The City of Rockingham v Port Kennedy Resorts Pty Ltd - [1999] WASCA 300

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: THE CITY OF ROCKINGHAM -v- PORT KENNEDY RESORTS PTY LTD [1999] WASCA 300

CORAM: WHEELER J

HEARD: 6 DECEMBER 1999

DELIVERED : 20 DECEMBER 1999

FILE NO/S: SJA 1153 of 1999

BETWEEN: THE CITY OF ROCKINGHAM
Appellant
AND
PORT KENNEDY RESORTS PTY LTD
Respondent

Catchwords:

Local government - Development agreement - Liability to pay rates - Public purpose - Occupation of land - Meaning of unoccupied

Legislation:

Local Government Act 1960, s 6.26

Result:

Appeal allowed

Representation:

Counsel:

Appellant: Mr J A Chaney
Respondent: Mr D H Solomon

Solicitors:

Appellant: Gibson Tovey & Associates
Respondent: Solomon Brothers

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

Goulburn City Council v Haines (1992) 78 LGERA 281
Pexco Pty Ltd v Shire of Leonora (1984) 54 LGRA 428
Port Kennedy Sea Rescue Group (Inc) v Cash, unreported; SCt of WA (Scott J); Library No 930639; 27 August 1993
Re Education Union; ex parte Victoria (1995) 184 CLR 188
Redland Shire Council v Stradbroke Rutile Pty Ltd (1974) 133 CLR 641
Registrar of the Accident Compensation Tribunal v FCT (1993) 178 CLR 145
State Government Insurance Office v City of Perth (1987) 71 LGRA 123
Statewide Roads Ltd v Holroyd City Council (1996) 39 NSWLR 115
Sydney City Council v Garbett Pty Ltd (1993) 80 LGERA 289
Sydney City Council v University of Technology, Sydney (1992) 78 LGERA 200

Case(s) also cited:

Attorney General for the State of Victoria v Black [1959] VR 45
Beach v Trims Investments Ltd [1960] SASR 5
Caltex Properties Ltd (In liq) v Love (1997) 95 LGERA 132
Chaffey v Commissioner of Taxes (1890) 24 SALR 66
Glenn v Federal Commissioner of Land Tax (1915) 20 CLR 490
Metropolitan Gas Co v Federated Gas Employees' Industrial Union (1925) 35 CLR 449
NLS Pty Ltd v Hughes (1966) 120 CLR 583
Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1997) 194 CLR 355
Radaich v Smith (1959) 101 CLR 209
Robertson v Deputy Federal Commissioner of Land Tax (1941) 65 CLR 338
Ross v R (1979) 25 ALR 137
Shire of Wimmera v Brimacombe (1897) 23 VLR 217
Union Trustee Co of Australia Ltd v Federal Commissioner of Land Tax (1915) 20 CLR 526
The Wanneroo Roads Board v Gibbs (1905) 7 WALR 190
The Warden, Councillors and Electors of the Minicipality of Esperance v Hay (1912) 8 TASLR 47

WHEELER J:

