Borough of Glebe v Lukey (Australian Gaslight Co) [1904] HCA 8

Borough of Glebe v Lukey (Australian Gaslight Co) [1904] HCA 8 - HCA 1904 case summary — Zoe

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either the property in question is not "rateable property" a defined by sec. 137, or, if itis within that section, there is no wa of recovering rates upon it. The effect of their judgment is that the words "rateable property " have a different meaning in th two sections. My contention is that sec. 137 points out what kinds of property are rateable, and sec. 141 lays down the mam in which the property is to be rated, dividing it into two classe for that purpose. ' It is practically admitted that this property is land, and there fore rateable by sec. 137. Consequently if sec. 141 does not remoye it from the category of " rateable property," the Suprem Court must be wrong. Land must be either improved or unim- proved. Improved land is either " buildings or cultivated land or "land let or having been let," that is, land that is worth occupation. The company does not own the land, they have statutory license, a statutory tenure, but the land must still either improved or unimproved. Originally it was in the el "unimproved," but now it is occupied under a statutory license, and is within the category of "let" lands. Whichever it now i it is " rateable property." The land occupied is the core enclosed by the pipes. [Grirrita, C.J. - There seems to be no real difference betweer this case, and, for instance, a square pipe laid on the surface. Th would clearly be an occupation of the land covered by it. (Ref to Municipality of Brisbane v. Queensland Tramway Company, 9 Q.LJ., 67) }. Next, assuming that this is rateable property, the decision of the Justices as to both amount and method of assessment is fin Knight v. Municipal District of Rockdale, 20 N.S.W.LR. (Eq, 32, at p. 63. This case shows that even if the Court is of op' that this property is unimproved land, and I am wrong in t contention that it is "let" land, the answer to the questio must be in the appellant's favour. Harvey followed. It may be that the word "unimproved" i sec. 141 has a special meaning, and means " other lands," i.e. lands not coming within the first class, "buildings or cultivat Jands," the latter class comprising only improved' lands.

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appeal. They cannot raise the point now. It is not open to them on the special case. Judgment is to be entered for a certai amount if the questions are answered in the affirmative. The Court in Knight v. Municipality of Rockdale considered all the authorities and decided that so long as the justices were acting within their jurisdiction their decision was final, and that the mode of assessment was within their jurisdiction ; Melbourne Lramway Co. v. Mayor of Fitzroy (swpra),does not touch this ease It turned upon the Justices Act and not the Municipalities Act. As to the rateability of the property ; R. v. Hast London Water. works, 18 Q.B., 705, is in point and in plaintiff's favour; Bowley's Case was a decision upon an Act very different from ours, and turned upon the question of what was land within the meaning of that Act. It merely decided that on the words of an Act rati persons as " owners or holders," the waterworks company were no} " owners or holders" within its meaning. In our Act the oceupier is primarily liable, and the defendant company are rated as occupiers, not as owners or holders. Sec. 187 makes certai owners exempt by reason of the use of their land; consequent} the distinction between owners and occupiers must have considered in drafting the section. In R. v. Governor a Council of Chelsea Waterworks, 5 B. & Ad., 156, it was held that the occupier was liable although another person was rateable in respect of the same land in respect of his use of the herbage upun it. It is by virtue of occupation that persons are made liab under our Act. [Refers to secs. 151, 154 and 156]. Lord Hobe house, at p. 169 of the judgment in Melbourne Tramway Co. v Mayor of Fitzroy, recognises the applicability of the Engli rating cases to the Victorian Act (collected in MacHugh and O'Dowd's Local Government Acts), and sec. 551 of that Ad makes the rate a charge upon the land, just as sec. 154 does in our Act. [Barrton, J., referred to Hx parte McInnes, 4 N.S.W. LR, 14 and Ingram v. Drinkwater, 32 L.T.N.S., 746. These cases hav some reference to gathering the intention of the legislatu from their presumed knowledge of previously existing circum stances. ]

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company's mains came within similar words in the Sydney Corporation Act. The Supreme Court therefore addressed itself only to the question whether there were other provisions in the Municipalities Act that required a more limited construction to be put upon sec. 137. Before this Court, however, both questions were raised, and it is necessary for us to deal with both, because | we are not bound by the decision of the New South Wales Court. As was pointed out by the Court in the Sydney Corporation Case, it is settled law in England that, under Statutes by which the occupiers of land are liable to be rated, the portions of the soi occupied by a gas, water, or tramway company are "land" within the meaning of the Statutes, and that companies carrying on their business by means of these "lands" are "occupiers" within the meaning of the same Statutes. In the Sydney Corporation Case an endeavour was made on behalf of the company to distinguish these authorities from the case then before the Court by suggest- ing that the company's occupation was somewhat different i that it was in the nature of an easement, and not land within the meaning of the Statute, and that the defendants, there fore, could not be said to be "occupiers" within the meaning of the Statute. To establish this, reliance was placed upon the case Chelsea Waterworks Co. v. Bowley, reported in 17 Q.B., 358, but, as was pointed out by Herschel, L.C., in Metro: politan Railway Co. vy. Fowler, (1898) A.C., 416, that case turned upon the words of the Land 'Tax Act, and it was held by the Court that under that particular Act there was no intention to charg persons whose occupation was of such a kind as that of a water: works company. He pointed out, however, that it was very difficult to reconcile that case with another case decided in the same yea by the House of Lords, The King v. East London Waterworl Co., 18 Q.B., 705, in which it was held, with regard to a tunnel occupied by a railway company, that so much of the soil as wa oceupied by the tunnel was land within the meaning of the rating Act. The same has been held by the Privy Council to be the law in Victoria under a definition in almost the same words as are in the Sydney Act; Melbourne Tramway Company v. Fitzroy, (190 AC,, 153. Lord Hobhouse, in delivering the judgment of thei

