TRECAP PTY LTD and CITY OF SWAN - [2006] WASAT 142

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: LOCAL GOVERNMENT ACT 1995 (WA)

CITATION: TRECAP PTY LTD and CITY OF SWAN [2006] WASAT 142

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: 22 AND 23 MAY 2006

DELIVERED : 1 JUNE 2006

FILE NO/S: DR 666 of 2005

BETWEEN: TRECAP PTY LTD
Applicant
AND
CITY OF SWAN
Respondent

Catchwords:

Local government – Rating – Whether there is an error in the rate record with respect to the identity of the owner – Whether registered proprietor of leased land is the "owner" – Real property – Whether "in possession" bears technical or popular meaning – Whether "in possession" refers to actual possession – Differential general rate – Whether characteristics of the land recorded in the rate record are correct – Whether the predominant purpose for which the land is used is a "transport depot" – Whether definition of "Transport Depot" in local planning scheme applies in characterisation of the use for rating purposes – Words and phrases: "freight terminal", "in possession", "transport depot"

Legislation:

City of Swan Town Planning Scheme No 9, cl 1.13(a), Sch 1
Interpretation Act 1984 (WA), s 18
Land Tax Assessment Act 1910 (Cth), s 3

Local Government Act 1995 (WA), s 1.3(1)(d), s 1.3(2)(d), s 1.4, s 6.26(1), s 6.32, s 6.32(1), s 6.32(1)(a), s 6.33(1), s 6.33(1)(a), s 6.33(1)(b), s 6.34, s 6.36, s 6.38, s 6.39(1), s 6.44(1), s 6.76(1), s 6.76(1)(a), s 6.76(1)(b), s 6.76(5), s 6.77

Result:

Application for review dismissed
Decision of respondent affirmed

Category: B

Representation:

Counsel:

Applicant: Ms LE Rowley
Respondent: Mr DW McLeod

Solicitors:

Applicant: Deacons
Respondent: McLeods

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

Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297
CPT Custodian Pty Ltd (previously t/a Sandhurst Nominees (Vic) Ltd) v Commissioner of State Revenue (2005) 221 ALR 196
Glenn v Federal Commissioner of Land Tax (1915) 20 CLR 490
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404

Case(s) also cited:

Happ v Shire of Busselton (2002) 31 SR (WA) 53
Kerkvliet v Shire of Swan (Unreported, SCWA, Parker J, Appeal SJA 1074 of 1997, 21 November 1997)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of the Tribunal's decision

A local government imposed differential general rates in relation to land on the basis that the predominant purpose for which the land was used was a "transport depot". The registered proprietor of the land objected to the rate record on the grounds that:
(i)it was not the "owner" of the land under the applicable legislation; and
(ii)the predominant purpose for which the land was used was not a transport depot, but rather a freight terminal or a warehouse at which value was added to goods.
The Tribunal determined that the registered proprietor was the "owner". The words "in possession", when used on two occasions in the definition of "owner", bear a technical, legal meaning, rather than a popular meaning of "actual possession". The registered proprietor was a person "in possession as the holder of an estate of freehold in possession in the land", and, therefore, the "owner", although a sublessee was in actual possession of the land.
The Tribunal also determined that the predominant purpose for which the land was used was correctly described in the rate record as "transport depot". These words bear their natural and ordinary meaning, namely a place where goods are deposited or stored for safekeeping as part of a system of conveying freight, or a place where vehicles used to convey passengers or freight are kept when not in service. The predominant purpose for which the land was used was a "transport depot" in the first sense, although part of the land was also used in the second sense.
Although it would have been open to the local government to impose rates on the basis of the definition of the term "Transport Depot" in its local planning scheme, it did not, on the evidence, do so. While another term or terms might also have accurately described the predominant purpose for which the land was used, the predominant purpose as described in the rate record was correct.
The application for review was dismissed and the decision of the local government was affirmed.

