use recognised in Counci of the City of Newcastle v Royal Newcastle Hospital (21); affirmed on appeal (22). That decision is no doubt authority for the proposition that actual physical use is not an essential ingredient of the concept of 'use'; land may be of use to its owner in other ways. But both in this Court and by their Lordships on appeal what was spoken of was the concept of using land by allowing it to serve a desired end by its mere existence, perhaps leaving it in its virgin stage; per Taylor J. (23); see also (24).
Stephen J then explained in some detail his view of passive use discussed in the Newcastle City Council case and relied on by the applicant in the present case.
His Honour at page 470 stated:
The taxpayer contended that it made use of the demised sea-bed in two distinct ways. Its principal use was what it described as a passive use; that it to say, its use for containing within the dredged bed and sides of the channel, including a swinging basin, that depth of water essential if the deep-draught vessel required for the carriage of its iron ore overseas were to gain access to its port installation.
…
The taxpayer sought to rely upon the concept of passive use recognised in Council of the City of Newcastle v Royal Newcastle Hospital; affirmed on appeal. That decision is no doubt authority for the proposition that actual physical use is not an essential ingredient of the concept of 'use'; land may be of use to its owner in other ways. But both in this Court and by their Lordships on appeal what was spoken of was the concept of using land by allowing it to serve a desired end by its mere existence, perhaps leaving it in its virgin state; per Taylor J.
…
This is not an example of that class of case in which a lessee who removes portion of the demised land and puts to use the resultant void, as in a farm dam or waste disposal pit, remains the lessee of the void. Here the resultant void ceased, at the moment of its creation to form any part of the demise and the use thereafter made of the water-filled void was not a use of any leased land.
…
The only function of that portion of the stratum left after dredging out the channel is as sea-bed supporting the waters which flow over it. This cannot, I think, qualify as a use for the purposes of s. 88(2). It is no more a use in any ordinary sense of that word than is the function of seas and land masses in supporting the atmosphere above them. Those who fly do not 'use' those seas and land masses to prevent the atmosphere from responding to the force of gravity and flowing down to some lower, imagined, level; likewise those who sail the seas do not 'use' the sea-bed to prevent the escape of waters down to some nether region. The fact that laws relating to the behaviour of matter may require the presence of an ocean floor to resist the force which gravity exerts upon the super incumbent waters does not justify the description of the ocean floor as being 'used' by anyone to support those waters. Questions of use and utility are not to be judged by such abstract speculations as these.
In Dampier Mining, a case again relating to the harbour at Port Hedland and the relevant legislation again being the Income Tax Assessment Act 1936, the Western Australian government had granted a lease of the seabed and, as in the present case, had specifically excluded all waters and air space above the seabed.
The High Court hearing the matter clearly affirmed its previous decisions in Goldsworthy (1) and Goldsworthy (2) and Stephen J sitting again in Dampier Mining stated at page 420:
That the seabed must be considered separately from the superincumbent water follows from the facts of the case: the fact of separation originates in the terms of the dredging leases, which expressly exclude all that lies from time to time above the seabed.
Their Honours Mason and Wilson in a joint judgment dealing with the use of the water above the land stated at page 434:
However, by merely sailing the waters of the navigation channel the taxpayer does not use the seabed; it exercises a public right of navigation in the channel which forms no part of the demised property.
Later, when discussing the reasoning of the Federal Court, their Honours stated at page 436:
His Honour went on to say that the function of the seabed in providing support for the navigation aids was not sufficient to constitute a use of the seabed for the purpose of producing accessible income and that the activity of embedding the navigational aids was not a use for that purpose.
Deane J. considered that the question was foreclosed by the Goldsworthy (47) decision. He relied particularly on a passage in the judgement of Barwick CJ (48) 'that the use of the water of the channel by the ore carries is not a use by them … of the land which contains the channel'.
Fisher J, adopting the comment of Mason J in Goldsworthy at first instance (49), that the use is one which needs to be made by the lessee in virtue of his lease, held that the use made of the navigational aids was not a use made by the taxpayer in its capacity as a lessee; it was a use made in exercise of a public right of navigation.
It is also noted that Dampier Mining was dealing with the issue of navigational aids secured to the seabed which were for public rather than private use.
