THE OWNERS OF THE KINGSLEY RETIREMENT VILLAGE STRATA PLAN 12484 & 12951 and CITY OF JOONDALUP
[2018] WASAT 26
•12 APRIL 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: THE OWNERS OF THE KINGSLEY RETIREMENT VILLAGE STRATA PLAN 12484 & 12951 and CITY OF JOONDALUP [2018] WASAT 26
CORAM: MS R PETRUCCI (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 12 APRIL 2018
FILE NO/S: DR 251 of 2017
BETWEEN: THE OWNERS OF THE KINGSLEY RETIREMENT VILLAGE STRATA PLAN 12484
First Applicant
THE OWNERS OF THE KINGSLEY RETIREMENT VILLAGE STRATA PLAN 12951
Second Applicant
AND
CITY OF JOONDALUP
Respondent
Catchwords:
Local government - Rates - Exemption - Retirement village - Whether land used exclusively for charitable purposes - Objection disallowed - Standing to seek review of decision
Legislation:
Local Government Act 1995 (WA), Pt 6 Div 6, s 6.26, s 6.26(1), s 6.26(2), s 6.26(2)(g), s 6.26(6), s 6.41(1)(a), s 6.44, s 6.76, s 6.76(1),(a)(ii), s 6.76(3), s 6.76(5), s 6.77, s 6.78, s 6.79(1), s 6.79B,
Rates and Charges (Rebates and Deferments) Act 1992 (WA)
State Administrative Tribunal Act 2004 (WA), s 60(2)
Statute of Elizabeth 43 Eliz I c 4 (Charitable Uses Act 1601)
Strata Titles Act 1985 (WA), s 33
Result:
The application is dismissed
Category: B
Representation:
Counsel:
| First Applicant | : | N/A |
| Second Applicant | : | N/A |
| Respondent | : | Mr Matthew Reid |
Solicitors:
| First Applicant | : | N/A |
| Second Applicant | : | N/A |
| Respondent | : | Jackson McDonald |
Case(s) referred to in decision(s):
Australian Flying Corps & Royal Australian Air Force Association (WA Division) Inc and City of Mandurah [2015] WASAT 47
City of Hawthorn v Victorian Welfare Association [1970] VR 205
City of Mandurah v Australian Flying Corps & Royal Australian Air Force Association (WA Division) Inc [2016] WASCA 185
Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531
Murchison Regional Aboriginal Corporation and Shire of Yalgoo [2018] WASAT 17
Retirees WA Inc and City of Belmont [2010] WASAT 56
Retirees WA Inc and City of Belmont [2012] WASAT 190
South Sydney District Rugby League Football Club Ltd v News Ltd & Ors [2000] FCA 1541; (2000) 177 ALR 611
Trustees of Church Property of the Diocese of Newcastle v Lake Macquarie Shire Council [1975] 1 NSW LR 521
Uniting Church Homes and City of Stirling [2005] WASAT 191
West Australian Baptist Hospital & Homes Trust Inc of South Perth [1978] WAR 65
REASONS FOR DECISION OF THE TRIBUNAL
Background
This matter concerns rates levied by the City of Joondalup (City or respondent) for the year ended 30 June 2017 on 64 strata lots located at 186 Twickenham Drive, Kingsley (strata scheme) known as the Kingsley Retirement Village (retirement village). The retirement village is self-managed by a committee (or a village council) elected from the strata lot owners.
The retirement village was developed by Westside Retirement Communities Pty Ltd as trustee for the Westside Retirement Communities Number 1 Unit Trust (Westside) in about 1984. Westside has an ongoing income through the refurbishment and the subsequent sale of villas in the retirement village. Further, Westside distributes the net income of the unit trust equally to Investment & Commercial Properties Pty Ltd and Surrol Nominees Pty Ltd, the two unit holders, per the terms of the unit trust deed.
The strata scheme was created by the registration of Strata Plan 12484 (Lots 1 to 34) on 29 January 1985 and the registration of Strata Plan 12951 (Lots 1 to 30) on 26 August 1985 under the Strata Titles Act 1985 (WA) (ST Act).
