Smith and City Of Wanneroo
[2008] WASAT 182
•12 AUGUST 2008
SMITH and CITY OF WANNEROO [2008] WASAT 182
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 182 | |
| LOCAL GOVERNMENT ACT 1995 (WA) | |||
| Case No: | DR:189/2008 | 7 AUGUST 2008 | |
| Coram: | JUDGE J CHANEY (DEPUTY PRESIDENT) | 12/08/08 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application to extend time dismissed | ||
| B | |||
| PDF Version |
| Parties: | EDWARD SMITH CITY OF WANNEROO |
Catchwords: | Local Government Rates assessment Extension of time to commence proceedings for review Lengthy delay Principles applicable to extension of time Merits of application Whether land rateable Land owned by Minister for Education Leased to applicant for purposes of market garden Whether land held for a public purpose |
Legislation: | Local Government Act 1995 (WA), s 1.4, s 6 School Education Act 1999 (WA), s 144, s 216 State Administrative Tribunal Rules 2004 (WA), r 10 |
Case References: | Cooper and City of Melville [2006] WASAT 104 Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 Gallo v Dawson (1990) 64 ALJR 458 Goedhart and Western Australian Planning Commission [2006] WASAT 49 Jackamarra v Krakouer and Anor (1998) 195 CLR 516 KC Nominees Pty Ltd and City of Armadale [2005] WASAT 297 O'Connor and Town of Victoria Park [2005] WASAT 161 Port Kennedy Resorts Pty Ltd and The City of Rockingham [2000] WASCA 423; (2000) 112 LGERA 296 State Government Insurance Office v City of Perth (1990) 71 LGRA 123 Swan Yacht Club Inc v Town of East Fremantle (2005) 30 WAR 193 |
Orders | The application for an extension of time to commence proceedings is dismissed |
Summary | On 13 May 2008, Mr Edward Smith brought an application for leave to commence an application out of time. The proposed application was to review a decision of the City of Wanneroo to impose rates for the year 2004-2005 on land that Mr Smith leased from the Minister for Education. Mr Smith had objected to the assessment shortly after it was made, and the City of Wanneroo had disallowed the objection on 23 February 2005. ,Under cl 6.77 of the Local Government Act 1995 (WA), Mr Smith had 42 days within which to commence an application for review. That section, however, permits an application to be made within "such further period as the State Administrative Tribunal, for reasonable cause … allows". ,The Tribunal considered the length of delay, the reasons given for the delay, the potential merits of Mr Smith's proposed application, and the question of prejudice to the City if leave were to be granted.,It concluded that the extraordinary length of the delay in commencing proceedings, being over three years, and the unsatisfactory explanation for the delay supported a refusal of the application. However, it gave detailed consideration to the merits of the proposed application, which had been fully argued by the parties, and concluded that Mr Smith's application had no reasonable prospects of success. It therefore concluded that the application for an extension of time to commence proceedings should be refused. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : LOCAL GOVERNMENT ACT 1995 (WA) CITATION : SMITH and CITY OF WANNEROO [2008] WASAT 182 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT) HEARD : 7 AUGUST 2008 DELIVERED : 12 AUGUST 2008 FILE NO/S : DR 189 of 2008 BETWEEN : EDWARD SMITH
- Applicant
AND
CITY OF WANNEROO
Respondent
Catchwords:
Local Government Rates assessment Extension of time to commence proceedings for review Lengthy delay Principles applicable to extension of time Merits of application Whether land rateable Land owned by Minister for Education Leased to applicant for purposes of market garden Whether land held for a public purpose
Legislation:
Local Government Act 1995 (WA), s 1.4, s 6
School Education Act 1999 (WA), s 144, s 216
State Administrative Tribunal Rules 2004 (WA), r 10
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Result:
Application to extend time dismissed
Category: B
Representation:
Counsel:
Applicant : Mr J Fiocco
Respondent : Mr D McLeod
Solicitors:
Applicant : Fiocco's Lawyers
Respondent : McLeods
Case(s) referred to in decision(s):
Cooper and City of Melville [2006] WASAT 104
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Gallo v Dawson (1990) 64 ALJR 458