In the present case however, the piles driven in to the Harbour Bed of the subject Land are clearly intended for use by the applicant only and are in fact used to secure the jetties and moorings which form the basis of the applicant's pen hire business.
In 2016 the High Court in Cloverdale, the second case mentioned in passing by counsel for the applicant on the first day of hearing, did in fact concern the issue of rates, in that case levied on marine farming leases and parts of the seabed and waters within a municipal area in Tasmania.
However Cloverdale is distinguishable from the present case as the term 'Crown land' under consideration in that matter was defined to 'include the seabed and so much of the sea as lay above it'.
In a joint judgment, commenting on some of the previous High Court cases just referred to, their Honours stated at [18]-[21]:
18In Risk v Northern Territory, Gleeson CJ, Gaudron, Kirby and Hayne JJ doubted that the word 'land' would ordinarily be understood as encompassing the seabed. But, as their Honours appreciated, as with the meaning of any word, the meaning of 'land' depends on the context and purpose of the legislation in which it appears.
…
19By contrast, Goldsworthy Mining Ltd v Federal Commissioner of Taxation was concerned with the deductibility of expenditure incurred in dredging the seabed under a lease of the seabed; and, in that context, Mason J observed that, although the seabed may not answer the description of 'land' in every sense, in general 'land' in its legal signification includes 'any ground, soil or earth'. His Honour held that the long history of leases for mining purposes of strata of land under the sea supported the view that a lease of a portion of the seabed is ordinarily regarded as a lease of 'land' within the general acceptation of that expression. Mason J also remarked that a definition of 'land' similar to that which appears in s 46 of the Acts Interpretation Act was sufficiently wide and general to enable it to comprehend a part of the seabed.
20In Dampier Mining Co Ltd v Federal Commissioner of Taxation, Mason and Wilson JJ noted, in a similar context, that it was in one sense 'somewhat artificial' to speak of the seabed as 'land'. But, even then, there was no suggestion in Dampier that a lease of the seabed was not a lease of land for the purposes of the relevant legislation.
21Ultimately, therefore, as Gummow J observed in Risk, the question of whether the seabed and waters above it are 'land' in the context of particular legislation must be resolved by 'regard to the text of the statute as a whole, and the subject, scope and purpose of the statute and against the legislative history and antecedent circumstances'.
The various authorities therefore are clear, that the question before this Tribunal should be decided in the context of the facts of this case, the relevant statute, being the LG Act, and the terms of the Lease.
Section 6.26 of the LG Act refers to 'Land' and although no definition of 'Land' is contained in the LG Act, the definition of 'Land' in s 5 of the Interpretation Act clearly includes 'land covered with water'.
The schedule to the Lease then described 'the leased premises' as being 'all that submerged land being the land … but excluding all waters and all air space above the surface of that submerged land …'.
Finally, the definition of 'Harbour' in the Lease appears to put the matter beyond doubt when it defined Harbour to mean:
[T]he whole of the area of water … over the leased premises …
(Tribunal's emphasis)
In the circumstances therefore, the Tribunal is of the view that the words of his Honour Stephen J in Dampier Mining at page 420 are both relevant and pertinent when he stated:
[T]hat the seabed must be considered separately from the superincumbent water follows from the facts of the case: the fact of separation originates in the terms of the … lease, which expressly exclude all that lies from time to time above the seabed.
Further, as confirmed by their Honours Mason J and Wilson J in the same case at page 434 when they stated:
[B]y merely sailing the waters of the navigation channel the tax payer does not use the seabed; and exercise a public right of navigation in the channel which forms no point of the demised property.
The Tribunal therefore finds that the correct test to be applied in the present case is the use of the 'submerged Land' only being the leased premises excluding any use of the harbour waters above.
Indeed, even if the High Court's clear authorities were not available and reliance had to be made on the older English authorities referred to earlier, the use of the Land in this case being the use of the submerged Land of the Harbour Bed to secure moorings and/or for the anchoring of floating vessels, docks or pontoons would give rise to rateable occupation.
