Swan Yacht Club Inc v Town of East Fremantle - [2005] WASCA 99

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SWAN YACHT CLUB INC -v- TOWN OF EAST FREMANTLE [2005] WASCA 99

CORAM: WHEELER JA
ROBERTS-SMITH JA
PULLIN JA

HEARD: 2 MAY 2005

DELIVERED : 1 JUNE 2005

FILE NO/S: SJA 1085 of 2004

BETWEEN: SWAN YACHT CLUB INC
Appellant
AND
TOWN OF EAST FREMANTLE
Respondent

ON APPEAL FROM:
Jurisdiction              :  LAND VALUATION TRIBUNAL OF WESTERN AUSTRALIA
Coram  :MR P MCGOWAN (CHAIRMAN) MR J PRIEST (MEMBER) DR P ADDISON (MEMBER)
Citation  :SWAN YACHT CLUB INC v TOWN OF EAST FREMANTLE [2004] WALVT 4

Catchwords:

Valuation - Land - Rates - Whether land rateable - Objection - Whether land held or used for a public purpose

Words and phrases - "Held for a public purpose" - "Used for a public purpose"

Legislation:

Associations Incorporation Act 1987 (WA), s 33

Land Act 1933 (WA), s 7(1), s 29, s 33
Land Valuation Tribunals Act 1978 (WA), s 35
Local Government Act 1960 (WA), s 532(2)(a)
Local Government Act 1995 (WA), s 6.26, s 6.39, s 6.76, s 6.77

Rules of the Supreme Court (WA), O 65 r 10

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr M J McCusker QC & Ms M Clarke
Respondent: Mr C L Zelestis QC & Mr C A Slarke

Solicitors:

Appellant: Hotchkin Hanly
Respondent: McLeods

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

Lake Karrinyup Country Club Inc v Valuer General, unreported; SCt of WA (Parker J); Library No 960515; 13 September 1996
Port Kennedy Resorts Pty Ltd v The City of Rockingham (2000) 112 LGERA 296
Randwick Municipal Council v Rutledge (1959) 102 CLR 54
Re Caboolture Aero Club (Inc) [1995] 1 Qd R 591
Rights to Life Association (NSW) Inc v Department of Human Services and Health (1995) 128 ALR 238
State Government Insurance Office v City of Perth (1987) 71 LGRA 123

Case(s) also cited:

Bennett v Cooper (1948) 76 CLR 570
Brivern Holdings Pty Ltd v The Council of the City of Melville, unreported; FCt SCt of WA; Library No 4671; 5 October 1982
Brivern Holdings Pty Ltd v The Council of the City of Melville, unreported; SCt of WA; Library No 4396; 8 February 1982
Brush Park Bowling Club Limited v Ryde Municipal Council (1970) 19 LGRA 380
Equestrian Sports Centre v Campbelltown City Council (1987) 9 NSWLR 126
Goulburn City Council v Haines (1992) 78 LGERA 281
Metropolitan Water, Sewerage and Drainage Board v Botany Municipal Council (1935) 12 LGR (NSW) 116
Re Queensland Police-Citizens Youth Welfare Association (1983) 52 LGRA 277
Ryde Municipal Council v Macquarie University (1978) 139 CLR 633
Statewide Roads Limited & Interlink Roads Pty Ltd v Holroyd, Canterbury & Bankstown City Councils (1996) 39 NSWLR 115
Sydney City Council v University of Technology Sydney (1992) 78 LGERA 200
Thompson & Anor v Federal Commissioner of Taxation (1959) 102 CLR 315

WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Pullin JA. It is not necessary in this case to consider the correctness of the observation of Parker J in Port Kennedy Resorts Pty Ltd v The City of Rockingham (2000) 112 LGERA 296 at [32], and I express no view upon that point. Save for that issue, I agree with the reasons of Pullin JA, and would dismiss the appeal.
ROBERTS-SMITH JA: I have had the benefit of reading in draft the reasons for judgment of Pullin JA. I agree with his Honour's reasons and conclusion and have nothing to add.
PULLIN JA: This is an appeal against the order of the Land Valuation Tribunal pursuant to s 35 of the Land Valuation Tribunals Act 1978 (WA) which requires that the appeal must involve a question of law and should be conducted in the manner prescribed by rules of court. Order 65 r 10 of the Rules of the Supreme Court (WA) provides that the appeal should be by way of re‑hearing and may be determined on the material before the Tribunal. The appeal is not a hearing de novo: Lake Karrinyup Country Club Inc v Valuer General, unreported; SCt of WA (Parker J); Library No 960515; 13 September 1996.
The Tribunal dismissed the appellant's appeal against the respondent's decision that the subject land occupied by the appellant was rateable land pursuant to the Local Government Act 1995 (WA). The appellant seeks orders in lieu that the subject land be exempt from rates entirely, or alternatively, in relation to part of the land.
The grounds of appeal are that:
"(a)The Tribunal erred in law in determining that the land which was vested in the Crown in accordance with s33 of the Land Act 1933 (WA) was not held for a public purpose, in accordance with section 6.26 of the Act.
(b)The Tribunal erred in law in failing to find that the land was being used for a public purpose in accordance with section 6.26 of the Act, having found that:
(i)the provision of boating facilities requires a degree of control;
(ii)a club is designed to ensure such control;

(iii)the public has an interest in the proper maintenance of the river in relation to such facilities; and
(iv)becoming a member of the Appellant is not a matter of any great difficulty or impediment.

(c)The Tribunal erred in law in failing to find that the part of the land required to be made available to the public for free access was not rateable land because it was being used for a public purpose in accordance with section 6.26 of the Act."

The following ground was proposed after oral submissions were made. The application to amend by adding this ground was opposed. I would allow the amendment. The amendment reflects oral argument which took place at the hearing:
"The Tribunal erred in law in failing to find that, on the evidence before it, the land over which the public had the right of free pedestrian access, namely Reserve 27377 (formerly Swan Location 7772, now Swan Location 10105) was exempt pursuant to Section S.6.26 of the Local Government Act, because it was being used predominately for a 'public purpose'." [Particulars of evidence to support this ground were given]
Further written submissions were filed by the appellant on 5 May 2005, by the respondent in opposition, and by the appellant in reply.

Public purpose

The appellant claims that the subject land was not rateable land because of the provisions of s 6.26 of the Local Government Act. It reads:
"6.26 Rateable Land
(1)Except as provided in this section all land within the 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 …"
It can be seen from the section that exemption may arise in one of two ways, either the land is "used" for a public purpose or it is "held" for a public purpose. The appellant submitted before the Tribunal and before this Court that it should gain exemption for the whole of the subject land or alternatively for part of it under one or other or both of those grounds of exemption.
Section 6.26(2)(a) may be traced as a matter of legislative history to its predecessor s 532(2)(a) of the Local Government Act 1960. That provision used similar language and was directed to the same object as s 6.26(2)(a), although the current provision refers to Crown land being "used or held" for a public purpose, whereas s 532(2)(a) referred only to Crown land being "used" for a public purpose. In Port Kennedy Resorts Pty Ltd v The City of Rockingham (2000) 112 LGERA 296, Parker J, having noted the legislative history of s 6.26(2)(a) to which I have just referred, then added at [33]:
"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 …"
That observation by Parker J might be read as suggesting that an objector can rely on one ground or the other, but not both. That is an approach which has some superficial attraction because it would seem a strange outcome if land was "held" for a public purpose but then contrary to the Order in Council or other tenure document "used" for a non‑public purpose. In my opinion, however, the section is unambiguous. In my view it permits an objection on either or both grounds. The appellant relies on both grounds in this case.