Apart from Lot 34 on Strata Plan 12484 (Lot 34 or village centre), each strata lot comprises a villa used as a private residence. The applicants[1] describe the villas as follows (paragraph 15 of the applicants' Statement of Issues Facts and Contentions):
Each villa has two bedrooms, lounge room, dining room, kitchen, laundry. Some villas have a lock up garage or a carport or a car bay located in close proximity to the villa. Each villa has an emergency call system that can be activated for medical emergencies.
[1] The application to the Tribunal listed the applicant as 'The Kingsley Retirement Village Owners of Strata Plans 12484 and 12951'. The Tribunal accepts there were two applicants, 'The Owners of The Kingsley Retirement Village Strata Plan 12484' and 'The Owners of The Kingsley Retirement Village Strata Plan 12951'. This is explained later in these reasons. Consequently, throughout these reasons, the Tribunal refers to the applicants (rather than applicant).
Lot 34 is owned by Westside. Westside makes available Lot 34 as a 'village centre' for use by residents of the retirement village. According to the applicants (at paragraph 20 of the applicants' Statement of Issues Facts and Contentions) the village centre:
[P]rovides amenities … and contains a large lounge room, kitchen, library, hairdresser, office, billiards, bingo, carpet bowls, an adjoining croquet court and BBQ facilities.
Further, the village centre is available for hire by independent contractors (e.g. hairdresser, podiatrist and doctor) who charge a fee for their services at market rates.
A separate entity, 'Kingsley Retirement Village', is registered with Australian Business Number (ABN 28 262 575 944) (separate entity). That separate entity's income includes strata fees, room rental, income from fund raising events and a sinking fund. The separate entity does not own any of the 64 strata lots. Although not well described by the applicants in its documents, the separate entity comprises the two strata companies, that is, The Owners of The Kingsley Retirement Village Strata Plan 12484 (strata company#1) and The Owners of The Kingsley Retirement Village Strata Plan 12951 (strata company#2). Together, strata company#1 and strata company#2 are the applicants. Finally, by way of private ruling, on 14 January 2015, the Australian Taxation Office ruled that the separate entity (that is, the two strata companies) is exempt from income tax on its ordinary and statutory income from 1 July 2014 to 30 June 2020 inclusive.
Decision under review
The 'Kingsley Retirement Village Owners of Strata Plans 12484 and 12951' (applicants) stated that it made several requests to the City seeking an exemption from the payment of rates under s 6.26(2) of the Local Government Act 1995 (WA) (LG Act) on the basis that the retirement village is used for charitable purposes, specifically for the relief of the aged. The most recent objection lodged by the applicants was for the year ended 30 June 2017 (relevant rating year).
On 4 July 2017 the respondent disallowed the applicants' objection under s 6.76(1)(a)(ii) of the LG Act and it is that decision which is the subject of the review in this proceeding.
The proceeding in the Tribunal
By orders of the Tribunal on 18 August 2017 and 6 October 2017, the parties filed their respective Statement of Issues Facts and Contentions and documents on which they rely in this proceeding.
Following a further directions hearing on 14 November 2017, the applicants and Westside filed with the Tribunal and provided a copy to the respondent various documents and materials relevant to determining what the 64 strata lots were used for during the relevant rating year. Finally, at that directions hearing, the Tribunal made an order that the matter would be determined by the Tribunal entirely on the documents filed by the parties (s 60(2) of the State Administrative Tribunal Act 2004 (WA)). Final documents were received on 30 January 2018 and the Tribunal reserved its decision on 1 February 2018.
The issues
Both parties identified one issue for determination by the Tribunal in this review as follows:
(a)Was each of the 64 strata lots of land within strata plan 12484 and strata plan 12951 used exclusively for charitable purposes for the relevant rating year and, therefore, not rateable land, under s 6.26(2)(g) of the LA Act?
The application lists 'Kingsley Retirement Village Owners of Strata Plans 12484 and 12951' as the applicants in these proceedings. This raises the following further issue:
(b)Does the applicant have standing to seek review of the respondent's decision to disallow the applicant's objection to the rate record?
The relevant statutory provisions
In these reasons, in order to avoid unnecessary repetition, all legislative references are to the LG Act unless expressly stated otherwise.
The provisions that govern the imposition of rates and service charges are set out in Pt 6, Div 6.
All land within a district is rateable land except as provided for in s 6.26. However, 'land used exclusively for charitable purposes' is not rateable and in this regard, s 6.26(6) provides that land does not cease to be used for a charitable purpose merely because it is used occasionally for another purpose which is of a charitable, benevolent, religious or public nature.
