West Coast Council v Coverdale
[2014] TASSC 42
•18 August 2014
[2014] TASSC 42
COURT: SUPREME COURT OF TASMANIA
CITATION: West Coast Council v Coverdale [2014] TASSC 42
PARTIES: WEST COAST COUNCIL
v
COVERDALE, Warrick
FILE NO: 324/2014
DELIVERED ON: 18 August 2014
DELIVERED AT: Hobart
HEARING DATE/S: 29 July 2014
JUDGMENT OF: Blow CJ
CATCHWORDS:
Real Property – Rates and charges – Rateable land – Types of rateable property – Marine farming leases conferring exclusive possession of areas of water and seabed.
Acts Interpretation Act 1931 (Tas), s46.
Local Government Act 1993 (Tas), ss86, 87(1).
Valuation of Land Act 2001 (Tas), ss3, 11.
Risk v Northern Territory (2000) 105 FCR 109, followed.
Goldsworthy Mining Ltd v Federal Commissioner of Taxation (1973) 128 CLR 199; Risk v Northern Territory (2002) 210 CLR 392, discussed.
Aust Dig Real Property [1788]
REPRESENTATION:
Counsel:
Plaintiff: S B McElwaine SC
Defendant: P Turner
Solicitors:
Plaintiff: Shaun McElwaine + Associates
Defendant: Acting Director of Public Prosecutions
Judgment Number: [2014] TASSC 42
Number of paragraphs: 29
Serial No 42/2014
File No 324/2014
WEST COAST COUNCIL v WARRICK COVERDALE
REASONS FOR JUDGMENT BLOW CJ
18 August 2014
This case concerns a dispute as to whether the Valuer-General must value marine farming leases in Macquarie Harbour for rating purposes. The municipal area of the plaintiff, the West Coast Council, includes all of Macquarie Harbour. The defendant, Warrick Coverdale, is the Valuer-General. The council contends that he has a duty to value the leases in question. It is seeking a declaration as to his duties and, if necessary, a mandatory injunction against him.
The establishment and operation of marine farms in this State is governed by the Marine Farming Planning Act 1995. Eight marine farming leases have been granted in respect of areas in Macquarie Harbour pursuant to s59 of that Act. The areas in question are entirely covered by water. The waters in Macquarie Harbour are State waters. The bed of Macquarie Harbour belongs to the Crown.
Rates are imposed pursuant to the Local Government Act 1993. Under that Act some types of rates, but not all, are quantified according to the values of parcels of land. The Valuation of Land Act 2001 requires the Valuer-General to make valuations for rating purposes.
The council contends that the areas that are the subject of the eight marine farming leases each amount to "rateable land" for the purposes of the Local Government Act. The Valuer-General contends that rates are payable only in respect of land, not water; that the areas in question are not "land" for the purpose of the relevant legislation; that no rates are payable in respect of them; and that he is not obliged to value them for rating purposes. In order to consider those contentions, it is necessary to consider definitions of "land" that appear in the Local Government Act, the Acts Interpretation Act 1931, and the Valuation of Land Act, and other provisions in the Local Government Act and the Valuation of Land Act.
The first step in the task of statutory construction is to consider the ordinary literal meaning of the words that are to be construed: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [78]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47]; Leiah Pty Ltd v State of Tasmania [2014] TASFC 4 at [13] – [16]. In its ordinary meaning, the word "land" refers to land as opposed to water.
Section 87(1) of the Local Government Act provides that, "All land is rateable" subject to certain exceptions. The subsection begins as follows:
"(1) All land is rateable except that the following are exempt from general and separate rates, averaged area rates, and any rate collected under section 88 or 97 …".
The subsection goes on to list many categories of exempted land. None of the exemptions apply to the marine farming leases to which this case relates.
Section 87(1) is in Part 9 of the Local Government Act, which is entitled "Rates and Charges". Section 86 sets out various definitions which apply in Part 9, including the following:
"land means a parcel of land which is shown as being separately valued in the valuation list prepared under the Valuation of Land Act 2001".
Section 3 of that Act sets out a series of definitions which apply throughout the Act unless the contrary intention appears. Those definitions include the following:
"rateable land means land in respect of which rates are payable".
Section 11(1) of the Valuation of Land Act imposes the Valuer-General's duty to make valuations. That subsection reads as follows:
"(1) The Valuer-General must, subject to this section, make valuations of the land values, capital values and assessed annual values of all lands within each valuation district, including any Crown lands that are liable to be rated in accordance with Part 9 of the Local Government Act 1993."
Section 11(2) makes provision for the valuation of separate estates or interests in a single piece of land. It reads as follows:
"(2) A valuation made under this section may include the land values, capital values and assessed annual values of the estates and interests of all owners in any such lands and omit the value of such estates and interests as are dependent on other estates and interests in the land."
The council contends that each of the grantees of the relevant marine farming leases holds a leasehold interest that the Valuer-General is obliged to value pursuant to these provisions.
