Secure Parking v Commissioner of State Revenue
[2016] VSC 344
•21 June 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
TAXATION LIST
S CI 2015 04543
S CI 2015 04544
S CI 2015 04545
S CI 2015 04549
| SECURE PARKING PTY LTD (ACN 108 043 689) | Appellant |
| v | |
| COMMISSIONER OF STATE REVENUE | Respondent |
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JUDGE: | GINNANE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 and 25 February 2016 |
DATE OF JUDGMENT: | 21 June 2016 |
CASE MAY BE CITED AS: | Secure Parking v Commissioner of State Revenue |
MEDIUM NEUTRAL CITATION: | [2016] VSC 344 |
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STATE REVENUE – Appeal – Congestion levy – Parking spaces – Decision to block off spaces preventing parking of motor vehicles –Whether parking spaces set aside for parking of motor vehicles – Car parking spaces to which access prevented during school holidays – Whether part year concession applicable – Appeals dismissed - Congestion Levy Act 2005 ss 1, 3(1), 5(3), 13, 25, 26
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T M Grace | Arnold Bloch Leibler |
| For the Respondent | Mr C M Caleo QC and Mr C J Horan QC | Solicitor for the Commissioner of State Revenue |
HIS HONOUR:
This case arises from the imposition of a levy on operators of carparks in the Central Business District (‘CBD’) and inner Melbourne area under the Congestion Levy Act 2005 (‘the Act’). The levy was designed to combat traffic congestion. The dispute is about whether particular areas of car parks are parking spaces which have been set aside for the parking of motor vehicles. The four proceedings all concern the same issues.
Secure Parking is an operator of public car parks. In 2012, Secure Parking’s management implemented various measures including the use of metal and plastic bollards, water-filled barriers, bunting flags, signage and chains to prevent the use of particular parking spaces. It did this because low demand meant that each space was generating less income than the amount of levy attracted under the Act or that justified the incurring of the levy.[1]
[1]In the 2014 levy year, the levy for a parking space in a public car park was $1300.
The assessments concern the 2013 calendar year. Secure Parking submitted that the disputed parking spaces were not spaces within the meaning of the Act, as they did not exist as parking spaces at any time during 2013. The Commissioner of State Revenue (‘the Commissioner’) contended that the disputed parking spaces were parking spaces as defined.
Secure Parking identified the amount of the levy in dispute as approximately $237,315.88.
Background
In early 2014, Secure Parking lodged annual returns with the Commissioner detailing its liability under the Act for the 2013 calendar year. Each of the annual returns included a form claiming part-year concessions under s 26(2) of the Act for spaces that were ‘unavailable for parking’. The part-year concession claim spanned 1 January 2013 to 31 December 2013, reducing the claimed liability for those spaces to nil.
The Commissioner did not accept the validity of the concessions claimed and wrote to Secure Parking in mid-2014, stating:
For a part year concession to apply, the parking space must be put to an alternative use and/or must be no longer capable of being used as a parking on a permanent basis. Therefore, the parking spaces that are closed to the public but may still be used for parking again, do not qualify for part year concession under the Act, because these parking spaces are not put to an alternative use and exist as parking spaces.[2]
[2]State Revenue Office letters to Secure Parking dated 26 June 2014.
Secure Parking objected to the Commissioner’s finding. In its written objection, it accepted that its reliance on the part-year exemption was in technical error but, as was implied by claiming 365 days of concession, its claim with respect to the spaces closed to the public was that in 2013 they did not exist for the purposes of the Act as they were ‘not set aside, and were not used, and were not available’ for the entirety of 2013. Alternatively, if its objection was not accepted, then Secure Parking claimed that the part year exemption applied.[3]
[3]Secure Parking letter to State Revenue Office dated 19 August 2014.
Ultimately, for reasons not relevant to the determination of these proceedings, the Commissioner decided that the original assessments were improperly issued and therefore invalid.[4] Before issuing its reassessments, the Commissioner wrote to Secure Parking outlining the rejection of its arguments:
The Commissioner’s view is that the Leviable Spaces existed as ‘parking spaces’ within the meaning of the Act… Thus in the present matter, although the temporary barriers and other measures may have prevented the parking spaces from being used, this does not mean that they were not still ‘set aside for the parking of a motor vehicle’.[5]
[4]State Revenue Office letter to Secure Parking dated 25 November 2014.
[5]Ibid.
Between December 2014 and January 2015, the Commissioner reissued assessments of Secure Parking’s liability in 2013. These were titled ‘re-assessments’ but were in fact replacement assessments as the original assessments were invalid.
On 13 February 2015, Secure Parking lodged an objection to these reassessments on similar grounds to those contained in its original objection. On 21 April 2015, the objection was determined by the Commissioner and disallowed. Secure Parking exercised its rights under s 106 of the Taxation Administration Act 1997 to have the matters referred to the Supreme Court as an appeal. One assessment applies to each carpark. The four appeals were heard together.
