SANCTUS NOMINEES PTY LTD and CITY OF WANNEROO
[2015] WASAT 86
•14 AUGUST 2015
SANCTUS NOMINEES PTY LTD and CITY OF WANNEROO [2015] WASAT 86
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 86 | |
| LOCAL GOVERNMENT ACT 1995 (WA) | |||
| Case No: | DR:13/2015 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS L EDDY (MEMBER) | 14/08/15 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application unsuccessful | ||
| B | |||
| PDF Version |
| Parties: | SANCTUS NOMINEES PTY LTD CITY OF WANNEROO |
Catchwords: | Land Rates Objection to rate record Error in rate record Whether land is rateable land Crown land held or used for a public purpose Lease of submerged land Harbour and private boat pens Predominant use Lack of evidence |
Legislation: | Interpretation Act 1984 (WA) Jetties Act 1926 (WA), s 3, s 7 Local Government Act 1960 (WA), s 532(2) Local Government Act 1995 (WA), s 6.26, s 6.76, s 6.76(1)(a)(ii), s 6.77, s 9.7 State Administrative Tribunal Act 2004 (WA), s 60(2) Western Australian Marine Act 1982 (WA), s 65, s 65(1) |
Case References: | Port Kennedy Resorts Pty Ltd v The City of Rockingham [2000] WASCA 423; (2000) 112 LGERA 296 Randwick Municipal Council v Rutledge (1959) 102 CLR 54 Retirees WA (Inc) and City of Belmont [2010] WASAT 56; (2010) 70 SR (WA) 330 Smith and City of Wanneroo [2008] WASAT 182 State Government Insurance Office v City of Perth (1987) 71 LGRA 123 Swan Yacht Club Inc v Town of East Fremantle [2005] WASCA 99; (2005) 30 WAR 193 |
Orders | On the application determined on the documents by Member Lisa Eddy, it is on 14 August 2015 ordered that:,1. The application is dismissed.,2. The decision of the respondent on 18 December 2014 to disallow the applicant's objection to the rate notice with respect to land formally described as Lot 11187 on Deposited Plan 16754 and Lot 3000 on Deposited Plan 44439 is affirmed. |
Summary | The applicant leases an area of seabed land that is Crown land in the form of a harbour, known as the Mindarie Keys Marina. The applicant also holds a jetty and mooring licence that gives it the exclusive right to allow mooring of vessels within the marina. The applicant charges fees for the use of boat pens (moorings) within the marina but is obliged under the lease and licence to ensure that the public has free access through, and use of, the waters of the harbour except to the extent that its jetties and moorings, and vessels using those, restrict that access or use. The respondent determined that the seabed was rateable land and issued a rates notice to the applicant in 2014. The applicant objected to the rate notice on the basis that it contended the land was not rateable because the land was Crown land that was held or used for a public purpose. The Tribunal found that the land was held and used for two purposes: for the maintenance of a harbour and for the installation and use of jetties and moorings within the harbour. The Tribunal found that the applicant had not established that the predominant use for which the land was held, or used, was for a public purpose as it had not established that either of the uses for which the land was held or used was the predominant purpose. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : LOCAL GOVERNMENT ACT 1995 (WA) CITATION : SANCTUS NOMINEES PTY LTD and CITY OF WANNEROO [2015] WASAT 86 MEMBER : MS L EDDY (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 14 AUGUST 2015 FILE NO/S : DR 13 of 2015 BETWEEN : SANCTUS NOMINEES PTY LTD
- Applicant
AND
CITY OF WANNEROO
Respondent
Catchwords:
Land Rates Objection to rate record Error in rate record Whether land is rateable land Crown land held or used for a public purpose Lease of submerged land Harbour and private boat pens Predominant use Lack of evidence
Legislation:
Interpretation Act 1984 (WA)
Jetties Act 1926 (WA), s 3, s 7
Local Government Act 1960 (WA), s 532(2)
Local Government Act 1995 (WA), s 6.26, s 6.76, s 6.76(1)(a)(ii), s 6.77, s 9.7
State Administrative Tribunal Act 2004 (WA), s 60(2)
Western Australian Marine Act 1982 (WA), s 65, s 65(1)
Result:
Application unsuccessful
Summary of Tribunal's decision:
The applicant leases an area of seabed land that is Crown land in the form of a harbour, known as the Mindarie Keys Marina. The applicant also holds a jetty and mooring licence that gives it the exclusive right to allow mooring of vessels within the marina. The applicant charges fees for the use of boat pens (moorings) within the marina but is obliged under the lease and licence to ensure that the public has free access through, and use of, the waters of the harbour except to the extent that its jetties and moorings, and vessels using those, restrict that access or use. The respondent determined that the seabed was rateable land and issued a rates notice to the applicant in 2014. The applicant objected to the rate notice on the basis that it contended the land was not rateable because the land was Crown land that was held or used for a public purpose. The Tribunal found that the land was held and used for two purposes: for the maintenance of a harbour and for the installation and use of jetties and moorings within the harbour. The Tribunal found that the applicant had not established that the predominant use for which the land was held, or used, was for a public purpose as it had not established that either of the uses for which the land was held or used was the predominant purpose.
