Coverdale v West Coast Council [2016] HCA 15 (14 April 2016)

Last Updated: 14 April 2016

HIGH COURT OF AUSTRALIA

FRENCH CJ,



KIEFEL, KEANE, NETTLE AND GORDON JJ

WARRICK COVERDALE, VALUER-GENERAL OF



THE STATE OF TASMANIA APPELLANT

AND

WEST COAST COUNCIL RESPONDENT

Coverdale v West Coast Council



[2016] HCA 15



14 April 2016



H10/2015

ORDER

Appeal dismissed.

On appeal from the Supreme Court of Tasmania

Representation

M E O'Farrell SC, Solicitor-General of the State of Tasmania with S K Kay for the appellant (instructed by Acting Director of Public Prosecutions (Tas))

Submitting appearance for the respondent

S B McElwaine SC with R L A Munnings for the Attorney-General of the State of Tasmania, as contradictor (instructed by Crown Law (Tas))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Coverdale v West Coast Council

Statutes – Interpretation – Meaning of "land" – Meaning of "Crown lands" – Whether "Crown lands" in s 11(1) of Valuation of Land Act 2001 (Tas) includes seabed and waters above it – Whether s 11(1) of Valuation of Land Act and s 2 of Crown Lands Act 1976 (Tas) in pari materia.

Words and phrases – "Crown lands", "in pari materia", "including", "land".

Acts Interpretation Act 1931 (Tas), s 46.



Crown Lands Act 1976 (Tas), ss 2, 29.



Local Government Act 1993 (Tas), Pt 9, s 87(1).



Valuation of Land Act 2001 (Tas), ss 3, 11.

FRENCH CJ, KIEFEL, KEANE, NETTLE AND GORDON JJ. This is an appeal from a judgment of the Full Court of the Supreme Court of Tasmania. The question is whether the seabed and waters of Macquarie Harbour are lands or Crown lands within the meaning of s 11(1) of the Valuation of Land Act 2001 (Tas) ("the VLA"). For the reasons which follow, that question should be answered, yes.

The facts

The respondent ("the Council") seeks to levy rates on eight marine farming leases over parts of the seabed and waters within Macquarie Harbour on the west coast of Tasmania pursuant to Pt 9 of the Local Government Act 1993 (Tas) ("the LGA"). To that end, it requested the appellant ("the Valuer-General") to value the leases in accordance with s 11(1) of the VLA. In substance, s 11(1) of the VLA provides that the Valuer-General must value all lands within each valuation district, including any Crown lands that are liable to be rated in accordance with Pt 9 of the LGA. The Valuer-General declined to value the leases on the basis that, in the Valuer-General's opinion, the leases are not over "lands" or "Crown lands that are liable to be rated" within the meaning of s 11(1). The Council instituted proceedings in the Supreme Court of Tasmania for, among other relief, a declaration that the Valuer-General was obliged to value the leases. At first instance, Blow CJ held that the leases were not over lands within the meaning of s 11(1) of the VLA and, therefore, were not liable to be rated [1] Pt 9 of the LGA [2] The present appeal is brought pursuant to a grant of special leave made on 11 September 2015 [3]

Relevant legislation

Valuation of Land Act

The Valuer-General has responsibility under s 5(2) of the VLA for the direction, control and management of the valuation of land in accordance with the VLA. Section 5(3) of the VLA provides that, without limiting those responsibilities, the Valuer-General's functions are, inter alia, to establish and maintain valuation rolls and enter valuations in the valuation rolls. So far as is relevant, s 11 of the VLA prescribes the duty of the ValuerGeneral to make valuations of land 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.



(1A) The Valuer-General may exempt land from the valuations to be made under subsection (1) if the Valuer-General considers that the land should not be included in those valuations."

Section 3 of the VLA defines "land" as including:

"(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 VLA defines "valuation district" as "the municipal area of a council" [4] s 16 of the LGA. Section 16 provides:

"(1) The State is divided into municipal areas.



(2) A municipal area is an area specified in Column 1 of Schedule 3.



(3) A municipal area includes –

(a) any accretion from the sea adjoining it; and



(b) any part of the sea-shore to the low-water mark adjoining it.



...

(5B) Each municipal area is defined by reference to the relevant plan or plans specified in Column 1 of Schedule 3."

