West Coast Council v Coverdale (No 2)
[2015] TASFC 1
•17 February 2015
[2015] TASFC 1
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: West Coast Council v Coverdale (No 2) [2015] TASFC 1
PARTIES: WEST COAST COUNCIL
v
COVERDALE, Warrick, VALUER-GENERAL OF THE STATE OF TASMANIA
FILE NO: 790/2014
JUDGMENT
APPEALED FROM: West Coast Council v Coverdale [2014] TASSC 42
DELIVERED ON: 17 February 2015
DELIVERED AT: Hobart
HEARING DATE: 11 November 2014
JUDGMENT OF: Tennent, Estcourt and Pearce JJ
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), s 46.
Local Government Act 1993 (Tas), ss 86, 87(1).
Valuation of Land Act 2001 (Tas), ss 3, 11.
Crown Lands Act 1976 (Tas), s 2.
Aust Dig Real Property [1788]
REPRESENTATION:
Counsel:
Appellant: S B McElwaine SC
Respondent: M E O'Farrell SC
Solicitors:
Appellant: Shaun McElwaine + Associates
Respondent: Acting Director of Public Prosecutions
Judgment Number: [2015] TASFC 1
Number of paragraphs: 66
Serial No 1/2015
File No 790/2014
WEST COAST COUNCIL v WARRICK COVERDALE,
VALUER-GENERAL OF THE STATE OF TASMANIA (NO 2)
REASONS FOR JUDGMENT FULL COURT
TENNENT J
ESTCOURT J
PEARCE J (Dissenting)
17 February 2015
Orders of the Court
Appeal allowed.
Judgment dated 18 August 2014 dismissing the action, set aside.
Serial No 1/2015
File No 790/2014
WEST COAST COUNCIL v WARRICK COVERDALE,
VALUER-GENERAL OF THE STATE OF TASMANIA (NO 2)
REASONS FOR JUDGMENT FULL COURT
TENNENT J
17 February 2015
In April 2014, the West Coast Council ("the appellant") sought a declaration that, on a proper construction of the Valuation of Land Act 2001 ("the Valuation Act"), the Local Government Act 1993 ("the LG Act") and/or the Marine Farming Planning Act 1995 ("the Marine Act"), the Valuer-General of the State of Tasmania ("the respondent") was obliged to keep and maintain valuation rolls and to provide to the appellant, as the relevant rating authority, valuation lists which included particulars of the ownership and values "of each of the lands the subject of the leases" as required by the Valuation Act.
The leases referred to were marine farm leases granted in respect of areas in Macquarie Harbour pursuant to the provisions of the Marine Act. The leases each granted to the lessee a particular area which included all waters and the seabed in that area. It was accepted that the entirety of Macquarie Harbour, inclusive of the waters in it, formed part of the West Coast municipality.
Prior to 30 July 2013, the respondent had included the leases in the valuation lists which were prepared, which entries gave details of the owner and values of the land the subject of the leases. The appellant, acting upon those valuation lists, resolved to impose rates on the land as rateable land under the LG Act, Pt 9. With effect from 30 July 2013, the respondent deleted such references from its valuation lists. The appellant, in effect, sought a declaration which would result in the practice prior to 30 July 2013 being re-instated.
The respondent successfully defended the action commenced by the appellant and it was dismissed by the learned Chief Justice on 18 August 2014: West Coast Council v Coverdale [2014] TASSC 42.
This is an appeal from that decision. The sole ground of appeal is as follows:
"… that the learned Chief Justice erred in law in that he failed to determine that, upon a proper construction of the Local Government Act 1993 and the Valuation of Land Act 2001, the grant of each of the marine farming leases in question pursuant to the Marine Farming Planning Act 1995 thereby created an interest in land which is rateable pursuant to section 87(1) of the Local Government Act 1993."
The decision of the learned Chief Justice
At [4], his Honour summarised the dispute between the parties in the following terms:
"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."
After discussing principles of statutory interpretation and various authorities and provisions dealing with the meaning of the word "land", his Honour said at [24]:
"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'."
It is in this paragraph that the appellant submits error occurred.
Discussion
The Valuation Act, s 11(1), imposes an obligation upon the respondent to make valuations of the land values, capital values and assessed annual values of all lands "including any Crown lands that are liable to be rated in accordance with Part 9" of the LG Act. The term "land" is defined in the Valuation Act to include:
"(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; …".