Although those English authorities pointed to two conditions that needed to be satisfied, namely, the use must be exclusive and sufficiently permanent. If that requirement was a precondition in the present case, the applicant's use of the Harbour Bed for the fixing of the piles which secure the moorings and jetties would appear from the evidence to satisfy both of those conditions.
Looking then at the use of the submerged Land, the only other evidence of any physical use by anyone of the submerged Land (excluding the water above) other than the applicant for securing its jetties and pens, was of a small area of beach and part of the boat ramp where the water meets the shoreline together with the securing of the 'wave attenuator' to the Harbour Bed.
The wave attenuator
Dealing with the wave attenuator first, as mentioned earlier, this was a matter relied on by the applicant to show that the Land was not only 'held' but also 'used' primarily or predominantly for a public purpose on the basis that it was a condition imposed on the applicant by the Variation and Assignment of the Seabed Lease that the works be completed.
Paragraph 9 of the deed of variation obliged the applicant to complete the construction of a wave attenuator not later than 31 December 2014. Further, should construction not be completed by that date, the Lessor was entitled to terminate the Lease forthwith and retake possession of the subject property without compensation to the applicant.
Although clause 9 of the deed of variation confirms that the parties at the time of entering into the deed acknowledged and agreed that the assignor was already carrying out the wave attenuation works, it is clear that the physical works did not commence until 21 July 2014 whereas the assignment of the Lease and Licence took place in May 2014.
It was also agreed that construction of the wave attenuator was completed on 21 December 2014 at a cost of $804,088.53 (excluding GST) and that the wave attenuator is attached to the seabed and is designed to act as a barrier to storm-generated waves entering the Harbour.
Although the Deed of Variation and Assignment did not state why the wave attenuation works were being carried out, at the hearing the applicant tendered a letter through Mr Barry Jones, a director of the applicant from a Mr Clint Doak of M P Rogers and Associates, the consulting engineers involved in the design and construction of the wave attenuator.
In that letter Mr Doak stated:
…
The wave screen at the entrance to the Mindarie Marina was designed and constructed to ameliorate risks posed to users of the main marina waterway during periods of north to north-westerly winds. Such winds are often associated with the approach of a winter cold front.
Prior to the installation of the wave screen the wave conditions within the main marina waterway did not meet the requirements of the relevant Australian Standard, and were unsafe. Since construction, the wave screen has significantly improved the wave conditions within the main marina waterway. This has significantly improved the wave conditions at the adjacent marina pens, and has also improved the wave climate within the main waterway to the point where the waterway could be used by patrons of the marina, or the general public, as a refuge during these north to north-westerly conditions[.]
The applicant therefore contended that as it was obliged to carry out those works at risk of forfeiture of the Lease for failing to do so, and that in their view the reason they were compelled to do so was essentially for safety reasons, and that that pointed towards a public purpose for the Harbour and for those works.
The respondent on the other hand tendered affidavit evidence from Mr Ronald Zappara, the Manager of Property Services with the Department of Transport who oversees the Department of Transport's Lease of Mindarie Keys Harbour on behalf of the lessor. At paras 4-7 of his affidavit Mr Zappara stated:
4.I recall that I was first contacted about the issue of the construction of a wave attenuator by Geoff Davieson who was the harbour manager for Mindarie Keys Project Management Pty Ltd (MKPM). MKPM was the previous lessee of Mindarie Harbour. I recall that I had a meeting with Mr Davieson and he told me words to the effect that the parts of Mindarie Harbour, where boat mooring pens were constructed, were affected by northwest winds four or five times a year which created waves which interfered with those mooring pens, which were leased by MKPM to boat owners. Further, Mr Davieson showed to me at a meeting we held, a video of these waves on his phone.
5.He communicated a request on behalf of MKPM for permission to build a storm barrier, being a wave attenuator at the entrance of Mindarie Harbour to protect the boat pens from north westerly waves. Mr Davieson, on behalf of MKPM, requested permission to build a storm barrier. The Department of Transport agreed to the request to build the wave attenuator.
6.The wave attenuator works were mentioned in clause 9 of a variation and assignment of seabed lease dated 9 April 2014 made between the Minister for Transport, MKPM and Sanctus Nominees Pty Ltd. Those works were not required by the Department of Transport but were requested by the then tenant, MKPM.