Introduction

Trecap Pty Ltd (Trecap) is the registered proprietor of 24 allotments which have an approximate total area of 4.5 hectares and which comprise all but one of the allotments on the street block bound by Great Eastern Highway, Kalamunda Road, Highman Street and Kidman Avenue, South Guildford (Trecap land). By a rate notice issued on 1 August 2005, the City of Swan (City) required Trecap to pay general rates, drainage levy and fire services levy, for the 2005/2006 financial year, in relation to 19 of the 24 allotments which comprise the Trecap land, namely Lots 119, 120, 121, 122, 124, 126, 127, 128, 129, 130, 131, 132, 156, 157, 158, 159 and 161 on plan 2707 and Lots 1 and 2 on diagram 12945 (rated land). The rate notice states that the general rates are determined at a rate of 17.62 cents in the dollar of the gross rental value of the rated land. This rate is a differential general rate which the City has imposed on the basis that the predominant purpose for which the rated land is used is a "transport depot". If the predominant purpose for which the rated land is used is not a "transport depot", the applicable rate in the dollar of the gross rental value of the rated land is 9.25 cents, which is the rate in the dollar for "industrial" property.
Section 6.26(1) of the Local Government Act 1995 (WA) (LG Act) provides that, subject to presently irrelevant exceptions, "all land within a district is rateable land". Section 6.32(1)(a) provides that, when adopting the annual budget, a local government "in order to make up the budget deficiency, is to impose a general rate on rateable land within its district, which rate may be imposed either (i) uniformly; or (ii) differentially". Section 6.33(1) provides as follows:
"A local government may impose differential general rates according to any, or a combination, of the following characteristics
(a)the purpose for which the land is zoned under a local planning scheme in force under the Planning and Development Act 2005;
(b)the predominant purpose for which the land is held or used as determined by the local government;
(c)whether or not the land is vacant land; or
(d)any other characteristic or combination of characteristics prescribed."
On 4 May 2005, the City adopted its rating strategy for the 2005/2006 financial year and resolved to give public notice, in accordance with s 6.36 of the LG Act, of its intention to impose differential general rates. The adopted rating strategy includes the following:
"Differential rates are introduced for brickworks, depots, concrete and asphalt plants and noxious industries, all of which tend to lower the value of neighbouring properties and also place extra demands on the resources of the City compared to other industries. The differential rate in the dollar is set at 17.62 cents."
The report which recommended the adoption of the rating strategy and the giving of public notice, and the appendix to the report entitled "Objectives and reasons for adopting differential rates", each include the following statement:
"A differential rate is proposed to be levied on brickworks, concrete and asphalt [plants] and transport depots. The new rate recognises the impact of heavy road transport movements on the values of surrounding areas, the lack of rating potential from the land and also the damage caused to the local road network by the heavy vehicles involved."
At a special meeting held on 30 June 2005, the City adopted a budget for the 2005/2006 financial year, including rates on all rateable land in its district. In particular, the City adopted differential general rates expressed as a rate in the dollar of the gross rental value of rateable land in relation to seven categories of land under the heading "Rate Zone Group". The categories include "Brickworks, Concrete & Asphalt Plants and Depots", at a rate of 17.62 cents in the dollar, and "Industrial", at a rate of 9.25 cents in the dollar.
Section 6.39(1) of the LG Act provides that, "[a]s soon as practicable after a local government has resolved to impose rates in a financial year it is to ensure that a record is compiled … of … all rateable land in its district … ". Although the City's formal rate record in respect of the rated land is not in evidence, it is common ground that the rate record identifies Trecap as "the owner" of the rated land, and that the characteristics of the rated land recorded in the record as the basis for imposing the differential general rate for the 2005/2006 financial year are that the predominant purpose for which the land is used as at 1 July 2005 is a "transport depot".
Trecap objected, pursuant to s 6.76(1) of the LG Act, to the City's rate record in respect of the rated land. Pursuant to s 6.76(5), the City wholly disallowed the objection. Pursuant to s 6.77, Trecap, being dissatisfied with the decision of the City on the objection, applied to the Tribunal for a review of the City's decision.
In these proceedings, Trecap objects to the rate record in respect of the rated land on the following two grounds:
1.Pursuant to s 6.76(1)(a), "that there is an error in the rate record … with respect to the identity of the owner … of [the rated] land"; and
2.Pursuant to s 6.76(1)(b), "that the characteristics of the land recorded in the rate record as the basis for imposing [the differential general] rate should be deleted and other characteristics substituted".
The Tribunal will address each of these grounds in turn.

Is there an error in the rate record with respect to the identity of the owner?

