TECHNOLOGY ASSISTING DISABILITY WA INC and TOWN OF BASSENDEAN
[2011] WASAT 154
•3 OCTOBER 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: TECHNOLOGY ASSISTING DISABILITY WA INC and TOWN OF BASSENDEAN [2011] WASAT 154
MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)
HEARD: 20 & 21 JUNE 2011
DELIVERED : 3 OCTOBER 2011
FILE NO/S: DR 477 of 2009
BETWEEN: TECHNOLOGY ASSISTING DISABILITY WA INC
Applicant
AND
TOWN OF BASSENDEAN
Respondent
Catchwords:
Whether land is rateable - Liability to pay rates Exclusively for charitable purposes
Legislation:
Charitable Uses Act 1601 (Imp)
Local Government Act 1995 (WA), s 6.26, s 6.26(2)(g)
Result:
The application for review allowed and the decision under review set aside
Category: B
Representation:
Counsel:
Applicant: Mr S Penglis
Respondent: Mr D McLeod
Solicitors:
Applicant: Freehills
Respondent: McLeods Barristers & Solicitors
Case(s) referred to in decision(s):
Hobart Savings Bank v Federal Commissioner of Taxation (1930) 43 CLR 364
Salvation Army (Vic) Property Trust v Shire of Fern Tree Gully (1952) 85 CLR 159
Shire of DerbyWest Kimberley v Yungngora Association Inc [2007] WASCA 238
Thompson v Federal Commission of Taxation (1959) 101 CLR 315
Uniting Church Homes (Inc) and City of Stirling [2005] WASAT 191
West Australian Baptist Hospital & Homes Trust Inc v City of South Perth [1978] WAR 65 at 68 - 69
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant, an association known as Technology Assisting Disability WA Inc. is an organisation established to improve the quality of life of people with disabilities, the frail aged, and those people caring for them through the application of technology and the skills of volunteers. Commonwealth government authorities have recognised the association as a charity. It conducts its operations from premises at 371 (Lot 501) Collier Road, Bassendean
The Town of Bassendean assessed the land as liable to council rates under the Local Government Act 1995 (WA) and issued rates notices for the 2008/2009 and 2009/2010 rating periods. The association objected to the assessments on the basis that the land was used exclusively for charitable purposes. The Town of Bassendean disallowed that objection and the association sought a review of that decision by the Tribunal.
The Tribunal considered the use of the land by the association and concluded that the use of the land was for charitable purposes. The Tribunal also considered whether the land was used exclusively for charitable purposes so as to fall within the exception in s 6.26(2)(g) of the Local Government Act 1995 (WA). It found that some incidental uses of the land for the disposal of surplus items did not destroy the exclusiveness of the use of the land for charitable purposes and so it fell within that exception.
Introduction
The applicant (TADWA) is an incorporated association which conducts its operation at No 371 (Lot 501) Collier Road, Bassendean. The respondent assessed the property as liable to council rates for the 2008/2009 and 2009/2010 rating periods. TADWA objected to the assessment on the basis that the land upon which it conducts its operations was not rateable for those rating periods under s 6.26(2)(g) of the Local Government Act 1995 (WA) (LG Act). The respondent disallowed the objection and TADWA has applied to the Tribunal for a review of that decision.
The hearing of TADWA's application took place on 20 and 21 June 2011. The respondent handed in its bundle of documents (Respondent's Bundle) and provided a witness statement from Michael Costarella (CWS) and from Brian Joseph Reed. TADWA provided a witness statement from Kenneth Robert Whitaker (WWS) and a supplementary witness statement from Mr Whitaker (WSWS). Both Mr Costarella and Mr Whitaker were crossexamined at the hearing.
Facts
The facts to the extent that they have been agreed between the parties are set out below.
TADWA
TADWA is a nonprofit organisation with workshops and offices located in Bassendean. The Mission and Objects of TADWA are set out in cl 3 of its constitution as follows:
(1)The Mission of [TADWA] is "To improve the quality of life of people with disabilities, the frail aged, and those people caring for them through the application of technology and the skills of volunteers".
(2)The Mission will be achieved through the Objectives of [TADWA] which are to
(a)Design, construct, adapt, install and maintain aids for people with disabilities and the frail aged where a suitable commercial product or service is not available;
(b)Provide information on available aids; and
(c)Provide technical advice to people with disabilities and those interested in their welfare.
(d)Provide through affordable Information Technology an effective interface between those with disabilities and the wider community. (Respondent's Bundle, Tab 1).