Goedhart and Western Australian Planning Commission [2006] WASAT 49
Jackamarra v Krakouer and Anor (1998) 195 CLR 516
KC Nominees Pty Ltd and City of Armadale [2005] WASAT 297
O'Connor and Town of Victoria Park [2005] WASAT 161
Port Kennedy Resorts Pty Ltd and The City of Rockingham [2000] WASCA 423; (2000) 112 LGERA 296
State Government Insurance Office v City of Perth (1990) 71 LGRA 123
Swan Yacht Club Inc v Town of East Fremantle (2005) 30 WAR 193
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Summary of Tribunal's decision
1 On 13 May 2008, Mr Edward Smith brought an application for leave to commence an application out of time. The proposed application was to review a decision of the City of Wanneroo to impose rates for the year 2004-2005 on land that Mr Smith leased from the Minister for Education. Mr Smith had objected to the assessment shortly after it was made, and the City of Wanneroo had disallowed the objection on 23 February 2005.
2 Under cl 6.77 of the Local Government Act 1995 (WA), Mr Smith had 42 days within which to commence an application for review. That section, however, permits an application to be made within "such further period as the State Administrative Tribunal, for reasonable cause … allows".
3 The Tribunal considered the length of delay, the reasons given for the delay, the potential merits of Mr Smith's proposed application, and the question of prejudice to the City if leave were to be granted.
4 It concluded that the extraordinary length of the delay in commencing proceedings, being over three years, and the unsatisfactory explanation for the delay supported a refusal of the application. However, it gave detailed consideration to the merits of the proposed application, which had been fully argued by the parties, and concluded that Mr Smith's application had no reasonable prospects of success. It therefore concluded that the application for an extension of time to commence proceedings should be refused.
Introduction
5 On 6 January 2005, in accordance with s 6.76 of the Local Government Act 1995 (WA) (LG Act), Mr Smith, the applicant, through solicitors acting for him at that time, raised a formal objection to a rates assessment made by the City of Wanneroo (City) in relation to Lots 21, 22, 47 and 48 Kingsway, Darch (the land). By letters dated 24 January 2005 and 23 February 2005, the City notified the applicant of its decision to uphold the rates assessment. The City's decision was based on the rejection of a contention by Mr Smith that the land was not rateable land by reason of s 6.26(2)(a)(i) of the LG Act.
6 Pursuant to s 6.77 of the LG Act, Mr Smith had an entitlement to seek a review of the rejection of his objection within 42 days after service of the notice of the decision. Section 6.77 provides, however, that the Tribunal may
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- permit an application to be made where reasonable cause is shown by the objector, within such further period as the Tribunal allows.
7 On 13 May 2008, slightly more than three years after the time prescribed in s 6.77, Mr Smith applied to the Tribunal for an extension of time to commence his application for review, and for a review of the decision of 23 February 2005. The application for extension of time is the subject of these reasons.
Considerations to be applied
8 In the context of applications for an extension of time pursuant to the power given to the tribunal by r 10 of the State Administrative Tribunal Rules 2004 (WA) (the Rules), the Tribunal has considered the principal matters to be considered. It has concluded that there are four principal matters for consideration. 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 – see O'Connor and Town of Victoria Park [2005] WASAT 161 at [39]-[40] and Cooper and City of Melville [2006] WASAT 104 at [8]. Those factors are derived from the decision of Kennedy J in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 198. In Cooper, the Tribunal observed that, whilst those were the four principal considerations, the range of considerations is not closed.
9 It was common ground between the parties that the approach to an extension of time under s 6.77 of the LG Act should involve those same considerations, although the applicant raised some additional matters which he contended should be taken into account.