Section 6.44(1) of the LG Act provides that "[t]he owner for the time being of land on which a rate or service charge has been imposed is liable to pay the rate or service charge to the local government". Section 1.4 provides that, in the Act, unless the contrary intention appears,
"'Owner', where used in relation to land
(a)means a person who is in possession as
(i)the holder of an estate of freehold in possession in the land, including an estate or interest under a contract or an arrangement with the Crown or a person, by virtue of which contract or arrangement the land is held or occupied with a right to acquire by purchase or otherwise the fee simple;
(ii)a Crown lessee or a lessee or tenant under a lease or tenancy agreement of the land which in the hands of the lessor is not rateable land under this Act, but which in the hands of the lessee or tenant is by reason of the lease or tenancy rateable land under this or another Act for the purposes of this Act;
(iii)a mortgagee of the land; or
(iv)a trustee, executor, administrator, attorney, or agent of a holder, lessee, tenant, or mortgagee, mentioned in this paragraph; [or]
(b)where there is not a person in possession, means the person who is entitled to possession of the land in any of the capacities mentioned in paragraph (a), except that of mortgagee; … "
On 1 July 1994, Trecap leased the Trecap land to Key Transport Pty Ltd (Key Transport) for a term of 12 years. On 1 May 2000, and again on 1 May 2002, Key Transport subleased the Trecap land to Centurion Transport Co Pty Ltd (Centurion Transport). It appears that, as at both 1 July 2005 and currently, Centurion Transport is holding over as sublessee under the sublease.
Ms LE Rowley, counsel for Trecap, submits that the term "owner" is defined in s 1.4 "in terms which require either [Trecap] to be in possession (under a) or for the land to be vacant (under b) in order to be liable for payment of either the ordinary or differential rates". Ms Rowley submits that "factually neither of these circumstances apply". Consequently, Trecap is not "the owner" of the rated land and there is an error in the rate record with respect to the identity of the owner.
Ms Rowley does not contest that the effect of her submission, if correct, is that, while the rated land is rateable land, nobody is liable for the payment of rates imposed by the City in respect of it, nor would anyone be liable for the payment of rates imposed in respect of any private land which is leased out by the registered proprietor. Ms Rowley submits, however, that this is an inevitable consequence of the literal construction of the definition of "owner", and that there is no room for a purposive approach. She submits that "[t]here can be no conclusion other than the Act is defective and although it may have meant to do so, it fails to provide for the common international position (such as in the UK) where the liability to pay rates falls upon the occupier".
In Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297, Mason and Wilson JJ said, at 320, that:
"The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole."
In referring to the propriety of departing from the literal interpretation, Mason and Wilson JJ said, at 321:
"It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions."
In Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, McHugh JA held, at 423 and 424, as follows:
"A purposive and not a literal approach is the method of statutory construction which now prevails … In most cases the grammatical meaning of a provision will give effect to the purpose of the legislation. A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act. …
Once the object or purpose of the legislation is delineated, the duty of the court is to give effect to it insofar as, by addition or omission or clarification, the relevant provision is capable of achieving that purpose or object."
Similarly, s 18 of the Interpretation Act 1984 (WA) states that, in the interpretation of a provision of a written law, a purpose that would promote the purpose or object underlying the written law shall be preferred to a construction that would not promote that purpose or object.
The LG Act "provides for a system of local government by … providing a framework for the administration and financial management of local governments … ": LG Act s 1.3(1)(d). The Act "is intended to result in … more efficient and effective local government": LG Act s 1.3(2)(d). Consistently with these objectives, s 6.32(1) requires a local government to impose a general rate on rateable land in order to make up the budget deficiency in its annual budget. Section 6.34 provides that, unless the Minister otherwise approves, the amount shown in the annual budget as the amount it is estimated will be yielded by the general rate is not to be less than 90% of the amount of the budget deficiency.