As to what Crown lands may be "liable to be rated", Pt 9 of the LG Act includes s 87. Section 87(1) provides:
"(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 starting point therefore is that all land is rateable unless exempted. Section 87(1)(a) and (b) list categories of land which are exempt. Subsection (1)(b) lists specific categories of "land held or owned by the Crown" which are exempt. Those categories of land which are exempt are:
· national parks within the meaning of the Nature Conservation Act 2002;
· conservation areas within the meaning of the Nature Conservation Act 2002;
· nature recreation areas within the meaning of the Nature Conservation Act 2002;
· nature reserves within the meaning of the Nature Conservation Act 2002;
· regional reserves within the meaning of the Nature Conservation Act 2002;
· State reserves within the meaning of the Nature Conservation Act 2002;
· game reserves within the meaning of the Nature Conservation Act 2002;
· public reserves within the meaning of the Crown Lands Act 1976;
· public parks used for recreational purposes and for which free public access is normally provided;
· roads within the meaning of the Roads and Jetties Act 1935;
· ways within the meaning of the Local Government (Highways) Act 1982;
· marine facilities within the meaning of the Marine and Safety Authority Act 1997;
· land which supports a running line and siding within the meaning of the Rail Safety National Law (Tasmania) Act 2012.
None of the categories refer to areas the subject of marine farm leases issued pursuant to the Marine Act.
In providing for specific categories of land held or owned by the Crown to be exempt from being rated, Parliament must have considered what, if not all, land held or owned by the Crown would be exempt. Had Parliament intended to provide that all Crown lands would be exempt, there would have been no need for s 87(1)(b) to contain a list of specific categories. It would only need to have referred to "land held or owned by the Crown". It must follow that any land held or owned by the Crown is liable to be rated unless it falls within one of the specific exempted categories.
Are the areas of Macquarie Harbour the subject of the marine farm leases "land held or owned by the Crown"? "Crown Land" is defined in the Crown Lands Act 1976 to mean land which is vested in the Crown, and which is not contracted to be granted in fee simple. The term "land" in that Act is defined in s 2 as follows:
"land includes land covered by the sea or other waters, and the part of the sea or those waters covering that land".
The learned Chief Justice determined at [2] that the bed of Macquarie Harbour belonged to the Crown and that the waters above it were State waters by reference to the Living Marine Resources Management Act 1995. No challenge was made to that finding. However, his Honour concluded at [27] that the reference to the terms "land" and "lands" in the Valuation Act and the LG Act should be interpreted as not referring to the seabed or the waters above it. His reasons for reaching that conclusion appear in [25] and [26] in the following terms:
"25 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'.
26 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."
With respect, I do not agree with his Honour's reasoning. The definition of the word "land" in the Crown Lands Act is an inclusive definition. A plain reading of that definition cannot be other than a description of the seabed and the waters above it of Macquarie Harbour. The definition, with respect, does not need to include a specific reference to the term "seabed" or the waters above it, because the definition as it stands cannot sensibly refer to anything other than the seabed and the waters above it. This interpretation of the definition of "land" in the Crown Lands Act must lead to a conclusion that the seabed and the waters of Macquarie Harbour are Crown land for the purposes of the Crown Lands Act; or in other words they are land held or owned by the Crown. As such it follows they must be "Crown lands that are liable to be rated" because they are not exempt.
A second argument was the subject of some submissions and that related to whether a marine farm lease amounted to an interest in land. His Honour did not deal with the argument. His comments at [28] were not a conclusive finding and it may be that that argument might be explored further before a single judge.
In view of the conclusion I have reached, I would allow the appeal and quash the order of the learned Chief Justice by which he dismissed the action.
File No 790/2014
WEST COAST COUNCIL v WARRICK COVERDALE,
VALUER-GENERAL OF THE STATE OF TASMANIA (NO 2)
REASONS FOR JUDGMENT FULL COURT
ESTCOURT J
17 February 2015
This is an appeal against a decision of Blow CJ of 18 August 2014, dismissing an action by the appellant against the respondent in which the appellant sought principal relief in the form of a declaration that upon a proper construction of the Valuation of Land Act 2001, the Local Government Act 1993 and the Marine Farming Planning Act 1995, the respondent is obliged to keep and maintain valuation rolls and to provide the appellant as the relevant rating authority with valuation lists which include particulars of the ownership and value of each of the lands the subject of eight marine farming leases that have been granted in respect of areas in Macquarie Harbour, pursuant to s 59 of the Marine Farming Planning 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. The appellant 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 respondent 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.
After considering the relevant legislation and canvassing a number of authorities, the learned Chief Justice concluded at [24]-[25] of his reasons for judgment as follows:
"24 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'.
25 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'."
The appellant contends that the learned Chief Justice erred in reaching the conclusion he did.
The respondent contends that the learned Chief Justice was correct, and argues further that marine farming leases do not confer an estate or interest in land or comprise rateable land.
For the reasons that follow I am of the view that the appeal should be allowed.
Section 11(1) of the Valuation of Land Act imposes on the Valuer-General a 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." [Emphasis added.]