Length of delay
10 It was conceded by the applicant that the amount of delay in this case is exceptional. That is certainly the case. By way of comparison, the delay considered by the Tribunal in Cooper was approximately four weeks. In Goedhart and Western Australian Planning Commission [2006] WASAT 49, the Tribunal described a delay of between 81 and 87 days as "considerable". In KC Nominees Pty Ltd and City of Armadale [2005] WASAT 297, the delay was 16 days. In O'Connor, the President of the Tribunal, Justice Barker, described as "borderline" a delay of five weeks after the expiry of a one-month period in which the application for review should have been made.
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11 Notwithstanding that the length of the delay is considerable, the applicant submits that the mere fact of delay is not sufficient in itself to outweigh or negate other considerations.
12 There must be a point in time where the length of delay is so great that, regardless of the explanation for it, or even the strength of the applicant's case, an extension should not be granted. It would be otherwise meaningless to identify length of delay as a separate consideration.
13 A delay of three years, against a prescribed period of 42 days to commence proceedings, might well be approaching, if not past, the point where the delay is so great that an application for an extension of time should not be entertained. The matter was not, however, argued on that basis by the respondent, although it submitted, and I accept, that the delay is "extraordinary". I would not, therefore, dismiss the application purely on the basis of the length of delay alone. Rather, it is necessary to have regard to the surrounding circumstances, including the explanation of the reason for delay, and the nature of the issues sought to be ventilated, before determining the proper outcome of the application.
Reasons for delay
14 The reasons for the delay were explained by Mr Smith in the Statement of Evidence lodged on his behalf.
15 Mr Smith is 74 years of age. He previously was the owner of the land which he sold to the Minister for Education in May 2004.
16 On 18 May 2004, the Minister leased the land to Mr Smith by a written lease. The lease was for the permitted use of "residences and market gardens". Mr Smith understood that the Minister would eventually require the land for the construction of a local school, and that belief is consistent with cl 7.2 of the lease which provided a right of early termination by the Minister if the Minister wished to commence construction of a school on the land.
17 Mr Smith subsequently received a rates assessment notice from the City of Wanneroo. The rate related to the period 20042005, and is the notice which was the subject of Mr Smith's objection of which he now seeks review by the Tribunal.
18 On 6 January 2005, Mr Smith, through his then solicitors, made a formal objection to the rates notice. As previously noted, that objection was ultimately disallowed on 23 February 2005. Mr Smith said that he received the
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- City's decision when his accountant forwarded it to him on or around 4 March 2005. He then took advice from his solicitors as to the prospect of success in contesting the City's decision. He says that his advice was that he had reasonable prospects of success although he did not learn of that opinion, which was provided by the solicitors to his accountant, until 5 April 2005.
19 In May 2005, Mr Smith engaged his current solicitors to act for him in relation to the matter. Those solicitors, on his instructions, obtained counsel's opinion on 18 May 2005. The nature of that advice is not disclosed by Mr Smith on the basis of legal professional privilege. He says, however, it was always his intention to pursue a claim for review of the decision made by the City. Accordingly, he said that he sent "all relevant information and documentation" to his solicitors by facsimiles dated 21 April 2005 and 21 June 2005. Subsequently, on advice from his solicitors he paid the outstanding rates. He said that, in doing so, he expressly reserved his rights to seek review of the decision made by the City.
20 A witness statement of Carolyn Frances King was filed on behalf of the respondent. Ms King is the "team leader of rates of the City of Wanneroo". She produced a letter dated 15 June 2005 sent by Mr Smith's solicitors to the City of Wanneroo, enclosing a copy of a letter to the Department of Education and Training. The letter dealt with the question of rates levied by the City on the land, and concluded with advice that the solicitors had been instructed to appeal the matter to the State Administrative Tribunal. The letter identified the proposed grounds of appeal, they being essentially the grounds relied upon in the present proceedings.