TADWA is recognised under Commonwealth government legislation as a deductible gift recipient and a public benevolent institution.
The Land and Lease
Under management order K278417 (amended by a variation of management order K310167), the respondent is the managing body of Lot 501 on Deposited Plan 57119 being Reserve No 49216 and being the whole of the land contained in Certificate of Crown Land Title Volume 3142 Folio 705 (Land).
By Lease dated 15 October 2007, the respondent leased the Land to TADWA for a term of 42 years. (Respondent's Bundle, Tab 3).
Activities carried out on Land
Information provided on TADWA's website (Respondent's Bundle, Tab 10) lists its business divisions as follows:
•Customised Aids and Equipment Section (CAE)
•Computer Services Section (CS)
•Basic Computer Training Section
It is accepted by the parties that all the activities within these divisions are carried out on the Land.
Customised Aids and Equipment Section
The CAE Section designs, develops, constructs and modifies customised aids and equipment and home modifications for the disabled, the frail aged and their carers (TADWA's Target Group). The types of aids TADWA supplies range from selfcare aids, support and mobility aids, communication aids, aids for reading, medical care aids, car modifications, home modifications and other goods and equipment.
Most of the design and construction work in relation to the individually customised modifications is carried out in the CAE workshop on the Land and then transported to the customer's home for installation or delivery as the case may be.
The CAE services are provided both to people who are deemed eligible to receive funding from the Home and Community Care Program (HACC), a program jointly funded by the State and Federal governments and to other individuals indirectly through other notforprofit organisations and government bodies, such as the Disability Services Commission.
Computer Services Section
The CS receives donated computers, software and other computer or information technology related equipment (which are referred to in these Reasons as 'computer and IT equipment') from State government agencies and private businesses.
Computers are cleaned, tested and repaired in a workshop on the Land by skilled technicians employed by TADWA, together with a pool of skilled volunteers.
Customers then apply to purchase computers and IT equipment from TADWA. Support agreements are also available to people who purchase computers, which provides a warranty and 'Help Desk' services. People who are eligible under HACC will receive computers and services at a reduced cost and preused components are free where people enter into a support agreement. (Respondent's Bundle, Tabs 13 and 14).
Computers and IT equipment which TADWA deem unsuitable for refurbishment and/or sale are either donated to the Lions Club who refurbish and donate them to needy foreign schools or are broken down into component parts and sold to a recycling business.
Basic Computer Training Section
This section provides customers and potential customers with training in basic skills to use a computer as an educational tool and for entertainment and to use the internet and email for communication, banking and shopping.
Facts in dispute
The only real dispute between the parties about the facts in this matter arise around the extent to which members of the public outside TADWA's Target Group are permitted to purchase computer and IT equipment from TADWA. The respondent says that TADWA also sells new unrefurbished computers to the general public. However, TADWA says that not everyone can apply to obtain a computer and IT equipment from the applicant and only individuals within TADWA's Target Group can do so (WSWS, para 8). TADWA says that refurbished computers and IT equipment are not available to the general public, except to the limited extent on the basis that these computers or IT equipment are obtained in exchange for a donation or by reference to a cost recovery price guide (WWS, para 54).
Request for rates exemption
In August 2007, TADWA wrote to the respondent seeking an exemption from rates for the Land (Respondent's Bundle, Tab 2).
At its meeting of 27 October 2009, the respondent considered TADWA's request and resolved as follows:
1.Council determines that TADWA is not eligible for an exemption under s 6.26(2)(g) of the Local Government Act 1995 (WA).
2.Council provides a rate concession to TADWA Inc of 100% of the 2008/09 rates levied totalling $8,179.96 and 50% of the 2009/10 rates levied totalling $5,730.75 in accordance with s 6.47 of Local Government Act 1995 (WA).
3.The concessions are only eligible for the financial years mentioned above and the organisation must make application to Council for future concessions.
4.TADWA be advised that the outstanding amount for the 2009/10 financial year is not required to be paid until the 30 June 2010. (Respondent's Bundle, Tab 6).
TADWA lodged an application for review of the respondent's decision at the State Administrative Tribunal on 14 December 2009.
In September 2010, TADWA applied, pursuant to s 6.26 of the LG Act, to the Minister for Local Government for an exemption from rates. On 3 December 2010, the Minister wrote to TADWA refusing to grant the exemption. (Respondent's Bundle, Tab 9).