The eight marine farming leases in Macquarie Harbour constitute "land" for the purposes of the Crown Lands Act 1976 because s 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". There is no appeal from the learned Chief Justice's finding that the eight relevant areas in Macquarie Harbour constitute "land" and "Crown land" for the purposes of the Crown Lands Act.
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 appeal relates.
Section 87(1) is in Pt 9 of the Local Government Act, which is entitled "Rates and Charges".
Section 86 sets out various definitions which apply in Pt 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".
In my view, it is clear from the statutory provisions that I have set out that the respondent is obliged by virtue of s 11(1) of the Valuation of Land Act to value Crown lands that are "liable" to be rated in accordance with Pt 9 of the Local Government Act, and that the areas of the leases meet that description. The Crown lands, the subject of the leases, are "liable" to be rated because under s 87(1) of the Local Government Act "all land is rateable" unless it is exempt.
It is no answer to this plain construction of the Valuation of Land Act and the Crown Lands Act to point to the definition of "land" in s 86 of the Local Government Act and to argue that the relevant Crown lands do not meet the definition of "land" in that section because that definition lacks any reference to the seabed and the waters above, and that the Crown lands the subject of the leases are not shown as being separately valued in the valuation list prepared under the Valuation of Land Act.
The respondent is under a duty to value the lands the subject of the leases because they are Crown lands that are "liable" to be rated in accordance with Pt 9 of the Local Government Act in the sense that they are not exempt from rates and that once they are in fact separately valued within the meaning of that Part they will be subject to rates.
It would, in my view, be repugnant to the relevant provisions of the Valuation of Land Act and the Crown Lands Act to construe the word "liable" in so limited a way as to require lands that the respondent is under a duty to value to be already shown as being separately valued in the valuation list prepared under the Valuation of Land Act. The circularity of such a construction in respect of Crown land not yet shown in the valuation list is obvious and could not have been intended by the legislature. No land would become "liable" to be rated on such a limited construction unless and until the respondent chose to value and list it.
The Shorter Oxford English Dictionary, 3rd ed, makes it quite clear that the word "liable" can mean a current state of affairs such as presently "subject to", or can involve a future state of affairs as in "amenable to". In my view the construction of the word in s 11(1) of the Valuation of Land as used in the phrase "Crown lands that are liable to be rated in accordance with Part 9 of the Local Government Act1993" must be given the wider meaning with its connotation of futurity in order to promote the purpose of that Part of the Act.
In any event, a narrow construction, leaving the respondent to value and list the subject land wholly at his own discretion would be of momentary engagement only. If necessary the respondent could, by appropriate relief in the action the subject of this appeal, or in separate proceedings, be compelled to discharge his duty. Were that done, there could, in my view, be no answer to the appellant's claim for its principal relief unless the respondent's second argument that the marine farming leases do not confer an estate or interest in land or comprise rateable land succeeded in those proceedings.
As to that argument, the learned Chief Justice said at [28] of his reasons:
"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."
I have not found it necessary to examine that argument in order to reach the view that the appeal against the order dismissing the appeal should be allowed, and I do not consider it appropriate to embark upon such an examination in the context of the future of the proceedings between the parties. What the learned Chief Justice observed was by way of an aside. He did not rule on the respondent's second argument. It is a question for resolution in the further hearing of the action as being relevant to whether the relief sought by the appellant, or other relief, should be granted.
I would allow the appeal.
File No 790/2014
WEST COAST COUNCIL v WARRICK COVERDALE,
VALUER-GENERAL OF THE STATE OF TASMANIA (NO 2)
REASONS FOR JUDGMENT FULL COURT
PEARCE J
17 February 2015
The appellant, the West Coast Council, wishes to levy rates on eight marine farming leases within Macquarie Harbour on the west coast of Tasmania. The Council asked the Valuer-General to value the leases under the Valuation of Land Act 2001. The Valuer-General declined to do so. The Council brought an action against the Valuer-General claiming:
"(a) A declaration that upon a proper construction of the Valuation of Land Act 2001, the Local Government Act 1993 and/or the Marine Farming Planning Act 1995, the defendant is obliged to keep and maintain valuation rolls and to provide to the plaintiff as the relevant rating authority valuation lists which include particulars of the ownership and values of each of the lands the subject of the leases as required by the Valuation of Land Act 2001;
(b) If necessary, a mandatory injunction requiring the defendant to keep such rolls and lists."
On 18 August 2014 Blow CJ dismissed the action. His Honour concluded that the reference to "land" and "lands" in the relevant sections of the Valuation of Land Act and the Local Government Act 1993 should not be interpreted as referring to the seabed or the waters above it. The Council appeals his Honour's decision. There is one ground of appeal, that, "on a proper construction of the Local Government Act 1993 and the Valuation of Land Act 2001, the grant of each of the marine farming leases in question pursuant to the Marine Farming Planning Act 1995 thereby created an interest in land which is rateable pursuant to section 87(1) of the Local Government Act 1993".