Local governments are required to give the owners of rateable land notice stating the date the rate notice was issued and incorporating or accompanied by the details and particulars prescribed: s 6.41(1)(a). Liability for rates imposed on rateable land by a local government falls on the owner for the time being of the land: s 6.44. A person named in the rate record as the owner of the land or the agent or attorney of that person may object to the rate record on the ground that there is an error in the rate record on the basis that the land or part of the land is not rateable: s 6.76(1)(a)(ii) and s 6.76(3). The local government is to promptly consider any objection and may either disallow it or allow it, wholly or in part: s 6.76(5).
Any person who is dissatisfied with the decision of a local government on an objection by that person under s 6.76 may, within 42 days (or such further period as the Tribunal, for reasonable cause shown by the person, allows) after service of notice of the decision, apply to the Tribunal for a review of the decision: s 6.77.
Upon a review by the Tribunal under s 6.77 or s 6.78, the Tribunal may consider grounds in addition to those stated in the notice of objection and reasons in addition to any reasons previously given for the local government's decision that is under review: s 6.79(1).
If the Tribunal considers that an order it makes determining a matter coming before it on a reference under s 6.77 or s 6.78 is of general interest or significance, it is to prepare written reasons for its order and give a copy of the reasons to each party and publish the written reasons: s 6.79B.
The applicants' position
The applicants are self-represented. The issue of whether the applicants have standing to seek a review was not contested by the respondent. However, for completeness, the Tribunal will consider it at the end of these reasons.
The applicant's position in regards to the first issue may be summarised as follows:
•Westside's only object is the provision of accommodation and amenities for the aged. This is a charitable activity: West Australian Baptist Hospital & Homes Trust Inc of South Perth [1978] WAR 65 (Baptist Homes), City of Hawthorn v Victorian Welfare Association [1970] VR 205 (Victorian Welfare Association), Trustees of Church Property of the Diocese of Newcastle v Lake Macquarie Shire Council [1975] 1 NSW LR 521 (Trustees of Church Property);
•Westside receives income from various activities including re-sale of villas in the retirement village and bank interest. Such profitable activities are not incompatible with having a charitable status or that the retirement village is used for the primary purpose of relief of the aged: Uniting Church Homes and City of Stirling [2005] WASAT 191 (Uniting Church);
•Westside's charitable purpose does not cease to be charitable merely because the benefits or services are received on a contractual basis: City of Mandurah v Australian Flying Corps & Royal Australian Air Force Association (WA Division) Inc [2016] WASCA 185 (RAAFA);
•Westside is the owner of Lot 34 which it provides for use by all residents of the retirement village and is therefore providing relief for the aged. Further, Lot 34 is available for use by outside organisations, such as St John's Ambulance, and therefore provides a benefit to the public;
•A housing scheme for the aged that charges an economic consideration for its services does not cease to be charitable: Joseph Rowntree Memorial Trust Housing Association v Attorney General [1983] 1 ALL ER 288 (Joseph Rowntree); and
•The residents of the retirement village do not receive the same services as the other ratepayers but pay similar rates. The retirement village is rated as 'commercial' yet it pays for its own rubbish removal but it is not entitled to services such as bulk rubbish collection. The respondent does not:
(a)maintain, repair or replace internal roads (approximately 1 to 2 kilometres) costing $1,200 per annum. Further, bituminising the internal roads and driveways will cost approximately $100,000;
(b)maintain or repair the road kerbs;
(c)provide internal road drainage nor maintain or service drainage sumps costing about $1,000 per annum;
(d)provide a weekly rubbish service or bulk rubbish verge collection costing about $10,000 per annum;
(e)provide or maintain internal street or path lights, costing about $500 per annum; and
(f)contribute the power costs for the internal street lighting costing about $2,000 per annum.