It is apparent from these provisions that an important purpose or object of the LG Act is to facilitate the effective levying of rates by local government on rateable land in its district, so as to ensure the efficient and effective operation of local government.
In this context, it could not possibly have been the legislative intent to deny local government rates in respect of rateable land which is leased out by a registered proprietor other than the Crown. The evidence indicates that rate revenue is the single largest source of revenue for the City, constituting 63% of operating revenue for the 2005/2006 financial year. The Tribunal takes notice of the fact that rates are an important source of revenue of local government operating under the LG Act. The Tribunal also takes notice of the fact that a significant proportion of rateable land is leased out by registered proprietors.
It follows that, even if Ms Rowley's submission were correct on a literal interpretation of the LG Act, as it could not possibly accord with the legislative intent ascertained from the statute, the Tribunal would give effect to the purpose or object of facilitating the effective levying of rates by local government, "by addition or omission or clarification", to borrow McHugh JA's words from Kingston v Keprose. However, when properly understood, a literal interpretation of the statute arrives at the same result as a purposive interpretation.
The words "in possession", where they appear both in the introductory words to par (a) of the definition of "owner" and in subpar (i), bear their technical or legal meaning, not their popular meaning. The words "in possession" do not relevantly mean "in actual possession".
Glenn v Federal Commissioner of Land Tax (1915) 20 CLR 490 is a decision of the High Court of Australia which concerned the interpretation and application of the term "owner" in s 3 of the Land Tax Assessment Act 1910 (Cth), which included "every person who jointly or severally is entitled to the land or any estate of freehold in possession". At 496 and 498, Griffith CJ held as follows:
"The term 'estate in possession' is sometimes used in real property law merely to denote the first of two or more successive estates, the others being called 'estates in remainder' or 'estates in expectancy'. It is also used to denote an estate of which some person has the present right of enjoyment. …
The essential element of an 'estate in possession' is, in my opinion, that the owner of it has a present right of beneficial enjoyment, whether accompanied by physical possession of the land or not." (His Honour's discussion of the expression "estate in possession" was referred to with approval by the High Court of Australia in CPT Custodian Pty Ltd (previously t/a Sandhurst Nominees (Vic) Ltd) v Commissioner of State Revenue (2005) 221 ALR 196 at [25] [26]).
Similarly, Isaacs J held, at 500 and 501, as follows:
"The appellants contended that the words 'in possession' in the definition mean 'in actual possession', and are not used in contradistinction to 'in reversion or remainder'.
I consider that contention erroneous. The expression 'estate in possession' is a well-known technical expression of property law with a certain connotation, and there being no context to the contrary, it should receive its technical meaning. …
[T]he expression is contrasted with estates in expectancy, as in remainder or reversion. 'An estate in possession', says Preston (page 89), 'gives a present right of present enjoyment.' But, it is the right of present enjoyment, and not necessarily the right of actual possession of the land, for there may be a tenant for years, and still less the fact of actual possession, which is of the essence of the definition."
Where used in the expression "an estate of freehold in possession in the land" in subpar (i) of the definition of "owner", the words "in possession" both denote an estate of freehold which is not "in remainder" or "in reversion", and which gives a present right of enjoyment. The word "freehold" is used in contradistinction to "leasehold": see Professor Peter Butt, Land Law (Lawbook Company, 5th Edition, 2006) at [615]. Where the words "in possession" are used in the introductory words to par (a), they denote an estate of which some person has the present right of enjoyment. In neither place do the words "in possession" mean "in actual possession".
Contrary to Ms Rowley's submission, the reference in par (a)(iii) to "a person who is in possession as … a mortgagee of the land" does not require a different, literal, interpretation. The technical or legal meaning of the words "in possession" also applies in the context of a mortgagee "in possession". As Professor Butt explains, at [18102], it is sufficient for a mortgagee to be "in possession" that, "though out of physical possession, the mortgagee has collected the rents and profits in a way that effectively deprives the mortgagor of the control and management of the property".