The Appeal

This is an appeal from a decision of the Land Valuation Tribunal ("the Tribunal") allowing an appeal against the disallowance of an objection to a rate notice issued by the appellant in respect of an area of land known as Port Kennedy. The notice levied interim rates of $37,050.80 for the period from 12 August 1996 to 30 June 1997.
The history of the area is as follows. On 10 February 1992, Fleuris Pty Ltd ("Fleuris") and the State of Western Australia made an agreement in relation to the development of land south of Perth at Port Kennedy. The agreement was ratified in the Port Kennedy Development Agreement Act 1992. The rights and obligations of Fleuris were subsequently assigned to Port Kennedy Resorts Pty Ltd ("PKR"). The agreement provided for certain areas to be developed by PKR in a variety of ways broadly specified in the agreement. There were to be residential freehold areas, holiday accommodation, a marina, two golf courses, a town centre and other development. At times determined by reference to the agreement, PKR would be granted a specified quantity of freehold and a specified quantity of leasehold, which appears to have been the consideration for the agreement. Other areas of land which were to be dealt with in accordance with the agreement would ultimately vest with the National Parks and Nature Conservation Authority under the control of CALM, and foreshore reserves and roads would vest in the City of Rockingham.
As at June 1997 some land had vested in CALM and in the City of Rockingham and an area of approximately 0.9 hectares within an area known as the Long Beach Estate had been granted in freehold to PKR. During the period the subject of the rate notice, PKR undertook work on the private golf course and within the Long Beach Estate area. The works undertaken included provision of power, sewerage and water along Port Kennedy Drive, a 200-bay public carpark at the beach end of Port Kennedy Drive, construction of an irrigation lake for the golf course, construction of a temporary golf course, construction of a maintenance shed, the commencement of earthworks and building and provision of services for certain areas at the end of Port Kennedy Drive, and additional work on freehold land during the period prior to the grant of fee simple title in April 1997. It is common cause that the entirety of the development contemplated by the agreement has not been carried out.
The respondent contended before the Tribunal that the land was not rateable because it was the property of the Crown and was either being held or used for a public purpose or was relevantly unoccupied, for the purpose of s 6.26(2) of the Local Government Act 1995. Alternatively, the respondent argued that it was not "the owner" of rateable land within the meaning of s 6.41, as it was neither lawfully entitled to occupy the land nor in actual occupation of the land. The Tribunal held that the land was occupied by the respondent, but held that it was not rateable as it was the property of the Crown and used for a public purpose, the purpose being apparently identified by the Tribunal as "engaging the private sector to provide necessary public facilities that the Government could not otherwise then provide". Those facilities were described by the Tribunal as including "harbour and marina facilities, Government office buildings, road works, community halls, recreational facilities etc. …" The Tribunal did not therefore find it necessary to consider the respondent's argument in relation to the ownership issue.
The appellant appeals from the Tribunal's conclusion that the respondent holds the land principally for a public purpose, while the respondent has filed a notice of contention both in respect of the occupation argument, which the Tribunal rejected, and in respect of the ownership argument, with which the Tribunal did not need to deal. If the appellant's argument is unsuccessful, it will not be necessary to deal with the other issues. I therefore turn first to the question of public purpose.