Events leading to the appeal

The appellant is an incorporated association. The subject land consists of Reserve 27376 (comprising Swan Location 7771, 8661 and 10106) and Reserve 27377 (comprising Swan Location 10105, formerly Swan Location 7772).
The appellant's occupancy of the subject land is pursuant to a lease entered into between the appellant and the respondent dated 23 July 1987 ("Lease"). The subject land is Crown land vested in the respondent.
Until 2003, no rate notice had issued in respect of the appellant's occupancy of the subject land. It seems that until that time the respondent treated the subject land as non‑rateable. This changed in 2003 when acting pursuant to s 6.39 of the Local Government Act 1995 the respondent included the subject land in its rate record. A rate notice was issued to the appellant by the respondent on 18 July 2003 for the financial year 1 July 2003 to 30 June 2004.
Pursuant to s 6.76(1)(a)(i) of the Local Government Act 1995 the appellant objected to the rate record on the basis that the subject land was not rateable land. The respondent dismissed the objection and gave written notice of its decision pursuant to s 6.76(6) of the Local Government Act 1995. The appellant gave notice to the respondent pursuant to s 6.77 that it required the objection to be treated as an appeal against the rate record. As a result the matter came before the Tribunal which heard and dismissed the appeal.

Vesting and leasing of the land

The reservation, the vesting and the leasing of the subject land occurred under the provisions of the Land Act 1933. Section 29 of the Land Act 1933 as it stood in 1964 read:
"The Governor may … reserve to His Majesty, or dispose of in such manner as for the public interest may seem fit, any lands vested in the Crown that may be required for the following objects and purposes:- …
…
(pa)For sites for clubs and club premises."
Before I refer to other provisions in the Land Act I should mention that the appellant submitted that the presence of the expression "public interest" in s 29 of the Land Act 1933 supported the appellant's argument that the subject land was "held" or "used" for a "public purpose" within the meaning of s 6.29 of the Local Government Act 1995. In my view, the presence of the words "public interest" in s 29 does not assist the appellant in that regard. Section 29 of the Land Act 1933 controlled the Governor's exercise of discretion, not only to reserve land but also to dispose of Crown land within the State generally. The authority to dispose of land was found under s 7(1) of the Land Act. The concept of "public interest" is a wide one which must take its colour from the context in which the expression appears. See Rights to Life Association (NSW) Inc v Department of Human Services and Health (1995) 128 ALR 238. In my opinion the expression "public interest" in s 29 has a much wider meaning than the phrase "public purpose" in s 6.29 of the Local Government Act 1995. I consider that the term "public interest" in s 29 does not assist in determining whether, within the meaning of s 6.29 of the Local Government Act 1995, land is held or used for a public purpose; nor does it assist in deciding whether the purposes listed in s 29 of the Land Act 1933 are or are not public purposes.
Section 33 of the Land Act 1933 before 1948 read:
"The Governor may by Order in Council published in the Gazette ‑
(a)direct that any reserve shall vest in and be held by any municipality … in trust for the like or other public purposes, to be specified in such order …"
In 1948, s 33 of the Land Act 1933 was repealed and the following section substituted:
"…
(2)By Order the Governor may direct that - any land shall vest in and be held by any person for the purpose - and by the same or any subsequent Order the Governor may, subject to such conditions and limitations as the Governor shall deem necessary to ensure that the land is used for the purpose - confer upon that person, power to lease for the purpose the whole or any part of the land."
The word "purpose" was defined in s 33(1) of this new s 33 to mean:
"… the purpose for which the land is reserved pursuant to the provisions of this Act."
Permitted purposes were those set out in s 29.
In the "Government Gazette" dated 24 December 1964 there were published two Orders in Council, relating to the pieces of land making up the subject land. They read:
"Land Act, 1933 - 1963
ORDER IN COUNCIL
Corres. 2792/62