The definition of "land" in the Acts Interpretation Act is in s46. It is an inclusive definition, not an exhaustive one. According to the introductory words of s46, the definitions that it contains apply "In any Act". However, by virtue of s4(1) of that Act, any such definition is not to be applied in the interpretation and construction of legislation in cases of inconsistency or repugnancy. The definition in s46 reads as follows:
"land shall include messuages, tenements, and hereditaments, houses, and buildings of any tenure and any estate or interest therein".
It is common for interpretation statutes to include definitions of "land" as including "all messuages, tenements and hereditaments, corporeal and incorporeal, of any tenure or description and whatever may be the estate or interest therein". The Tasmanian definition in s46 of the Acts Interpretation Act varies slightly from the traditional definition in that houses and buildings are mentioned, and the words "corporeal and incorporeal" are omitted. The history of such provisions was traced by French CJ in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (above) at [7]. That case concerned a dispute as to whether an option to renew a lease amounted to "land" for the purpose of a stamp duty statute.
A detailed analysis of the traditional definition was undertaken by Jacobs J in Re Lehrer and the Real Property Act (1961) 61 SR(NSW) 365 at 370 – 371. At 370 he commented that "there would … come within the definition every interest which in law is, or savours of, realty". His Honour concluded, also at 370, that "tenement" means "everything in which a man can have an estate of freehold and which is connected with land". He went on to say:
"The word 'hereditament' is an even wider word describing interests in real property. It denotes such things as might formerly be the subject matter of inheritance".
The scope of the traditional definition of land, in s22(1)(c) of the Acts Interpretation Act 1901 (Cth), was considered in the Full Court of the Federal Court in Risk v Northern Territory (2000) 105 FCR 109. That case concerned an aboriginal land rights claim in respect of the waters of bays and gulfs. In the majority judgment in that case, French and Kiefel JJ said at [34]:
"The question raised in this case is not answered by the definition of 'land' in s 22(1)(c) of the Acts Interpretation Act. That definition makes clear that land includes all manner of interests in land. What it means simply is that '[i]n the absence of a contrary context the term includes estates or interests in land' — Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 2) (1987) 162 CLR 153 at 163. The only 'contrary intention' relevant to that definition would be an intention to exclude some class of estate or interest from the content of the word 'land' as used in the definition. Section 22(1)(c) therefore does not have any bearing upon the question at issue in this case. If the passage from the judgment of Mason J in Goldsworthy Mining Ltd v Commissioner of Taxation (1973) at 215 is to be taken as supporting the contrary proposition, we respectfully disagree with it. It seems to us, with respect, that the true operation of the provision is as set out in the joint judgment of Brennan, Deane, Dawson and Toohey JJ in Jennings Construction at 163. In our opinion the ordinary and ordinary legal meaning of 'land' does not extend to the seabed of coastal waters beyond the low water mark."
Their Honours' decision was affirmed by the High Court: Risk v Northern Territory (2002) 210 CLR 392. The reasoning of the High Court is entirely consistent with the reasoning in the paragraph I have just quoted. There is no basis for distinguishing the definition of "land" in the Tasmanian Acts Interpretation Act from that in s22(1)(c) of the Commonwealth statute. I therefore consider that I am bound to interpret the definition in s46 as not including the seabed: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135]; CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390 at [49].
The definition of "land" in the Valuation of Land Act is in s3. It reads as follows:
"land includes —
(a)messuages, tenements and hereditaments, corporeal and incorporeal, of every kind and description (whatever may be the estate or interest in them), together with all structures, paths, passages, ways, waters, watercourses, liberties, privileges, easements, plantations, gardens, mines, minerals and quarries and all trees and timber on land or lying or being under land; and
(b)any structure which is above land but permanently anchored to, or otherwise kept in place above, the land; and
(c)a licence to enter or remain on land".
A number of points should be noted in relation to that definition:
· The definition does not purport to be exhaustive. It is an inclusive definition. It does not supersede the definition of land in s46 of the Acts Interpretation Act. It adds to that definition.
· Paragraph (a) of the definition includes "waters". However the word "waters" appears in a list of appurtenances that begins with the words "together with". That suggests that waters are included in the definition of land only if they are appurtenant to a messuage, tenement or hereditament that constitutes "land".
· Paragraph (b) of the definition could be interpreted so as to apply to structures other than those anchored to the seabed if the seabed does not constitute "land".
There are a number of reported cases in which courts have considered whether statutory references to "land" extend to include the seabed. In Goldsworthy Mining Ltd v Federal Commissioner of Taxation (1973) 128 CLR 199, Mason J had to decide whether a taxpayer was entitled to an income tax deduction as a "lessee of land" within the meaning of s88(2) of the Income Tax Assessment Act 1936 (Cth). The taxpayer was the lessee under a dredging lease of part of the seabed of Port Hedland Harbour. At 210 – 211 his Honour said:
"There is no reason for thinking that, at common law, a lease cannot be granted of portion of the sea-bed, provided that the property the subject of the grant is defined with sufficient certainty. There may be some question whether the sea-bed answers the description of 'land' in every sense in which that word is used. But in general the word in its legal signification includes any ground, soil or earth (Halsbury's Laws of England, 3rd ed, vol 32, p 249). There is a long history of leases for mining purposes of strata of land underlying the sea, which supports the view that a lease may be granted of portion of the sea-bed."