The respondent's position
The applicant's contention that aged persons are generally recognised as vulnerable members of society and that relieving those persons from the burdens and disadvantages associated with the aging process can be a charitable purpose is accepted by the respondent. However, the respondent's position, in regards to the first issue may be summarised as follows:
•The strata lots (apart from Lot 34) which are occupied as private residences are not used exclusively for charitable purposes for the purposes of the LG Act;
•At no time during the relevant rating year did an owner of a strata lot provide relief to aged persons from the burdens and disadvantages associated with the aging process by making their strata lot available for the provision of accommodation or other services to aged persons in the community;
•Lot 34 is owned and provided by Westside for use by the residents of the retirement village. However, Westside is not a notforprofit organisation nor is it a public benevolent institution or a licenced charitable organisation, nor is it endorsed by the Australian Taxation Office as a deductible gift recipient or as an income tax exempt body;
•It is unclear what the relevance of by-law 17, a 'notforprofit clause' is;
•Residents who own strata lots in the retirement village are not rated as 'commercial' as evidenced by the rates notices;
•Rates are not charged for specific services provided to individual strata lots within the boundaries of the retirement village. Rather, rates are a levy imposed on rateable land and revenue raised from the levy is applied to provide services to the City as a whole which includes to the owners of the strata lots in the retirement village. The payment of rates is not for the purpose of waste collection as residential properties within the City are charged with a separate refuse service charge ($346 per annum for the relevant rating year) which is for the collection of refuse and recycling bins, bulk and green waste collections and provision of tip passes. None of the 64 strata lots were charged a refuse service charge in the relevant rating year and as such were not provided with that service; and
•The 'internal roads', 'internal road drainage', 'internal road kerbs', 'internal street lights' and 'internal drainage sumps' are all within the boundaries of the retirement village and are therefore privately owned. Maintenance is not provided by the City for infrastructure within properties that are privately owned.
Consideration by the Tribunal
Was the land used exclusively for charitable purposes?
The issue is, simply, whether any of the 64 strata lots are exempt from rates for the relevant rating year on the basis that the strata lots were used exclusively for a charitable purpose.
The issue of exemption from rates on the basis the land was used exclusively for charitable purposes has been most recently considered in the following cases:
•Uniting Church;
•Retirees WA Inc and City of Belmont [2010] WASAT 56 (Retirees WA #1);
•Retirees WA Inc and City of Belmont [2012] WASAT 190 (Retirees WA #2);
•RAAFA; and
•Murchison Regional Aboriginal Corporation and Shire of Yalgoo [2018] WASAT 17 (MRAC).
The phrase 'charitable purpose' is not defined in the LG Act. However, in RetireesWA#1 at [76] Pritchard J explained that it is well accepted that the meaning of the word 'charitable' when used in a statute should be understood in its technical legal sense, namely by reference to the spirit and intendment of the preamble to the Statute of Elizabeth 43 Eliz I c 4 (Charitable Uses Act 1601) or the categories of charity set out in Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC 531.
As noted earlier, it is not disputed by the parties that relief of the aged is a charitable purpose. This is supported by the three cases, Baptist Homes, Victorian Welfare Association and Trustees of Church Property referred to by the applicant.
In each of the cases, Uniting Church, Retirees WA#1, Retirees WA#2 and RAAFA, the relevant organisation, a not-for-profit with charitable objects, owned land on which it operated a retirement village where it provided accommodation and other services to aged persons within the community. Any income received by the relevant organisation from the operation of the retirement village, such as from leasing the accommodation was retained by the organisation and applied to the promotion of its charitable objects, being for the relief of the aged.
Similarly, in MRAC, an organisation with charitable objects (in that case to provide safe, secure and affordable housing to Aboriginal and Torres Strait Islander people in the Mid-West and Gascoyne regions of Western Australia) owned seven properties in the Shire of Yalgoo and made those properties available to Aboriginal people on a cost-recovery basis, that is without the intention of making a profit and if any profit was made it was merely incidental.
In each of the above cases, the relevant organisation was levied rates by the local government authority. However, each of those organisations was able to obtain a rate exemption pursuant to s 6.26(2)(g) on the basis that the organisation was using the land exclusively for charitable purposes, for example, for relief of the aged.
In this case there is no organisation/entity with charitable objects that:
(a)owns the land (on which the retirement village is situated);
(b)manages and operates the retirement village; and
(c)has been levied with rates.
Rather, in this case, the retirement village is made up of 64 separately owned strata lots that are self-managed by a committee, or village council, from the strata lot owners.