Public Purpose

The Tribunal applied both a decision of this Court in State Government Insurance Office v City of Perth (1987) 71 LGRA 123, and a line of New South Wales authorities which include Statewide Roads Ltd v HolroydCity Council (1996) 39 NSWLR 115 and Sydney City Council v University of Technology, Sydney (1992) 78 LGERA 200. The decision in SGIO adopts, to an extent, a different analysis from that undertaken in the New South Wales authorities.
The decision of Franklyn J in the SGIO case was concerned with s 532(2) of the Local Government Act 1960, in which the relevant expression was "is being used for a public purpose". That expression is narrower than the present "used or held" in the 1995 Act, but I do not think anything turns on the difference for the purposes of this case.
His Honour took the view that the expression referred to the use to which the land is being put at the relevant time, ie, the time at which it is sought to establish that the land is rateable. His Honour thought that the requirement that the use be for a public purpose necessitated that its predominant and primary use be that of public purpose. In both those respects, the reasoning in SGIO is consistent with that of the New South Wales authorities.
However, Franklyn J took the view (at 135) that:
"In my view the word 'purpose' used in the section refers to the object with which the occupant of the land uses such land in pursuing its activities." (emphasis mine)
It was not, I think, necessary for his Honour to form that view in that case, since the question in issue concerned the use of certain offices by the SGIO, a body established by statute and entrusted by statute with a variety of functions. One could reasonably assume in such a case that the purposes of the Parliament in establishing the SGIO and the purposes of the SGIO in carrying out its various statutory functions were substantially identical.
Some of the New South Wales authorities deal with the somewhat more difficult position where it appears that at a relevant time the purposes of the Crown in permitting use of its land and the purposes of the occupier are not on their face identical. In Sydney City Council v Garbett Pty Ltd (1993) 80 LGERA 289, Priestly JA cited and adopted (at 294-295) earlier observations of Mahoney JA in Goulburn City Council v Haines (1992) 78 LGERA 281 which read as follows:
"In my opinion, the provision provides for or admits of different levels of purpose. The matter may be illustrated by an example. The Crown may, to achieve its purpose of having a lighthouse operating on a particular bay, lease the lighthouse to its employee and require him to live in the lighthouse and tend the light. It may provide in the lease that that is the purpose for which the lessee is to hold the lease. But the lessee may see the acceptance of the lease and the holding of the lighthouse as having the effect of providing shelter and accommodation for him: that, in practical sense, may be the purpose that he subjectively desires most to achieve."
The relevant question in respect of the New South Wales legislation, (s 132(1)(g) of the Local Government Act 1919) was whether Crown land was held under a lease from the Crown by any person for private purposes (in which case it was rateable). Although the provision is not identical to that involved here, if one makes the assumption that purposes are either private or public, those cases are concerned to draw the same distinction drawn by the Act of this State.
There is, it seems to me, an obvious difficulty in analysis, whether one adopts the proposition of Franklyn J that the relevant purpose is that of the occupier, or whether one looks to the purpose of the Crown in permitting use of the land. It is unlikely that a private occupier will often be found prepared to hold or use land where there is no private benefit or private purpose. Such a purpose will generally be the occupier's dominant purpose. However, as Priestly JA points in Garbett (at 297) it is a proper presumption that all Crown leases (and, I would interpose, other uses of Crown land) under which land is held for private purposes must have a level of public purpose in them, in that the Crown must be assumed to be making the land available in the general public interest.
Both in Haines and in Garbett, the Court of Appeal of New South Wales appears to have focussed attention primarily upon the purpose of the Crown, and to have considered the question whether that purpose was the furtherance of what might be regarded as a continuing governmental or public activity, or whether it was the case that there was an initial Crown purpose of fostering a particular type of activity in the public interest coupled with an intention that the use of the land should thereafter be essentially a "private project". So, in Garbett's case, in relation to the construction and operation of an international tourist hotel on land vested in the Crown at Darling Harbour, the court observed that at one level the purpose for which the land was held was the public purpose of securing in a part of Sydney that there should be two hotels which would contribute to the implementation of a planned development in a desired way, while at another and more obvious level of purpose, the land was to be held for the private purpose of first building a hotel and then operating it for profit. The court's characterisation of the purpose of the Crown was that of setting in motion a private project which the Crown had not contemplated as being one it ordinarily performed, so that it followed that the lands were held by the lessees for private purposes. It is to be noted that this approach is consistent with the view taken by Franklyn J to the extent that it focuses attention upon the use of the land at the time at which it is sought to rate it.
A difference between the New South Wales and Western Australian provisions which may be relevant, is that the Local Government Act of New South Wales directed attention to the question of whether there was a lease, and it may well be that a statutory provision of that kind is more readily to be understood as requiring that the purpose of the lease be other than a private purpose. In the Western Australian context, all that is required is ownership of the land in the Crown and the using or holding of the land for the relevant purpose. It may be then that in some cases, in Western Australia, the occupier's purpose would be determinative. For example, it may be that an agency of the Crown has surplus offices which it owns and which it proposes to lease out to the public at large in order to generate profit, which can be applied to the purposes of the agency. Where such an office was occupied by a private enterprise, there would appear to be no room for the application of the exemption, while if such an office happened to be occupied by a body which used it for public purposes, the exemption might well apply. Or, as in the SGIO cases, the purposes of both the Crown and the occupier may be apparently the same.
