Royal New Zealand Foundation of the Blind v Auckland City Council HC Auckland CIV 2004-404-6545

[2005] NZHC 1215

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2004-404-6545

UNDER  the Declaratory Judgments Act 1908

IN THE MATTER OF     the Local Government (Rating) Act 2002 BETWEEN  ROYAL NEW ZEALAND

FOUNDATION OF THE BLIND

Plaintiff

AND  AUCKLAND CITY COUNCIL

Defendant

Hearing:         9 March 2005

Appearances: J E Hodder & M C Sumpter for Plaintiff G D Palmer for Defendant

Judgment:      18 May 2005

JUDGMENT OF KEANE J

Solicitors

Chapman Tripp, Wellington for Plaintiff Simpson Grierson, Auckland for Defendant

ROYAL NEW ZEALAND FOUNDATION OF THE BLIND V AUCKLAND CITY COUNCIL HC AK CIV 2004-404-6545 [18 May 2005]

[1]    The Royal New Zealand Foundation of the Blind, which has not since its inception ever had to pay local body rates, has been levied for rates by the Auckland City Council as to those parts of its principal property in Parnell, which it does not itself use, but from which it derives rents.

[2]    The Council contends that this liability is imposed on the Foundation by the Local Government (Rating) Act 2002, which grants to the Foundation a full though qualified immunity. The Foundation disagrees.

[3]    The issue is simple to express, but less easy to resolve. The LGRA  categorises as fully non-rateable ‘land owned or used by, and for the purposes of’ the Foundation ‘except as an endowment’. Leaving aside for the present the endowment exception, what do the words ‘land owned or used by and for the purposes of’ mean?

[4]    The Council considers that land, not actually used by the Foundation for services to the blind, cannot be land held ‘for the purposes of’ the Foundation and is fully rateable. The Foundation contends that its purposes include the ability to let its land, free of rates, to obtain income to fulfil its statutory objects.

Context

[5]    The Foundation, a body corporate now constituted under the Royal New Zealand Foundation of the Blind Act 2002, has evolved from small beginnings.

[6]    In 1889, on the initiative of the government of the day, a school for the blind began in a rented house next to St Mary’s Vicarage in Parnell. In 1891 a permanent school was established, underpinned by a mayoralty fund created to celebrate the jubilee of Queen Victoria. The school became known as the Jubilee Institute for the Blind.

[7]    Between 1894 and 1901 the Institute acquired the Parnell site. The Jubilee building, housing the school and dormitories and a dining hall, was opened in 1909. By the 1920s the Institute could offer a wider range of accommodation. There was a

gymnasium. There were vegetable gardens and grazing land. The Institute was equipped to care for blind persons, married or single, throughout their lives.

[8]    In the 1950s that began to change. The Institute, which had become the New Zealand Institute, and then Foundation for the Blind, constituted as from 1963 under the New Zealand Foundation for the Blind Act 1963, as from 1972 the Royal New Zealand Foundation, began to shift its focus outwards beyond institutional  care. Blind persons, who had lived and worked at Parnell had, intent on full autonomy, begun to live and work in the community. The Foundation needed to diversify radically the forms of assistance it offered.

[9]    This took time to happen. By the early 1960s the Parnell site was still being used as originally envisaged. 250 people still lived and worked or went to school there. That came to an end after a 1974 Queen Street demonstration. Blind persons no longer tolerated institutional care. The Foundation’s buildings at Parnell emptied.

[10]   In the early 1980s, encouraged by the government of the day and the Foundation’s auditors, a separate committee of the Foundation’s Board was established to oversee the redevelopment of the Parnell site. The ageing buildings could have, unless care were taken, absorbed funds needed for services. Conversely, the site, large and central as it was, developed intelligently, could fund sustainably the range of services by then offered.

[11]   In 1988 the Bledisloe Trust was created as the medium. Intended to insulate the Foundation from any risk, it was to take a leasehold interest  in any land owned by the Foundation, principally at Parnell, to develop the land, and to sublet any that the Foundation did not immediately need. The intent was that, once costs had been met, all income from rents was to be devoted to the services offered.

[12]   In 1993 the Foundation leased the whole of its Parnell site to the Trust. The Trust has since restored three major and several minor buildings. It has constructed two major buildings, one of which, Awhina House, houses the Foundation. The  Trust lets a number of buildings to commercial tenants. There is no relation between

their activities and the objects of the Trust or the Foundation. Their value to the Foundation lies in the rents they pay.