I have had the opportunity to read, in draft form, the reasons for judgment prepared by Tennent and Estcourt JJ. I regret that I have reached a different conclusion about the result of the appeal. In my view, for the reasons which follow, the learned trial judge was correct to conclude that the Council is not entitled to the relief it claims, and to dismiss the action.
The facts were not in dispute. The municipal area of the Council includes all of Macquarie Harbour. The waters in Macquarie Harbour are State waters. The bed of Macquarie Harbour belongs to the Crown. Eight marine farming leases were granted for the conduct of marine farming in areas in Macquarie Harbour. The areas specified in each lease are entirely covered by water. The leases were granted under the Marine Farming Planning Act by the Minister responsible for the administration of that Act. That legislation governs the establishment and operation of marine farms in Tasmania. Lessees must pay rental and fees and comply with certain conditions and restrictions imposed by the lease and by the legislation. The areas subject to the lease are described in each lease by an attached plan, and are expressed to apply, subject to s 59(2) of that Act, to "all waters and seabed within that area". By s 59(2) of the Act, a lease for marine farming:
"confers on the lessee exclusive possession of -
(a) the area specified in the lease; and
(b) any specified area of the seabed comprised in the lease."
To understand the appellant's contention that the learned trial judge erred in failing to find that the grant of each marine lease created "an interest in land which is rateable", it is first necessary to examine the nature and purpose of the relevant functions of the Valuer-General arising from the Valuation of Land Act. It is to those functions that the declaratory and injunctive relief claimed in the action is directed. The Act provides that the functions of the Valuer-General include establishing and maintaining valuation rolls and entering valuations in the valuation rolls: s 5(3)(a) and (b). A valuation roll is to be prepared for each valuation district: s 24. A valuation district means the municipal area of a council: s 3. The roll is to record, in respect of each valuation of land contained within the valuation roll, particulars including the name and address of the owner, the situation, description and the measurements or area of the land, the land value of the land, the capital value of the land and the assessed annual value of the land: s 24(1). A fresh valuation of all lands in a valuation district is to be made within seven years of the last valuation, or sooner if considered proper: s 20(1) and (2). A supplementary valuation of particular land may be made for a number of reasons including that, "the land is not included in the valuation then in force" (s 21(1)(a)) or "the land has, since the making of the valuation then in force, become rateable, or has become subject to a new or additional rate" (s 21(1)(c)), or the land is to be valued under s 18 (s 21(1)(g)). Section 18 provides for the circumstances in which land is to be separately valued, and includes "where any part of land included in one valuation is transferred, conveyed or compulsorily acquired". When valuations are made the Valuer-General is to prepare a valuation list giving particulars of the "values of all lands" within the valuation district and provide the list to the Commissioner of State Revenue and any relevant rating authority: s 45(1). The valuation list provided to a rating authority constitutes the valuation roll for that authority for the purposes of any Act until superseded by a new valuation list: s 48. A valuation of land shown on a valuation roll may be used for the purposes of assessing taxes and rates under the Land Tax Act 2000 and the Local Government Act: s 49.
The duty of the Valuer-General to value land arises from the Valuation of Land Act, s 11. It is entitled "Duty of Valuer-General to make valuations". Subsection (1) provides:
"(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."
The effect of these provisions is that the Valuer-General's obligation to value extends to, and only to, "all lands" within a municipality. Thus, unless a marine lease or the land subject to such a lease is "land" or "lands", within the meaning of those terms in the Valuation of Land Act, the Valuer-General has no duty to value it or enter it on the valuation roll. The Council seeks to draw a distinction, in the case of each lease, between the area which is the subject of the lease and the lease itself. The submission is made in these terms:
"The question … is not whether land covered by water per se is rateable land. The true question is whether each lease once granted pursuant to the Marine Farming Planning Act is rateable land.
The answer, it is submitted, is uncomplicated. Once a lease is granted in respect of an identified area of State waters (Crown land) thereupon an estate or interest is Crown land is created. The estate or interest so created does not enjoy an exemption from rates pursuant to section 87(1). His Honour's conclusion at [27] that the reference to land in the Local Government Act 'should be interpreted as not referring to the seabed or the waters above it' does not address whether a lease granted pursuant to the Marine Farming Planning Act is rateable land. Once it is accepted, as it must be, that a lease once granted over Crown land is an estate or interest in that land, then the lease itself is rateable as an interest in Crown land".