Therefore, in the Tribunal's view, each of the 64 strata lots, that is, the 34 strata lots in strata plan 12484 and the 30 strata lots in strata plan 12951, is 'rateable land' for the purposes of the LG Act and therefore it is each strata lot owner, or their agent or attorney, who is to seek a rates exemption for the relevant rating year.
Consequently, for each of the 64 strata lots to fall within the s 6.26(g) exemption, the exclusive use of the strata lots must be for a charitable purpose.
To determine how land is being used, it is necessary to look objectively at the actual use of the land during the relevant rating year. This requires a consideration of the use of the land by the occupants during the relevant rating year as well as the circumstances surrounding the use of the land: Retirees WA#1 at [20]. Or, in the words of Buss P in RAAFA at [51]:
It is the use to which … property is put, as distinct from the source of the … property … that must be evaluated in determining whether there is a charitable purpose[.]
In Australian Flying Corps & Royal Australian Air Force Association (WA Division) Inc and City of Mandurah [2015] WASAT 47, the Tribunal, following Retirees WA#1 at [100] and Uniting Church at [112] identified factors to have regard to when considering what the land is being used for at [61] [62]:
[W]hen considering what the Land is being used for, the Tribunal should have regard to a range of factors, including the facilities provided on the Land, the benefits flowing to aged persons by reason of residency in the kind of accommodation provided, including the ILUs, and other factors relevant to the purpose for which the Land was used, including RAAF's objectives, the charitable nature of RAAFA and the not-for-profit basis on which Erskine Grove is operated as disclosed by RAAFA's constating instruments in particular.
Those factors will then 'inform an overall judgement that needs to be made … whether the subject land… is being used for the purpose of the relief of an aged person'.(citations omitted)
The above factors were not contested on appeal in RAAFA.
Finally, most recently in in MRAC at [11] [13] the Tribunal restated what is meant by 'land used exclusively for charitable purposes'.
The applicant referred to Joseph Rowntree to assert that charging economic consideration for charitable services would not prevent the organisation from being charitable. The Tribunal accepts that an organisation may be charitable, however, as explained above, what is critical is whether the land on which the villas and village centre were erected was, during the relevant rating year, used exclusively for the charitable purpose of relief of the aged. This was explained by the Tribunal recently in MRAC at [71]:
The question is not whether the owner of the land is a charitable institution, or whether the land is being used for the purposes of that charitable institution. Rather, s 6.26(2)(g) of the LG Act requires consideration of whether the 'land [is] used exclusively for [a] charitable purpos[e]'.
However, that is not to say that providing accommodation and other services for aged persons in the community and thereby providing relief from the burdens and disadvantages associated with the aging process will, in all circumstances, constitute a charitable purpose. The Tribunal in MRAC made this clear at [74] by stating:
We do not accept the Shire's submission that, if MRAC's objection is allowed in this case, it 'would permit any landlord in the investments property market to claim a rates exemption on the mere basis that the landlord asserted their tenants to be Aboriginal'. If, for example, a person or organisation sought to offer housing of a particularly high standard with a view to charging premium rents and running a profitmaking business, then whether or not that housing was offered exclusively to Aboriginal and Torres Strait Islander people, the use of that land for that purpose could not properly be characterised as 'charitable' for the purposes of s 6.26(2)(g) of the LG Act.
In this case, the owners of the strata lots, apart from Lot 34 which the Tribunal will return to, did not make his/her/their strata lot available to provide accommodation or other services for aged persons in the community. Rather, the Tribunal finds that the strata lot owners, being persons aged 60 or older, used their villas for their own private purposes, that is, they occupied the villa on their respective strata lot as a private residence for their own accommodation needs. Providing a villa for one's own personal accommodation is not used 'exclusively for a charitable purpose'. This is supported by the 'Residence Rules' which prohibit the owner from using his/her/their villa for any purpose other than for the purposes of a private residence. Rule 2 of the Residence Rules relevantly provides as follows:[2]
Except with the consent in writing of the Village Council, no unit may be used or permitted to be used for any purpose other than for purposes of private residence.
[2] The Residence Rules is a set of rules attached to each contract for the sale and purchase of villa in the retirement village.
The Tribunal therefore concludes that during the relevant rating period none of the strata lot owners used his/her/their lot for a charitable purpose, that is, for the relief of the aged and for the benefit of the community or an appreciably important class of the community.
Lot 34
The Tribunal then turned to consider Lot 34, which is owned by Westside.