[13]   The Foundation has 11,500 members. Approximately 1300 persons – the deaf these days as well as the blind and the wholly or partly impaired - join the Foundation each year. Services each year currently cost in excess of $21M. Donations and legacies contribute $15M, and the Foundation must find the balance. Income each year from property stands at almost $3M. Most derives from the Parnell site.

[14]   Until 2003 there was no issue, it appears, that the land owned by the Foundation was non-rateable. But after the LGRA took effect, in main part on 1 July 2003, the Council notified the Foundation that the rental properties had ceased to be exempt. On 20 August 2003 the Council assessed the Foundation, for the year 2003/2004, to be liable to pay rates for ten properties totalling $71,154.

[15]   Within two days, and after the Foundation objected, the Council’s solicitors supported the assessment with an opinion, later given to the Foundation, which expresses still the basis on which the Foundation was assessed.

[16]   Whether, the solicitors said, land is owned by the Foundation, or is used by it, that must be ‘for the purposes of the Foundation’. Their opinion that rental property is not in that category is set out in two passages:

The land is not being used for any purpose connected with the Foundation whatsoever. Its only connection with the Foundation is that the Foundation happens to be the landlord and therefore receives income from the land in terms of rental.

Put another way … the ultimate benefit of a rates exemption … would be enjoyed by the tenants and not the Foundation. Those tenants are not using the land in any way connected with the Foundation.

[17]   That latter conclusion, the Foundation responds, cannot be right. The Trust does have the ability to pass to tenants, under the existing arrangements, any rates the Council is able to levy. But on the next rent review the tenants could assert that  as an offset. The Trust’s ability to garner the highest fair rent would be  impaired. The Foundation’s income would be less than it ought, and needs to be.

Foundation Submissions

[18]   The Foundation contends that, while the Council is obliged to collect rates as the LGRA allows or requires, the Council’s analysis of the Foundation’s rating immunity is incorrect as a matter of history, policy and law.

[19]   As a matter of history, the Foundation contends, it has been exempt from rates since its inception, as a result of its charitable status and purposes: Hon E.C. Seath, Minister of Local Government, Hansard, Vol 353, set 14-November 2, 1967, page 3337. This fiscal advantage has accrued to the Foundation, it says, not as a matter of grace and favour but as a matter of policy. Its functions, like those of other charities, would otherwise fall to central or local government: H Pickards, The Law and Practice relating to Charities, Butterworths, London, 1995 (2^nd) edition, 601.

[20]   The Local Government Rating Bill, from which the LGRA derives, the Foundation contends, did not purport to alter the Foundation’s then exempt status under the Rating Powers Act 1988. The Foundation itself, in its submission on the Bill to the Local Government and Environment Committee, had no such sense. The Department of Internal Affairs, equally, recommended against existing exemptions ceasing or being reduced. The Committee itself, when reporting on the Bill,  proposed no such change.

[21]   This is material to the interpretation of the immunity conferred by the LGRA, the Foundation contends; it is to interpreted as preserving the then existing exemption: Vector Limited v Transport New Zealand Limited [1999] 3 NZLR 646, at 650; R v Palmer [2000] 1 NZLR 546 at 550-551 (CA); Tucker Wool Processors v Harrison [1999] 3 NZLR 576 at 587.

[22]   The endowment exception to the immunity, the Foundation contends, has no bearing. The exemption granted by the Rating Powers Act 1988, and the 1967 Act before that, were similarly qualified. It can be seen as a neutral constant.

Council’s submissions

[23]   The Council does not question the Foundation’s moral claim to preferential rates treatment, but it is, it contends, obliged to levy rates equitably between ratepayers as the LGRA allows or requires. It has the means independently, by remission or grants, to assist the deserving.

[24]   The immunity granted, the Council contends, does not rest solely on the Foundation’s charitable status. Nor is it enough that the Foundation derives benefit from the land in the sense of income for its purposes. The exemption is granted only in respect of land that the Foundation is actually using for those purposes. The ability to raise funds, and to lease out land to obtain revenue, are not such purposes.

[25]   Even if the LGRA reduced the Foundation’s exempt status, the Council contends, though not conceding the point, there is nothing new in the principle underlying the present immunity. A long established principle of rating is that charities are to be exempt only for property used tangibly in the discharge of their distinctive primary purposes.