Issue for determination
The issue in these proceedings is whether the Land is exempt from rates for the 2008/2009 and 2009/2010 rating periods on the basis that it was used exclusively for charitable purposes during those rating periods and was therefore not rateable land.
The legislative framework
Section 6.26 of the LG Act provides, so far as is relevant, as follows:
6.26Rateable land:
(1)Except as provided in this section all land within a district is rateable land.
(2)The following land is not rateable land
…
(g) land used exclusively for charitable purposes;
…
Other relevant provisions of the LG Act which explain the background to, or the jurisdiction of the Tribunal, in this matter are conveniently summarised in the decision of this Tribunal in Uniting Church Homes (Inc) and City of Stirling [2005] WASAT 191 as follows (at [12] [13]):
Section 6.39(1) of the Act provides that, as soon as practicable after a local government has resolved to impose rates in a financial year, it is to ensure that a rate record is compiled, for that financial year, of all rateable land in its district. Section 6.41(1) requires a local government to give the owner of rateable land a rate notice. Section 6.44 obligates the owner of land on which a rate has been imposed to pay the rate to the local government.
Section 6.76(1) of the Act confers a right on a person to lodge an objection with the local government in relation to the rate record on certain grounds, including that it contains an error in that land is not rateable land. Section 6.76(5) states that the local government may either disallow an objection or allow it, in whole or in part. Section 6.77 provides that any person who is dissatisfied with the decision of a local government on an objection made by that person under s 6.76, may apply to the State Administrative Tribunal for a review of the decision.
The hearing
Mr Costarella's evidence
Mr Costarella is the Director Corporate Services of the respondent. He has held that position for around four years. His duties include supervision of the financial management and rating process of the respondent and he is responsible for the respondent's records management.
He states (CWS, para 7) that he is the officer of the respondent who has the responsibility for recommending to the respondent the rates to be imposed in each year. He also has the responsibility for the identification of any properties which are exempt from rates under the LG Act and for processing applications for exemption and advising the respondent on those applications.
Mr Costarella confirmed (T: [26], [20.6.11.]) that the full extent of his knowledge of what TADWA does on the Land comes from Mr Whitaker's statement of evidence to the Tribunal, TADWA's website and his own observations when he made a visit to TADWA's premises.
Mr Costarella formed the view that TADWA's use of the Land was not exclusively for charitable purposes on the basis that:
… it appears that TADWA is carrying on a commercial operation on the Land. The building on the Land is being used to a certain extent at least as a workshop producing products which are saleable, and as a base from which services are provided as part of a commercial operation.
(CWS, para 48).
He goes on to say (CWS, para 50):
But it does appear that:
a)TADWA carries on a business at its office and workshops at 370 [sic] Collier Road;
b)the business involves the offering of goods, materials and services according to a published price schedule; and
c)even though the prices are discounted, particularly in respect of disabled customers, nevertheless the business is conducted with a view to profit where possible.
When asked 'what were the activities that TADWA was doing on the Land which caused you to form a view that it was not being used exclusively for charitable purposes', Mr Costarella replied:
In particular the computer sales, yes.
(T: [29], [20.6.11]).
Later, he said:
The computer sales were what instigated the whole issue. Looking at the website, it did include fees and charges that were of relevance, and they list concessions and nonconcession charges. In my view there was certainly a commercial value in the computer services. Hence I had made that recommendation accordingly.
(T: [34], [20.6.11]).
Mr Reed's evidence
Mr Reed's evidence is simply that there has been no agreement on the part of the respondent that TADWA would not be liable for rates. While TADWA's application to the Tribunal asserts that 'it was acknowledged (during lease negotiations) by council senior staff that as a charitable organisation it would be exempt from rates', this issue was not raised at the hearing of this proceeding and the Tribunal does not propose to examine this any further.
Mr Whitaker's evidence
Mr Whitaker is the Chief Executive Officer of TADWA and has worked in that role for approximately eight years.
He states that TADWA's purpose is to improve the quality and enjoyment of the lives of people with mental and physical disabilities, the frail aged and their carers through the application of technology, by ensuring that people with mental and physical disabilities and the frail aged have access to goods and services to improve their mobility and reduce social isolation (WWS, para 6).
He says that TADWA is predominantly funded (76% in the financial year to 30 June 2010) by grants from HACC. (WWS, para 10).
He also states that TADWA employs approximately 36 full or parttime paid staff and approximately 63 volunteers (WWS, para 12).