However, in very many cases land of the Crown will be occupied under a statutory scheme with a clearly defined purpose or, as here, pursuant to contractual arrangements, which have an identifiable purpose. In such a case, I think it is appropriate to apply the analysis set out in the New South Wales authorities and to consider the purpose of the statute or of the agreement, which is a concept distinct from the purposes or motives or ends sought to be achieved by each of the parties.
Both in the New South Wales decisions and in the SGIO case, reference is made to the concept of the "ordinary" governmental function, or to the concept of a matter which is "the province of government" (Garbett at 297, SGIO at 134). The distinction between "governmental" and other functions is one that is not easily drawn: see Re Education Union; ex parte Victoria (1995) 184 CLR 188 esp 230. However, the law acknowledges that for some purposes it is necessary that such a distinction be drawn, eg, Registrar of the Accident Compensation Tribunal v FCT (1993) 178 CLR 145 at 164.
In drawing such a distinction, two potential sources of analysis may be used. First, it is likely that there is a limited number of "core" functions which are in democratic communities regarded as essential functions of government, even in those situations where they may be subcontracted or otherwise performed by those who are not directly employed by the State. The gathering of revenue raised by taxation and the administration of the law through a system of courts or tribunals, may be examples of this type of function. More commonly, however, there are functions which have historically been undertaken in Australia because of community consensus that it is the place of government to provide at least a basic or essential level of service in the area in question; examples would be the provision of educational and hospital services by governments. Still other functions have traditionally been the province of government in Australia for the very practical reason that there has been at the relevant time no economical way of ensuring that the functions can otherwise be performed; railways may be seen as an example.
In this context, there is, I think, particular utility in the definition of public purpose adopted by Franklyn J, which has as an element the provision of a service, utility or benefit to the public "which would not be otherwise provided". His Honour said at 135:
"For a purpose to be a 'public purpose' within the meaning of the section in my view it must be a purpose which relates or pertains to the people of the State or of some particular region or locality as a whole and so relate or pertain in the sense of the provision of some service, utility or benefit to the public which would not be otherwise provided, and which is not provided with the primary purpose of producing profit, although profitability might well flow from charges or fees imposed or moneys collected or earned in respect of such provisions."
Often, a decision as to whether a function falls within or outside this definition may be made by analogy with other public and or non-public functions, while in other cases it may be necessary to resort to extrinsic evidence. In this present case, the question can, I think, be resolved by an analysis of the terms of the Port Kennedy development agreement, and by reference to the commonly understood notion of the private subdivision or residential estate or tourist resort.
The purpose of the State in setting in motion the process which led to the agreement is referred to in the recitals to the agreement, which recite that in March 1986 the State called for expressions of interest in the development of certain Crown land in the City of Rockingham in accordance with the guidelines contained in a detailed development brief prepared by the State Planning Commission. Fleuris then carried out extensive investigations into the feasibility of the project and submitted a proposal to the State, which the State accepted, for the carrying out of the project.
The Tribunal found that the object of the development was to create a comprehensive recreation and leisure centre on coastal Crown land for use by the people of Western Australia and by national and international tourists at minimal cost to the State. The Tribunal referred to the second reading speech of the Minister for State Development in introducing the Bill for the Port Kennedy Development Agreement Act, which concluded:
"It should be emphasised that this development is aimed at providing a public leisure facility for the future that will be at minimal cost to the State and which will result in this sector of the coastline remaining available to the people of Western Australia. The development proposed will result in the construction of attractive, coordinated facilities and in the proper management and protection of more sensitive parts of the environment." (Hansard 7 May 1992 at pp 197-1974).
However, as I have noted, there will be a level of public purpose involved in any making available of Crown land. The relevant question is the purpose for which the land is held or used at the particular time at which it is sought to rate the land. To this extent, the Tribunal appears to have fallen into error in holding that "the purpose of the Port Kennedy development is to be judged at the time the project was first undertaken …" That view has led, it would appear, to the placing of undue emphasis on the history of the project and the objectives outlined by the Minister. They are of course relevant to evaluating current use, but are not determinative.
It appears to me that the Tribunal further erred in considering the purpose for which the entire area encompassed by the agreement was held, rather than looking to the area which was the subject of the rate notice. In particular, the conservation zones and marina were excluded from the area the subject of the notice.
It appears to me, and the approach apparently taken (without argument) before Franklyn J in the SGIO case, supports the view, that part of an area of Crown land may be held for a public purpose whilst another part is held for private purposes. A question of fact will arise in each case as to whether it is appropriate notionally to segment an area of land in this way, and one can readily imagine that in some cases a relatively small area of land may be the subject of private use but be either functionally or geographically so linked to a larger area of land for public use that it is inappropriate to separate the two.