[26]   That, the Council contends, has always been the position in New Zealand as is most nearly illustrated by Wanganui Borough v Wanganui High School Board of Governors [1923] NZLR 515. More recently, the same principle was applied in two land tax cases: The Trustees of the Dunedin Central Methodist Mission v Commission of Inland Revenue (1989) 11 NZTC 6,090 CA and Board of Trustees v Commissioner of Inland Revenue (1993) 15 NZTC 10,305, Fraser J.

[27]   The principle, the Council contends, has long been commonplace throughout the Commonwealth. Pertinent English authorities are: Oxfam v Birmingham City District Council [1976] AC 126; Polish Historical Institution Limited v Hove Corporation (1963) 10 RRC 73, Wilberforce J. Australian authorities are: Commissioners of Taxation v Trustees of St Mark’s Glebe [1902] AC 416; Randwick Corporation v Rutledge (1959) 102 CLR 54; Ryde Municipal Council v Macquarie University (1977) 139 CLR 633.

[28]   The endowment exception is consistent, the Council contends. Endowed land is land gifted to provide a source of revenue: Auckland City Corporation v The King [1941] NZLR 659. It cannot be exempt from rates.

Principles of interpretation

[29]   These contrasting general submissions introduce, but cannot resolve, the essential issue - what level of exemption from rates the LGRA actually confers on the Foundation ‘ascertained from its text and in the light of its purpose’: s 5(1) Interpretation Act 1999.

[30]   The LGRA is a species of revenue statute. That does not set it apart. It is to  be interpreted like any other statute. In Commissioner of Inland Revenue v Alcan New Zealand Limited [1994] 3 NZLR 439 CA, McKay J said, on an issue of interpretation under the Income Tax Act 1976, when the Acts Interpretation Act 1924 was still in force, at 443-444:

Words are to given their ordinary meaning. This is fundamental to all statutory interpretation. There must be a strong and sufficient reason before words can be given some other meaning which they are capable of bearing in a particular context … If, however, the words are capable of more than one meaning and the object of the legislation is clear, then the words must be given ‘such fair, large and liberal construction’ as will best ensure the attainment of the object of the Act.

[31]   This principle is general. In Waitakere City Council v Khouri [1999] 1 NZLR 415, CA, which concerned the Local Government Act 1974, Tipping J, referring to Alcan, at 421, said:

It is elementary that statutes are to be given their literal meaning unless there is no such meaning, or the Court is satisfied that there no other meaning properly available on the words used which would better fulfil the policy and purpose of the legislation.

[32]   Finally, and because the LGRA differs markedly from the Rating Powers Act 1988, most pointedly in Schedule One, which confers exemptions generally, the provenance of the Foundation’s immunity may be of relevance or it may not.

[33]   Lord Hope of Craighead, in Rodney District Council v Attorney-General [2003] 3 NZLR 721, PC, at 728-9, which concerned a consolidating statute intimately related to rating, the Valuation of Land Act 1951, to which the LGRA might be thought analogous, said at 728-9:

As a general rule an investigation of the statutory predecessors of provisions in a consolidating statute is to be avoided, especially where the issue concerns the meaning of a single word or a single expression. It is apt to reduce the benefit which the process of consolidation is designed to achieve.

… the very purpose of consolidation is to enact a compendious code  standing on its own with a view to making it unnecessary to scrutinise the repealed statutes which are consolidated.

[34]This is a qualified rule. Lord Hope went on immediately to say:

… the rule is not an absolute one. There may be cases where it is necessary to consider the earlier, consolidated provision in its original context, bearing in mind that the overriding aim is to give effect to the intention of Parliament as expressed in the words used.

[35]   One thing is plain. The extent of any immunity from rates, that enjoyed  by the Foundation, or any other, even when obviously governed by the principle the Council describes as commonplace, the definitive purpose for which a charity holds land, can turn on a nuance in the particular statute: contrast, as examples, Oxfam v Birmingham City Council with Ryde Municipal Council v Macquarie University.

Foundation purposes and objects

[36]   The Foundation’s own Act, the Royal New Zealand Foundation of the Blind Act 2002, intersects with the LGRA as to what the Foundation’s purposes may be, and as to whether they could extend to letting land for rents. That is the ultimate question. For the present it is enough to say that the Foundation’s purposes have very recently extended dramatically in apparent range.

[37]   When the LGRA was enacted, the Royal New Zealand Foundation for the Blind Act 1963 was still in force, s 4 of which stated the purposes of the Foundation to be:

(a)To provide for the care, relief, education and training of blind persons, the amelioration of their condition, and the maintenance and promotion of their general welfare;

(b)To provide and maintain such institutions, establishments, accommodations, services and equipment for the benefit of blind persons as may be necessary or expedient from time to time.