The legislation
The relevant provisions of the Congestion Levy Act 2005, as they were on 1 January 2014,[6] are as follows:
[6]The Levy Act was amended by the State Laws Amendment (Budget and Other Measures) Act 2013 which came into operation on 1 January 2014.
1 Purpose
The purpose of this Act is to impose a levy on parking spaces in the central business district and inner Melbourne to reduce traffic congestion and to amend the Taxation Administration Act 1997.
3 Definitions
(1) In this Act—
car park means premises or part of premises in the levy area that contain one or more parking spaces;
…
leviable parking space means a parking space in a car park that is not an exempt parking space;
…
parking space means—
(a) a space set aside for the parking of a motor vehicle, whether or not the space is used for the parking of a motor vehicle and whether or not the space is permanently delineated as such; or
(b) a space used for the parking of a motor vehicle, whether or not the space is permanently delineated as such—
but does not include a space that is part of the carriageway of any street, road or lane open to or used by the public;
premises includes vacant land;
private car park means a car park or part of a car park that is not a public car park;
public car park means a car park the predominant number of parking spaces in which are set aside for, or used by, the general public, whether on a casual basis or under any kind of longer-term arrangement, but does not include part of a car park determined by the Commissioner under subsection (2) not to be a public car park;
….
(2) The Commissioner may determine that part of a car park is not a public car park for the purposes of this Act if satisfied that part is set aside or used for parking by an owner or tenant of the premises on which the car park is situated.
…
5 Determining the number of parking spaces on premises
(1)If premises contain any parking spaces that are not individually delineated by permanently marked lines, the number of those parking spaces is the number obtained by dividing the total area occupied by those parking spaces by 25⋅2 square metres and disregarding any remainder.
(2)For the avoidance of doubt, the number of parking spaces determined in accordance with subsection (1) is in addition to the number of parking spaces on the premises that are individually delineated by permanently marked lines.
(3)For the purposes of this Act, a sign or temporary barrier purporting to indicate that a space is not a parking space is not, of itself, evidence that the space is not a parking space.
13 How is levy assessed?
(1)An owner of premises on 1 January in a year is to be assessed for the levy for that year on each space on that premises that existed as a leviable parking space at any time in the previous year.
(2)Subsection (1) applies—
(a)whether or not the space exists as a leviable parking space on 1 January in the levy year;
(b)whether or not the owner was the owner of the premises at the time the space existed as a leviable parking space.
(3)The operator of a public car park on 1 January in a year is to be assessed for the levy on each space that existed as a leviable parking space in that car park at any time in the previous year.
25 Part year concession for parking spaces in a private car park
(1)This section applies to a parking space in a private car park that, for a period or periods totalling more than 30 days in any year—
(a)is an exempt parking space; or
(b)is not capable of being used or does not exist as a parking space.
(2)If the parking space is a leviable parking space for the following year, the levy payable on the space for that year is to be reduced by the same proportion as the proportion of the year represented by the total of the periods referred to in subsection (1).
26 Part year concession for parking spaces in a public car park
(1)This section applies to a parking space in a public car park that, for any period or periods during a year—
(a)is an exempt parking space; or
(b)does not exist as a parking space.
(2)If the parking space is a leviable parking space for the following year, the levy payable on the space for the following year is to be reduced by the same proportion as the proportion of the year represented by the total of the periods referred to in subsection (1).
The Act contains a number of exemptions, for example: for residential parking (s 16); for visitors and loading bays (s 17); spaces owned by councils, charities etc. (s 18); for emergency vehicles (s 19); for people attending special events (s 20); for disabled parking (s 21); and shift workers (s 22).
By way of summary of the relevant provisions of the Act, a leviable parking space is any parking space that does not attract an exemption, for example, a space set aside for the parking of an emergency vehicle or for disabled parking. The number of parking spaces is determined by counting the permanently delineated spaces or, where there is no such guide, by the application of an equation that divides the land into an appropriate number of spaces.
On 1 January each year, the car park owner or operator is liable to pay the levy on each space on the particular premises that existed as a leviable parking space at any time in the previous calendar year, so the 2014 levy year is assessed by reference to the number of spaces in the 2013 calendar year. A pro-rata concession can apply for public car parks if, for more than 30 days in the year, a parking space does not exist; for example if the space becomes part of a construction site.
Evidence
A number of affidavits were filed in each proceeding and those affidavits were admitted into evidence. I ordered that the evidence of Mr Scott Morgan Rush was evidence in each of the four proceedings and that the evidence of the other witnesses was evidence in the proceeding or proceedings to which it related. Each of the witnesses whose evidence is referred to below made an affidavit or affidavits that were filed in Secure Parking’s case and was cross-examined on their affidavit or affidavits.
Mr Rush is the Regional General Manager for Secure Parking with responsibility for its operations in Victoria, Tasmania and New Zealand. He gave evidence that was relevant primarily to Secure Parking management’s decision to block off spaces and the systems employed by Secure Parking to measure and forecast demand for car parking.