However, in this case, the agreement contemplated that the conservation areas were in due course to vest the National Parks and Nature Conservation Authority, and at the relevant time substantial area had been so vested, with further foreshore reserves and roadway vesting in the respondent. The marina appears to me to be a sufficiently discrete and self-contained portion of the development to make it permissible to exclude it from the relevant area. So far as the reserved land is concerned, consisting of both public open space and beach reserves and conservation zones, relatively limited work was to be carried out on those areas in any event. It was to consist of fences and barriers, fire breaks, four picnic areas, two "interpretation areas with walkways" and three areas of public toilets. While the land areas are relatively large, so far as the respondent was concerned, the reserved land obligations played a very small part in its obligations and rights under the agreement.
Leaving aside the marina and reserved land, the agreement contemplated three different types of development, they being servicing and infrastructure, development on leasehold land and development on freehold land. So far as the leasehold land was concerned (it being land which would in due course be leased to the respondent) the respondent was required to construct 240 rental units; a town centre consisting of 25 residential units with a commercial area designed to accommodate the usual town centre facilities such as restaurants, food outlets, shops, banks etc and a relatively small area (no less than two hundred square metres) of office space to accommodate certain government services (one office of thirty square metres to be provided rent free); a multi-purpose hall; public club facilities; a child-minding facility; and two golf courses, one to be a public course (that is, able to be used by any member of the public upon payment of a fee) and the other to be used by hotel guests, with a public car parking area.
It may readily be seen that the majority of these uses are the types of services which are ordinarily privately provided in Australia. Even where the ultimate occupiers are in some few cases to occupy the facilities for public purposes, it appears to be contemplated that they will do so by entering into lease agreements of the type ordinarily entered into with private providers of these services; there would otherwise be no need for the specification in the agreement that one office is to be provided rent-free.
So far as the freehold land is concerned, the respondent is required to construct rental accommodation in the form of various types of serviced holiday units, and a five-star hotel. Additionally, of course, the consideration offered to the respondent for entering into the agreement includes the eventual provision to the respondent of a substantial quantity of freehold land, which it would be able to subdivide and sell in the ordinary manner, presumably primarily for residential purposes. Again, in relation to the freehold land, the uses are ordinary private uses.
So far as servicing and infrastructure is concerned, the respondent is required to construct electrical requirements for all amenities and facilities, provide reticulated water facilities, which are either to be provided by it or provided by the Water Corporation at the respondent's expense, to provide sewerage, to ensure that adequate telephone services are connected and to provide a footpath and cycle-track and access roads and certain other works.
In many respects, as the appellant points out, the development resembles a private sub-division, in which a developer is commonly required to provide appropriate services, including access roads, power and a quantity of public open space in return for sub-division approval. The ways in which the development differs from such a sub-division include: the fact that the State apparently first designated the area as one suitable for development, rather than a private developer approaching the State for approval; the fact that land is to be made available to the developer as it completes the development or portions of it, rather than the land being initially owned by the developer; and, it may be inferred from the terms of the agreement, the more active role played by the State in the selection of facilities appropriate to be developed on the land, and perhaps the scale of the development. These are not, in my view, significant distinctions.
Taken as a whole, it appears to me that the purpose of the agreement was, initially, to get an essentially private development "off the ground" (as in Garbett) and thereafter to ensure that development continued. The purpose of the agreement and the purpose of the respondent's occupation, was, at the relevant time, primarily a private one.
In my view the Tribunal erred in failing to consider the purpose for which the land was being used or held at the relevant (ie rating) time, and in failing to consider the dominant purpose for which the land the subject of the notice, rather than the larger agreement area, was used or held. It follows that I would allow the appellant's appeal in this respect. It is therefore necessary to consider the respondent's notice of contention.