The boundaries of most municipal areas (and, therefore, "valuation districts") are so drawn as to exclude the sea [5]

Crown Lands Act

"Crown land" is defined in s 2 of the Crown Lands Act 1976 (Tas) ("the CLA"). Section 2 provides that in the CLA, unless the contrary intention appears:

"Crown land means land which is vested in the Crown, and which is not contracted to be granted in fee simple; and includes land granted in fee simple which has revested in the Crown by way of purchase or otherwise".

Unlike in the VLA, "land" is expressly defined in the CLA to include the sea. It provides[6]:

"land includes land covered by the sea or other waters, and the part of the sea or those waters covering that land".

It was accepted that Macquarie Harbour is vested in the Crown in right of the State of Tasmania and that it is "Crown land" within the meaning of the CLA.

Local Government Act

Part 9 of the LGA, which is referred to in s 11(1) of the VLA, is directed to rates and charges that may be imposed by councils. In Pt 9, s 87(1) specifies that:

"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:



(a) land owned and occupied exclusively by the Commonwealth;



(b) land held or owned by the Crown that –

(c) land owned by the Hydro-Electric Corporation or land owned by a subsidiary, within the meaning of the Government Business Enterprises Act 1995, of the Hydro-Electric Corporation on which assets or operations relating to electricity infrastructure, within the meaning of the Hydro-Electric Corporation Act 1995, other than wind-power developments, are located;



(d) land or part of land owned and occupied exclusively for charitable purposes;



(da) Aboriginal land, within the meaning of the Aboriginal Lands Act 1995, which is used principally for Aboriginal cultural purposes;



(e) land or part of land owned and occupied exclusively by a council."

It is to be noted that none of the exemptions to land that is rateable in s 87(1)(b) of the LGA applies to marine farming leases granted pursuant to the Marine Farming Planning Act 1995 (Tas). It should also be noted that s 86 of the LGA contains a definition of "land" for the purposes of Pt 9:

"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".

As that definition requires the relevant land to have been valued under the VLA, it begs the question presented in this appeal.

Acts Interpretation Act

The Acts Interpretation Act 1931 (Tas) also contains a definition of "land". Section 46 of that Act provides that "land" includes "messuages, tenements, and hereditaments, houses, and buildings of any tenure and any estate or interest therein". That definition applies to every Tasmanian Act except where otherwise expressly provided in an Act or where the provision or its interpretation would be inconsistent with or repugnant to the true intent and object or the context of a particular Act [7]

"Crown lands"

In view of the foregoing legislative provisions, this appeal turns on whether the meaning of "Crown lands" in s 11(1) of the VLA is restricted by what is said to be the ordinary signification of "land", and as such excludes the seabed and waters above it, or whether "Crown lands" in s 11(1) means "Crown land" as defined in the CLA, and hence "includes land covered by the sea or other waters, and the part of the sea or those other waters covering that land" [8]

The ordinary signification of "land"

The Valuer-General contended that the inclusive definitions of "land" in the VLA and the Acts Interpretation Act extended the meaning of "land" but not so as to exceed the ordinary signification of "land", which would not include the seabed or waters above it. In Risk v Northern Territory [9] Risk was concerned with "land" in the context of an Aboriginal land rights claim and, in that context, there were powerful textual and extrinsic indications that the phrase "land in the Northern Territory" in s 3(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) did not include the seabed below the low water mark of bays and gulfs within the limits of the Territory. By contrast, Goldsworthy Mining Ltd v Federal Commissioner of Taxation [10] [11] s 46 of the Acts Interpretation Act was sufficiently wide and general to enable it to comprehend a part of the seabed [12] In Dampier Mining Co Ltd v Federal Commissioner of Taxation [13] Dampier that a lease of the seabed was not a lease of land for the purposes of the relevant legislation [14] Ultimately, therefore, as Gummow J observed in Risk, the question of whether the seabed and waters above it are "land" in the context of particular legislation must be resolved by "regard to the text of the statute as a whole, and the subject, scope and purpose of the statute and against the legislative history and antecedent circumstances" [15]