The submission is flawed and should not be accepted. Except to the extent that the grant of a lease creates an identifiable area that may be valued, the grant of a lease is, in my view, irrelevant to the issue this Court is to determine. The obligation imposed upon the Valuer-General by s 11 is to value the "land values, capital values and assessed annual values of all lands within each valuation district". The terms "land value", "capital value" and "assessed annual value" are all defined in the Act: ss 3 and 11(5). Each of the three values mentioned in s 11, the "land value", "capital value" and "assessed annual value", is undertaken by reference to ownership of the "fee simple" of the land. As to the "capital value", see for example Royal Sydney Gold Club v Federal Commissioner of Taxation (1955) 91 CLR 610, recently applied in Valuer-General v Perilya Broken Hill Ltd (2013) 195 LGERA 416. An estate or interest created by a lease is not an interest "in fee simple". A freehold estate is of an enduring nature. A leasehold estate is a lesser estate and expires after a term. The definition of lease in the Valuation of Land Act, s 3, recognises the distinction and is expressed as, "'lease' includes an agreement to lease, a licence and any tenancy or occupancy of any land for an estate or interest less than in fee simple". Section 11(3)(c) permits the separate determination of the value of portions of land in separate occupation, but it is to be by reference to the fee simple value of that portion. Section 11(2) provides that a valuation made under that 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 provision uses the word "may" which is, in the context of this Act, discretionary or enabling: Acts Interpretation Act 1931, s 10A. I do not think that s 11(1) and (3) should be construed, as the appellant's submission suggests, as imposing an obligation upon the Valuer-General to separately value the interest of every lessee of land, even if a lease may fall within the definition of "land" in the Act.
However, whatever the correct construction of s 11, the interest of the lessee under a marine farming lease, or any interest created by the lease, cannot be land in the relevant sense unless the subject of the lease is "land". The appellant's submission assumes, incorrectly in my view, that because the seabed which is the subject of the lease is "Crown land" within the definition of that term in the Crown Lands Act 1976, that the area is land within the meaning of that term in the Valuation of Land Act and the Local Government Act.
By the Local Government Act, Pt 9, a council may make rates and charges for land or rateable land in its municipal area. A council has no power to make rates for something which is not "land". Definitions are contained in s 86, the interpretation provision for Pt 9, as follows:
· "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; …".
· The terms "land value", "capital value" and "assessed annual value" mean, in each case, those values as determined by the Valuer-General under the Valuation of Land Act.
By s 87 of the Local Government Act, all land is "rateable" unless exempt. The exemptions are listed in s 87(1) and include 13 categories of land held or owned by the Crown. I accept the submission of the appellant that the provisions of the Local Government Act requiring payment of rates and charges apply to the Crown. The Acts Interpretation Act, s 6(6), provides that an Act shall not bind the Crown unless express words are included therein for that purpose: BMG Resources Limited v Warden, Councillors and Electors of the Municipality of Beaconsfield [1988] Tas R 142. It necessarily follows from the words of the Local Government Act that s 6(6) is displaced. If the Crown was not bound by the Act, the exemption of certain categories of Crown land in s 87 would not be necessary. Similarly, s 120, which is entitled "liability for rates", expressly provides that the Crown is an owner of land and liable to pay rates in relation to that land. None of that means however that the Crown or any other owner must pay rates for something which is not "land".
It follows from the terms of the Local Government Act, s 87, and the definition provisions in s 3, that land cannot be rateable unless it is shown as separately valued in the valuation list prepared by the Valuer-General. Unless the Valuer-General shows the land in the list, or he has a duty to value it and to show it on the list, it cannot be land and cannot be rateable. The Valuation of Land Act, s 3, defines "land" in the following way:
"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; …".
The Acts Interpretation Act, s 46, also includes a definition of "land" which, by s 4(1) of that Act, applies "to any Act" except insofar as it is inconsistent with or repugnant to the provisions of that Act:
"land shall include messuages, tenements, and hereditaments, houses, and buildings of any tenure and any estate or interest therein; …".
The definition in the Acts Interpretation Act is not inconsistent with the definition in the Valuation of Land Act or with the provisions of that Act. The definitions are not identical, but differ only to the extent that the latter is more extensive than the former, and the former refers to "houses and buildings" and omits reference to "corporeal and incorporeal". Although both definitions have application, the Acts Interpretation Act definition adds nothing material to the effect of the Valuation of Land Act definition.
The function of definition sections is not to enact substantive law. Rather, they provide aid in construing a statute: Kelly v The Queen (2004) 205 ALR 274 at 302. The meaning of the definition depends on the words and context of the statute. The clearest guide to legislative intention is the words used in the text of the legislation. Consideration of its meaning includes examination of the context and the purpose and policy of the provision: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69], Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 47 [47] and Travelex Ltd v Commissioner of Taxation (2010) 241 CLR 510 at [82].