Occupation

By cl 8 of the agreement, the State granted the respondent an "exclusive licence for the company and its agents … to enter, with all necessary vehicles plant and equipment, upon the lands and waters … which are to be developed as part of the project". Clause 8(3) provided that the respondent was to permit the State to enter upon the lands the subject of the exclusive licence during the period of the licence to inspect the progress of the project. The land remained vested in the Crown, but by cl 9 it was provided that upon the company completing all works necessary to implement the project, or at such earlier time or times as the Minister following advice from the Port Kennedy Management Board considered appropriate, the State was to grant to the respondent a lease of certain areas of land.
Further, subject to the respondent undertaking the project in accordance with the agreement, the State was by cl 10 to cause to be issued to it Crown grants of certain lots as freehold land, which grants were to be issued "at such time or times as the Minister in the absolute discretion of the Minister thinks fit … it being the intention of the parties that the Crown grants be issued to the company progressively during the carrying out of the project". There was, however, a formula provided in the agreement, the effect of which was that grants could be made in proportion to the amount of expenditure by the respondent to the relevant time in implementing the project. As I have noted earlier, certain land had been granted to the respondent pursuant to the agreement at the relevant date.
The work which the respondent actually undertook on the land during the rating period was that which I have described on page 3 in relation to the private golf course and within the area known as the Long Beach Estate.
In addition to evidence of work done, there was extensive evidence concerning the fencing of the area in question. There had apparently been existing fences which were repaired or replaced where necessary by the respondent, and an additional fence was erected by the respondent. These fences appear to have enclosed the project area, except perhaps in a portion abutting the conservation reserve to the south (the evidence does not clearly deal with this area) in a manner which precluded vehicle access. The fencing was post and star picket stock fencing with chain-link gates. In the northwest corner of the project area, there was an opening which permitted pedestrian and cycle access. Once entry had been gained to the area via this opening, the evidence was that a person entering would have access to the east, into the whole of the project area, while access to a strip of beach on the west would be limited by a fence along the western boundary, which, however, at intervals had openings permitting pedestrian access to the beach.
To the south and east of the project area, not only was there fencing, but there were at a number of places signs which read:
"Warning
Access Closed
Trespassers Prosecuted
Area Patrolled by Security"
The evidence called on behalf of the respondent was to the effect that the fencing precluded only vehicle access and did not substantially obstruct pedestrian access, and that security personnel employed by it were under instructions to advise pedestrians that, although there were dangers in the area, they were free to enter. The dangers in the area stemmed in part from the possibility of unexploded ordinance devices. Although the area had been "swept" for such devices, the possibility of such a device remaining could not be ruled out. The devices were more likely to be triggered by a vehicle than by a pedestrian. The other danger which arose in parts of the project area was that which stemmed from the use of construction equipment undertaking portions of the development work. The argument of the respondent which was developed before me was to the effect that the Tribunal placed undue weight on the signs and fencing, and failed to have appropriate regard to the circumstances that the exclusion which existed was for safety reasons and that a substantial degree of pedestrian access was permitted, particularly from the north-west corner.
The Tribunal did place considerable emphasis on the signs; not surprisingly since the message of the signs appeared to be inconsistent with the access policy stated by the respondent. The Tribunal did not accept that the exclusion related solely to restriction on vehicle access for safety purposes, but rather inferred that the respondent excluded persons from all parts of the area rather than simply restricting them to pathways. It therefore formed the view that the respondent had "occupied" the land.
It is convenient at this point to consider what is meant by the expression "unoccupied" in s 6.26 of the Local Government Act.
It is not entirely clear what definition of "unoccupied" the Tribunal employed, and particularly whether it took the view that the meaning of that term received its colour from the definition of "occupier" in s 1.4 of the Act, which term means the person by whom or on whose behalf the land is actually occupied or, if there is no occupier, the person entitled to possession of the land, and which extends to a person having a right to take profit of Crown land pursuant to a licence or concession.