7.My understanding is that the rest of the harbour has never been affected by winds or waves due to the construction of the breakwater.
Although the applicant's hypothesis is a reasonable one, it relies on an inference from the letter from Mr Doak as to the primary purpose of the wave attenuation works. However, Mr Doak gave no evidence other than what the wave attenuator was 'designed and constructed' for, not who required it and whether its purpose was public or private.
Mr Zappara on the other hand, was clear that the works were in fact a private initiative to improve the conditions within the Harbour for the moored boats.
The Tribunal prefers the evidence of Mr Zappara who oversees the Lease on a day-to-day basis on behalf of the lessor and who had personal involvement in approving the works and who was clear as to why they were needed and why they were approved.
The Tribunal is therefore not satisfied that the wave attenuator was constructed and installed predominantly or primarily for a public purpose.
Uses by the public
That then leaves the use of the small portion of the beach and that part of boat ramp not on adjoining titles that is available to and used by the public.
Although not specifically identified in evidence, it was touched on by Mr Smith when he gave evidence regarding the number of people using the beach and the boat ramp on an annual basis. However, such use could not be described as extensive as against the significant and ongoing use of the jetties and pens by the applicant.
Conclusions as to how the Land is 'used' (excluding the waters above)
If, therefore, as the Tribunal has just found, the correct test is that the use of the water is ignored and the use of the submerged Land only is considered, the evidence before the Tribunal in the present case is that the principle use of the submerged land is to hold the piles driven into the Harbour Bed which secure the 250 boat pens for hire which in turn underpin the applicant's commercial enterprise earning the applicant a significant annual income of approximately 1.3 million (before expenses) as per the agreed facts.
As stated earlier, the wave attenuator attached to the Harbour Bed was not, in the Tribunal's view, constructed and installed for a public purpose and neither is there any evidence that its use is primarily or predominantly for a public purpose. Further, any other public uses as described are minimal.
The Tribunal is therefore not satisfied on the evidence before it that the Land is either predominantly or primarily used for a public purpose.
In addition, the Tribunal's findings later in these reasons that the applicant's use of the Harbour waters are, in the words of the various authorities referred to, 'a source of private profit' from which the applicant derives significant income which runs contrary to the use of the Land for a public purpose must be noted. As that reasoning can also be applied to the applicant's use of the Harbour Bed (excluding the water) due to the fact that the piles secured by the Harbour Bed support the jetties and pens which in turn underpin the applicant's business.
Consideration of the use of the submerged Land (including the water above)
Although, the Tribunal is satisfied based on the High Court authorities, the relevant legislation and the lease documents that looking only at the submerged land and excluding the waters above is the correct test, the Tribunal acknowledges that the parties ran their case, apart from the brief comments in oral submissions outlined earlier, based entirely on evidence of the use of the Harbour waters.
Therefore, noting that, and the fact that the amount of rates is not an insignificant annual charge, for completeness, the Tribunal will now deal with the circumstances as argued by the parties and include the Harbour waters in the consideration of the use of the Land.
Mr Smith gave evidence on behalf of the applicant as to the extent the public used the Harbour waters for swimming, fishing, paddle boarding, kayaking and other such activities and confirmed that the waters are in fact under the control and management of the Department of Transport.
The applicant had undertaken a measurement of the physical area taken up by the floating jetties and pens secured by the piles driven into the Harbour Bed but not including the channels between the pens which the boats must traverse to enter or leave those pens. That measurement was, as counsel for the applicant submitted on more than one occasion, only 12% of the total Harbour area.
In that regard, counsel for the applicant in closing submitted:
… assuming that we can look at the surface area or what happens on the surface when informing the purpose - when considering the purpose of the land, we have this commercial operation whereby any member of the public who has a boat or has access to a boat can come to the operator and hire out and pay to keep their boat there. We have that on a small proportion of the surface area of the water, and an even far smaller proportion on the surface area of the bedrock below.