He provided details of the sources of income and of the expenditure of TADWA, details of which are unnecessary to reproduce here. It is sufficient to say that in the two rating periods, TADWA generated very modest surpluses.
Mr Whitaker describes the activities of CAE as:
1)designing, developing and building customised aids and equipment;
2)home modifications;
3)providing services and equipment to other disability organisations;
4)the 'Freedom Wheels Project', a bicycle with special stabilisers fitted; and
5)the construction and design of the Beach Trekker, a wheelchair device, designed by TADWA, which allows disabled people to access the beach and enter the water in the chair.
The types of aids which TADWA supplies, he says, range from self-care aids, support and mobility aids, communication aids, aids for reading, medical care aids, car modifications, home modifications and other goods and equipment. He lists by way of example:
a)rails and ramps that are customised to the client's home;
b)modified wheelchairs to facilitate recreational activities; and
c)bicycles fitted with stabilisers.
Each client is individually assessed for their needs, either at TADWA's premises or at the client's home. Upon assessment of the client, TADWA designs and constructs the necessary modifications. Most of the work is carried out in the CAE workshop on the Land and is then transported to the client's home for installation or mere delivery.
These services are provided both to clients who are deemed eligible to receive HACC funding and also to other individuals indirectly through 'other non-for-profit organisations and government bodies, such as the Disabilities Services Commission'. If these people do not fall within HACC's eligibility criteria, if they have a permanent or on-going disability TADWA will nonetheless assist them.
As far as payment is concerned, HACC eligible clients are invoiced only for the cost of materials. Other costs involved in providing these services are not charged for (WWS, para 26).
Mr Whitaker says that, in addition, it is TADWA's policy not to refuse a service to a client due to their financial circumstances. If a client is unable to meet the costs of materials used, those costs are waived (WWS, para 28). Customers who are not eligible for HACC, such as the Disability Services Commission or the Western Australian Disabled Sports Association, are invoiced for the costs of materials and labour (WWS, para 30).
Mr Whitaker says the CS activities include:
1)refurbishing and modifying donated computers and computer equipment;
2)computer training;
3)computer repairs;
4)technical support;
5)the help desk;
6)working with the Lions Club to refurbish computers for donation internationally;
7)recycling computers and computer parts that cannot be refurbished or are 'below specification'; and
8)the provision, in return for a donation, of old computers and computer parts.
Mr Whitaker explains that, through an arrangement with the State Government, TADWA receives donated IT equipment from State Government agencies. Approximately 80% of the computers and computer equipment TADWA receives is sourced in this way. The balance is donated by private individuals or business (WWS, para 35). Mr Whitaker points out that TADWA can not 'pick and choose' the equipment it receives and therefore receives equipment that can not be refurbished or is out of date for refurbishment WWS, para 36).
Each client is individually assessed for their particular modified software or hardware needs and, and once these requirements have been identified, the computer is refurbished and/or modified for them in the CS workshop on the Land. These computers and related equipment and the software are provided free of charge to the disabled, the frail aged and their carers.
Through CS, TADWA provides free training to its clients which is conducted in TADWA's training room on the Land or at the client's home if they are unable to travel to TADWA's premises.
CS also provides a technical service help desk for its clients in return for a small service fee.
A portion of the CS workshop is used by the Perth Lions Club at no charge. Lions Club volunteers use this part of the CS workshop to refurbish computers that are unsuitable for TADWA's purposes. TADWA donates these computers to the Lions Club. The refurbished computers are then shipped overseas by the Lions Club and donated to the needy for use in schools and for the disabled and poor.
He confirmed that some of the computers and computer equipment donated to TADWA are not suitable to be refurbished and those computers and equipment are broken down into their component parts and sold as scrap to recyclers. TADWA generates a 'small income' from this recycling activity (WWS, para 51 and para 61).
Mr Whitaker says that TADWA will provide hardware or computers to members of the public, if approached (WWS, para 53). The income from this activity was less than 1% of TADWA's total income in the financial year to 30 June 2010 (WWS, para 63). However, in Mr Whitaker's supplementary statement he confirms that by 'members of the public' he meant members of the public within the TADWA Target Group (WSWS, para 8).
He also says that TADWA did not provide refurbished computer systems to any customers other than customers within TADWA's Target Group in the financial years 30 June 2009 and 30 June 2010 respectively (T: [67], [20.6.11]).