Category: B
Representation:
Counsel:
Applicant : N/A
Respondent : N/A
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Port Kennedy Resorts Pty Ltd v The City of Rockingham [2000] WASCA 423; (2000) 112 LGERA 296
Randwick Municipal Council v Rutledge (1959) 102 CLR 54
Retirees WA (Inc) and City of Belmont [2010] WASAT 56; (2010) 70 SR (WA) 330
Smith and City of Wanneroo [2008] WASAT 182
State Government Insurance Office v City of Perth (1987) 71 LGRA 123
Swan Yacht Club Inc v Town of East Fremantle [2005] WASCA 99; (2005) 30 WAR 193
Introduction
1 Sanctus Nominees Pty Ltd (applicant) leases an area of Crown land that is an area of seabed located within the Mindarie Keys Marina (property). The area of seabed the subject of the lease is part of a reserve that is vested in the City of Wanneroo (respondent). In 2014, the respondent issued a rates notice to the applicant imposing rates in relation to the property for the financial year 1 July 2014 to 30 June 2015 (2014/2015 financial year). The rates notice assessed the gross rental value of the property at $1,070,000 for the 2014/2015 financial year.
2 By letter dated 7 December 2014, Mr Jones, on behalf of the applicant, advised the respondent that it objected to the rate notice pursuant to s 6.76(1)(a)(ii) of the Local Government Act 1995 (WA) (LG Act). On 18 December 2014, the applicant's objection was disallowed. On 13 January 2015, the applicant lodged with the Tribunal an application for review of the respondent's decision to disallow its objection to the rates notice under s 9.7 of the LG Act. The application was later amended to become an application under s 6.77 of the LG Act.
3 By orders made in February 2015, the parties were required to file an agreed statement of facts, and an agreed bundle of documents and submissions, with the last of those documents to be filed by 21 April 2015. It was also ordered that the matter would be determined on the papers pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). At the request of the parties, the time to file the last of the documents ordered to be filed with the Tribunal was extended to 15 June 2015.
4 The Tribunal now has before it the following documents:
1) application for review under s 6.77 of the LG Act dated 13 January 2015;
2) statement of agreed facts dated 4 May 2015;
3) bundle of agreed documents dated 4 May 2105 (BOD);
4) applicant's submission dated 7 April 2015;
5) respondent's submission dated 12 May 2015; and
6) applicant's response to respondent's submissions dated 9 June 2015.
5 Pursuant to the orders made pursuant to s 60(2) of the SAT Act, the application for review has been determined having regard to those documents. The Tribunal's decision and reasons for decision are as follows.
Issues
6 It is necessary to turn to the relevant provisions of the LG Act in order to formulate the issues for consideration in this application. The application for review is made under s 6.77 of the LG Act, which provides that:
Any person who is dissatisfied with the decision of a local government on an objection by that person under section 6.76 may … after service of notice of the decision, apply to the State Administrative Tribunal for a review of the decision.
7 Section 6.76 of the LG Act allows a person to object to the rate record of a local government on the ground that there is an error in the rate record in relation to the identity of the owner or occupier of the land or on the basis that the land, or part of it, is not rateable land. This is what the applicant did when it wrote to the respondent advising that it objected to the rate notice, or more correctly, the rate record from which the rate notice is derived, pursuant to s 6.76 of the LG Act. The respondent's decision to disallow the applicant's objection then gave rise to the right to seek a review of that decision under s 6.77 of the LG Act.