Mr Rush chaired a weekly meeting attended by staff of the company including Commercial Area Managers, each of whom had responsibility for the operation of approximately 8-12 carparks. Though it was customary for minutes to be taken of these meetings, Mr Rush was unable to produce any minutes in relation to the particular decisions that bear on this proceeding.
At the weekly meetings, a spreadsheet was used to monitor fluctuations of occupancy rates across car parks from month to month. On the basis of this data, decisions were made to block off a number of carpark spaces. It appears that the means to be used to implement the blocking off was left to the commercial area managers to decide.
Counsel for the Commissioner asked Mr Rush in cross-examination how the management would respond to a sudden increase in demand for parking, and by implication, how quickly Secure Parking would be able to reverse its decision to block off particular spaces. Mr Rush said that if the increase in demand were caused by an event that affected only one day, then it would be very unlikely that the measures would be reversed and the spaces put to use. But he agreed that if there was ‘a two week sustained and predictable increase in demand [he] could respond to that increase by opening up areas in the car park’.[7] This evidence reflected practical business common sense. He agreed that Secure Parking had never made ‘a statement to decommission’, meaning a decision to decommission, or block off bays for a ‘prolonged period of 15 months.’ [8]
[7]Transcript of Proceedings, Secure Parking v Commissioner of State Revenue (Supreme Court of Victoria, S CI 2015 04543; S CI 2015 04544; S CI 2015 04545; S CI 2015 04549, Ginnane J, 18 February 2016), 47 (‘T’); the answer was given specifically in relation to the Bank Street car park, but the answer also reflected the evidence that Mr Rush had earlier given that is quoted below.
[8]T 48.
Mr Rush also gave the following evidence in cross-examination:[9]
[9]T 34.
Counsel: You refer in paragraph of this affidavit, it’s at paragraph 13(c), you refer to one of the matters discussed as being whether any measures should be taken to close off spaces if they are consistently not being occupied by customers’ vehicles?
Mr Rush:Yes.
Counsel: You’d agree wouldn’t you that any decision of that nature would always be subject to review at a subsequent management meeting?
Mr Rush:Yes.
Counsel:I think you say – I won’t take you to it, but you say in your second affidavit at paragraph 9(d) that these decisions are subject to ongoing review?
Mr Rush: That’s correct.
Counsel:So depending on the updates provided by the spreadsheets in each month you couldn’t[10] at any time make a decision to open up a new area of the car park, that might be one of the measures you could take.
[10]The word ‘couldn’t’ is likely a typographical error as the word ‘could’ is consistent with the intention of the question.
Mr Rush:Yes, that’s correct.
Counsel:If you have closed off an area at any time, in light of your view, you could re-open an area that had been closed off; would you agree with that?
Mr Rush:Yes, that’s correct.
Counsel:So if, for example, you’ve taken a decision to close off an area, some bays or a level of a car park and a month later your review showed that the car park was full to capacity…
Mr Rush:Yes.
Counsel:You wouldn’t maintain that decision in light of that information would you?
Mr Rush:No, we wouldn’t.
Counsel:You would make a decision to re-open the area and attract customers?
Mr Rush:And hopefully generate…
Counsel:And generate further income?
Mr Rush:That’s correct.
Consistently with the recollections of his staff, Mr Rush first deposed that decisions to block off parking spaces had been made at some point in 2012 making them unavailable for use in the 2013 calendar year. Following a review of previous claims made by Secure Parking to the State Revenue Office, Mr Rush revised his view and stated in a further affidavit that the decision to block off spaces must have been made in 2011.
In any event, it was accepted that the decisions and actions were made before 1 January 2013 and I accept that the decision to block off spaces was made around the time the spaces were blocked off, at some time in the second half of 2012.
Three Commercial Area Managers gave evidence of their oversight and monitoring of the measures that were put in place to prevent motorists from using particular spaces. Each Area Manager had responsibility for different car parks. Mr Don Harris Kumarage was responsible for both the St Kilda Road and Exhibition Street carparks. Mr Sairaj Giri was responsible for the Bank Street car park. And Mr Syed Maqsood Quadri was responsible for the Flinders Lane car park. I will next consider their evidence and the evidence generally in relation to each car park.
28 Bank Street (S CI 2015 04543 – Assessment No 87100035)
Secure Parking has operated this car park for approximately 20 years. It is open to the public between 7am and 7pm Monday to Friday. Secure Parking made two claims in respect of the levy in respect of this car park. First, it claimed an exemption for 48 spaces that were blocked for the whole of the 2013 calendar year. Secondly, it claimed part year concessions under s 26 of the Act for spaces blocked off during quiet periods during the spring and autumn school holidays.
Mr Giri and Mr Rush stated that in the years prior to 2013, there were frequently a high number of vacancies in the car park. At a weekly meeting some time in 2012, it was decided that a whole level of the car park should be blocked off for all of 2013. Mr Rush was informed by Mr Giri, at some point in 2012, as to which car park spaces should be blocked off.