WHEREAS by section 33 of the Land Act, 1933 1963, it is made lawful for the Governor to direct that any reserve shall vest in and be held by any municipality, body corporate, or other person or persons to be named in the order, in trust for any of the purposes set forth in section 29 of the said Act, or for the like or other public purposes to be specified in such order and with power of subleasing; and whereas it is deemed expedient that Reserve No. 27376 (Swan Location 7771) should vest in and be held by the Town of East Fremantle in trust for the purpose of a Site for a Yacht Club and Premises: Now, therefore, His Excellency the Governor, by and with the advice and consent of the Executive Council, doth hereby direct that the beforementioned reserve shall vest in ad be held by the Town of East Fremantle in trust for a Site for a Yacht Club and Club Premises with power to the said Town of East Fremantle, subject to the approval in writing of the Minister for Lands being first obtained, to lease the whole or any portion of the said reserve for any term not exceeding 21 years from the date of the lease.
(Sgd.) P.L. SPARROW
Acting Clerk of the Council"
"Land Act, 1933 1963
ORDER IN COUNCIL
Corres. 2792/62
WHEREAS by section 33 of the Land Act, 1933‑1963, it is made lawful for the Governor to direct that any reserve shall vest in and be held by any municipality, body corporate, or other person or persons to be named in the order, in trust for any of the purposes set forth in section 29 of the said Act, or for the like or other public purposes to be specified in such order and with power of subleasing; and whereas it is deemed expedient that Reserve 27377 (Swan Location 7772) should vest in and be held by the Town of East Fremantle in trust for the purpose of Use and Requirements of a Yacht Club and Free Public Pedestrian Access: Now, therefore, His Excellency the Governor,, by and with the advice and consent of the Executive Council, doth hereby direct that the beforementioned reserve shall vest in and be held by the Town of East Fremantle in trust for Use and Requirements of a Yacht Club and Free Public Pedestrian Access with power to the said Town of East Fremantle, subject to the approval in writing of the Minister for Lands being first obtained, to lease the whole or any portion of the said reserve for any term not exceeding 21 years from the date of lease, subject to the following conditions:
(a)any lease of this reserve shall be determined if at any time the occupier relinquishes possession of Reserve 27376 (Swan Location 7771) or falls to utilise either reserve for its respective purpose.
(b)pedestrian public shall have the right of free access to and over the whole of location 7772 at all times.
(c)the lessee shall keep the foreshore clean and clear of algae, rubbish and debris.
(Sgd.) P.L. SPARROW
Acting Clerk of the Council"
It will be observed that part of the recital in each Order in Council of s 33 of the Land Act is a recital of s 33 as it stood before the 1948 amendment which repealed and re‑enacted the section. The appellant argued that the recital of the repealed s 33 with its reference to "public purposes" was significant and assisted it in its submission that the subject land was held for public purposes. I do not agree. In my opinion all that can be said is that the Orders in Council erroneously recited the content of s 33. The issue about whether the land is held for public purposes is to be determined by what was actually effected and not by the manner in which the Order in Council described its purpose (or by the erroneous recital of the terms of s 33): Randwick Municipal Council v Rutledge (1959) 102 CLR 54 at 86.
By lease dated 23 July 1987 the respondent leased the land to the appellant for 20 years ("lease"). There was provision for a peppercorn rent, the lessee covenanted "to carry on as an active yacht club and to use the demised premises for that purpose only". The lease began with the words:
"The Lessor leases to the Lessee ALL THAT land being Reserve No 27376 … and Reserve No 27377 … Each of which Reserves is vested in the Lessor under the Land Act 1933 (hereinafter called 'the demised premises').
BUT RESERVING free pedestrian access to and over all the part of the demised premises being the whole of Swan Location 10105 at all times for the use and benefit of the Public and all other persons authorised by the Lessor."

Was the subject land "held" for a public purpose?