21 That correspondence is significant, because it demonstrated that Mr Smith was fully alive to his right to seek review of the proceedings in 2005.
22 By way of explanation for not pursuing the review, Mr Smith says in his statement that "since that date [being the date that he paid his rate] much of my time was consumed with finalisation of the lease. The lease finally came to an end on 31 March 2007." Just what is meant by "finalisation of the lease" is not clear. The lease itself is dated 18 May 2004, so Mr Smith's reference is clearly not to finalisation of the terms of the lease.
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23 Mr Smith says that he did "continue to consult with the City in respect of the rates liability matter and consider various other options flowing from advice by" his solicitors and counsel. Those other options are not identified, although the Tribunal is aware that Mr Smith challenged the valuation of the land by the Valuer General's office, with the valuations ultimately being revised downward. It may be that that alternative method of attack on the basis of the rates was one of the "other options" referred to by Mr Smith.
24 Mr Smith said that, in about June 2005, he became involved in a Supreme Court action unrelated to the present proceedings. That matter, he said, was complex and required much attention. It did not settle until August 2007. During that time, he said he provided no instructions to, and did not receive any further advice from, his solicitors in relation to this matter.
25 He was later diagnosed with coeliac disease and began suffering from ongoing and intermittent ill health. He said that his solicitors were aware of his ill health, and he provided no further instructions to them in relation to the matter. He said that, in April 2008, he was "reminded" by his solicitors that they were seeking further instructions to file an application for review of the City's decision.
26 Mr Smith acknowledges that there has been considerable delay in bringing the proceedings, but says that "the delay has been as a result of factors beyond my control".
27 There is no evidence before the Tribunal as to the extent to which coeliac disease might prevent Mr Smith instructing his solicitors to commence proceedings. I am not prepared to assume that that medical condition would deprive him of that capacity. In any event, his condition was diagnosed sometime after August 2007, more than two years after time for commencement of proceedings had elapsed. The other matters referred to by Mr Smith do not amount to "factors beyond his control" that explain the delay.
28 On the face of the materials before the Tribunal, the most likely conclusion to be drawn is that Mr Smith chose not to pursue an application for review because he "pursued other options", or possibly that his solicitors failed to carry out instructions to commence proceedings, and Mr Smith did nothing to follow up his instructions.
29 On the materials before the Tribunal, I do not consider that there is any adequate explanation for the extraordinary delay that has occurred.
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An arguable case
30 Counsel for Mr Smith contended, however, that the "paramount consideration" is whether there is an arguable case. He relied upon a description by Senior Member Parry in Cooper of his conclusion that there was no arguable case for review as being "most fundamental" to his decision. He also relied upon Senior Member Parry's conclusion in dismissing an application for an extension of time in KC Nominees that, while the other three factors favoured an extension of time, "ultimately the application should be refused because the proposed grounds of review are not arguable".
31 In my view, the expressions used by Senior Member Parry do no more than reflect his conclusion that the lack of an arguable case was determinative. It does not follow that the existence of an arguable case necessarily leads to an extension of time, regardless of consideration of the other factors.
32 Having said that, I am mindful of the observations of McHugh J in Gallo v Dawson (1990) 64 ALJR 458 at 459 where he said:
"The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194 195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263 264; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524."
33 It is appropriate, therefore, in the present circumstances to have regard to the prospects of success in the application proposed by Mr Smith.
34 The third consideration referred to above is whether the applicant has "an arguable case". In Goedhart, Senior Member Parry observed that the threshold to establish an "arguable case" is not particularly onerous. He referred to
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- the observations of Kirby J in Jackamarra v Krakouer and Anor (1998) 195 CLR 516 at 540 where he said:
"The party seeking indulgence [of an extension of time] bears the burden of persuading the decision-maker to grant its request. A consideration relevant to that exercise is whether the case is arguable. If it is hopeless, unarguable or bound to fail, the request for an extension of time will be refused. However, this is basically to grant it would be futile."