[38]   The 2002 Act, under which the Foundation is now constituted, renames the Foundation (it is now ‘of’ instead of ‘for’ the Blind) and anticipates that it will soon become an incorporated society comprising and controlled by those whom it serves. Correspondingly, s 10 of the Act sets out the Foundation’s present objects in their actual extensive breadth:

The objects of the Foundation are –

(a)to promote and provide for the independence, integration, enablement, and well-being of blind and vision impaired people in New Zealand society:

(b)to provide, co-ordinate, and facilitate the provision of services, programmes, and activities in the fields of, and in relation to, the education, training, rehabilitation, recreation, equalisation of opportunities, enablement, support, assistance, and well-being of blind and vision impaired people:

(c)to promote and encourage, by education, publicity, and human and civic rights of blind and vision impaired people:

(d)to promote and encourage the creation of a New Zealand society accessible to, and inclusive of, blind and vision impaired people so that they are able to live, work, and participate in all aspects of community life as valued and equal citizens:

(e)to promote and encourage a positive attitude towards blindness and vision impairment, not only amongst the public but also amongst blind and vision impaired people:

(f)to encourage and assist blind and vision impaired people to achieve personal independence and to realise their full potential in, and for the benefit of, society:

(g)to encourage and assist blind and vision impaired people with additional disabilities to live useful and dignified lives according to their personal choice:

(h)to promote equal opportunities for blind and vision impaired people and their ability to enjoy and exercise the same fundamental rights, privileges, and responsibilities as all other New Zealanders:

(i)to promote and encourage the elimination of barriers to the dignified participation and use by blind and vision impaired people in, and of,

mainstream activities, structures and facilities, and to social and physical environments which preserve and enable personal integrity and choice and which recognise the value and contribution of all citizens:

(j)to promote and encourage open and convenient access and use by blind and vision impaired people to, and of, all programmes, services, buildings, and facilities designed or intended for public use including transportation, information and telecommunications, education, work, training opportunities, and creative leisure:

(k)to promote and encourage the creation of opportunities for blind and vision impaired people to contribute to the economic, social, political, and cultural life of the community:

(l)to assist State and civic agencies to fulfil their obligations to blind and vision impaired people as full citizens:

(m)to consult and co-operate with other persons and organisations concerned with the well-being of blind and vision impaired people and the prevention, treatment, amelioration, or cure of blindness or vision impairment:

(n)to promote and encourage programmes that help in raising the awareness, and minimise the incidence, of preventable blindness:

(o)to give particular recognition to the principles of the Treaty of Waitangi and their application to the governance and services of the Foundation:

(p)to do all such other things as are incidental or conducive to the attainment of any of the objects set out in paragraphs (a) to (o).

[39]   The Foundation, as will be obvious, has the widest mandate to advance the wellbeing of those whom it serves, and by every sensible means.

Exemption history

[40]   The history of the Foundation’s statutory immunity from rates is, I consider, by contrast, more equivocal. The apparent fact that the Foundation has never paid rates cannot be conclusive. The exemptions the Foundation has enjoyed, and its situation, as each has evolved, is more material. The Council, as well as the Foundation, can take comfort from each iteration.

[41]   In 1905, when the Jubilee Institute acquired the Parnell site fully, to begin there, the immediate issue could not have arisen. The site was fully devoted to

institutional care. If any part of the land was unused, there was no contrasting use. Also, the immunity the Jubilee Institute enjoyed, the New Zealand Institute as it became, was as a school: s 2(e) Rating Act 1908. That appears to have been so until 1935: s 158 Education Act 1914, s 40 Finance Act (No 4) 1931.

[42]   By 1935, however, the Council, anticipating the present debate by at least 70 years, must have considered the Institute liable to rates under the Rating Act 1925, and may have levied the Institute. The New Zealand Institute for the Blind Rating Exemption Act 1935 had retrospective as well as prospective effect. Section 2(1) exempted the Institute from past as well as future rates:

Notwithstanding anything contained in the Rating Act, 1925, … all lands and buildings situated in the City of Auckland for the time being vested in and actually used by the Institute for the purposes of any school, workroom, shop, gardens, recreation-grounds, residences, or residential quarters for blind persons and held otherwise than as an endowment shall be deemed not to be and never to have been rateable property for the purposes of the Rating Act 1925 …

[43]   In 1935 that immunity must have had absolute effect. At that date the Parnell site must still have been wholly used to provide institutional care. But  even then,  had there been land or buildings the Institute did not use, the exemption may not have applied. There may have been at least a notional issue as to whether they were ‘actually used’, as the exemption required. Land let commercially for rents could not have enjoyed the exemption. The principle underlying the 1935 Act was that the Council contends now applies under the LGRA.