The LG Act does not evidence a contrary intention to the words "in possession" bearing their technical or legal, rather than popular, meaning. To the contrary, if the words were to mean "actual possession", it would fundamentally undermine the purpose or object of the Act to facilitate the effective levying of rates so as to ensure the efficient and effective operation of local government.
Indeed, the LG Act recognises the distinction between being "in possession" and being in "actual occupation" of land. In addition to authorising the imposition of a general rate on rateable land, s 6.32 also authorises the imposition of a service charge on land. Section 6.38 authorises a local government to impose a service charge on "(a) owners; or (b) occupiers, of land within the district or a defined part of the district". The term "occupier" is defined in s 1.4, unless the contrary intention appears, to mean "where used in relation to land … the person by whom or on whose behalf the land is actually occupied … ".
It follows that there is no error in the rate record with respect to the identity of the owner of the land. The first ground of objection fails.

Should the characteristics of the land recorded in the rate record be deleted and other characteristics substituted?

On 6 August 1971, the then Shire of Swan (Shire) granted development approval for a "freight forwarding/warehouse/storage building" located centrally on the Trecap land. The plans of the building approved on 22 December 1971 as part of the building licence describe the building as "freight terminal for Bell Bros. Pty Ltd". On 26 August 1982, the Shire granted development approval for "extension to existing freight depot … to match existing". It appears that the principal building which stood on the Trecap land on 1 July 2005 and which remains was built in accordance with the 1971 and 1982 development approvals.
The sublease to Centurion Transport describes the Trecap land as:
"a road transport freight terminal facility, which comprises of:
(a)A two level office building of 538 square metres with an attached freight terminal containing a warehouse of 2594 square metres and a chiller and coolroom or 2913 square metres;
(b)A dock loading facility of 568 square metres; and
(c)A covered loading area of 503 square metres."
The rated land also includes a sealed manoeuvring, trailer parking and goods storage area on three sides of the principal building, as well as a freezer washout facility. The five allotments which form part of the Trecap land, but not the rated land, comprise staff parking and amenities and a maintenance facility. Although Mr Carlo Cardaci, a principal of Centurion Transport, gave evidence that the whole of the Trecap land is subleased and used by Centurion Transport as part of its transport business, it appears that the City was not aware until recently that the rated land is not the whole of the Trecap land. Although there does not appear to be any difference in the predominant use of the rated land and the remainder of the Trecap land, the remainder of the Trecap land is not within the scope of this review.
Mr Cardaci gave detailed evidence of the use of the rated land by Centurion Transport as at 1 July 2005 and currently. A number of photographs of the rated land in operation form part of the evidence. The Tribunal also had the benefit of a view of the rated land, including the principal building, accompanied by the parties' representatives.
Centurion Transport is a freight processing and transport company which principally serves the mining industry throughout Western Australia and Coles supermarkets from Geraldton to the north. Its head office is located on the Trecap land, which it refers to on its website as the South Guildford "depot". Centurion Transport also operates 21 other "depots" and one "yard" in regional locations in the State. The company owns and operates approximately 12, 14 metre long refrigerator trailers, approximately 100 taut liners (flat topped trailers covered with tarpaulin), and approximately 30 prime movers. Centurion Transport's prime movers operate from its regional depots, not the Trecap land, although they are regularly inspected and serviced on the part of the Trecap land which is not the rated land.
Centurion Transport has longterm contracts with a number of major mining companies. The mining companies have purchasing personnel located in the Centurion Transport office on the rated land. The mining company personnel order goods from suppliers, ranging from groceries to large items of mining equipment, which are delivered to the rated land, generally by or on behalf of the suppliers. On occasion, Centurion Transport's employees or subcontractors collect goods and transport them to the rated land. All goods delivered to the rated land are the subject of a purchase order made by one of Centurion Transport's clients and are owned by the client.
Large items, such as mining equipment and tyres, are unloaded in the open yard area on three sides of the principal building. Smaller items are unloaded in the dock area on the Kidman Avenue side of the principal building, which Mr Cardaci refers to as the "warehouse". In either case, Centurion Transport's employees open the packaging, check the items against the client's purchase order, advise the mining company purchasing officer on site if an item is incorrect, and if the items are correct, repackage them for delivery to mining sites or Coles supermarkets. According to Mr Cardaci, 90% of the time, goods received and processed at the rated land will be sent out directly to the client, and only 10% of the time will the goods be held up and stored at the site, because they are not yet required by the client. Mr Cardaci agreed that the vast majority of goods coming into the site are unloaded, checked, assembled, reloaded and despatched fairly quickly. He said that the majority of goods are brought into the site, checked, assembled and reloaded onto another vehicle for despatch, usually on the same day. Of Centurion Transport's 127 staff employed at the Trecap land, the largest number, namely 39, are employed in "central receipt", while 27 are employed in the "yard" and 13 in the "dock".
Goods despatched by Centurion Transport from the rated land are generally carried by road trains comprising two refrigerator trailers/taut liners pulled by prime movers which, although owned by subcontractors to Centurion Transport, are generally painted with Centurion Transport colours and logo. Refrigerator trailers and taut liners arrive at the rated land and, after being unloaded on the Kidman Avenue side of the principal building, are parked adjacent to the Kalamunda Road frontage in a designated parking area. It is common ground that the refrigerator trailers and taut liners, while not motorised, are vehicles which require registration under State road traffic legislation. The majority of vehicles come in and go out on the same day, but it is not unusual for trailers to be parked on the land overnight for loading and despatch the following day. Goods which are received into the principal building are loaded into trailers which are docked on the Kalamunda Road side of the building.