36 In this case, the papers reveal that the rateability of the land turns upon two discrete questions. One is whether the land is "the property of the crown", and the other is whether the land "is being used or held for a public purpose" as that expression appears in s 6.26 of the LG Act. The second of those questions was the subject of detailed written submissions and argument on the application to extend time, and the parties agreed that the Tribunal could determine that issue without further argument. Unusually, the Tribunal is in a position, following argument on the application for an extension of time, to express a view as to the prospects of success on a determinative issue in the proceedings.
37 Section 6.26 of the LG Act relevantly provides:
"(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; or
(ii) is unoccupied, except —
(I) where any person is, under paragraph (e) of the definition of “owner” in section 1.4, the owner of the land other than by reason of that person being the holder of a prospecting licence held under the Mining Act 1978 in respect of land the area of which does not exceed 10 hectares or a miscellaneous licence held under that Act; or
- (II) where and to the extent and manner in which a person mentioned in paragraph (f) of the definition of “owner” in section 1.4 occupies or makes use of the land;
- …"
38 The objection by Mr Smith was disallowed by the City of Wanneroo on the basis that the land, while owned by the Minister for Education, is not "the property of the crown", and secondly, and principally, that the land is not being used or held for a public purpose.
39 The issue of whether or not the land is "the property of the crown" was not developed in argument by either party. It was not contended by the respondent that that question is not "arguable", and I will assume for present purposes that the applicant has an arguable case in respect of that issue.
40 In summary, the applicant's positions is that notwithstanding that the land is leased to Mr Smith to use as a market garden, it is "held for a public purpose" by the Minister for Education, and thus enjoys the exemption from rates provided by s 6.26(2) of the LG Act.
41 Mr Smith said that it was and still is his view that the Minister for Education was holding the land for a public purpose, namely the eventual construction of a local school. As already observed, that is consistent with the early termination clause provided in the lease.
42 The applicant relied upon s 144 and s 215 of the School Education Act 1999 (WA) (SE Act), as establishing that land owned by the Minister is held for the purposes of the Act. Section 144 provides:
"All property acquired by an association for the use of a school or group of schools is acquired for the purposes of this Act; and section 215 applies to it whether or not any public moneys were spent on its acquisition."
43 Section 215 of the SE Act provides:
"Property acquired or held for the purposes of this Act is vested in the Minister."
44 In my view, those sections do not assist the applicant's position. On the materials before the Tribunal, it is apparent that the Minister acquired the land. Section 144 applies to "property acquired by an association". It has no
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- apparent application to the land in this case. Section 215 does not have the effect of rendering any property owned by the Minister as being "acquired or held for the purposes of this Act".
45 The applicant's position can, however, be supported by an inference drawn from s 216 of the SE Act. That section outlines the powers of the Minister. Section 216(2) empowers the Minister to acquire or hold an interest in property. That power is, however, limited to acquiring or holding property for the purpose of "furthering the best interests of students and educational programmes in government schools". My attention was not drawn to any power of the Minister to acquire or hold land for any other purpose.
46 Counsel for the respondent argued that, while land may originally be acquired for a particular purpose, that purpose may change. He submitted, therefore, that there was no evidence as to the basis upon which the Minister "holds" the land in this case.
47 For present purposes, I would accept that it is reasonably arguable that, if the purpose of the Minister, as registered proprietor of the land, is relevant to s 2.26(2)(a)(i) of the LG Act, the Minister intends that the land will be ultimately used for a public purpose, namely the provision of a local school.