From about 1 September 2012 to 30 March 2013, 48 spaces were blocked off on the ground floor to encourage motorists to use a particular ramp in the car park to trial a new licence plate registration camera. The camera was placed on the ramp between levels 4 and 5 of the car park. In order for the trial to be effective, it required cars to pass the trial camera regularly on the ramp between those levels. To encourage cars to park on the upper levels and thus pass the trial camera, the ground level was blocked off. A chain was placed across the parking spaces on the ground level. A staff member patrolled the area every morning and afternoon from about 1 September 2012 until about 30 March 2013 to ensure that no person or motor vehicle entered or parked in these spaces. Mr Giri saw the chains in place when he frequently visited the car park.
After the trial ended, from about 30 March 2012, the ground floor was opened again and 48 spaces on the top level 8 were blocked. The top level was blocked off by using thick metal chains across the entire lower section on level 7 giving access to the top-level spaces. The top level was blocked off because that was where customers least often parked. Again, a staff member patrolled the area every morning and afternoon to ensure that no person or motor vehicle entered or parked in these spaces. Mr Giri was present when the chain was placed across the access point and he recalled seeing it in place frequently when he visited the car park from about 30 March 2013 onwards in 2013. To the best of his knowledge, throughout the whole of 2013, no motor vehicles parked in or used any of the 48 blocked off spaces at the car park.
Mr Giri also deposed that for 15 days in the Easter school holidays and 12 days in the spring school holidays, level 7 of the car park was blocked off using thick metal chains across the access point on level 6, meaning a further 48 spaces were unavailable for customers. He gave instructions for those barriers be put in place and each time he visited he saw that they were.
Mr Giri gave evidence that the management team accepted his proposal as to the spaces to be cordoned off and the most appropriate method to adopt. The bays were blocked off using a chain secured to the pillars of the building. Mr Peter Fox, who was a tradesperson often engaged by Secure Parking, fitted the chains. Mr Giri thought that the job would have taken about an hour.
472-474 St Kilda Road (S CI 2015 04544 – Assessment No 87100077)
Secure Parking has operated this car park for 10 years. It is open on Mondays to Fridays between 6am and 7pm. A decision was made in about August 2012 to block off 55 car park spaces, located on the basement floor. Mr Kumarage was responsible for the operation of both the St Kilda Road and Exhibition Street carparks and a total of 16 carparks during the assessment year. Mr Kumarage stated that in the years prior to 2013 there were frequently a high number of vacancies. He deposed that he received instructions to block off the spaces in August 2012 and hired Mr Fox to do the job. The barriers installed were hollow, and once positioned, filled with water. Metal chains were affixed to the weighted barricades and signage stating ‘no access permitted’.
Mr Kumarage chose 55 spaces on the basement level because in his experience that was the level where customers least often parked their motor vehicles. He attended the carpark regularly in 2013 and saw the barricades in place each time. A staff member patrolled the area in the morning and afternoon to ensure that no person or motor vehicle entered or parked in these spaces.
11-37 Exhibition Street (S CI 2015 04545 – Assessment No 87100085)
Secure Parking has operated this below ground car park since 2005. It is open 7 days a week: Monday to Friday 6am to 12am; Saturday 6am to 1am; and Sunday 9am to 9pm. In the years prior to 2013, this car park regularly had a high number of vacancies. Mr Rush gave evidence that in 2012 Secure Parking decided that 27 spaces would be blocked off as they ‘were not earning enough income in parking fees to pay for the congestion levy levied on those spaces’. Mr Kumarage was also responsible for the Exhibition Street car park’s day-to-day operation. This was the level on which customers least often parked as it was the furthest from the entrance and exit of the car park. He said that Mr Fox installed chains with a padlock blocking access to 27 spaces on the bottom level. His instructions were to use a method that was simple and could be easily dismantled. Paper signs reading ‘no access’ were attached to the metal chains. The work cost $100 and it was completed on or about 7 September 2012 and it remained in place for the 2013 calendar year. To the best of his knowledge throughout all of 2013, no motor vehicles parked in or used any of the 27 blocked off spaces.
448-456 Flinders Lane (S CI 2015 04549 – Assessment No 87099386)
Secure Parking has operated the Flinders Lane car park since 2010 and it spans five levels above ground. It is open to the public between 6am and 8pm Monday to Friday. Mr Rush said that prior to 2013, there were 49 ‘tandem’ car park spaces on the ground and first floors. These spaces could fit two cars providing 98 spaces, but when two cars used tandem spaces, one would be prevented from exiting. As a consequence, motorists usually only parked their vehicles in the back half of the tandem spaces as to avoid their vehicles being blocked from exiting by the other vehicle. The 49 tandem car park spaces attracted the levy calculated on the basis that they provided 98 individual spaces. Secure Parking management decided at one of the weekly meetings in 2012 to block off the front half of the tandem spaces, turning them into single spaces as that reflected the fact that they were only used to park 49 vehicles. The second bays in the tandem spaces were not earning enough income to pay for the congestion levy payable in respect of them.