[44]   The 1935 immunity became spent with the passing of the Rating Act 1967, which conferred a specific exemption: cl 11, First Schedule. That exemption continued unchanged in the Rating Powers Act 1988, cl 8, First Schedule, and prevailed until the LGRA came into force. It was granted in respect of :

Land held by or on behalf of the New Zealand Foundation for the Blind and reserved or set apart, or otherwise in any way acquired, for any purpose of the Foundation and held otherwise as an endowment.

[45]   This last immunity, it appears, was treated as absolute by the Council even after the Trust began to let properties in 1993. But the argument that the Council

mounts under the LGRA could, conceivably have been mounted earlier. This earlier exemption, like the present exemption, depended finally on purpose.

Ultimate issue

[46]   The ultimate issue, undistracted by history, is as I said earlier, what are the actual dimensions of the immunity conferred on the Foundation by the LGRA. And, as it appears on the face of the statute book, the exemption is in respect of:

Land owned or used by, and for the purposes of, -

(e)The Royal New Zealand Foundation of the Blind, except as an endowment.

[47]   This exemption contains, as I understand to be accepted, two sets of disjunctions, the first of which distinguishes between ‘land owned’ and ‘land used’, each qualified by the words following, ‘by, and for the purposes of’ the Foundation. Nor is there any issue, I understand, that ‘ownership’ and ‘use’ are distinct, and not merely synonyms. Each is to be accorded its usual meaning. Each supplies an independent path to immunity.

[48]   The second disjunction, implicit in the qualifying words, is again, as I understand it, uncontroversial. Land may be owned or used ‘for the purposes of’ the Foundation, or it may not. Issue is joined rather as to the word ‘purposes’, and whether that connotes, even when ownership is the path to immunity, the notion of consistent use.

Purpose

[49]   The primary meaning of ‘purpose’, according to the Oxford English Dictionary, is:

That which one sets before oneself as a thing to be done or attained; the object one has in view.

[50]   Context is everything. Without a context in fact or law, purpose lacks  content. Indeed context dictates content. To take a case remote from this, Greater

London Council v Holmes [1986] 1 All ER 739 CA, where the issue of fact was not dissimilar – the purpose for which land was acquired and held by a local authority, - ‘purpose’ was defined as widely as it could be to ensure that the intent of the statute, the Land Compensation Act 1973 (UK), to compensate those whose land was taken by an authority, was not frustrated. Each statute writes its own prescription.

[51]   In the context of rating Lord Cross of Chelsea, in Oxfam v Birmingham City Council, at 135, illustrates the traditional priority, when he describes the statutory task:

A line has … to be drawn somehow or other between the user of premises  for purposes which are charitable purposes of a charity within the meaning  of the subsection on the one hand and their user for purposes which though the purposes of the charity are not charitable purposes of the charity on the other.

[52]   In the same way ‘use’ as the datum dictates the logic of Gibbs ACJ in Ryde Municipal Corporate Council v Macquarie University, the essence of which, at 643, appears from these excerpts:

The … question is whether the land in question was used for the purposes of the university.

… when an exemption from rates or taxes is given in respect of land used for the purposes of a charity, the exemption is not confined to land used for those purposes the pursuit of which make the body a charity i.e. which give  it its character as such. If the land is used for purposes which are ‘merely a means to the fulfilment’ of the charitable purposes and ‘incidental thereto’ it is within the exemption.

… In other words, if the use which the charity makes of the land is ‘wholly ancillary to’ or ‘directly facilitates’ the carrying out of its charitable objects, that is sufficient …

… If, on the other hand, the use is only ‘collateral’ or ‘additional’ to the purposes which give the charity its character as such, the land will not be used for the purposes of the charity.

[53]   ‘Use’ is primarily a matter of fact. ‘Ownership’, by contrast, is a construct of law. It is a mosaic of ‘innumerable rights’: 35 Halsbury’s Laws of England (4^th edition) (Re-issue) para 1227. At its most absolute, as Tamberlin and Hely JJ say in Kent v Vessel ‘Maria Luisa’ [2003] FCAFC 93, at para 62, reaching back to Blackstone, Holmes and Holdsworth:

The notion of ‘ownership’ carries a connotation of dominance, ultimate control and of ultimate title against the whole world.