And then the rest of it, we have five per cent of the surface area with some private jetties that the homeowners along the edge of the harbour have access to. Each of them, 51 of them. And that we think takes up another five per cent. That has been estimated by Mr Jones. It hasn't been challenged. It seems about right, looking at the maps that we've all been looking at over the course of this hearing. We've got space between the jetties, which hasn't been counted in that 12 per cent, where boats would have to go in order to get access to the jetties then they come in and out. But we don't have anything like - anything approaching 50 per cent of the surface area there, of the water, let alone whatever the surface area of the land is to take the pylons and have the concrete (indistinct)
The rest of that harbour, whether you take 83 per cent - let's say 70, 75 per cent if we're going to include the bits between the fingers as opposed - between the jetties as opposed to between the fingers that haven't been included, the rest of it available for the public to use …
Counsel for the respondent on the other hand argued that that 12% was what he described as 'hard use' by the applicant for the mooring of boats 24 hours a day, seven days a week, 365 days a year under the exclusive use provisions of the Lease and Licence, while the use of the waters by the public was intermittent, seasonal and restricted.
Further, counsel for the respondent submitted the public did not have access on to or around the jetties as access was through locked gates.
Although it was not clarified as to who imposed and controlled the restrictions on fishing and swimming in particular areas of the Harbour that is the Department of Transport or the applicant, Mr Smith gave evidence that those restrictions were, in any event, rarely enforced.
However the Tribunal is not convinced that if the use of the Harbour waters are to be included in any assessment, the test for public purpose should boil down to some mathematical analysis of a percentage of the precise square meter area of jetties and pens. Indeed, as is clear from the aerial photograph attached as Annexure A the jetties and moorings have a large physical footprint.
In Swan Yacht Club when dealing with whether land was 'used' for a public purpose, his Honour Pullin J referred to two relevant decisions, one being the High Court in Randwick and the other being the Queensland case of Re Caboolture Aero Club (Inc) [1995] 1 Qd R 591 (Caboolture).
A critical issue in both of those cases was whether the land in question was a source of profit. At [39] of Swan Yacht Club Pullin J stated:
The arguments raised by the appellant were as follows. First it was said that no business was undertaken for the private gain of any individual, this being a feature which was said to distinguish this case from the outcome in Re Caboolture Aero Club (Inc) [1995] 1 Qd R 591where it was held that the right to sub-lease outlets to businesses deriving profit undermined the public nature of the purpose. It is true that the appellant's business is not undertaken for the private gain of any individual. However, the appellant has made profits and those moneys are spent on the club facilities which benefit the club members and not the public.
At [42]-[43] in commenting on the High Court findings in Randwick, His Honour stated:
In Randwick Municipal Council v Rutledge (supra) the Court was considering whether the Randwick racecourse was rateable. Land was not rateable under the legislation considered in that case, if the land was vested in the Crown or in trustees and was "used for a public reserve". A public reserve included land reserved from sale for certain purposes "or other public purpose of the like nature". The case therefore raised the same issue about whether the land was used for a public purpose. Windeyer J said at 88:
In principle for land to be used for public recreation and enjoyment, so as to be in some sense akin to a public park - which is what the Act contemplates … - and to be on that account exempt from rating, two conditions must be fulfilled. The land must be, in the relevant sense, open to the public generally as of right; and it must not be a source of private profit. As to the first: It is not necessary for all members of the public to have free access to all parts of the land at all times. It is not incompatible with a public reserve that persons can be excluded for misbehaviour or any similar sufficient reason …
As to the second requirement, that the land must not be a source of private profit. In the underlying theory of rating legislation, land in public occupation is exempt from rating because it does not produce rent or profits for its owner or occupier. If members of the public have to pay to enter the land it may still be a public reserves provided that the moneys thus obtained are all devoted to its maintenance …
All of this is reflected in the definition of "public purpose" stated by Franklyn J in State Government Insurance Office v City of Perth and which I have referred to above.
(Tribunal's emphasis)
At the heart of the present matter is the fact that although the applicant has maintenance responsibilities in respect of the Harbour, its own use of the Harbour waters is for a commercial undertaking.
The Tribunal notes the definition of 'public purpose' set out by Franklyn J in State Government Insurance Office v City of Perth (1987) 71 LGRA 123 (SGIO) at [135] which was adopted by the Court of Appeal in Port Kennedy Resorts and relied on by his Honour Pullin J in Swan Yacht Club as outlined above.