Mr Quadri was the Commercial Area Manager responsible for the Flinders Lane car park. In his affidavit, he said that he was present when plastic bollards and bunting flags were erected to block off one half of the tandem spaces. He gave evidence that he regularly saw the area that was blocked off and that to the best of his knowledge no cars were parked in the blocked off spaces in 2013.
Mr Quadri agreed in cross-examination that the ‘directive’ to block off car park spaces was given at the board meetings, by which he meant the weekly management meetings, and that his instructions were subject to further notice.[11] For the whole of the 2013 year, the 49 front spaces were blocked off using heavily weighted plastic bollards and brightly coloured bunting flags. Mr Quadri described the measures used as simple, cheap, both easy to put in place and remove. Cars very rarely parked in the front spaces. He instructed an employee to install the barriers and considered that the work would have taken around 30 minutes to complete.[12] He was present when the bollards and flags were erected and guards patrolled these spaces to ensure that no cars parked in the front spaces.
[11]T65.
[12]T 68.
Findings based on the evidence
The evidence establishes that the relevant parking spaces were shut off or blocked off because there was a lack of sufficient demand for them at the time to justify the incurring of the congestion levy. However, I also find that the evidence establishes that they could have been made available for use as parking spaces at any time in 2013 if demand for parking spaces increased. The means used to block the spaces could easily have been reversed.
Secure Parking’s submissions
Secure Parking submitted that the parking spaces in issue were not set aside for the parking of motor vehicles in the 2013 year. Secure Parking submitted that ‘set aside’ meant ‘to separate out for a particular purpose’ and the purpose could only be ascertained by reference to objective factors, for example the design of the building, and subjective factors, such as the intentions of the person who had set aside or not set aside the space.
Both Secure Parking’s management decision to close off the spaces because they were not earning sufficient revenue and the measures and physical steps that it took to implement that decision required consideration. The only reasonable conclusion to draw from the evidence was that the blocked off spaces beyond the chains and the barriers were not set aside for the parking of motor vehicles. The spaces lost their character as leviable parking spaces the ‘minute’ the management decision was made and measures were implemented to block them off. At that point, the spaces ceased to be set aside and made available for use as parking spaces. In fact, thereafter, the spaces were set aside not to be used as parking spaces, even if they might have resumed being parking spaces in the future. As a matter of fact, they were not used for parking for the 2013 year.
The facts that the building was constructed as a car park and that other parts of the building were used as a car park were not relevant to the resolution of the issues in dispute. Nor was the question of whether the spaces had been put to alternative uses other than as parking spaces.
Secure Parking accepted that when a car park was closed at weekends, the parking spaces were still set aside because parkers with reserved spaces were able to access them. In addition, even though a parking space had ceased to be capable of being used, it could be set aside for the parking of motor vehicles, in which case it would be leviable.
The concessions provision in s 25 assisted in understanding the meaning of the term ‘leviable parking space’ because it provided a concession, when the space did not exist as a parking space for a period or periods totalling more than 30 days during any year. The operation of s 25 of the Act provided a concession to private car park owners not enjoyed by public car park owners and operators under s 26.
Secure Parking relied on the purpose provision contained in the Act, the Second Reading Speech and the Explanatory Memorandum of the Congestion Levy Bill as introduced in 2005. Secure Parking submitted that by forcing it to close off particular spaces, the Act had achieved its stated purpose of relieving traffic congestion. That purpose was described in the Second Reading Speech in 2005 in the following passages:
City traffic congestion, particularly during the morning and afternoon peak, has been identified as a major issue impacting on Melbourne’s future economic prosperity and liveability.
…
The levy will provide an incentive for those currently commuting by car to and from the city during peak hours to look at other options, such as car pooling, public transport and walking.
…
The levy is about reducing congestion, not raising revenue.
…
The levy is targeted to the times and areas that will have the greatest impact on congestion – the morning and afternoon peaks and on roads leading to and from the CBD.[13]
[13]Victoria, Parliamentary Debates, Legislative Assembly, 5 October 2005, 1258-9 ( Mr R Hulls).
Secure Parking contended that its strategic business decision to close or block off car park spaces achieved the Act’s purpose of reducing congestion by deterring motorists from driving motor vehicles into the levy area and thereby, reducing the number of parking spaces available in that area. Accordingly, a requirement that the levy be paid in respect of the blocked off spaces would be punitive.
Alternatively, to its principal submission, Secure Parking submitted that the part year exemptions provided for in s 26 of the Act should be allowed as claimed in relation to the spring and autumn school holiday closures of the Bank St car park.
The Commissioner’s submissions
The Commissioner submitted that the question for determination was whether the disputed parking spaces were ‘set aside for the parking of a motor vehicle’ pursuant to the definition of ‘parking space’ in s 3(1) of the Act.