According to the 'Information statement of prospective residents' (undated but attached to the contract for sale and purchase of a villa in the retirement village dated 16 May 2015), provided by the applicant and Westside to the Tribunal, the village centre is made available pursuant to a management agreement to all the residents of the retirement village.
Further, the information statement provides that some activities are available for no charge (for example billiards, indoor bowls and darts) but other activities may be organised and charged for on a user pays basis.
Finally, the information statement provides that the village centre is available for use by independent operators (such as a hairdresser and podiatrist) who charge a fee for their services at market rates. The independent operators pay rent for use of a room(s) in the village centre.
On the basis that the village centre is provided to the residents of the retirement village, the applicant contends that it is providing relief for the aged and therefore the exemption from paying rates should apply for Westside as the owner of Lot 34.
The objects of Westside, according its Memorandum of Association as provided by the applicant, are much wider than 'the provision of accommodation and amenities for the aged' as stated by the applicant. Thirty one objects are set out in Westside's Memorandum of Association including numerous commercial objects such as 2(f) which enables Westside:
[T]o sell lease let or otherwise dispose of the lands houses building and other property of the Company.
It is clear from the six executed contracts for the sale and purchase of villas in the retirement village, provided to the Tribunal by Westside and the applicant, that Westside is involved in selling the villas as contemplated by object 2(f) set out above. The refurbishment and consequent re-sale of villas is a very profitable activity for Westside as evidenced by the profit and loss statement for the three years ended 30 June 2017 where gross profit from the refurbishment and consequent re-sale of villas was $312,880, $592,868 and $74,718 respectively.
Clauses 22 to 24 of the trust deed of the unit trust provides that Westside as trustee is to apply or set aside the net income of the unit trust for the benefit of the unit holders in proportion to the number of units held. The unit holders are Investment & Commercial Properties Pty Ltd and Surrol Nominees Pty Ltd. This means 50% of the net income of the unit trust is to be applied or set aside for the benefit of each unit holder.
Besides income from the refurbishment of villas in the retirement village and their subsequent re-sale, Westside receives income in the form of bank interest. For the year ended 30 June 2017 bank interest totalled $11,958.
The Tribunal does not accept the applicant's contention that in providing the village centre for use by the residents of the retirement village, that Westside is promoting objects charitable in nature and therefore should be exempted from paying rates for Lot 34. This is because, as noted above, Westside generates significant net profits from its activities within the retirement village, that is, from the refurbishment and the subsequent re-sale of villas in the retirement village as well as from bank interest where those net profits/income are not retained by Westside for the benefit of the strata lot owners in the retirement village or to promote charitable objects but rather are distributed to the two unit holders, of which there is no evidence that either or both of the unit holders have objects charitable in nature.
The Tribunal concludes that for the relevant rating year, Westside's activities comprised significant profitmaking activities and the making available of the village centre was a very minor aspect of its overall activities which were carried on for significant commercial gain or profit.
Because of the above, the Tribunal cannot be satisfied that Lot 34 was used exclusively for a charitable purpose(s) and therefore the exemption sought by Westside under s 6.26(2)(g) is not available.
The Tribunal concludes that the exemption sought under s 6.26(2)(g) is not available for any of the 64 strata lot owners for the relevant rating year.
Other concerns raised by the applicant
Finally, the Tribunal considered the other concerns raised by the applicant. First, the applicant asserted that the retirement village is rated 'commercial'. The Tribunal finds this assertion is misconceived because for the relevant rating year each of the 64 strata lots was rated by the respondent pursuant to the general rate of 'residential improved' as shown on the rate notices. The general annual rate for the relevant rating year for the City was $849. In addition, an emergency services levy for $168.03, $184.50, $187.80 or $204.27 was charged for that year. No refuse service charge was charged to the strata lots for that year.
Further, a rebate (which reduced the rates payable) of either $508.52, $516.75, $518.40 or $530.49 under the Rates and Charges (Rebates and Deferments) Act 1992 (WA) was applied by the City to 51 of the 64 strata lot owners in respect of the rate and the emergency services levy for that year.
Finally, for Lot 34, the rates notice for the relevant rating year showed rates payable of $849 (the general rate) plus an emergency services levy of $71. No refuse service charge was charged.