8 The applicant's objection to the rate record was based on its belief that the property is not rateable land within the meaning of the LG Act. The term 'rateable land' is defined in s 6.26 of the LG Act such that, except for the particular exceptions specified in s 6.26(2), all land within the district is rateable land. Relevantly, the exceptions specified in s 6.26(2) of the LG Act include:
(a) land which is the property of the Crown and
(i) is being used or held for a public purpose; or
…
…
(d) land used or held exclusively by a religious body as a place of public worship or in relation to that worship, a place of residence of a minister of religion, a convent, nunnery or monastery, or occupied exclusively by a religious brotherhood or sisterhood; and
(e) land used exclusively by a religious body as a school for the religious instruction of children; and
(f) land used exclusively as a non-government school within the meaning of the School Education Act 1999; and
(g) land used exclusively for charitable purposes[.]
9 Section 6.26(6) of the LG Act further specifies that:
Land does not cease to be used exclusively for a purpose mentioned in subsection (2) merely because it is used occasionally for another purpose which is of a charitable, benevolent, religious or public nature.
10 The applicant relies on the exception provided in s 6.26(2)(a)(i) of the LG Act in asserting that the property is not rateable land. The parties agree that the property is Crown land, and therefore, the only issue for determination in this application is whether the property is being used or held for a public purpose.
Agreed facts
11 The parties have agreed the following facts relevant to determining the purpose for which the property is being used or held.
12 The property has installed on or in it 250 boat pens in private mooring areas fronting houses in 'Mindarie Keys Marina'. The applicant's occupancy of the property is pursuant to a lease dated 19 December 1995 entered into between the Minister for Transport and Gumflower Pty Ltd (Gumflower) for a term of 50 years commencing on 6 October 1989. By deed of assignment of lease, assigned to Mindarie Joint Venture its rights under the lease. By deed of variation and assignment dated 9 April 2014, Mindarie Joint Venture assigned to the applicant its leasehold estate in the property with effect from 7 May 2014. Contemporaneously with entry into the lease, the Minster executed a document referred to as a 'Jetty and Mooring Licence'. The licence was similarly assigned on each occasion that the lease was assigned.
13 The property is a component of Mindarie Marina. Mindarie Marina, in addition to the property, comprises 45,384m² of freehold land, owned by Captam Pty Ltd, now known as Visit Mindarie Pty Ltd, upon which a boat fuelling facility, a boat launching ramp, car parking areas, restaurants, hotel rooms, bars, function centre, shops and offices are located. The website of Mindarie Marina, promoting the property and the surrounding development, provides as follows:
Mindarie Marina is a world class facility offering the boating community the option of both long term and casual pen leasing.
When it was first constructed in 1988 Mindarie Marina was the largest manmade harbour in Australia the area of water within the Harbour being approximately 13.5 hectares (34 acres) with the depth varying from two to five metres. The maximum depth of cut is 18 metres, with a harbour entrance of 50 metres next to a 8000 metre breakwater. Overtime, the Mediterranean style Marina has undergone huge developments including the addition of new jetties, the refurbishment to the Marina Hotel facility and facelifts to the Boardwalk and surrounding venues.
Mindarie Marina provides the following facilities for the boating community:
• 250 fully serviced 10m 20m pens
• Casual overnight pens
• Car parking
• Boat ramp and launching facilities
• Diesel and ULP fuel sales
• Fishing charters
• Dive charters
• Toilet and shower facilities
• Free WIFI
14 The boat pens in the property are available for sublease by members of the public for a fee. Pen fees are charged per lineal metre of boat length. The rates charged by the applicant during the rating period were as follows:
(a) $550 per lineal metre per 12 months of occupation for standard hull boats; and
(b) $832.50 per lineal metre per 12 months of occupation for catamarans.
15 The following additional facts can be ascertained from the documents in the BOD.
The lease
16 The original lease under which the applicant now occupies the property (lease) specifies that the leased premises includes only the identified submerged land and excludes all waters and air space above the surface of the submerged land: document 5 of the BOD. That lease was assigned to the applicant in May 2014: document 9 of the BOD. The deed of assignment also describes the leased premises as an area of seabed. (Although the area of seabed is differently identified in the two documents, nothing turns on this).
17 The recitals to the lease state that the lease was executed in order to comply with the terms of an earlier State agreement. That State agreement is not included in the BOD; however, recital B of the lease states that the agreement was that the relevant Minister would grant to the entity described as 'the Company', a lease of the 'Harbour Bed' for a term of 50 years at a nominal rent. Recital C of the lease identifies that the 'Harbour Bed' the subject of the State agreement is the land the subject of the lease.