Secure Parking had paid the levy for the disputed spaces in previous years and therefore accepted that they were ‘set aside’. So Secure Parking carried the onus to establish that the spaces were no longer ‘set aside’ notwithstanding that there had been no change to the physical character of the car park.
The words ‘set aside’ contained in paragraph (a) of the definition of parking space, could not just mean ‘available’ or ‘capable of being used for’ because that reading would leave paragraph (b) of the definition with no role to play. Paragraph (b) of the definition, by including spaces used for the parking of a motor vehicle, whether or not the spaces were permanently delineated as such, would include parking spaces which were ‘available’ or ‘capable of being used’ for the parking of motor vehicles.
Under s 13 of the Act, the levy applies on each space on premises that existed as a leviable parking space at any time in the relevant year. The phrase ‘existed as a leviable parking space’ did not mean ‘capable of being used’. A parking space does not cease to exist because at a particular time it is not capable of being used as a parking space.
The evidence established that the relevant parking spaces had been set aside for the parking of motor vehicles. The spaces were part of purpose built car parks leased for that purpose. The measures adopted by Secure Parking to block access to particular parking spaces did not permanently reduce the number of spaces which could be used by motorists for parking in the levy area.
Secure Parking never decided to block off access to the parking spaces for the entire calendar year. Mr Rush said that Secure Parking would respond to the circumstances in respect of enabling access to those parking spaces. The spaces were only incapable of being used as parking spaces for so long as Secure Parking chose to leave them in that condition. The barriers erected to block access to the parking spaces could be removed with relative ease. Nor were they put to any alternative use. At all material times, the car park spaces were ‘set aside’.
The definition of ‘parking space’ did not make, as the factor determining whether the levy applied to the spaces, the changing practices of car park operators as to when parking spaces would be made available. Rather, the determining question was whether the facts established that particular premises had spaces separated for the parking of motor vehicles.
The Commissioner also relied on the provisions contained in the Act relating to concessions for operators of private car parks available for only part of a year, and the different levy provisions relating to public and private car park. While, a space in a private car park that was not capable of being used might attract a part-year concession, no such concession was available to public car park operators.
The Commissioner submitted that Secure Parking’s reading of the legislation would defeat the intention of the Act, as it would permit a space that was incapable of being used to park a motor vehicle, for example a car park space on a Sunday in a closed car park, to attract an exemption. The Act in s1 contained only a broad statement of purpose and the terms of the provisions of the Act that imposed the levy were of greater importance.
Submissions on the operation of s 5(3)
Section 5(3) of the Act states that:
For the purposes of this Act, a sign or temporary barrier purporting to indicate that a space is not a parking space is not, of itself, evidence that the space is not a parking space.
Secure Parking submitted that s 5(3) could not be applied in the determination of these appeals. This was because as the tax payer bore the onus of proof in an objection against the Commissioner’s assessment, a statutory provision that operated to render key evidence in support of the objection inadmissible would only be upheld if expressed in unmistakeable and unambiguous language. An incontestable tax is invalid.[14] The Commissioner disputed this submission.
[14]Commissioner of Stamps (SA) v Telegraph Investment Company Pty Ltd (1995) 184 CLR 453, 467 (McHugh and Gummow JJ).
I do not consider that s 5(3) has the effect of making the levy incontestable. It does not purport to render evidence of a sign or a temporary barrier inadmissible, rather, it provides that such matters are not by themselves evidence that the spaces are not parking spaces. There is other evidence of significance in determining whether the spaces are car parking spaces that attract the levy, including whether the spaces have been set aside or whether they are used for the parking of motor vehicles.
Section 5(3) is one sub-section contained in a section that provides for the determination of the correct number of leviable spaces rather than itself determining whether a space is a parking space.
The decision in Monsgrove Developers Pty Ltd v Chief Commissioner of State Revenue
Both parties referred to the decision of the New South Wales Administrative Decisions Tribunal of Monsgrove Developers Pty Ltd v Chief Commissioner of State Revenue,[15] concerning the Parking Space Levy Act 1992 (NSW). The case concerned premises that were leased and used as a petrol station. Fourteen spaces had been delineated on the rooftop of the building by a previous sub-tenant who had operated a car wash business. In relevant years, the rooftop was used as a taxi changeover station, that is a place where a taxi driver would leave or park a taxi at the end of a shift so that it could be collected by the driver commencing the next shift in which that taxi was used. In addition. taxi drivers would sometimes park their private vehicles on the rooftop for the duration of their shift.
[15][2010] NSWADT 303 (‘Monsgrove’).
Judicial Member Perrignon stated in respect of a definition of ‘parking space’ similar to that contained in the Victorian Act:
The expression, ‘set aside for the parking of motor vehicles’, implies a purpose. That, in turn, requires a subjective intent on the part of the person setting aside the space, or the person on whose behalf a space is set aside. That intent may be established by the evidence of the person in question, or it may be ascertained objectively from surrounding circumstances.