In his written evidence, Mr Cardaci said that "Centurion [Transport] essentially runs a valued [sic] added warehousing operation on the [rated land] and adjoining lots". In his oral evidence, Mr Cardaci characterised the use of the Trecap land as "transport, but a value added process, we do something to the freight as it comes in" and as a "transport terminal". He explained that he would not characterise the use as a "transport depot", because "my understanding is that a transport depot is where you have trucks garaged overnight … but to someone else a depot might be what I describe as a transport terminal".
Mr Michael Oosterhof, the Managing Director of Trecap and a director of the management company which manages property in Trecap's industrial portfolio, also considers that the use of the rated land cannot be characterised as a "transport depot", because "it is clearly not a place where motor vehicles go home to rest". In crossexamination, Mr Oosterhof accepted that a "transport depot" would include a place where goods are transferred from one vehicle to another, although he considers that the transfer needs to be done by hand. It is apparent that Mr Oosterhof's evidence on this aspect is based on an assumption that the meaning of the words "transport depot" is to be determined on the basis of a definition in the local planning scheme which governs development of the Trecap land, rather than the ordinary and natural meaning of the words.
Evidence given by Mr Maxwell Hunt, the City's Executive Project Officer, and by Mr Peter Male, the City's Senior Environmental Health Officer, in relation to activities carried out on the Trecap land, is generally consistent with Mr Cardaci's evidence. However, Mr Hunt considers that, on the basis of external inspections and observations of the Trecap land, the predominant purpose for which the rated land is used is a "transport depot". On the basis of short observations on three occasions in 1997 and 1998, and a number of inspections concerning noise issues in 2000, Mr Male said that he had "no difficulty" in identifying the premises as a "transport depot or transport yard", which is the use he identified in a pollution abatement notice issued in respect of activities undertaken at the Trecap land on 17 April 2001.
The documentary evidence shows that both Trecap and Centurion Transport have described the use of the Trecap land in recent years as a "transport depot". In a letter dated 14 February 2001 to the City, which was copied to Centurion Transport, Key Transport and the General Manager of the management company of Trecap's properties, Trecap's solicitor stated that "our client is lawfully entitled to utilise the property as a transport depot", and that the fact that Centurion Transport might vacate the site "will not of itself mean that the site will not continue to be used as a transport depot". In its notice of appeal to the Minister for the Environment dated 9 May 2001 against a pollution abatement notice, Centurion Transport said that "the premises have been used for the purpose of a transport depot for nearly 30 years". In the appeals report dated 2 August 2001 in relation to the abatement notice, the appeals assessor also described the use of the premises as a "transport depot for approximately 30 years".
In recent years, Centurion Transport has also described the use of the Trecap land over the same 30 year period as a "transport business" (letter by Mr Marc Cardaci, Managing Director of Centurion Transport, to the City dated 7 November 2000) and as a "transport yard" (Centurion Transport Occupational Health and Safety Manager's noise report dated 3 November 2000, submitted to the City under cover of Centurion Transport's letter dated 7 November 2000, and letter from Centurion Transport Occupational Health and Safety Officer to the City dated 7 February 2001).
Trecap and Centurion Transport have also described the use as a "transport terminal industrial" (application for approval to commence development for extension of fence dated 15 August 2003, submitted by Centurion Transport and signed by Trecap as owner). Trecap and Key Transport have described the use as "existing freight terminal" (application for approval to commence development for provision of a new truck wash-down facility and alterations to existing workshop building dated 16 January 1997, submitted on behalf of Key Transport and signed by Trecap as owner). In its notice of appeal against the deemed refusal of this development application, Key Transport also referred to the use as a "transport business". Following the grant of development approval by the Shire on 20 June 1997, the Minister for Planning was asked to adjudicate in relation to several conditions. In his letter of determination dated 8 August 1997, the Minister said that he understood that "this site has been used as a truck transport depot for many years". Finally, in a letter to the Shire dated 24 March 2000, Key Transport described the use as a "transport depot".
It appears, therefore, that the entities with actual knowledge of the use of the Trecap land in recent years have described the use, interchangeably, as a "transport depot", "transport business", "transport yard", "transport terminal industrial" and "freight terminal".
The Tribunal's task, in relation to the second ground of objection, is to determine whether the characteristics of the rated land recorded in the rate record as the basis for imposing the differential general rate, namely that the predominant purpose for which the land is used is a "transport depot", should be deleted and other characteristics substituted.
Ms Rowley submits that the predominant purpose for which the land is used is not a "transport depot", as that term is defined in the City of Swan Town Planning Scheme No 9 (TPS 9). She submits that, when the rating authority is a local government, it would be unreasonable or incongruous for it not to apply the definition of the same term which appears in its local scheme.