18 Following the recitals to the lease is a statement of the making of the lease agreement that includes reference to the purpose of the lease, that being 'for the purpose of a harbour and associated purposes': page 3 of document 5 of the BOD. The term 'harbour' is defined in the lease to mean 'the 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': page 18 of document 5 of the BOD. It is noted, however, that a description of the purpose of a lease is not necessarily decisive; the 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: Randwick Municipal Council v Rutledge (1959) 102 CLR 54 (Randwick v Rutledge) at 86.
19 The lease allows the lessee to construct on the seabed any structures authorised by a jetty licence and to place on the seabed any apparatus authorised by, or required for, the purposes of a mooring licence, and specifies that those structures and apparatus 'shall be the lessee's improvements for the purposes of this lease': page 16 of document 5 of the BOD. The lessee is required to yield up all existing permanent structures belonging to the lessee at the expiration or determination of the lease; however, there is no evidence in relation to whether any structures or apparatus installed by the applicant in accordance with a jetty licence or a mooring licence is a permanent structure. The lease also contains an obligation on the lessee to keep and maintain all structures on the leased premises in good, clean and safe repair, order and condition to the satisfaction of the Minister, and to insure the structures against damage or destruction.
20 The lessee is required to maintain, throughout the term of the lease, to the satisfaction of the Minister, the entrance to the harbour to a depth of 3 metres and the water depths of the harbour at not less than the approved design depths for the harbour. An additional obligation to maintain the breakwater (defined in the lease to mean the breakwater constructed under the State agreement) is stated to have effect until 7 July 1998 and therefore was not current at the time the applicant took over the lease. However, when the lease was assigned to the applicant, the deed of assignment introduced an obligation on the applicant that if the assignor did not complete the installation of a steel breakwater on the premises by the date of the assignment, the applicant is required to complete those works at its own cost, and failure to do so by the specified date results in termination of the lease.
21 The lessee covenants under the lease 'not to use, or permit the use of the leased premises except for the purposes of a harbour and associated purposes'. In addition, the lessee may not, without the written consent of the Minister, reclaim any part of the water over the leased premises, or build, install, etc (or permit anyone to build or install, etc) any 'building structure erection fixture plant equipment or improvement whatsoever (either above or below the surface of the leased premises)' except as authorised by a jetty licence or a mooring licence. Further, the lessee may not obstruct or permit to be obstructed the waters and the air space above the leased premises and the entrance to the harbour, except pursuant to any jetty licence or mooring licence, or temporarily for the purposes of maintenance. The lessee is required, at all times, to ensure that free public access to the surface waters of the harbour from the Indian Ocean is permitted, subject to the existence of any structures authorised by a jetty licence or a mooring licence, except with the written consent of the Minister and only for a reasonable purpose and period.
The licence
22 In 1995, the original lessee of the property, Gumflower, was granted by the relevant Minister, pursuant to s 65 of the Western Australian Marine Act 1982 (WA) (Marine Act), 'a licence to use exclusively the Harbour for the purpose of mooring Vessels' and, pursuant to s 7 of the Jetties Act 1926 (WA) (Jetties Act), a 'licence to construct (in accordance with plans and specifications first approved by the Minister)[,] use and maintain the Jetties within the Harbour' (licence): see document 18 of the BOD. The term of the licence is equal to the term of the lease and any extension or renewal of the lease. A range of licence fees payable by the licensee is also specified, and provision is made for the Minister to annually review the licence fees payable. The licence provides that upon termination of the licence, the licensee must, if requested by the Minister, remove the jetties and all mooring apparatus from the harbour and fill in all holes, leaving the harbour bed clean and free from rubbish. That licence was assigned, with the Minister's consent, to a group of companies, including the applicant, by deed of assignment dated 25 March 1996, and then further assigned, to the applicant solely, by deed of assignment dated 14 April 2014.
23 The licence restricts the licensee from allowing others to benefit from the privileges granted by the licence (that is, use of a mooring or jetty) for other than periods not exceeding two years (or five years if the person is the owner of land adjacent to a jetty) and on terms approved by the Minister, unless the Minister's written consent is first obtained. Similarly to the lease, the licence 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.
When is land held or used for a public purpose?