Some definitions are inclusive and not exhaustive. That is, they use the word "includes" rather than the word "means". When a definition is inclusive it generally extends, enlarges or amplifies the ordinary meaning of a word; see Pearce & Geddes, Statutory Interpretation in Australia, 8th ed at par 6.60. See also Epic Energy (Pilbara Pipeline) Pty Ltd v Commissioner of State Revenue (2011) 43 WAR 186, per Buss JA at [39] and Murphy JA at [218]. An inclusive definition reveals a Parliamentary intention to add to the ordinary meaning of a word a meaning which is not otherwise within that ordinary meaning or remove doubt that a particular concept or thing falls within the legislative meaning: Sherritt Gordon Mines Ltd v Federal Commissioner of Taxation [1977] VR 342 at 353. In Hook v Rolfe (1986) 7 NSWLR 40, Samuels JA said at 49-50:
"'Includes' is a word of extension and not of restrictive definition. In R v Hermann (1879) 4 QBD 284 at 288, Lord Coleridge CJ observed:
' ... The words "shall include" are not identical with, or put for "shall mean". The definition does not purport to be complete or exhaustive. By no means does it exclude any interpretation which the sections of the Act would otherwise have, it merely provides that certain specified cases shall be included.'
Hence 'includes' denotes a legislative intention to enlarge the ordinary meaning of the word defined, unless, perhaps, the items included in the definition would fall within it. In that case the definition, though introduced by the word 'includes', might be regarded as exhaustive; YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395 and R v McN [1963] SR (NSW) 186; 80 WN 608 are cases in which different results followed the application of Lord Watson's latitudinarian test in Dilworth v Commissioner of Stamps [1899] AC 99 at 105-106. Dr D C Pearce in his Statutory Interpretation in Australia, 2nd ed (1981) at 115-118, favours the view that 'includes' should not generally be regarded as introducing an exhaustive definition, and quotes from Lord Selborne LC in Robinson v Local Board of Barton-Eccles (1883) 8 App Cas 798 at 801:
'An interpretation clause of this kind [ie one which uses the word "includes"] is not meant to prevent the word from receiving its ordinary, popular, and natural sense whenever that would be properly applicable; but to enable the word as used in the Act, when there is nothing in the context or the subject-matter to the contrary, to be applied to some things to which it would not ordinarily be applicable'."
The definitions of "land" in the Valuation of Land Act, s 3, and the Acts Interpretation Act, s 46, are both typical of similar interpretation definitions in other Interpretation Acts. The provisions make clear that, subject to a contrary intention, land includes all manner of interest in land. Such a definition "includes freehold and leasehold, corporeal and incorporeal interest of every description": Re Lehrer and The Real Property Act 1900-1956 [1961] SR (NSW) 365 per Jacobs J at 370. The very wide nature of the definitions, particularly the Valuation of Land Act definition, leaves me with some doubt about whether there is any further notion of land which is not caught by them, and so the provisions may be exhaustive. The provisions do however serve to remove doubt that a particular concept or thing constitutes "land" for the purposes of the Valuation of Land Act. The relevant contrary intention would be to exclude some class of estate or interest from the content of the word "land": Risk v Northern Territory (2000) 105 FCR 109 per French J (as he then was) at [34]. What the provisions do not do is displace or restrict the ordinary meaning of the word "land". Both provisions still depend upon attribution of such a meaning. The definitions extend the term "land" to include "messuages, tenements and hereditaments, corporeal and incorporeal, of every kind and description (whatever may be the estate or interest in them)". However, those inclusive words in the definition do not, in my view, extend the meaning of land to interests which are not in the nature of realty. The terms refer to interests which attach to or arise from land within in its ordinary meaning. There cannot be a messuage, tenement or hereditament, whether corporeal or incorporeal, in something which is not land. They are all things or rights in the nature of or attaching to realty. The notion of realty was incorporated in Jacobs J's consideration of the definition of "land" in s 21(e) of the Interpretation Act 1897 (NSW) in Re Lehrer and The Real Property Act (above) at 370–371:
"With these meanings in mind it will be observed how wide is the definition of land in the Interpretation Act of 1897. The word includes freehold and leasehold, corporeal and incorporeal interests of every description. The estate in fee simple at law or in equity, the other estates of freehold, whether in possession or remainder, the leasehold, whatever be the term, all are included. Undoubtedly the lease or conveyance of an upper chamber would come within the definition. But there would also come within the definition every interest which in law is, or savours of, realty. Probably the easement, and certainly the profit a prendre and the rent charge, are 'land' within the definition in s 21(e)."