Constructional choice

By and large, Tasmanian Acts define "Crown land" in one of three ways. Some refer to Crown land without defining it but implying that it has the same meaning as in the CLA [16] [17] [18] In this case, the text of the VLA yields a constructional choice between a meaning of s 11(1) which embraces the definition of "Crown land" in the CLA, and so includes the seabed and waters above it, and a meaning which excludes them. Specifically, the word "including" in s 11(1) of the VLA is ambiguous. It is not clear from the text whether it is used in the phrase "all lands ... including any Crown lands" in a sense which restricts the definition of "Crown lands" to mean only those that fall within the ordinary signification of "land" or in a sense which extends the definition of "land" to Crown lands that fall outside of the ordinary signification of "land". Viewed, however, against the background of the VLA's legislative history and antecedent circumstances, the scope and purpose of the VLA dictate a constructional choice in favour of the adoption of the definition of "Crown land" in the CLA, which includes the seabed and waters above it.

Legislative history of the LGA and the VLA

Historical land rating legislation

Early Tasmanian land rating statutes contained a general exemption from rates for land held by the Crown. Then, over time certain exceptions to the general exemption from rates for Crown land were introduced. From 1985, however, the approach became that all Crown land was liable to be rated subject only to a number of specific public purpose exemptions. The earliest rating statutes empowered the municipal councils of Hobart [19] [20] [21] [22] [23] In 1962, all provisions directed to the rating functions of all municipalities, including Hobart and Launceston, were consolidated in the Local Government Act 1962 (Tas) ("the LGA 1962") [24] [25] In 1985, the rating provisions in the LGA 1962 were repealed and substituted [26] [27] In 1994, the LGA 1962 was repealed and replaced by the LGA [28]

"(b) land owned by the Crown which is unoccupied or occupied exclusively for public purposes (other than under the Homes Act 1935)".

In 2003, s 87 of the LGA was amended by the State and Local Government Financial Reform Act 2003 (Tas) ("the Financial Reform Act") whereby the rating provisions of the LGA assumed a form close to that in which they now appear [29]

Historical land valuation legislation

Likewise, while early valuation statutes contained a general exemption from valuing Crown land, over time the general exemption was replaced with provisions which required all Crown land to be valued subject only to a number of specific public purpose exemptions. The first separate land valuation statute was the Property Valuation Act 1857 (Tas) [30] [31] [32] Beginning with the Land Valuation Act 1950 (Tas), and subsequently the 1971 iteration of that Act [33] [34] [35] [36] As first enacted, s 11(1) of the VLA had a similar structure and effect to s 12(1) of the LVA 1971 prior to its repeal. Once again, there was no definition of "Crown lands". In 2003, the Financial Reform Act, which also amended the LGA [37] [38]

"The Valuer-General must, subject to this section, make –



(a) valuations of the land values, capital values and assessed annual values of all lands within each valuation district and Crown lands liable to be rated in accordance with Part 9 of the Local Government Act 1993; and



(b) valuations of the assessed annual values of such Crown lands and lands held by or on behalf of statutory authorities within the outer islands, and leased for grazing or agricultural purposes, as are liable to be rated in accordance with Part 9 of the Local Government Act 1993."

Finally, in 2007, s 11(1) of the VLA was further amended to read as it now does [39]

"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."

"And" and "including"

Conclusion

In the result, it is to be concluded that "Crown lands" in s 11(1) of the VLA means "Crown land" within the meaning of the CLA and so includes the seabed and so much of the sea as lies above it. It follows that the appeal should be dismissed.





[1] West Coast Council v Coverdale (2014) 203 LGERA 296.

[2] West Coast Council v Coverdale (No 2) (2015) 325 ALR 751.

[3] [2015] HCATrans 228 (Kiefel and Nettle JJ).

[4] VLA, s 3.

[5] LGA, Sched 3.

[6] CLA, s 2.

[7] Acts Interpretation Act, s 4(1).

[8] CLA, s 2.

[9] [2002] HCA 23; (2002) 210 CLR 392 at 403-404 [26]; [2002] HCA 23; see also Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24 at 65 [56] per Gleeson CJ, Gummow, Hayne and Crennan JJ; [2008] HCA 29.

[10] [1973] HCA 7; (1973) 128 CLR 199 at 210; [1973] HCA 7.

[11] Goldsworthy Mining [1973] HCA 7; (1973) 128 CLR 199 at 210-211.