24 Given the context of the subparagraph within the section as a whole, there can be no doubt that, for the purposes of s 6.26(2)(a)(i) of the LG Act, it is not necessary for the land to be held or used exclusively for a public purpose. But what is a 'public purpose' and to what extent must the land be held or used for such purpose?
25 The term 'public purpose' is not defined in the LG Act, nor is it defined in the Interpretation Act 1984 (WA). However, there have been a number of decisions in the Supreme Court that provide guidance with respect to the meaning of this term as it is used in s 6.26(2) of the LG Act and its predecessor s 532(2) of the Local Government Act 1960 (WA) (LG Act 1960). In the earliest of these, State Government Insurance Office v City of Perth (1987) 71 LGRA 123 (SGIO v City of Perth), at 135, his Honour Franklyn J stated, in relation to the predecessor provision, that:
In my view the word 'purpose' used in the section refers to the object with which the occupant of the land uses such land in pursuing its activities. … 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 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 moneys collected or earned in respect of such provision.
26 In the next case, Port Kennedy Resorts Pty Ltd v The City of Rockingham [2000] WASCA 423; (2000) 112 LGERA 296 (Port Kennedy v City of Rockingham), his Honour Parker J, with Ipp J agreeing, stated, at [32], that the context of s 6.26(2) of the LG Act 'does not encourage any generous width of meaning being given to the concept of a public purpose'. Although it was not necessary for the decision in the case before him, Parker J further commented that although s 532(2) of the LG Act 1960 had been by then replaced by s 6.26(2) of the LG Act, he was 'not presently persuaded that the understanding of Franklyn J of a public purpose ought readily be departed from given [the] legislative history'.
27 Finally, in Swan Yacht Club Inc v Town of East Fremantle [2005] WASCA 99; (2005) 30 WAR 193 (Swan Yacht Club v Town of East Fremantle), at [25], it was confirmed that:
For 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[.]
28 On the question of the extent of the public purpose that is necessary, in relation to the predecessor version of s 6.26(2)(a)(i) of the LG Act, his Honour Franklyn J stated in SGIO v City of Perth at 134:
In my opinion however s 532(2)(a) of the Local Government Act does not insist upon the land being exclusively used for a public purpose for the exemption to attach. It requires only that the land be used for 'a public purpose' without requiring that such be its exclusive use, whereas in conferring exemption from rates under subs (3) the section makes exclusivity of the use there specified essential. However, 'the use' must be for a 'public purpose' and in my view that necessitates that such be its predominant and primary use[.]
- The requirement that for the exemption in s 6.26(2)(a)(i) of the LG Act to apply, the land must be held or used predominantly for a public purpose was confirmed in Port Kennedy v City of Rockingham at [16], [38] and [39].
29 In order to determine the purpose for which Crown land is held, it is necessary to consider the legal authority/ies under which the land is held. The question of how the land is used is determined by reference to 'the actual use to which the land is put' at the relevant time: Randwick v Rutledge at 88. The relevant time is the time of completion of the rate record: Swan Yacht Club v Town of East Fremantle at [32]. In determining the actual use of land, it is relevant to take into account the surrounding circumstances governing the use of the land: Retirees WA (Inc) and City of Belmont [2010] WASAT 56; (2010) 70 SR (WA) 330 (Retirees WA and City of Belmont), at [25] and [60]. Land not included 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: Port Kennedy v City of Rockingham at [16].
30 In Smith and City of Wanneroo [2008] WASAT 182 at [49] [58], Deputy President Chaney J (as he was then) considered that s 6.26(2)(a)(i) of the LG Act required consideration of the use or holding of the land by the person liable for payment of any rates; that is, the owner of the land for the purposes of the LG Act. However, in Retirees WA and City of Belmont at [26] [29], Deputy President Pritchard J (as she was then) respectfully disagreed. Her Honour considered that determination of the issues in s 6.26(2)(a)(i) of the LG Act does not require consideration from the perspective of the 'owner' within the meaning of the LG Act. Identification of the 'owner' as the person liable to pay the rates does not, according to her Honour, arise until after it has been determined whether the land is rateable land under the LG Act. With respect, I am of the view that the reasoning of her Honour is more compelling; however, in this case, the distinction between the two approaches is not material to the determination.