None of the words of extension in either definition expressly incorporate the sea or the seabed. The reference to "waters" in the Valuation of Land Act definition is to waters on or under land. Consequently, consideration of whether the subject of the marine farming leases is "land" depends upon whether they are or create an interest in "land" within the ordinary meaning of that term. The statement in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (above) at [32] that, "although leases are in law personalty, they have long been regarded as land" does not assist the appellant because in that case the court was clearly dealing with the provisions of a lease of land and was not required to consider whether the subject of the lease was land.
The question whether land may include the seabed was considered by Mason J (as he then was) in Goldsworthy Mining Ltd v Federal Commissioner of Taxation (1973) 128 CLR 199. That case concerned whether the lessee under a dredging lease of part of the seabed of Port Hedland Harbour was entitled to an income tax deduction as a "lessee of land" for the purposes of s 88 of the Income Tax Assessment Act 1936 (Cth). His Honour stated at 210–211, obiter:
"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."
Later, at 215, he said:
"The word 'land' is defined, in the absence of a contrary intention, by s 22 of the Acts Interpretation Act 1901-1966, in such wide and general terms as would enable it to comprehend a part of the sea-bed. There is, I think, nothing in the context of s 88 (2) which would require that it should be read in a more restricted sense. I conclude, therefore, that the dredging lease was a lease of land within the meaning of s 88 (2)."
In Risk v Northern Territory of Australia (above), the majority of the Full Court of the Federal Court comprising French and Kiefel JJ, came to a different conclusion. Their Honours considered the definition of land in the Acts Interpretation Act (Cth), s 22(1)(c), a provision not materially different from the definition in the Tasmanian Acts Interpretation Act, but found it not to be an answer to the question raised in that case. They found that the question was to be determined by the ordinary and ordinary legal meaning of "land", which they concluded did not extend to the seabed of coastal waters beyond the low water mark. They 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] HCA 10; (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 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."
An appeal to the High Court was dismissed: Risk v Northern Territory (2002) 210 CLR 392. The reasoning of the Federal Court as to the operation of the interpretation provisions applies to this case. The answer to whether the subject of the marine leases is "land" is not to be determined by the interpretation provisions. Those provisions are concerned with interests in land. The answer is in the ordinary and ordinary legal meaning of the word, in the context in which it appears in the Valuation of Land Act and the Local Government Act. In ordinary usage the land is to be distinguished from the sea. The Macquarie Dictionary Online defines "land" as "the solid substance of the earth's surface". It refers to "the exposed part of the earth's surface, as distinguished from the submerged part: to travel by land". The same distinction is made by the Oxford English Dictionary (2014) OED which defines "land" as "the solid portion of the earth's surface, as opposed to sea, water". In the law of real property it is well established that "land" includes certain things above and below its surface. In Re Lehrer and the Real Property Act1900-1956 (above) Jacobs J said at 369–370:
"The word 'land' comprehends in law any ground or soil or earth whatsoever: even though it originally meant only arable land. Coke further says that land 'legally includeth also all castles houses and other buildings for castles, houses, &c, consist upon two things, viz, land or ground, as the foundation or structure thereupon; so as passing the land or ground, the structure or building thereupon passeth therewith'. Thus, primarily, the ownership of land carries with it everything both above and below the surface, the maxim being cujus est solum, ejus est usque ad coelum et ad inferos. This maxim, however, is not a presumption of law applicable in all cases and under all circumstances; hence the possibility of a freehold in an upper chamber; but at common law it is the presumption. If there is found the word 'land' and no statutory definition governs the context, the word 'land' includes all buildings on the land and the maxim applies. To say this, however, is different from saying that an upper floor of a building, even though capable of being the subject of an estate in fee and the subject of separate holding as realty, can be properly described as 'land'. To describe the upper floor as 'land' would be to deny the application of the presumption that prima facie land includes buildings. My conclusion is that the word 'land' at common law prima facie includes buildings on the soil, but is not appropriate to describe the building alone or any part thereof, even if it be the subject of an interest in realty separate from the soil itself."
In TEC Desert Pty Ltd v Commissioner of State Revenue (2010) 241 CLR 576, the High Court adopted at [23] the following passage from the seventh edition of Megarry and Wade's The Law of Real Property:
"The meaning of 'real property' in law extends to a great deal more than 'land' in everyday speech. It comprises, for instance, incorporeal hereditaments; and it includes certain physical objects which are treated as part of the land itself. The general rule is 'quicquid plantatur solo, solo cedit' ('whatever is attached to the soil becomes part of it'). Thus if a building is erected on land and objects are permanently attached to the building, then the soil, the building and the objects affixed to it are all in law 'land,' ie they are real property, not chattels. They will become the property of the owner of the land, unless otherwise granted or conveyed."