The act of ‘setting aside’ a space may take many forms. It may consist of painting lines between which cars are intended to park. It may consist of reserving a larger space, such as a rooftop, for parking, either by cordoning it off, placing signs about indicating its availability for parking, or leasing it for that purpose.[16]
[16]Monsgrove [2010] NSWADT 303, [46]-[47].
Judicial Member Perrignon decided that spaces ceased to be parking spaces from a date on which the operator:
[A]fter being informed by his landlord that the Chief Commissioner had imposed parking space levies in respect of the rooftop [the tenant] blocked off access to the rooftop.[17]
[17]Ibid [30].
The Judicial Member also stated:
The delineated spaces were first ‘set aside’ for parking by the carwash operator some time before 18 December 2002. They remained so set aside until a contrary intention was demonstrated. That occurred on 9 July 2009, when all access to the rooftop area was discontinued. From that time, the spaces ceased to be ‘set aside’ for parking, even though the delineations continued to exist.
The actions of 28 August 2008, in preventing access to all persons except the taxi operator, were of a different character. They evinced an intention that the rooftop should not be used by anyone except the operator of the taxi service, and its employees. The use as a taxi changeover station itself entailed the parking of taxis, and of and of private vehicles owned by their drivers. For that reason, the actions of 28 August 2008 did not evidence an intention that the spaces cease to be ‘set aside’ for parking. Until 9 July 2009, they continued to be ‘set aside’ for the use of the taxi service, and therefore for such parking purposes as were ancillary to that purpose.[18]
[18]Ibid [52]-[53].
The Commissioner pointed out that the Tribunal did not refer to the provision in the NSW Act that was the equivalent of s 5(3) in the Victorian Act.
However, of greater significance is that, unsurprisingly, the decision in Monsgrove turned on its own facts. Those facts established the tenant’s permanent intention to cease permitting parts of the building to be used as parking spaces. It is therefore not determinative of the issues in this case.
Analysis
Secure Parking accepted that it bore the onus of proof of establishing that the car park spaces in issue were not leviable. But, in my opinion, Secure Parking has not established that the relevant parking spaces in the four car parks were not set aside for the parking of motor vehicles throughout 2013.
The evidence supports the conclusion that the spaces were set aside for the parking of motor vehicles, but only to be made available for that use when demand made that an appropriate business decision for Secure Parking. As the barriers blocking access to the spaces could easily have been removed, Secure Parking could readily have made the spaces available for motorists to park their motor vehicles.
The words in a statute are to be given their ordinary meaning. The ordinary meanings of the words ‘set aside’ as given in the Macquarie Dictionary are:
a. to put to one side. b. to discard from use. c. to dismiss from the mind. d. to annul or quash: to set aside a verdict. [19]
[19]Susan Butler (Ed), Macquarie Dictionary (MacMillan, 6th ed, 2013), 1339.
I accept Secure Parking’s submission that the words mean separated out or set apart for a particular purpose. However, in my opinion, that purpose does not have to be intended to be, or capable of being, implemented at all times.
The idea of putting something aside for use in the future falls readily with the meaning of the words ‘set aside’.[20] The words ‘set aside’ can readily apply to the reservation of property or other things for a particular purpose which may not eventuate until some point in the future or upon the happening of some contingency, for example, setting aside savings for use on ‘a rainy day’.[21]
[20]Maurice Waite (Ed), Oxford Thesaurus of English (Oxford University Press, 3rd ed, 2009), 782.
[21]The Oxford Thesaurus of English gives as the first group words that have similar meanings to ‘set something aside’: set aside some money each month for emergencies; save, put by, put aside, put aside, lay aside, lay by, put to one side, keep, reserve, keep in in reserve, store, stockpile, hoard, stow away, cache, put in a safe place, put down, earmark, withhold, keep for oneself.
In my opinion and speaking generally, things do not lose their essence or appropriate description because a decision is made and implemented not to use them for the purpose inherent in their essence and to render them incapable of being so used for particular periods of time. This point is accentuated by asking the question: if these spaces were not set aside as parking spaces, what were they set aside for? It would be too narrow a focus to say that they were not set aside for anything and were awaiting a new designation or purpose. There is no evidence to support that conclusion. They remained spaces in purpose-built commercial car parks awaiting use when demand made that a sensible business course for Secure Parking to adopt.
The fact that the spaces were not used for any alternative purpose is not decisive in determining whether they were set aside for the parking of motor vehicles. However, it is likely to be the case that if they had been converted into some other permanent use, that it would be impossible to conclude that they were set aside for the parking of motor vehicles.
The language and structure of the Act are other factors running against Secure Parking’s submissions. The language adopted by the Act is a guide to each associated section. Thus, the Act recognises that it may occur that a parking space may not be ‘capable of being used’ at particular times. It deals with that situation by using those very words in s 25(1)(b) when granting a concession for a parking space in a private car park, that for a period or periods totalling more than 30 days in any year:
(b) is not capable of being used or does not exist as a parking space.