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if by any other construction they may be all made useful and pertinent." "Lhe word "all" used in the Act now before us, must therefore not be made "superfluous, void, or insignificant if it is possible to avoid making it so. In the ease of Salmon y Duncombe, before the Privy Council in 1886, reported in 11 A, 627. Lord Hobhouse, in delivering the judgment of the Committ of which Lord Watson was a member, said (p. 634) :--"It however, a very serious matter to hold that, where the intent) of a Statute is clear, it shall be reduced to a nullity by the drafts man's unskilfulness or ignorance of law. It may be necessary for a Court of Justice to come to such a conclusion, but their Lordships hold that nothing can justify it except necessity or th absolute intractability of the language used. And they have se themselves to consider - tirst, whether any substantial doubt ean be suggested as to the main object of the legislature; and, secondly, whether the last nine words of sec. 1 are so cogent and so limit the rest of the Statute as to nullify its effect either entirely or in a very important particular." Taking then into consideration this principle, that all the words used are to have a meaning given to them that is consistent with the intention of the legislature, and having regard to the words used here i particular, I confess that I do not feel very much difficulty. is clear to my mind that the legislature thought, as the draf man thought, that they had divided all property into two cla: one class to be valued by taking its fair average annual rental, a another class, comprising al] land as to which this would not be fair basis of valuation, to be valued by taking the capital val of the fee simple as the basis, It is said by the defendan that the property sought to be rated in this case does not within either of these classes. The first part of the clause de seribes one class asconsisting of "all buildings and cultivated land or lands which are or have been let for pastoral, mining, or othe purposes, whether such buildings or lands are then occupied 01 not," and the other class as "all unimproved lands." The seetit is, no doubt, inartiticially drawn. The word " buildings" mus be taken to include the curtilage as well, although, literally it means only the actual structure, and, consequently, there is

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to be likely to produce revenue, and enumerated what it regarded asimprovements. All other lands were regarded as unimproved, _ Improvements were taken to be buildings or cultivation or minmg operations, and if there were none of these, the land was regarded asunimproved. These two classes were intended to be exhaustive and to comprise, between them, all lands. That being the inten- tion of the legislature, I look at the subject-matter of this case, and I see no difficulty in regarding it as unimproved land. The argument was somewhat obscured by sometimes regarding the subject-matter as the hollow space within the pipes, and some- times as the surface above them. Traces of this mistake are "apparent i in the arguments of counsel for the defendants here, and 'in the judgment of the Court below. But in considering the subject-matter as it really is, it may be worth while to refer again to an illustration which I put during the argument. In Western Australia there is a pipe line 350 miles in lengthy, laid to convey water to Kalgoorlie. he pipes are laid upon the surface of the soil, and are covered throughout their length by a mound of earth two or three feet in thickness. Can it be contended that the owners of these pipes are not in oceupation of a strip of land 350 miles in length by some 5 or 6 feet in width? As was pointed out in the case Pimlico, &e., Tramway Co. v. Greenwich Union, and by the Privy Council in the case of the Melbourne Framway, ke., Co. v. Fitzroy, (1901) A.C. 158, it makes no difference whether it is the surface or land a foot or two below the surface that is occupied. There can therefore be no difficulty in regarding the land on which the pipes lie and on which they rest as being oceupied, though there may be some apparent but not real

difficulty in regarding the space inside the pipes as occupied land. "Inthe Kalgoorlie instance it is clearly the surface, and the land "underneath it, that is occupied. That being so, what difficulty 'is there in regarding the land so occupied as unimproved land? 'There may be some difficulty about regarding it as "let" land. 'But if it comes within either class it is liable to be rated. It is

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therefore not necessary to decide to which class the land belongs, though I am inclined to think it is within the second. We have beentoldthat we must answer this question in order to decide which is the proper method of rating this class of property. We are not, however, obliged to answer it, and therefore, as the question only arises incidentally, and as it is not necessary for the purposes of our decision, we decline to answer it. See. 150 provides that "If any person thinks himself aggrieved by the value at which his property has been assessed for any year, he may" j "appeal against such assessment to two or more justices in petty. sessions" . . . . "and such justices shall have power to hear and determine the same, and to award such relief in the premises as the justice of the case may require, and such decision shall be final as regards the matter of such appeal, and the rate- book," . . "shallif necessary be amended in accordance with | such decision." The present defendants appealed against the assessment in question, not upon the ground of its having been made on a wrong basis, but on the ground that they were not liable to be rated at allin respect of the particular property i respect of which the assessment was made. The Supreme Court in Knight v. Municipality of Rockdale, reported in 20 N.S.W.L- (Eq.), at p. 38, held that the decision of the justices was final, not only as to the value, but also as to the basis of assessment. W¢ are invited by counsel for the defendants to over-rule that decision, and to follow the case Borough of North Sydney v. Milson, 1 NS.W.LR., 55. I content myself with saying that having care- fully considered the reasoning in the judgments of A. H. Simpson, CJ. in Eq., and of the Full Court in Knight v. Municipality of Rockdale, it entirely commends itself to me. It is, therefore, immaterial for the purpose of our decision whether the basis the assessment was the true one or not. I may remark, however, though it is not necessary to this judgment, that I see vei little difference between an assessment based upon the ren value and one based upon the eapital value. If the rental val is the basis, it is to be taken as the rent that a hypothetical tenant! would be willing to pay ; if the capital value is the basis, thi following the rule laid down by the Court of Queensland, it to be taken as what a hypothetical purchaser would give for t

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Judgment (120 paragraphs)