The passages just referred to refer to soil, ground and real property, all of which suggest a distinction from the sea. None of those statements extend the meaning of land to the seabed. In my opinion there is nothing in the Valuation of Land Act or in the Local Government Act which gives any reason to conclude that references to land in either Act include the sea or the seabed below the low water mark. The ordinary operation of the Local Government Act is in relation to areas of land, not areas of the seabed and the waters above it. It provides for the sale of land in the case of unpaid rates and the vesting of title in the purchaser, provisions inconsistent with application to the seabed.
The appellant relies on the provisions of the Crown Lands Act, and in particular the definition of "land" in that Act. With respect to those who hold a different view, the provisions of the Crown Lands Act are immaterial. There may be good reason to attach the same meaning to the term "Crown land" where it appears in both Acts. However the same does not apply to the term "land". The term "land" is a term which is the subject of definitions in many different Acts. Some definitions are similar and some are different. For example, the term is defined in the Land Titles Act 1980, s 3, in similar but not identical terms. The term is defined in the Mineral Resources Development Act 1995, s 3, in quite different terms. In that Act the definition expressly includes the "sea bed". The Crown Lands Act, s 2, defines land to "include land covered by the sea or other waters, and the part of the sea or those waters covering that land". It is an inclusive definition. It is a good example of the type of inclusive definition, referred to earlier in these reasons, which extends the ordinary and natural meaning of a word to include an item or thing that would not otherwise fall within that meaning. It imposes an artificial extension. It does so for the purposes of the Crown Lands Act. The definition applies to that Act. The Crown Lands Act is an Act to "make provision in respect to the management, sale, and disposal of the lands of the Crown". One purpose of the definition of land in that Act is to extend the powers of the Crown to manage the seabed. It enables the grant of leases of the seabed (although not under the Marine Farming Planning Act, which refers only to a lease of an area in State waters, including the bed and subsoil under any waters, and does not mention land). There is no basis for giving operation or effect to the Crown Lands Act definition of land in construing other legislation. It is not expressed to have application beyond the Crown Lands Act. The definition provision in the Crown Lands Act is expressly confined to operation within that Act. It should not be extended to other legislation, particularly when that other legislation already contains different definitions of the same term. In Yager v The Queen (1977) 139 CLR 28, Mason J, was required to construe the meaning of "cannabis plant" in a statute. He said at 43:
"A statutory definition exists for the purposes of the particular statute in which it is contained, unless it appears in a statute expressed to have a more general application, such as the Act Interpretation Act. Indeed, the opening words of s 4 of the Narcotic Drugs Act, 'In this Act, unless the contrary intention appears', explicitly confine the operation of the definitions there contained to the operative provisions of the Act itself. There is, therefore, no legitimate foundation for resorting to the definitions contained in the Narcotic Drugs Act for the purpose of modifying or qualifying another statutory definition contained in a different Act of Parliament."
Effect must be given to the definition enacted by Parliament in the particular statute. In this case the applicable definitions are those in the Valuation of Land Act and the Acts Interpretation Act. The statutory language in the Crown Lands Act is different and is imposed in a different context. The Acts are not in pari materia. The Crown Lands Act does not form part of the rationally integrated legislation created by the Valuation of Land Act and the Local Government Act for valuation of land for rating purposes. As was pointed out by the learned trial judge, if the legislature had intended to attach the same meaning to the same word in the different statutes it could easily have done so. Instead, in the Crown Lands Act, as in the Mineral Resources Development Act, Parliament legislated a different meaning.
The reference to "Crown land" in s 11(1) of the Valuation of Land Act does not alter my view. That provision imposes an obligation on the Valuer-General to value all lands in a valuation district, "including any Crown lands that are liable to be rated in accordance with Part 9 of the Local Government Act". There is no doubt that some Crown land is rateable land. However, lands are not "liable to be rated" unless they are lands within the meaning of the Valuation of Land Act. That an area may fall within the extended statutory definition of "land" in the Crown Lands Act does not make it land within the meaning of that term in the Valuation of Land Act, and hence rateable land or liable to be rated.
If the contentions of the appellant are correct, then there is no reason to restrict the obligation to value imposed on the Valuer-General by s 11(1) to areas of the seabed that are the subject of marine farming leases. The obligation would extend to any identifiable area of the seabed within State waters not otherwise exempted by s 87(1) of the Local Government Act. I regard such a result as beyond the context and purpose of the valuation and rating provisions imposed by the Valuation of Land Act and the Local Government Act.
I agree with the conclusion of the learned trial judge that 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. If the area which is the subject of the marine leases is not land, then the Valuer-General has no obligation to value it or include it on the valuation list. The appellant's action failed and the learned trial judge was right to dismiss it. I would dismiss the appeal.
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