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 (although profitability might well flow from charges or fees imposed or monies collected or earned in respect of such a provision). Such a definition accords with activities which are traditionally the province of government and with the meaning of the word "public". This definition of "public purpose" appears in Franklyn J's judgment in State Government Insurance Office v City of Perth (1987) 71 LGRA 123 at 135 and it was adopted by the Full Court of this Court in Port Kennedy Resorts Pty Ltd v The City of Rockingham (supra) at [34].
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 held under the lease and the content of the lease will determine whether the land is held for public purposes or not. The lease must of course be construed in the context of the statutory framework and the terms of the Order in Council. In my opinion, no evidence of the actual use of the land is relevant when considering whether the land is "held" for public purposes.
It may readily be concluded that land vested and held for many of the purposes in s 29 of the Land Act 1933 would mean that the land was held for a public purpose. For example land vested and held by a local authority for use as a "cemetery" (see s 29(1)(i)) or vested and held by a municipality for a common "for the use of the inhabitants of any town or settlement" (see s 29(1)(n)) would almost certainly be land held for a public purpose. In other cases it may not be possible to say whether the land is held for a public purpose merely by reference to the tenure document, the statutory framework or the Order in Council. If, for example, the Order in Council vested land in a person (a word which is defined widely in s 33(1) of the Land Act), for the purpose of "digging for coal" (see s 29(1)(l)), it would not be possible to conclude that it was held for a public purpose. As it is the ratepayer who bears the onus of showing that the land was "held" for a public purpose, the objection would fail on that ground. This would then drive such a ratepayer to try to prove the land was "used" for a public purpose. I suppose this would be possible in the example I have just given in the event that the vestee could prove for example, that it dug for coal, stockpiled it and made it available free of charge to any member of the public who wished to take the coal as a fuel for their home fire. This can also be used as an example to differentiate a grant in the "public interest" under s 29 of the Land Act 1933 and the holding or use of land for a "public purpose". It may be in the "public interest" to make grants of land to develop the coal industry, but the use of the land might be for private profit and therefore not for a "public purpose".

The Tribunal considered all submissions as being relevant to the whole of the subject land. On this appeal the appellant submitted that the two reserves should be dealt with separately. I agree that there are separate considerations applying to each reserve and so I will deal with each reserve separately.
I am of the opinion the appellant is unable to demonstrate, merely by reference to the lease, viewed in the light of the statutory framework and the Order in Council, that the land encompassed by Reserve No 27376 is land held for a public purpose. The lease merely reveals that the land was leased, and therefore "held", by the appellant for it to carry on an active yacht club. Without more information it is impossible to say that this land is used predominantly and primarily as a public purpose.
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 purposes 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 No 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 and primarily", for a public purpose. See State Government Insurance Office v City of Perth (supra) at 134 and Port Kennedy Resorts Pty Ltd v City of Rockingham (supra). An examination of the lease viewed in context of the Order in Council and the statutory framework does not answer the question about whether it is held predominantly and primarily for the pedestrian access or as a yacht club.
Thus, in my opinion the Tribunal was correct to determine that it had not been established that any of the subject land was "held" for a public purpose.

Was the subject land "used" for a public purpose?