Applicant's submission
31 The applicant submits that although the lease under which the applicant occupies the property does not specifically state the use/s for which the lessee is permitted to use the property, subclause 2(2)(b) of the lease provides that the Minister may terminate the lease if 'the leased premises cease to be used for the purpose of a harbour or associated purposes'. The applicant relies on this clause to assert that the property is clearly being held predominantly and primarily for a public purpose.
32 The applicant further states that although the lease grants the lessee liberty to construct any structures authorised by a jetty licence or a mooring licence, the provision of jetties and mooring pens above or on the property is not a predominant or primary purpose of the lease. In support of this proposition, the applicant submits that any structures authorised by a jetty licence or a mooring licence could not be constructed on the leased premises without the lessee first securing the required licence. In addition, although a fee is payable for mooring a vessel overnight or longer, any member of the public who is a 'day tripper' may moor their vessel at one of the berths located along the Mindarie Marina boardwalk, or set to anchor within the harbour for the day free of any charge.
33 The applicant also submits that the lease requires the lessee to maintain the entrance to the harbour to a depth of 3 metres, to install such navigational aids relative to the operation of the harbour as may reasonably be required by the Minister, and to monitor and report to the Minister in relation to sediment movement at the harbour entrance. These are all related to the provision of a service, utility or benefit to the public which would not otherwise be provided, and which is not provided with the primary purpose of producing profit.
34 Finally, the applicant contends that the property incorporates both a public boat launching facility and a public facility at which boats may be moored for a fee. In addition, the public has access, as of right, to the whole of the area of water over the leased premises. Therefore, the applicant submits, the property is being used for a public purpose within the meaning of s 6.26(2)(a)(i) of the LG Act.
Respondent's submission
35 The respondent submits that the obligations in the lease to maintain the entrance to the harbour, install navigational aids, etc do not necessarily mean that the property is held or used for a public purpose. The respondent says when regard is had to the material terms of the jetty licence held in relation to the property, as well as the context of the use of the property within the surrounding locality, and the terms of the sublicences to boat pen users, it is apparent that the property is used primarily for a commercial venture.
36 The respondent submits that the property is within the Mindarie Marina and is adjacent to a large area of freehold land owned by an associated company. The freehold land comprising the Mindarie Marina development includes a boat fuelling facility, a boat launching ramp, car parking areas, restaurants, hotel rooms, bars, a function centre, shops and offices. Adjacent to all this, the property contains 250 boat pens which are available for use by members of the public subject to payment of fees charged per lineal metre of boat length.
37 In relation to the issue of access to the property by members of the public, the respondent says that although the lease requires the lessee to ensure free public access to the surface waters above the property, this is expressly 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. The applicant has the benefit of a jetty licence which provides licence to the applicant to exclusively use the harbour for the purpose of mooring vessels. The boat pen licence conditions provide that the applicant has an absolute discretion to refuse any application for a licence and the applicant may terminate a pen user's occupation at any time by giving the required notice. Therefore, the respondent submits, there is no absolute right, even upon payment of the specified fees, for members of the public to moor a vessel within the property.
Determination
38 The applicant's submissions seem to assume that if the purpose of the lease is established to be for the purpose of a harbour, then the property must be held for a public purpose. I am not at all sure that the creation and/or maintenance of a harbour is, per se, for a public purpose. Certainly, the creation or maintenance of a harbour may well be for a public purpose, but, in my view, this would depend on whether there is any need for a harbour in a particular vicinity, and how it is contemplated the harbour is to be used and by whom. In my view, it is necessary to determine, on the facts relating to the particular harbour, that there is some 'utility or benefit provided to the public [or section thereof] that would not otherwise be provided'. In my opinion, the Tribunal has not been provided with sufficient information about the need or utility for the Mindarie Keys Harbour to properly determine, to the extent that the property is held and used for the purpose of maintaining a harbour, whether this is for a public purpose. However, I have not decided the matter on this point. The more fundamental difficulty with the applicant's case is that it is apparent that, in this case, there are two purposes for which the property is held and used.