Turning to applicant's concern regarding the maintenance of roads and other facilities within the retirement village, the Tribunal concludes that it is sufficient to refer to the last two points of the respondent's position where it is correctly stated, in the Tribunal's view, that it is not the responsibility of the respondent to maintain private property in a retirement village.
Finally, the Tribunal notes that the strata companies’ bylaw 17, a 'notfor-profit’ clause, is not relevant in this case as the strata companies are not the 'owners' of land for the purposes of s 6.76.
Standing to seek review
It is not necessary to consider this issue as the Tribunal concluded that none of the 64 strata lots are exempt from rates during the relevant rating year as the strata lots were not used exclusively for charitable purposes.
The respondent did not dispute that the two strata companies are acting as applicants for the strata lot owners in regards to the objection lodged with it and in regards to the proceedings before the Tribunal.
However, for completeness, the Tribunal considered whether the applicant, 'The Kingsley Retirement Village Strata Plan 12951 & 12484 (ABN 28 262 575 944)', as listed in the applicant's application to the Tribunal of 26 July 2017, has standing to seek review of the respondent's decision of 4 July 2017 to disallow the applicant's objection.
As set out earlier, s 6.77 confers a right to the Tribunal upon '[a]ny person who is dissatisfied with the decision of a local government on an objection by that person under s 6.76'. Also, as stated earlier, s 6.76(3) provides that an objection under s 6.76 'may be made by the by the person named in the rate record as the owner of land or by the agent or attorney of that person'.
The rate notices provided by the respondent for the relevant rating year are addressed to the relevant strata lot owner.
The respondent in its decision of 4 July 2017 wrote to Mr Errol Marron care of Westside. The letter is headed 'Kingsley Retirement Village Rates Exemption'.
As noted earlier, the separate entity, the Kingsley Retirement Village, comprises the two strata companies. In the Tribunal's view, the separate entity (comprised of the two strata companies) does not have standing to object to the decision of the respondent or to bring an application before the Tribunal unless there is a relationship of principal and agent ('agent' for the purposes of s 6.76) between the relevant strata company and the strata lot owners.
The principles in relation to whether an agency relationship exists between parties was summarised by Finn J in South Sydney District Rugby League Football Club Ltd v News Ltd & Ors [2000] FCA 1541; (2000) 177 ALR 611 at [131] [137]. His Honour stated at [136]:
[A]gency involves a fiduciary relationship between two persons, one of whom expressly or impliedly consents that the other should act, subject to its control or direction, on its behalf, so as to effect its relations with third parties, and the other of who similarly consents so to act or acts.
Each of the 64 strata lot owners provided a 'consent to act' form to the Tribunal whereby the owner consented to the relevant strata company to act on his/her/their behalf in relation to seeking an exemption from the payment of rates from the City and in these proceedings before the Tribunal.
The Tribunal is prepared, in this case, to accept that the strata companies are acting as 'agent' for each of the 64 strata lot owners in regards to the objection lodged with the City and in regards to this proceeding. Further, the Tribunal accepts, per s 33 of the ST Act, that the two strata companies are acting as the 'representative' of the proprietors (that is, the strata lot owners).
This means that the name of the applicants in this proceeding is to be amended to correctly reflect the legal name of the strata companies as follows:
•The Owners of The Kingsley Retirement Village Strata Plan 12484 (first applicant); and
•The Owners of The Kingsley Retirement Village Strata Plan 12951 (second applicant).
Conclusion of the Tribunal
The Tribunal concludes that for the relevant rating year, none of the 64 strata lots in the retirement village were not used exclusively for charitable purposes. Accordingly all 64 strata lots were rateable. Therefore, the applicants' application for review is unsuccessful and is dismissed.
Orders
The Tribunal makes the following orders:
1.The name of the applicant is amended to read, 'The Owners of The Kingsley Retirement Village Strata Plan 12484' (first applicant) and 'The Owners of The Kingsley Retirement Village Strata Plan 12951' (second applicant).
2.The application for review is dismissed.
3.The decision of the respondent dated 4 July 2017 to disallow the objection made by the applicants to the rate record for the year ended 30 June 2017 in respect of each of the 64 strata lots in the Kingsley Retirement Village located at 186 Twickenham Drive, Kingsley, is affirmed.
4.There is no order as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
R PETRUCCI
12 APRIL 2018
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