This head of objection does require an examination of the evidence as to the use to which the subject land was put at the relevant time. The relevant time is the time of completion of the rate record. See s 6.39 and s 6.76(1) of the Local Government Act. I will first consider the use of the subject land as a yacht club. Once again the two reserves have to be considered separately but some evidence applies to both reserves.
The use to which the subject land was put as a yacht club was governed by the constitution of the appellant. The constitution included the following as its objects:
"Objects: The object is to establish, maintain and conduct a Club devoted to:
(a)Encouraging amateur boating both power and sail, and other associated activities.
(b)Encouraging the study of seamanship, pilotage and navigation.
(c)Holding and arranging regattas and competitions in yachting, both power and sail, and other associated activities and the offering and granting of contributions towards the provision of prizes and other awards.
(d)Borrowing, raising or securing the payment of money for the purpose of the Club in such manner as the members think fit.
(e)Maintaining a Club licence under the current Liquor Licensing Act and its amendments.
(f)Providing and maintaining a Clubhouse and sporting amenities for the use of the members, plus Social Sporting, Cultural and Community pursuits but, in addition, to provide facilities for literary, scientific, athletic, professional or any other lawful purpose and providing benefits and enjoyment to members of the Club.
(g)The property and income of the club shall be applied solely towards the promotion of the objects of the Club and no part of that property or income may be paid or otherwise distributed directly or indirectly to members except in good faith in the promotion of these objects."
The constitution provided for membership of the club to consist of a number of categories of members, the two most important of which were ordinary member and social member. An ordinary member was a person "over 18 years of age, duly nominated and then appointed by the Committee". A social member was defined as a person who had "the use of all the Club facilities except voting and boating rights". Clause 5(a) of the constitution provided, in relation to ordinary members, that:
"Any person desiring to become such a member of the club shall sign a membership application form which must bear the signature of two members of the Club (who are entitled to vote) as a proposer and seconder … When the Managing Secretary receives the application form it will then be placed on the club notice board for not less than seven days …"
The committee (as defined) had "the right to refuse to admit any person to membership without assigning any reason". Clause 5(d) of the constitution provided that:
"Country, Senior, Social and Associate Members shall be subject to the same admission procedures as an Ordinary Member."
Entrance fees and annual subscription fees were set by the management committee prior to the commencement of each financial year. The powers of the committee, set out in the constitution, were powers to determine "from time to time the conditions on which and the time when members may use the property of the Club or any part or parts thereof, and when and under what conditions the premises of the Club or any part or parts thereof, shall be used by members" and to determine "what persons (if any), not being members of the Club, shall be permitted to use the premises of the club or any part or parts thereof …" Upon winding up or dissolution of the club, any property remaining after satisfaction of debts and liabilities "shall not be paid to or distributed among the members but shall be given or transferred … to another similar Club … or … [f]or charitable purposes". The fees for ordinary members were $115 nomination fee upon application for membership, $800 deposit for the use of a pen (a once only payment), a $375 annual subscription fee and an annual pen fee of $17 per square metre of the pen area. Social membership attracted an annual fee of $48. There were 1900 members of the club, of whom 650 were ordinary members and approximately 1250 were social members. The club has a bar from which it sells alcoholic and non‑alcoholic beverages and it has a facility from which it serves meals at certain times.
The Tribunal concluded that it was the:
"… exclusivity of the Club in relation to the access to the river which … ultimately leads us to the conclusion that the subject property is not being used for a public purpose. It is being used for the purpose of the Club and therefore of its members."
The Tribunal added that:
"Had it been a public launching facility, or even a public facility at which boats may be moored for a fee, all of which would have been maintained either by the Respondent or the Government, would undoubtedly have influenced us to conclude that the subject property was being used for a public purpose."
The arguments raised by the appellant were as follows. First it was said that no business was undertaken for the private gain of any individual, this being a feature which was said to distinguish this case from the outcome in Re Caboolture Aero Club (Inc) [1995] 1 Qd R 591 where it was held that the right to sub‑lease outlets to businesses deriving profit undermined the public nature of the purpose. It is true that the appellant's business is not undertaken for the private gain of any individual. However, the appellant has made profits and those moneys are spent on the club facilities which benefit the club members and not the public.
The appellant submits that it is incorporated under the Associations Incorporation Act 1987 which provides that associations are only eligible to be incorporated under that Act for specified purposes and that the specified purposes are "essentially public in nature". It is submitted that the constitutional prohibition reflects a statutory prohibition against commercial activity of the appellant. In my opinion that point is relevant to but not determinative of the use to which the subject land was being put. This point was made in the State Government Insurance Office case (supra).