After analysing some relevant provisions in the lease, his Honour concluded that the subject matter of the lease was the surface of the seabed, down to a certain depth, and that it followed that "the property which was the subject of the instrument is land within the general acceptation of that expression, notwithstanding that it has the character of sea-bed". Those comments were obiter, since his Honour decided the case on another point. There was an appeal to the Full Court, but the Full Court did not consider the meaning of the word "land".
When Risk v Northern Territory was before the Full Court of the Federal Court, French and Kiefel JJ, in the passage that I have quoted above, disagreed with the view taken by Mason J. When Risk v Northern Territory was before the High Court, Gleeson CJ, Gaudron, Kirby and Hayne JJ said, at [26], referring to Goldsworthy:
"No doubt 'land' is a word that can be used in a way that would encompass the seabed. It may be doubted, however, that the word would ordinarily be understood as encompassing the seabed. The distinction between 'land' and 'sea' is often made. It is only when particular attention must be paid to distinguishing between the two that the distinction can be seen to be attended by the same kind of difficulty as arises in distinguishing between 'night' and 'day'. In each case, the legal geometer who seeks to define the line may find it blurred and indistinct. But that is not to deny either that there is a distinction, or that 'land' is ordinarily used in a way that would not include the seabed." [Footnote omitted.]
In that case the High Court unanimously held that the words "land in the Northern Territory" in an aboriginal land rights statute did not include the seabed below the low-water mark of bays or gulfs within the limits of the Northern Territory. However the judgments concerned the subject, scope and purpose of the statute in question, the relevant legislative history, and antecedent circumstances. Apart from the passage I have just quoted, I do not think anything said in them has any significant relevance to the question I have to decide.
The eight relevant areas in Macquarie Harbour do constitute "land" for the purposes of the Crown Lands Act 1976. Section 2 of that Act defines "land" to include "land covered by the sea or other waters, and the part of the sea or those waters covering that land". The same section defines "Crown land" to mean "land which is vested in the Crown, and which is not contracted to be granted in fee simple". I accept that the expression "Crown land", when it is used in the Local Government Act and the Valuation of Land Act, must have the same meaning that it has in the Crown Lands Act as a result of the application of the pari materia rule. See Pearce & Geddes Statutory Interpretation in Australia, 7th ed, Butterworths, Sydney, 2011, at pars[3.36], [3.37]. However the Valuer-General's obligation to make valuations, by virtue of s11(1) of the Valuation of Land Act, does not include all Crown lands, but only "any Crown lands that are liable to be rated in accordance with Part 9 of the Local Government Act 1993". If the areas in question are not "land" for the purposes of the Local Government Act, they may very well be "Crown land", but they are not "Crown lands that are liable to be rated in accordance with Part 9 of the Local Government Act 1993".
Section 2 of the Crown Lands Act shows how easy it would be for Parliament to define "land" in the statutes relevant to rating so as to include the seabed and the waters above it. In my view it is significant that that has not been done. I note that the definition of "land" in s38 of the Interpretation of Legislation Act 1984 (Vic) includes "land covered with water".
Rates constitute "taxation for the purposes of local government". Section 86A(1)(a) of the Local Government Act says so. The authorities establish that a person is to be taxed only if clearly falling within the words of the section that creates a tax liability: Inland Revenue Commissioners v Duke of Westminster [1937] AC 1 at 24 – 25; Anderson v Commissioner of Taxes (Vic) (1937) 57 CLR 233 at 239, 243; Hepples v Federal Commissioner of Taxation (1992) 173 CLR 492 at 510 – 511; Sportsman's Hall Hotel Pty Ltd v Commissioner of Stamp Duties [1990] Tas R 21 at 31.
For these reasons the reference to "land" and "lands" in the relevant sections of the Local Government Act and the Valuation of Land Act should be interpreted as not referring to the seabed or the waters above it. I must therefore dismiss the council's action.
The Valuer-General relied on a second argument to the effect that, even if the areas in question did amount to land, a marine farming lease did not amount to land for the purpose of the relevant statutes. I need not rule on that argument. However I am inclined to think that, since the definition of land in s46 of the Acts Interpretation Act includes "any estate or interest therein", and since s11(2) of the Valuation of Land Act makes provision for the valuation of separate estates or interests, a leasehold interest is rateable under s87(1) of the Local Government Act. Under s59(2) of the Marine Farming Planning Act, the grantee of a marine farming lease is entitled to exclusive possession of "the area specified in the lease" and "any specified area of the seabed comprised in the lease". A marine farming lease thus would seem to have the common law characteristics of a lease.
For the reasons stated above, I have decided to dismiss the action.
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