When asked generally about the provision of computers or computer parts to members of the public, Mr Whitaker said that 'We just ask for a donation if approached by members of the public for a used computer part' (T: [62], [20.6.11])
Mr Whitaker in his statement (WWS, para 66 onwards) described the use by TADWA of the Land by way of 'Premises Zones'. What he refers to as Premises Zone 1 is the CAE workshop and CAE metal workshop. This area is used:
a)by skilled volunteers and professional staff to custom design and construct aids and equipment;
b)to store smaller pieces of equipment to be modified or to be used as parts for modification; and
c)to house a wide range of tools and machinery necessary to produce such aids and equipment.
He describes Premises Zone 2 as a store, used for the storage of donated aids and equipment to be refurbished or modified.
Premises Zone 3 is the CAE electronics area where sophisticated electronic work on devices and aids is carried out.
Premises Zone 4 is the CAE assessment and fitting room, which is where clients are assessed and fitted to their aids and or equipment.
Premises Zone 5 is the CAE administration area where the CAE manager, occupational therapist, CAE workshop advisor and CAE administrator all have workstations.
Premises Zone 6 is the CS workshop. This is where skilled volunteers and professional staff refurbish donated computers and equipment, install software, and dismantle obsolete computer equipment. This is also where the Perth Lions Club refurbish computers and computer equipment which are unsuitable for TADWA's purposes.
Other areas of the Land include storage, administration areas, an area for housing servers and PABX equipment, lunch, meeting and conference rooms, training rooms and interview rooms.
There is a subtenanted area occupied by Therapy Focus Inc, a nonprofit organisation which provides therapy and support services for children with disabilities or learning disadvantages. This provides accommodation for therapists who help children learn to walk, talk and participate in school and the community. TADWA does not receive any income or rent from Therapy Focus Inc, although Therapy Focus contributes to a portion of the cost of utilities.
Finally, the Land includes a car park for TADWA and Therapy Focus staff and volunteers and TADWA clients.
The respondent's submissions
It is submitted by the respondent in its outline of submissions at paragraph 3.5 (as amended by the respondent at the hearing):
Even if the subject land may be used also for other purposes which are charitable, such as the administration of charitable operations, to the extent the land is used at all for the commercial purpose of refurbishing and reselling computer and other equipment and providing technical IT services, it cannot be said that the land is used exclusively for a charitable purpose.
In its closing submissions, the respondent said (T: [14], [21.6.11]) that the issue of the sale of products to the public is not the only reason why the respondent rejected the application for an exemption of rates. Rather, the respondent has focused, correctly in the Tribunal's view, on the use of the Land.
There is, however, a distinction between, on the one hand, the use of land for a charitable purpose and, on the other, its use for the purpose of making what is derived from the activities on the land available to be applied for charitable purposes. Accordingly, it has been held that land is not used for charitable purposes where the land is used for the purpose of raising funds to be used for charitable purposes.
The respondent readily accepts that TADWA's purposes for the use of the Land are charitable in nature (see respondent's outline of submissions at para 2.2).
However, the respondent says that, looking at the actual use of the Land, TADWA is using the Land to conduct a business on a commercial basis, notwithstanding that it is assisted by government grants and volunteer assistance (T: [3], [21.6.11]).
The respondent says that there is no significance in the fact that TADWA targets a special portion of the general public being people with disabilities (T: [5], 21.6.11]).
Findings and conclusion
The question of whether Land is used exclusively for charitable purposes was considered by the Court of Appeal in Shire of DerbyWest Kimberley v Yungngora Association Inc [2007] WASCA 238 (Yungngora), where it was held that the expression 'charitable purposes' is used in the LG Act in a technical or legal sense, not in its common meaning - Yungngora at [41].
In order to be charitable, it must be found that the purpose in question is within the spirit and intent of the preamble to the Charitable Uses Act 1601 (Imp) and is a purpose beneficial to the public - Yungngora at [44] with citations omitted.
In Hobart Savings Bank v Federal Commissioner of Taxation (1930) 43 CLR 364 at [374] - [375], Dixon J said that the purposes will be charitable if they are 'put in execution for the benefit of the community' and 'tend to the amelioration of mind, manner or morals, or the relief of misfortune and are of a nature allowed by law and consonant with the received notions of morality'.
To benefit the community, the purpose must benefit the public at large or a class or section of the public. It does not lose its public character simply because it is limited by reference to, in this case, people's disabilities: - see Thompson v Federal Commission of Taxation (1959) 101 CLR 315 at [321].