The appellant also argued that under the constitution and consistent with s 33 of the Associations Incorporation Act 1987, property was not divisible amongst members of the appellant and that this distinguished this case from the jockey club in Randwick Municipal Council v Rutledge (supra). Once again this point may be relevant but it is not determinative of the use to which the land was being put.
In RandwickMunicipal Council v Rutledge (supra) the Court was considering whether the Randwick racecourse was rateable. Land was not rateable under the legislation considered in that case, if the land was vested in the Crown or in trustees and was "used for a public reserve". A public reserve included land reserved from sale for certain purposes "or other public purpose of the like nature". The case therefore raised the same issue about whether the land was used for a public purpose. Windeyer J said at 88:
"In principle for land to be used for public recreation and enjoyment, so as to be in some sense akin to a public park - which is what the Act contemplates … - and to be on that account exempt from rating, two conditions must be fulfilled. The land must be, in the relevant sense, open to the public generally as of right; and it must not be a source of private profit. As to the first: It is not necessary for all members of the public to have free access to all parts of the land at all times. It is not incompatible with a public reserve that persons can be excluded for misbehaviour or any similar sufficient reason …
As to the second requirement, that the land must not be a source of private profit. In the underlying theory of rating legislation, land in public occupation is exempt from rating because it does not produce rent or profits for its owner or occupier. If members of the public have to pay to enter the land it may still be a public reserves provided that the moneys thus obtained are all devoted to its maintenance …"
All of this is reflected in the definition of "public purpose" stated by Franklyn J in State Government Insurance Office v City of Perth and which I have referred to above.
The appellant points to the fact that the public are permitted access to the grounds of the yacht club. There was evidence that they used the ablutions which are attached to the club buildings on Reserve 27376, that members of the public at times park motor vehicles on the yacht club parking area when they are using the public boat ramp which is located near the subject land, that the appellant built a gazebo for the use of the public and that the public have access to other open areas. The perimeter of the subject land is not fenced.
In my view however, in relation to Reserve No 27376, the predominant use of the land is as a yacht club which by its constitution excludes members of the public. It is no answer to say that persons could pay a relatively small sum of money to become a social member and thereby gain access to all of the land on this reserve. In doing so they would not be gaining access to the land "as of right" to use the words of Windeyer J in the Randwick Municipal Council case. They would be gaining access to the land because they were a member of the club and then subject to the direction of the committee. Furthermore, the club building is not available to the public. This covers a significant part of Reserve 27376. In my opinion, in relation to Reserve 27376, the predominant and primary use of this land is as a yacht club, which by its constitution confines use of the subject land to members which means that members of the public are excluded.
In my opinion the Tribunal was therefore correct to dismiss the appeal in relation to Reserve No 27376.
I now turn to consider Reserve No 27377. I have already noted that the lease and the Order in Council contemplate two uses for Reserve 27377 one as a yacht club and one for public pedestrian access. Although the Order in Council and the lease provides that the whole of the land encompassed by this Reserve should be available for public pedestrian access, the reality is that the public is encouraged to use the limestone and concrete footpath constructed around the perimeter of the foreshore. A substantial portion of the land is taken up with the yacht club's paving, car parks, a limestone wall and slipways. These are permanent installations. There is also a grassed area. In my opinion the appellant did not prove that the predominant and primary use of the area of this Reserve was for public pedestrian access. I have already held that the use of land by the yacht club is not use for a public purpose. The existence of permanent facilities in fact leads me to the conclusion that the predominant and primary use of this Reserve is use by the yacht club. I therefore conclude that despite the reservation for public pedestrian access in the lease and the fact that there is some public use of the land, the evidence before the Tribunal justified the Tribunal's conclusion that the appeal should fail. In my opinion the appellant has therefore failed to demonstrate that the Tribunal erred in law in dismissing the appeal.
The appellant argues separately that the pathway is used predominantly and primarily for public pedestrian access and at least it should be held to be non‑rateable. The Tribunal did not give reasons on this point. In my opinion the pathway cannot be regarded as a separate area of land. As the appellant points out, people do not always stay on the pathway. It is therefore correct to view the pathway as part of the Reserve and to examine the overall use of Reserve 27377. In any event I note that the appellant has a slipway which runs to the river across the pathway. In my opinion the appellant did not establish that the predominant and primary use of Reserve 27377 is the use of the land for public pedestrian access. In addition this point does not raise a question of law.
I would therefore dismiss the appeal concerning Reserve 27377.

Conclusion

I would dismiss all grounds of appeal.