[54]   ‘Ownership’ connotes, unless parted with, the ability to use the thing owned, whether or not that ability is exercised. The converse does not hold. ‘Use’ does not ordinarily connote a right of use, or of occupation, let alone of ownership.

Code of exemptions

[55]   Schedule One, Part I, of the LGRA, which confers the Foundation’s exemption, is a code, which accords immunity from rates to 22 categories of land owned, used, occupied or administered by statutory or other entities, for purposes deemed to serve the public good.

[56]   Six rules of interpretation qualify certain of those categories. Those rules do not apply to the Foundation, which with four other entities of national significance lies in category 5.

[57]   The decisive feature of the schedule is, I consider, that, except where an exemption depends on the status of land, a national park for instance (cl 1(a)), the exemptions conferred depend on ‘use’, ‘ownership’, and ‘purpose’, deployed in gradations. These gradations are not haphazard. They are deliberate and consistent. They create a precise lexicon.

[58]   The apparently simplest exemptions rest just on ‘use’ for a designated purpose, for instance land, ‘used by a local authority for a public garden’: cl 4(1)(a). ‘Ownership’ does not figure and is not to be implied, but exclusive use does appear implicit. A closely related variant is use ‘solely or principally’ for a designated purpose, for instance, ‘as a place of religious worship’: cl 9(a). Secondary uses are tolerated.

[59]   The spectrum enlarges once ‘ownership’ and ‘purposes’ are added. ‘Use’ and ‘ownership’, when related to a designated purpose, may be alternatives, as is so in  the Foundation’s case, or may be fused. In addition, ‘use’ and the purpose designated may also be fused. And again, ‘use’ for another designated purpose may be

excluded. All of these features are present at the highest extreme of the spectrum in cl 3, which exempts:

Land that is –

(a)owned by a society or association of persons (whether incorporated or not); and

(b)used for conservation or preservation purposes; and

(c)not used for private pecuniary profit; and

(d)able to be accessed by the general public.

[60]   In this spectrum the exemption conferred on the Foundation is at the midpoint. Category 5, like categories 6-8, exempts by ‘use’ or by ‘ownership’ as long as that is consistent with the Foundation’s ‘purposes’. And ‘purposes’, when related to ‘ownership’ is not to be read down as related to ‘use’. If that were to be so it would have been said.

Conclusions

[61]   The immunity from rates granted the Foundation by cl 5(e) of the First Schedule, Part 1, of the LGRA does, I consider, extend to the land let by the Trust on behalf of the Foundation to commercial tenants.

[62]   The Foundation owns the land. It holds the fee simple interest, and the Trust, which holds a leasehold interest, does so as the instrument of the Foundation. To benefit from the exemption the Foundation does not need to use the land itself. ‘Use’ is not a cumulative requirement (nor is ‘occupation’, which is a specific requirement in one case only, cl 21). The Foundation’s interest need only serve the purposes of the Foundation, and in their most complete expression.

[63]   The Foundation’s central object, to benefit blind persons wherever they may happen to be within the community, by assisting them in a wide variety of ways, no longer calls as it once did for the Foundation to offer institutional care. The Foundation’s need for land in that sense is now minimal or non-existent. What the Foundation does need, from any source at its disposal, is income on which it can

rely. The services it offers are many, and they are increasing. The land the Foundation has acquired since its inception has taken on that different significance. It has become an indispensable source of revenue.

[64]   That reality is recognised, I consider, if only implicitly, in the last of the Foundation’s objects (s 10(p)), which, eschewing the distinction between purposes and powers, enables the Foundation to ‘do all such other things as are incidental or conducive to the attainment of any of … (its) objects’. The turning to account of the Parnell site for a sustainable income clearly lies within the bounds of that object.

[65]   The reasons for pause, that endowment land, which is gifted as a source of revenue, is an exception to the immunity, and the reality that the tenants may benefit as well as the Foundation, does not, to my mind disturb that conclusion. It is, I consider, a direct expression of the central principles of the Schedule One, Part 1 exempting code.

[66]   There will be a declaration in the terms applied for. The Foundation is, I consider, entitled to costs, as I should have thought at level 2B, and disbursements as fixed by the Registrar. Should costs prove to be in issue, counsel are requested to file memoranda within ten days.

P.J. Keane J