Whether the expression "unoccupied" is to be understood as deriving its meaning by reference to the definition of "occupier", is one of some difficulty. It was adverted to in this Court, in relation to the Local Government Act 1960 in Pexco Pty Ltd v Shire of Leonora (1984) 54 LGRA 428, and was considered in the context of the Local Government legislation of Queensland in Redland Shire Council v Stradbroke Rutile Pty Ltd (1974) 133 CLR 641. In the latter case, Gibbs J took the view that the applicant did not have a right to possession and, it being common ground that no person was in actual occupation of the land, it was unnecessary for him to determine which view of "unoccupied" was the preferable one. Menzies and Stephen JJ considered the question and arrived at different views, Menzies J considering that "unoccupied" took its colour from the definition of "occupier" while Stephen J thought that it did not.
In my view, it is not necessary to resolve that question in this case. The respondent urged the view that the land in question will not be rateable if it is actually unoccupied, and that the Tribunal was precluded from considering the question of whether the respondent fell within the broader definition of "occupier". Assuming this to be so, as the view of the law most favourable to the respondent's case, the appropriate principles are, I think, derived from the judgment of Kennedy J in Pexco . At 437 of that case his Honour said (omitting citations):
"The question of whether the land was occupied or not is a question of fact. There must be some physical act of occupation, but it is, in my view, quite clear that no element of habitation is necessary…
It is not necessary to establish the doing of some physical act on every portion of the land in question. Acts done on one portion of it may furnish strong evidence of a person's having entered into and being in actual occupation of other portions of it or of the whole of the land. The fact that the land is leased to the person in question appears to me to be a matter of some significance, because it can give colour to his activities on the land. It is also important that regard be had to the kind of occupation of which the land is reasonably susceptible."
Applying those principles to this case, the respondent's use of the land is coloured by the nature of the licence which it is granted. That licence is an exclusive licence to occupy the land (Port Kennedy Sea Rescue Group (Inc) v Cash, unreported; SCt of WA (Scott J); Library No 930639; 27 August 1993). The only other persons whom the agreement contemplates being permitted onto the land are the State and its officers for the limited purpose set out in cl 8(3) of the agreement. Portions of the land are owned by the respondent, having been granted to it pursuant to the agreement, as the agreement contemplates.
The licence granted is a licence which contemplates that the respondent will carry out extensive works on a very substantial proportion of the land. These works may, as the respondent's evidence in this case suggested, pose a danger to members of the public who may seek to enter the land. The respondent has in fact carried out the work on the land during the rating period of the type already described.
Further, the respondent has purported to determine who may and may not have access to the land, and under what circumstances. To argue as the respondent did about whether pedestrian access was in fact permitted, and in what circumstances, and for what reasons access may have been limited, is in my view to miss the point. What is of relevance in this case is that the respondent has exercised very significant control over the entirety of the land for the purposes of the agreement. Whether or not the Tribunal was correct in the detail of the control which it found that the respondent had exercised, it was in my view correct to consider as significant the fact that the appellant was prepared to exercise such control and the fact that the appellant regarded itself as not only entitled to exercise control, but as responsible for the safety of those persons who might enter upon the land.
For those reasons, applying the view of "unoccupied" most favourable to the respondent, I accept that the land was relevantly occupied by the respondent.
In my view, the argument that the respondent is not "the owner" of the land within the meaning of s 1.4 cannot be sustained. Either the respondent is a person lawfully entitled to occupy the land in accordance with subpar (d) of that definition, or, if the licence does not give rights of occupation as extensive as those actually purported to be exercised by the respondent, then the respondent is to that extent a person "in the unauthorised occupation" of Crown land within the meaning of par (f) of that section.
I would allow this appeal.