39 There are obligations within the lease which are logically aimed at maintaining the harbour in a useable, accessible state; for example, requiring the entrance to be kept clear, the maintenance of the harbour depth, installation of navigation aids, etc. In the assignment and variation of the lease, the obligation, apparently arising from the relevant State agreement, to create a breakwater is transferred to the applicant (and others) on a contingent basis if it had not already been created by the specified date. No evidence was provided to the Tribunal in relation to whether the applicant did, in fact, have to take on this obligation. If the breakwater was required to be constructed in order to ensure that the harbour was able to provide 'safe refuge' for vessels, an obligation of this kind may have been pertinent to the question of whether the property is held for a public purpose. I am satisfied that one of the purposes of the lease is to ensure adequate maintenance of an existing harbour. I am prepared to accept, for the purpose of determining this matter, that to the extent that the lease effects the proper maintenance of the harbour in a useable state, it is for a public purpose. However, the lease also effects the use of the seabed, and the waters above it, for the installation of jetties and moorings by the lessee. I am not persuaded by the applicant's argument that this is not a purpose of the lease, as the lease does not itself authorise the installation and use of jetties and moorings. It is apparent that the State agreement anticipated and the lease effected the right of the lessee to install in or on the property jetties and moorings, subject only to them being authorised by the appropriate licence. In fact, the licence was effected contemporaneously with the lease. In support of this right, the lease allows the lessee to restrict access to the waters above the property, in circumstances where the lessee does not otherwise have any rights in relation to those waters, in order to facilitate its use of the harbour for the purposes of installation and use of jetties and moorings.
40 There is no information provided that would allow any conclusion that the provision of jetties and moorings within this particular harbour was for a public purpose. Therefore it is not possible to determine that this aspect of the lease causes the land to be held for a public purpose.
41 In relation to the actual use of the property, the lease, and apparently the State agreement, presupposes that jetty licences and mooring licences will be granted. Section 65(1) of the Marine Act provides:
The Minister may grant a licence to any person conferring on that person the right to use, exclusively or in common with another person or other persons, the waters specified in the licence for the purpose of mooring vessels.
42 In relation to jetties, the Jetties Act distinguishes between private jetties and public jetties and prohibits the construction, maintenance or use of a private jetty without a licence. The terms 'public jetty' and 'private jetty' are defined in s 3 of the Jetties Act as follows:
private jetty means a jetty used and maintained by any person not being a person representing or acting on behalf of the Government;
public jetty means any jetty the property of Her Majesty or vested in any person on behalf of Her Majesty[.]
43 Nothing in the agreed facts or in the BOD specifies or provides any reasonable basis to conclude that the jetties on the property are (at least while the lease remains on foot) the property of, or were built on behalf of, the government or 'Her Majesty'.
44 In addition, although the applicant submitted that any member of the public who is a 'day tripper' may moor their vessel at one of the berths located along the Mindarie Marina boardwalk or set to anchor within the harbour for the day free of any charge, nothing in the agreed facts or within the BOD supports this statement. The only requirement is to allow access through the harbour and use of the waters above the property, to the extent that the waters are not occupied by licensed moorings or jetties and boats using them.
45 The combined mooring and jetty licence gives the exclusive right to the applicant to moor vessels in the harbour. Fees and outgoings are payable by the applicant under the licence. Fees are charged by the applicant for use of the moorings, and although the fee structure is stated in the agreed facts, the Tribunal has been given no evidence as to whether the applicant's private moorings and jetties are profitable, and if so, how profitable.
46 Although the lease requires the applicant to allow access through, and use of the water above the property, the applicant may restrict access through, or use of the waters above the property insofar as that access or use is prevented because of any jetty or mooring in place that is authorised by a relevant licence and any vessel using any such jetty or mooring. The applicant's argument that the public, as of right, has access to the whole of the waters above the property is misconceived. As already stated, although the lease relates only to the seabed of the Mindarie Marina, it clearly contemplates restriction of access to the waters above the seabed to the extent necessary for the installation and use of authorised jetties and moorings. The Tribunal was not provided with any information in relation to what proportion of the waters of the harbour are, in fact, taken up by the existing jetties and moorings (creating 250 boat pens) and the vessels using them.
47 The onus is on the applicant to establish that the property is held or used for a public purpose: SGIO v City of Perth at 137. For the above reasons, I am not satisfied that the applicant has established that the predominant purpose the property is held or used is for a public purpose.
Conclusion
48 The Tribunal finds that the applicant has not been successful and therefore the application must be dismissed.
Orders
The Tribunal makes the following orders:
1. The application is dismissed.
2. The decision of the respondent on 18 December 2014 to disallow the applicant's objection to the rate notice with respect to land formally described as Lot 11187 on Deposited Plan 16754 and Lot 3000 on Deposited Plan 44439 is affirmed.
I certify that this and the preceding [48] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS L EDDY, MEMBER
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