48 The applicant contends that s 6.26(2)(a)(i) involves two "limbs". The first limb is the question of whether the land is "being used" for a public purpose. The second limb is whether the land is "held for a public purpose". He relies on an observation of Pullin JA in Swan Yacht Club Inc v Town of East Fremantle (2005) 30 WAR 193 at [11] where his Honour said that the section is unambiguous and permits an objection on either or both of the grounds that the land is used for a public purpose or held for a public purpose. He submits that it follows that it does not matter if, as in this case, the land is being used as a market garden by the lessee pursuant to the lease, if at the same time it is held by the lessor for a public purpose. The applicant relies on Justice Pullin's observations at [30] that where, as in the that case, there are two purposes for which land is held, one being a public use and the other a non-public use, it must be shown that the land is held or used "predominantly or primarily", for a public purpose. He argues that the Minister's predominant purpose must be to eventually use the land for a school, notwithstanding that he may have a subsidiary purpose of leasing the land for market gardens for a relatively short period.
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49 In my view, there is a fundamental flaw in the applicant's argument. That is that s 6.26(2)(a)(i) is directed to the use or holding of the land by the person liable for rates, namely the owner of the land for the purposes of the Local Government Act1995 (WA). In this case, "owner" for the purposes of the rating provisions of the LG Act is the lessee, Mr Smith. I will explain my reasons for that conclusion.
50 Liability for rates falls upon "the owner for the time being of land" s 6.44 LG Act. The LG Act defines owner, where used in relation to land, relevantly as:
"(a) means a person who is in possession as -
(i) the holder of an estate of freehold in possession in the land, including an estate or interest under a contract or an arrangement with the Crown or a person, by virtue of which contract or arrangement the land is held or occupied with a right to acquire by purchase or otherwise the fee simple;
(ii) a Crown lessee or a lessee or tenant under a lease or tenancy agreement of the land which in the hands of the lessor is not rateable land under this Act, but which in the hands of the lessee or tenant is by reason of the lease or tenancy rateable land under this or another Act for the purposes of this Act;
…
(e) means a person who -
(i) under the Mining Act 1978, holds in respect of the land a mining tenement within the meaning given to that expression by that Act;
(ii) in accordance with the Mining Act 1978 holds, occupies, uses, or enjoys in respect of the land a mining tenement within the meaning given to that expression by the Mining Act 1904; or
(iii) under the Petroleum Act 1967 holds in respect of the land a petroleum production licence or a petroleum exploration permit within the meaning given to each of those expressions by that Act;
or
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- (f) where a person is in the unauthorised occupation of Crown land, means the person so in occupation;
…"
51 In my view, assuming that the land is not rateable in the hands of the Minister for Education, Mr Smith is the owner of the land under par (a)(ii) of the definition. This is because, under the lease, the land is being used by the lessee for market gardens, clearly a use which is not a public purpose. The land in Mr Smith's hands is rateable because of the terms of the lease. If that is not correct, then Mr Smith would come within the description of owner in par (d) of the definition.
52 The proposition that the use or holding of the land contemplated in s 6.26(2)(a)(i) is the use or holding by the owner is supported by the provisions of s 6.26(2)(a)(2) which focus upon the existence of an owner of unoccupied crown land where it is subjected to a mining tenement or some unauthorised occupation. In my view, it is also supported by the observations of the Full Court in Port Kennedy Resorts Pty Ltd and The City of Rockingham [2000] WASCA 423; (2000) 112 LGERA 296, and the Court of Appeal in Swan Yacht Club.
53 In Port Kennedy Resorts, Parker J in tracing the history of s 6.26(2)(a) of the LG Act and its predecessor, s 532(2)(a) of the Local Government Act 1960 (WA) said, at [33] that:
"the addition of the concept of 'held' does have the effect of broadening the rating exception to cover some Crown land not actually in current use but which is held ready for an identified purpose, but that is not presently material."
54 Pullin JA in Swan Yacht Club rejected the proposition that Parker J's observation should be taken as suggesting that an objector can rely on either use or holding of the land, but not both. Despite that reservation, it is inherent in Parker J's observation that the enquiry to be made concerns the "current use" of the land at the relevant time. That approach was supported by his Honour's reference to the decision to Franklyn J in State Government Insurance Office v City of Perth (1990) 71 LGRA 123 where, at 133, in dealing with s 532 of the Local Government Act 1960 (WA), he said that the words:
"'…and is being used for a public purpose' refers specifically to the use to which the land is being put at the relevant time."