However, in contrast to the imposition of differential general rates according to the characteristic of the purpose for which the land is zoned under a local scheme (see LG Act s 6.33(1)(a)), the LG Act does not mandate the adoption of the definition of the same term in a local scheme where differential general rates are imposed on the basis of the characteristic of the predominant purpose for which the land is held or used as determined by the local government (see s 6.33(1)(b)). Moreover, TPS 9 does not mandate the adoption of a land use definition set out in the Scheme in order to determine the predominant purpose for which land is held or used for differential general rating purposes. Clause 1.13(a) of TPS 9 provides that "[w]ords and expressions used in the Scheme and defined in Schedule 1 have meanings assigned to them in Schedule 1". The definitions set out in Sch 1, which include a definition of the term "Transport Depot", are preceded by the words, "[i]n the Scheme, unless the context otherwise requires, the following terms shall have the meanings assigned to them hereunder". The Scheme is silent in relation to the determination of the predominant purpose for which land is held or used for rating purposes.
Although it is certainly open to a local government to impose differential general rates according to the characteristic of the predominant purpose for which land is held or used as determined on the basis of definitions in a local scheme, it is not compelled to do so and, on the evidence, the City did not do so in the circumstances of this case. The reports to the City which recommended the adoption of the rating strategy and differential rates for the 2005/2006 financial year, including the differential rate on "transport depots", does not refer to the definition of the term "Transport Depot" in TPS 9. In significant contrast, immediately following the statement set out at [9] above, the appendix to the report to the City dated 4 May 2005 states as follows:
"It is also proposed to introduce a differential rate on noxious industries as defined in the City's Town Planning Scheme." (Emphasis added.)
Thus, the City did not incorporate, expressly or by implication, the definition of the term "Transport Depot" set out in Sch 1 of TPS 9. Although, as noted earlier, in setting rates for the 2005/2006 financial year, the City determined differential rates in relation to seven categories of land under the heading "Rate Zone Group", including "Brickworks, Concrete & Asphalt Plants and Depots", there is no implication from this manner of setting rates that the definition of "Transport Depot" applies. Rather, the City designated a "Rate Zone Group" category of "Brickworks, Concrete & Asphalt Plants and Depots" which does not accord with any zone in TPS 9 and in which none of the actual words are defined in the Scheme. It appears that the City considered that this "Rate Zone Group" has special and common characteristics due to the impact of heavy road transport.
The words "transport depot" are non-technical words which are to be given their natural and ordinary meaning. The noun "depot" is defined in The Macquarie Dictionary (Macquarie, 4th Edition, 2005) as "1. A depository; storehouse. 2. a place where buses, trams, etc., are kept when they are not in service" (page 387). The noun "depository" is relevantly defined as "a place where anything is deposited or stored for safekeeping; a storehouse" (page 387). The noun "transport" is relevantly defined as "a system of conveying passengers or freight", and the adjective as "relating to means, systems, or the personnel or equipment of transport" (page 1496). A "transport depot" is, therefore, a place where goods are deposited or stored for safekeeping as part of a system of conveying freight, or a place where vehicles used to carry passengers or freight are kept when not in service.
The predominant purpose for which the rated land was used on 1 July 2005 and is used currently, as described by Mr Cardaci, is a "transport depot", as it is a place where goods are deposited or stored for safekeeping as part of a system of conveying freight. Although not the predominant purpose for which the land was and is used, the parking of trailers on the rated land overnight between jobs is a "transport depot" in the second sense.
It is also significant that, prior to the City having imposed differential general rates according to the characteristic in question, the entities with actual knowledge of the use of the Trecap land, including the rated land, described the use in recent years as a "transport depot", as did the Minister for Planning and the appeals assessor on behalf of the Minister for the Environment. The use of the term "transport depot" by these entities and persons indicates that the predominant purpose for which the rated land is used can properly be described as a "transport depot" within the ordinary and common meaning of the words.
The predominant purpose for which the land was used on 1 July 2005 could also have been described in the rate record by reference to one or more of the terms used interchangeably by the entities with knowledge of the use referred to earlier. Ms Rowley submits that the predominant use is a "freight terminal" or a "warehouse" at which value is added to goods. The term "freight terminal" is defined in The Macquarie Dictionary at page 565 as "goods yard". A "goods yard" is defined at page 612 as "a railway yard where goods are delivered and collected; freight terminal". The yard component of the use could arguably be characterised as a (nonrailway) goods yard where goods are delivered and collected, as well as a transport depot. However, on the basis of Mr Cardaci's evidence, the predominant purpose for which the rated land is used could not be described as a "warehouse", which is relevantly defined in The Macquarie Dictionary at page 1588 as "a storehouse for wares or goods". Putting to one side whether the open yard could be characterised as a "storehouse", it is clear that, as only 10% of goods delivered to the site are stored beyond quick despatch, the predominant use of the land could not be described as a "storehouse". Moreover, although transport of goods to and from a warehouse is an incidental aspect of warehouse use, the transport component of Centurion Transport's use of the rated land is an essential or critical element, rather than an incidental element, of the use.
Finally, the Tribunal notes that although, for reasons discussed earlier, the definition of "Transport Depot" in TPS 9 does not apply to the determination of the predominant purpose for which the rated land is used, the use as described by Mr Cardaci would, nevertheless, satisfy that definition. The term "Transport Depot" is defined in Sch 1 of TPS 9 to mean:
"any land or buildings used for the garaging of road motor vehicles used or intended to be used for carrying goods or persons for hire or reward or for any consideration, or for the transfer of goods or persons from one such motor vehicle to another of such motor vehicles, and including the maintenance and repair of such vehicles, but not other vehicles."