[12] Goldsworthy Mining [1973] HCA 7; (1973) 128 CLR 199 at 215; cf Risk [2002] HCA 23; (2002) 210 CLR 392 at 418 [82] per Gummow J, 435 [121] per Callinan J.

[13] [1981] HCA 29; (1981) 147 CLR 408 at 428; [1981] HCA 29.

[14] [1981] HCA 29; (1981) 147 CLR 408 at 428.

[15] [2002] HCA 23; (2002) 210 CLR 392 at 418 [83]; see also at 435 [123] per Callinan J.

[16] See, eg, Boundary Fences Act 1908 (Tas), s 4, definition of "owner"; Highways Act 1951 (Tas), s 3; Limitation Act 1974 (Tas), s 10; Fire Service Act 1979 (Tas), ss 57, 59, 66; Land Titles Act 1980 (Tas), ss 11, 19, 27; Forest Practices Act 1985 (Tas), s 44; Port Arthur Historic Site Management Authority Act 1987 (Tas), s 3(1), definitions of "adjacent area" and "pre-existing reserve"; Public Land (Administration and Forests) Act 1991 (Tas), s 135, definition of "World Heritage Area"; Wellington Park Act 1993 (Tas), ss 3(1), definition of "private right", 7(1), (2), 73; Private Forests Act 1994 (Tas), s 3, definition of "private commercial forest"; Aboriginal Lands Act 1995 (Tas), s 27(6); Land Tax Act 2000 (Tas), s 17; Meander Dam Project Act 2003 (Tas), s 8; Litter Act 2007 (Tas), s 4; Macquarie Point Development Corporation Act 2012 (Tas), ss 3(1), definition of "site", 53, 54; Workplaces (Protection from Protesters) Act 2014 (Tas), s 3, definition of "owner".

[17] See, eg, War Service Land Settlement Act 1950 (Tas), s 3, definition of "Crown land"; Closer Settlement Act 1957 (Tas), s 3, definition of "Crown land"; Mining (Strategic Prospectivity Zones) Act 1993 (Tas), s 7(1), definition of "Crown land"; Electricity Companies Act 1997 (Tas), s 3, definition of "property"; Vermin Control Act 2000 (Tas), s 3, definition of "Crown land"; Evidence Act 2001 (Tas), s 177D(1); Forest Management Act 2013 (Tas), s 3, definition of "Crown land"; Forestry (Rebuilding the Forest Industry) Act 2014 (Tas), s 3, definition of "Crown land"; Launceston Flood Risk Management Act 2015 (Tas), s 3, definition of "Crown land".

[18] See, eg, Local Government (Highways) Act 1982 (Tas), s 3(1), definition of "Crown land"; Mineral Resources Development Act 1995 (Tas), s 3, definition of "Crown land"; Threatened Species Protection Act 1995 (Tas), s 3(1), definition of "Crown land"; National Parks and Reserves Management Act 2002 (Tas), s 3(1), definition of "Crown land"; Nature Conservation Act 2002 (Tas), s 3(1), definition of "Crown land".

[19] Hobart Town Corporation Act 1857 (Tas) (21 Vict No 14), ss 97, 104.

[20] Launceston Corporation Act 1858 (Tas) (22 Vict No 12), ss 97, 104.

[21] Rural Municipalities Act 1865 (Tas) (29 Vict No 8), ss 119, 136.

[22] Buildings held by the Government for public purposes and other properties used for public purposes including hospitals, benevolent asylums, buildings for charitable purposes, churches and chapels were also exempted: Hobart Town Corporation Act 1857 (Tas) (21 Vict No 14), s 104; Launceston Corporation Act 1858 (Tas) (22 Vict No 12), s 104; Rural Municipalities Act 1865 (Tas) (29 Vict No 8), s 136.

[23] Hobart Corporation Act 1893 (Tas) (57 Vict No 11), ss 103, 116; Launceston Corporation Act 1894 (Tas) (58 Vict No 30), ss 115, 122; Local Government Act 1906 (Tas), ss 159, 173; Hobart Corporation Act 1929 (Tas), ss 105, 122; Launceston Corporation Act 1941 (Tas), ss 106, 115; Hobart Corporation Act 1947 (Tas), ss 101, 106.