It is clearly the case that the members of the community who are to benefit from the activities of TADWA, namely the disabled and the frail aged and their carers, constitute a class of persons sufficient to satisfy the requirement that the purpose be of a public nature. It follows that TADWA's purpose, to improve, through the application of technology and the skills of volunteers, the quality of life of those members of the community, is a charitable purpose.
However, it is necessary to focus on the use to which the Land is actually put, rather than the benefits which the organisation provides to members of the community - Yungngora at [62]. It is clear from Yungngora that the purpose for which the Land is used is the issue, not the motivation for operating a business or the charitable purpose which is sought to be achieved as a consequence of that use.
Mr Whitaker has described the use to which the Land is actually put which was not contested and which the Tribunal accepts. It is inescapable that the Land is used for charitable purposes, at least to some extent. The actual administration and management of TADWA occurs on the Land and there is clear authority that this is a charitable purpose - Yungngora at [66] with citations omitted.
The CAE activities on the Land are considered by the Tribunal to be charitable purposes. There is nothing in the evidence before the Tribunal to indicate to the contrary. TADWA uses the Land for assessing the needs and requirements of its customers and for adapting, modifying or customising aids and equipment and for fitting or otherwise ensuring that its customers can make use of those aids and equipment.
The position with regard to the CS activities on the Land, namely storage, cleaning, modifying computers and computer equipment is less clear, but, on balance, the Tribunal considers these to be charitable purposes also. Obviously, there would be some retail based activities in respect of at least the computers which do not require such work, but these are not retail sales in the sense that profits are derived which are then used to fund TADWA's charitable objectives. Clearly on the authorities that would not be a use for charitable purposes - see Yungngora at [68]. However, as the Tribunal understands it, these items are sold 'at cost' and TADWA does not derive any significant surplus from these operations.
In any event, the fact that items or services are charged for does not of itself mean that the use of the Land is not charitable; see West Australian Baptist Hospital & Homes Trust Inc v City of South Perth [1978] WAR 65 at 68 - 69.
There is some suggestion that members of the general public may occasionally acquire some computers or computer equipment from TADWA's premises. However, the fact that some individuals who do not fall within the class sought to be benefited may succeed in taking advantage of the benefits intended for that class, does not detract from the charitable nature of purposes which are otherwise charitable - Yungngora at [52].
It is, of course, necessary to consider whether the Land was used exclusively for charitable purposes during the relevant rating periods. It is not enough that the main use of the Land is for charitable purposes, unless the Land is used exclusively for those purposes - Yungngora at [70]. As mentioned in the preceding paragraph, the Tribunal has heard that it is at least possible for members of the public outside TADWA's Target Group to purchase computers or computer parts. However, the Tribunal also heard from Mr Whitaker that this did not occur during the relevant rating periods. Even if it had occurred, it would appear that these computers and computer parts are items which are surplus to TADWA's requirements.
Similarly, TADWA apparently sells some computers and computer parts which it can not use elsewhere to a recycling service.
The Tribunal does not consider that any of these activities destroy the exclusive nature of the charitable purpose. As Dixon, Williams and Webb JJ said in Salvation Army (Vic) Property Trust v Shire of Fern Tree Gully (1952) 85 CLR 159 at [169]:
It would be fantastic to hold that the land would not be rateable if the appellant destroyed or gave away the surplus products resulting from such training that remained after satisfying the needs of the inmates but that it would be rateable if it disposed of such surplus at a profit and used that profit in aid of the revenues of the institution. There is nothing in the evidence to suggest that the appellant is carrying on the farming activities to a greater extent than is reasonably necessary to achieve the above purpose or that under the cloak of this purpose it is really engaged in carrying on the business of a farmer for the purposes of gain.
The Tribunal finds that the Land during the relevant rating periods was used exclusively for charitable purposes within the meaning of s 6.26(2)(g) of the LG Act, namely for the improvement of the quality of life of people with disabilities, the frail aged and those people caring for them. The application for review should therefore be allowed and a decision substituted to the effect that the subject Land is not rateable during the rating periods to 30 June 2009 and to 30 June 2010 respectively.
Orders
1.The application for review is allowed.
2.The decision under review to disallow the applicant's objection is set aside and the following decision is substituted in its place:
The objection is wholly allowed and for the rating periods under review the subject land is to be regarded as 'not rateable land' within the meaning of s 6.26 of the Local Government Act 1995 (WA), on the basis that the land is used exclusively for charitable purposes.
I certify that this and the preceding [86] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT
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