Ms Rowley submits that the words "used for the garaging of road motor vehicles" govern the whole of the definition and that, as there is a nonstop operation, road motor vehicles are not garaged on the land, although they might be parked temporarily awaiting the collection of trailers. However, on its proper interpretation, the words "for the transfer of goods or persons from one such motor vehicle to another" which follow the disjunctive "or" is a separate and distinct category of "Transport Depot" to one "used for the garaging of road motor vehicles". It appears that the rated land is used for the predominant purpose of the transfer of goods from one road motor vehicle to another. The Tribunal does not consider that the fact that the goods are processed, checked and assembled between being delivered and despatched alters the proper characterisation of the predominant use as one of "transfer of goods". As Mr Cardaci agreed, the vast majority of goods coming into the site are turned around very quickly, with the majority of goods brought into the site and removed on another vehicle, usually on the same day.
It follows that the characteristics of the land recorded in the rate record as the basis for imposing the differential general rate correctly describe the predominant purpose for which the land was used as at 1 July 2005 and should not be deleted. The second ground of objection fails.

Conclusion

The Tribunal has determined that Trecap is the "owner" of the rated land for the purposes of the LG Act. Trecap is a person in possession, that is, a person who has a present right of enjoyment, as the holder of an estate of freeholding in possession in the land, that is, an estate which is not leasehold and which is not an estate in remainder or an estate in expectancy, and which gives a present right of enjoyment. The words "in possession" in the definition of "owner" bear their technical, legal meaning, rather than their popular meaning of "actual possession". The LG Act recognises this distinction by referring separately to ownership and actual occupation.
The Tribunal has also determined that the characteristics of the land recorded in the rate record as the basis for imposing the differential general rate, namely that the predominant purpose for which the land is used is a "transport depot", should not be deleted and that other characteristics should not be substituted. The use of the rated land described by Mr Cardaci accords with the ordinary and natural meaning of the words "transport depot". Significantly also, prior to the imposition of the differential general rate, the owner, lessee and sublessee of the land each described the use as a "transport depot". Although another term or terms might also accurately describe the predominant purpose for which the land is used, the predominant purpose as described in the rate record is correct.
It follows that the application for review must be dismissed and the decision of the City to disallow Trecap's objection to the rate record affirmed.

Orders

The Tribunal makes the following orders:
1.The application for review is dismissed.
2.The decision of the respondent to wholly disallow the applicant's objection to the rate record in respect of Lots 119, 120, 121, 122, 124, 126, 127, 128, 129, 130, 131, 132, 156, 157, 158, 159 and 161 on plan 2707 and Lots 1 and 2 on diagram 12945 for the 2005/2006 financial year is affirmed.

I certify that this and the preceding [64] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D R PARRY, SENIOR MEMBER