[24] LGA 1962, ss 2(1)(d), 5. Other valuation provisions also applied to Hobart and Launceston: Hobart Corporation Act 1963 (Tas), ss 85-88; Launceston Corporation Act 1963 (Tas), ss 90-100.

[25] LGA 1962, s 243(1)(a); see also par (b), which also created an exemption from rates for "land occupied exclusively for public or charitable purposes".

[26] Local Government Amendment (Rates and Charges) Act 1985 (Tas), s 6.

[27] LGA 1962, ss 232, 243(1) (as amended by the Local Government Amendment (Rates and Charges) Act 1985 (Tas)). Land owned by the Commonwealth or owned and occupied exclusively for public or charitable purposes was also exempted from rates and charges.

[28] LGA, s 350, Sched 9.

[29] Financial Reform Act, s 11.

[30] 21 Vict No 19.

[31] Assessment Act 1900 (Tas) (64 Vict No 4); Land Valuation Act 1909 (Tas); Annual Values Assessment Act 1911 (Tas).

[32] See above at [25]. Cf Property Valuation Act 1857 (Tas) (21 Vict No 19), s 35; Assessment Act 1900 (Tas) (64 Vict No 4), s 4, definition of "Annual value"; Land Valuation Act 1909 (Tas), s 2, definition of "Improvements"; Annual Values Assessment Act 1911 (Tas), s 6, definition of "Annual value".

[33] Land Valuation Act 1971 (Tas).

[34] Land Valuation Act 1950 (Tas), s 14; LVA 1971, s 12.

[35] VLA, s 66(1).

[36] See, eg, Land Valuation Amendment Act 1980 (Tas), s 2; Land Valuation Amendment (Relocatable Homes) Act 1999 (Tas), s 4.

[37] See above at [29].

[38] Financial Reform Act, s 21.

[39] Valuation of Land Amendment Act 2006 (Tas), s 11.

[40] See [17]-[21] above.

[41] YZ Finance Co Pty Ltd v Cummings [1964] HCA 12; (1964) 109 CLR 395 at 401-404 per Kitto J, 405-406 per Menzies J; [1964] HCA 12; Favelle Mort Ltd v Murray [1976] HCA 13; (1976) 133 CLR 580 at 589 per Barwick CJ; [1976] HCA 13; Federal Commissioner of Taxation v St Hubert's Island Pty Ltd (In liq) (1978) 138 CLR 210 at 216 per Stephen J; [1978] HCA 10; R v Gray; Ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351 at 364-365 per Gibbs CJ; [1985] HCA 67; Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 at 329-330 per Toohey, McHugh and Gummow JJ; [1996] HCA 31.

[42] Financial Reform Act, s 21.

[43] Valuation of Land Amendment Act 2006 (Tas), s 11.

[44] Valuation of Land Amendment Act 2006 (Tas).

[45] Tasmania, House of Assembly, Parliamentary Debates (Hansard), 2 November 2006; Tasmania, House of Assembly, Valuation of Land Amendment Bill 2006, Clause Notes at 2.

[46] See, eg, Marine Farming Planning Act 1995 (Tas), s 59; Living Marine Resources Management Act 1995 (Tas), Pt 4.

[47] CLA, long title.

[48] CLA, s 29(1), (2A).

[49] Cf Federal Commissioner of Taxation v ICI Australia Ltd [1972] HCA 75; (1972) 127 CLR 529 at 540-542 per Walsh J, 581 per Gibbs J; [1972] HCA 75.

[50] Cf Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716 at 726 per Griffith CJ; [1906] HCA 73.

[51] Gale v Federal Commissioner of Taxation [1960] HCA 18; (1960) 102 CLR 1 at 11-12 per Fullagar J (Dixon CJ agreeing at 7); [1960] HCA 18.

[52] See Coastal Waters (State Powers) Act 1980 (Cth); Coastal Waters (State Title) Act 1980 (Cth); see also New South Wales v The Commonwealth ("the Seas and Submerged Lands Case") (1975) 135 CLR 337; [1975] HCA 58.

[53] Financial Reform Act, s 11.

[54] Section 87(1)(b)(xiii) of the LGA provides that "a marine facility, within the meaning of the Marine and Safety Authority Act 1997" is "exempt from ... rates".