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55 The applicant contends that the land may at one time be being used for a non-public purpose, and held by the lessee for a predominant public purpose. In this case it is said that the predominant purpose of the holding of the land by the lessor is the ultimate construction of a school.
56 In my view, it is not open to have regard to the purpose for which the Crown may hold the land where the Crown has leased the land to another who, by virtue of the lease, becomes the owner for the purposes of s 1.4 of the LG Act. That was the position in both Port Kennedy Resorts and Swan Yacht Club. In Swan Yacht Club, Pullin JA said (Wheeler and Roberts-Smith JJA agreeing) at [26]:
"In 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 under the lease and the content of the lease will determine whether the land is held for public purposes or not."
57 There was no suggestion that regard should be had to the basis upon which the Crown held the land. His Honour's comments in relation to an examination of the "predominant or primary" purpose of holding or using the land were made in the context of the particular provisions of the lease under examination. The lease related to a Crown Reserve No 27377. At [30], his Honour said:
"the circumstances are different in relation to Reserve No 27377 because on the one hand the land is leased and therefore held by the appellant for the purpose of carrying on 'an active yacht club', but at the same time there has been reserved 'free pedestrian access to and over all of [reserve number 27377] for the use and benefit of the public and all other persons authorised by the lessor'. In my opinion, land held to allow free pedestrian access over the land 'for the use and benefit of the public' is a public purpose. However, there are two purposes for which the land is held, namely to carry on the yacht club and to allow free pedestrian access for the use and benefit of the public. If the objection is to succeed, it must be shown that the land is held or used 'predominantly or primarily', for a public purpose." [citations omitted]
58 The assumption which underlies the approach of the court in both Port Kennedy Resorts and Swan Yacht Club is that s 6.26(2)(a)(i) is directed to the use or holding of the land by the owner for the purposes of the LG Act. As Franklyn J observed in the State Government Insurance Office, the enquiry is directed to the use of the land "at the relevant time". The relevant time is, for the purposes of these proceedings, the time at which the rates were levied. The enquiry as to the purpose for which the land is 'held' is directed to the same time. More importantly, it is directed
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- to the purpose of the "owner", as defined by the LG Act, at the relevant time. The purpose of Mr Smith, who was the owner for relevant purposes, is to be ascertained by the terms of the lease. The lease permitted residential or market garden use. The land was not held by Mr Smith for a public purpose.
59 The conclusion I have reached is fatal to the contention that the land is exempt from rates. It follows that, in my view, there would be no utility in granting an extension of time to seek review of the rates assessment.
Prejudice
60 In written submissions, the respondent did not assert that it would suffer any prejudice were leave to be granted. In oral submissions, it retracted that position to the extent that it contended that, if the applicant's case were made out, it would have a serious effect on the budgeting processes of local government generally because, it was said, local governments strike and apply rates on the basis of an assessment of use of land by tenants of crown land.
61 In view of my conclusions in relation to the other considerations, it is not necessary for me to consider whether the issue of prejudice raised by counsel at the hearing should affect the decision.
Other factors
62 The applicant submitted that, since the matters to be considered are not closed, certain other factors should be taken into account in determining whether to grant an extension of time. Those matters included the applicant's age and health, the prejudice to the applicant in being unable to recover the rates paid on the land, and an assertion that it would "be contrary to public interest to disallow the applicant from contesting the decision, given that there is a clear arguable case."
63 In view of the conclusion I have reached as to the merits of the application, those factors do not provide a basis upon which an extension of time should be granted.
Conclusion
64 For the following reasons the application for an extension of time to commence proceedings should be dismissed.
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Order
65 The application for an extension of time to commence proceedings is dismissed.
I certify that this and the preceding [65] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J CHANEY, DEPUTY PRESIDENT
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