The Act does not otherwise use the words ‘capable of being used as a parking space’ in defining the spaces that attract the levy. The definition of the term ‘parking space’ employs the different concepts of (a) ‘a space set aside for the parking of a motor vehicle whether or not the space is used for the parking of a motor vehicle’ or (b) ‘a space used for the parking of a motor vehicle, whether or not the space is permanently delineated as such’.[22] This difference in language suggests that the concept of a space ‘capable of being used[23] as a parking space’ does not inform the meaning of other key provisions of the Act, including the definition of ‘parking space’ in s 3(1). Generally, and subject to contrary intention, when the legislature could have used the same word in a provision that appears in another provision of the same Act, but chose to use a different word, the intention was to change the meaning or use a different meaning.[24]
[22]Compare the use of the phrase ‘set aside or used exclusively for parking’, contained in ss 19 and 21 of the Act which apply to parking for emergency vehicles and disabled parking.
[23]Italics added.
[24]DC Pearce and RS Geddes, Statutory Interpretation in Australia, (Lexis Nexis 8th ed 2014,) 150-1 (‘Pearce and Geddes’).
I consider that a key consideration to determining the issues in these appeals is that the Act does not just impose the congestion levy on spaces used as car parking spaces, but also imposes the levy on spaces that are set aside for the parking of motor vehicles.
The Commissioner’s submission that part (b) of the definition of ‘parking space’, would have no work to do if a requirement of ‘use’ was also read into part (a) of the definition, so that ‘set aside’ meant ‘set aside and used’ as a parking space, is not, however, decisive. Parts of a definition contained in a statute can overlap in their scope. Part (b) of the definition of ‘parking space’ has a separate reach extending to spaces not formally delineated or, perhaps designated, as parking spaces, but regularly used as such. That function of part (b) of the definition need not restrict the operation of part (a).
On the other hand, I do not consider that the question of whether Secure Parking set aside these spaces as parking spaces can be decided by the fact that they had not been unblocked by the end of the calendar year. Again, the important consideration is that the Act does not impose the congestion levy only on spaces used as parking spaces. And, the evidence suggests that the relevant spaces were set aside as parking spaces and would be made available for parking motor vehicles when demand made that an appropriate business decision for Secure Parking. While the evidence of the years prior to 2013 suggested that the relevant parking spaces, or some of them, were unlikely to be used regularly as parking spaces in that year, I do not consider that it thereby follows that they were not set aside as parking spaces.
I do not consider that the Second Reading Speech and Explanatory Memorandum are of any significant guidance in deciding the present appeals, particularly as those relied on by Secure Parking concerned the 2005 Bill, and subsequent significant amendments have extended the reach of the Act. Of course, an interpretation of the Act is to be adopted that will promote its purpose.[25] Also, an interpretation that creates an unfair or illogical result should not be readily adopted.[26] Indeed, as a matter of logic, the blocking off and non-use of a CBD parking space may be evidence of reduced traffic in the CBD, but cannot be said to be conclusively the cause of any such reduction. An outcome that imposes the congestion levy on parking spaces that are blocked off might, if viewed in isolation, seem inappropriate. But, not if one adds the fact that the operator may unblock them and that they will be used again, once demand justifies that decision. Secure Parking’s actions did not promote the purpose of the Act ‘to reduce traffic congestion’ because it left the spaces set aside for car parking ready to be used, when demand made that a sensible business decision for Secure Parking to make.
[25]Interpretation of Legislation Act 1984 s 35 (1).
[26]Public Transport Commission of New South Wales v J Murray–More Pty Ltd (1975) 132 CLR 336, 350 (Gibbs J) and Pearce and Geddes, 81-3.
I have given separate consideration to the tandem parking spaces at the Flinders Lane car park, although they were not the subject of any separate developed submission. As mentioned, the evidence was that one half of the 98 spaces was blocked off so that they became, while blocked off, 49 spaces. In my opinion, if all that happened was that they were blocked off, they were still 98 parking spaces that attracted the levy. However, if the area of each tandem parking space had been increased, so that one space occupied the space previously occupied by two tandem spaces, I would conclude that there were only 49 spaces and that the assessment should be altered accordingly. However, I consider that the evidence supports the former finding and that therefore all 98 spaces were still set aside as parking spaces. Secure Parking bore the onus of proof and the evidence did not establish the tandem parking spaces did not continue to be set aside as 98 tandem parking spaces when the reasoning that I have adopted in respect of other parking spaces is applied.
I do not consider that the blocking off of parking spaces during the two school holiday periods at the Bank Street car park meant that the parking spaces were not set aside during that time. For similar reasons to those given above in respect of the blocking off of all relevant spaces, those measures meant no more than that Secure Management decided not to make them available for use during those periods because of lack of demand. They were still set aside as parking spaces, but were to recommence being available for that purpose at the end of the school holidays. They still existed as parking spaces for the purposes of s 26(1) and the levy section, s 13, during the school holidays.
Conclusion
Secure Parking’s appeals in the four proceedings against the assessments are dismissed.
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