Franklyn J at [135] stated:
For a purpose to be a 'public purpose' within the meaning of the section in my view it must be a purpose which relates or pertains to the people of the State or of some particular region or locality as a whole and so relate or pertain a sense of provision of some service, utility or benefit to the public which would not be otherwise provided, and which is not provided with the primary purpose of producing profit, although profitability might well flow from charges or fees imposed or moneys collected or earned in respect of such provision. Such a definition accords with activities which are traditionally the province of government and with the meaning of the word 'public'.
(Tribunal's emphasis)
Indeed, in Caboolture, the case referred to by Pullin J in Swan Yacht Club, McKenzie J in dealing with the issue of profit referred to a line of cases, one of which was Ryde and Sydney City Council v University of Technology Sydney (1992) 78 LGRA 200 and stated:
The club also relied on the distinction between commercial activities merely incidental to, wholly ancillary to or which directly facilitated use for public purposes and uses which are collateral or additional to the public purpose refer to Ryde M.C., at 380, 385 and 386 and Sydney C.C., at 202 and 204.
In those cases it is accepted that if land is used solely or principally for commercial activity designed to raise income for the lessee or in such a way that commercial activity is seen to be one substantial purpose for which the lease was held, it is not held for public purposes. But where income is produced from the use of land in circumstances that are less clear cut, a determination whether on balance the income producing activities are no more than ancillary or incidental to the public purpose of conducting an airstrip or are a collateral activity the profits of which are applied for the purposes of conducting the airstrip must be addressed.
Conclusions as to how the Land is 'used' (including the waters above)
Although the applicant might have an arguable case in respect of the first limb of the test set out by Windeyer J in Randwick being 'the Harbour Waters are open to the public generally', though even then that access is restricted due to the wide exclusive use provisions, the applicant certainly falls foul of the second limb of Windeyer J's test being that 'the land must not be a source of private profit'.
Further, the principle referred to by Windeyer J in Randwick was that:
[T]he underlying theory of rating legislation, land and public occupation is exempt from rating because it does not produce rent or profits for its owner or occupier.
That sentiment also comes through the comments of Lord Cairns in Cory v Bristow as far back as 1877 when he stated:
… if you find any person in occupation of those moorings, and that occupation is a beneficial occupation, the person so occupying is occupying hereditaments within the statutes which create chargeability[.]
In the present case, the jetties and pens which are not an insignificant footprint on the northern area of the Harbour support a profitable private venture which, in the Tribunal's view, runs contrary to the use of the Harbour primarily or predominantly for a public purpose.
Further, in the Tribunal's view, the 'profitability' of the applicant in the present case is not of the type described by Franklyn J in SGIO, as possibly being allowable as, 'flowing from fees or charges imposed' or, as described by McKenzie J in Caboolture as, 'no more than ancillary or incidental to the public purpose'.
The Tribunal notes that the applicant gets additional income of approximately $57,000 per annum which, in the Tribunal's view, is income which might be so classified, as it is less direct income from ramp fees from boat owners seeking to launch and/or retrieve vessels on to the Harbour Waters, however it is only a fraction of the total income received by the applicant.
However, the income of approximately 1.3 million (before expenses) generated from the 250 boat pens is a substantial private business undertaken for private gain by the applicant and the Tribunal does not accept the applicant's contention that because the pens are available to the public for hire, that qualifies them as being for a public purpose.
In the present case it is clear that the significant income produced from the boat pens is taken as income by the applicant's company and dependent on how things such as interest charges and depreciation are treated, an actual profit may or may not be posted.
In all the circumstances therefore, although the Tribunal acknowledges the public use of the waters of the Harbour and in particular the evidence given by Mr Smith, the Tribunal is not satisfied on the evidence before it for the reasons just outlined, that the use of the Land, even if the use of the Harbour waters is included, is primarily or predominantly used for a public purpose.
Other issues
The Tribunal will now deal with the two other issues raised at the beginning of the decision, namely the issue of consistency of decisionmaking and the extension of time.
Consistency of decision-making
The Tribunal accepts the position as set out in The Owners of Strata Plan 18449 referred to earlier and followed in various later decisions of the Tribunal that a member of the Tribunal should:
… generally follow a decision of another Member of the Tribunal or a Member of a former Tribunal which SAT has replaced that is in point, unless satisfied that the earlier decision was clearly an error.
As it transpires, after considering all of the evidence in this matter and the parties' submissions, this Tribunal has come to largely the same position as Member Eddy in the 2015 decision although for different reasons and in the circumstances, there is therefore no need to consider the matter further.
Whether a rate payer is entitled to object to their rate notice each year on the same grounds and on each occasion, have the matter reviewed by the Tribunal, is a different question which would need to be raised and dealt with at the initial stages of the relevant application.
Further, although the Tribunal is satisfied on this occasion that the evidence put before this Tribunal was not before Member Eddy in the 2015 decision, the question of whether all such evidence was new evidence or evidence that was available at the time of the 2015 decision would also be an issue that would need to be considered if an objection was again made on the same grounds.
In any event, in view of the Tribunal's findings on the substantive matter, there is no merit in the Tribunal considering those matters on this occasion.
Extension of time
Again, as set out earlier, the four factors identified by Kennedy J in Esther Investments Pty Ltd are the principal matters for consideration in the exercise of discretion whether to extend time.
Those matters are:
(a)the length of the delay;
(b)the reasons for the delay;
(c)whether there is an arguable case for the objection; and
(d)the extent of any prejudice to the respondent.
The length of delay
It is agreed that the length of the delay was 19 days which is not an excessive period.
Mr Barry Jones gave evidence as to why this had occurred. One of the reasons being, that the notice was not passed on to him until it was too late and he was also at that time taking instructions as to whether to appeal the 2015 decision.
The Tribunal accepts Mr Jones' evidence and finds the reasons for delay, in the circumstances, reasonable.
Whether there is an arguable case
The 2015 decision was determined on a set of agreed facts entirely on the documents.
In contrast, on this occasion a full oral hearing took place with both parties calling evidence and being represented by counsel.
Although the Tribunal has not found in favour of the applicant, it could not be said that there was not an arguable case. The Tribunal is therefore satisfied in respect of this factor.
The extent of prejudice to the respondent
As with most revenue matters, although an objection is made, ratepayers are obliged to pay the rates prior to the decision on any objection or review being made, so apart from having to defend their decision, there is no prejudice to the respondent in respect of the delay.
Counsel for the respondent correctly conceded this point and also conceded that as both parties had gone to the trouble of preparing for and running a three day hearing, a 19 day delay was unlikely to stand in the way of an extension of time being granted.
Counsel for the respondent is correct and the Tribunal in all the circumstances is prepared to extend the time necessary to allow the applicant's matter to be decided.
The summary of conclusions
In respect of the application for an extension of time, the Tribunal is satisfied for the reasons outlined that time should be extended to make the original objection to the respondent and that time will be extended to the date the objection was received by the respondent being 7 October 2015.
In respect of the question as to whether the Land is 'held' for a public purpose, for the reasons outlined above, the Tribunal finds that the Land is not primarily or predominantly held for a public purpose.
As to whether the Land the subject of the proceeding is 'used' (excluding the waters above the Land) for a public purpose, for the reasons outlined above, the Tribunal finds that the Land is not primarily or predominantly used for a public purpose.
As to whether the Land the subject of the proceeding is 'used' (including the waters above the Land) for a public purpose, for the reasons outlined above, the Tribunal again finds that the Land is not primarily or predominantly used for a public purpose.
In all the circumstances therefore, the Tribunal is not satisfied that the Land the subject of the relevant rate notice is primarily or predominantly held or used for a public purpose and the application for review will therefore be dismissed.
Orders
1.The decision of the respondent dated 14 October 2015 to refuse the extension of time to make the objection filed on 7 October 2015 is set aside and an extension of time is granted to file the objection up to and including that date.
2.The decision of the respondent dated 14 October 2015 to refuse the applicant's objection to the rate notice for the 2015/2016 financial year for the reason that the Land described as 11L Syros Court, Mindarie WA 6030 is not primarily or predominantly held or used for a public purpose is affirmed.
3.The application for review is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR M SPILLANE, SENIOR MEMBER
27 JUNE 2018
Annexure A
0
13
4