City of Palmerston v Venture Housing Company Ltd [2026] NTSC 18

rates - whether proposed ground of appeal raises a question of law or mixed

fact and law; whether the Local Government Act excludes land rented for

residential purposes from rate exemptions. Leave to appeal refused.

Australian Charities and Not-for-profits Commission Act 2012 (Cth)

Housing Act 1982 (NT); s 5

Local Government Act 2019 (NT); ss 222(1)(g), 222(3), 222(4); 222(1)(ii)

Northern Territory Civil and Administrative Tribunal Act 2014 (NT); s 141

Dean Mildren 'The Appellate Jurisdiction of the Court's in Australia, 2nd

Aboriginal Hostels Ltd v Darwin City Council (1985) 75 FLR 197; Alice

Springs Town Council v Mpweteyerre Aboriginal Corporation & Ors(1997)

13 FLR 236; Azzopardi v Tasman UEB Industries LTD (1985) 4 NSWLR

139; Badari & Ors v Minister for Territory Families & Anor v Minister for

Territory Families and Urban Housing & Anor; Badari & Ors v Minister for

Housing and Homelands & Anor; Nadjamerrek & Ors v Chief Executive

Officer (Housing) [2025] NTCA 1; Booth v An Assessor & Anor [2019]

NTSC 89; Chief Executive, Department of Lands v Whackett [1995]

QLAC 5; City of Mandurah v Australian Flying Corps & Royal Australian

Air Force Association (WA) Division Inc [2016] WASCA 185; Collector of

Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389; Collector of

Customs v Pozzolanic (1993) 43 FLR 280 at 287; Community Housing

Limited v Clarence Valley Council [2015] NSWCA 327; Community

Housing Ltd v Clarence Valley Council the Court of Appeal (NSW) [2015]

NSWCA 327; Edwards v Bairstow [1955] UKHL 3; [1956] AC 14; Goodrich Aerospace Pty

Ltd v Arsic (2006) 66 NSWLR 186; Haines v Leves (1987) 8 NSWLR 442;

HN v NTCAT & Ors [2020] NTSC 48; Holt v Dental Board of Australia

[2023] NTSC 28; Instrumatic Ltd v Supabrase Ltd [1969] 1 WLR 519;

Intertransport International Private Ltd v Donaldson [2005] VSCA 303;

King v Chief of Army [2012] ADFDAT 4; Nicolia v Commissioner of

Railways [1972] ALR 185 (HC); Pepperill and Anor v CEO Housing [2023]

NTSC 90; Project Blue Sky Inc v Australian Broadcasting Commission

(1998) 194 CLR 355; R v District Court of the Metropolitan District Holden

at Sydney; Ex parte White [1996] HCA 69; 116 CLR 644; Rallen Australia

Pty Ltd v Sweetpea Petroleum Pty Ltd [2023] 376 FLR 239; Salvation Army

(Victoria) Pty Ltd v Fern Tree Gully [1952] HCA, 85 CLR 159; Tiver

Constructions Pty Ltd v Clair [1992] NTSC 86; (1992) 110 FLR 239; Wilson v Lowery (1993)

[1993] NTCA 127; 4 NTLR 79; referred to.

City of Palmerston v Venture Housing Company Ltd [2026] NTSC 18

[1] This is an application for leave to appeal from a decision of the Northern Territory Civil and Administrative Tribunal ('the Tribunal') made on 20 November 2024 by Member McCrimmon ('the Member').

[2] The Tribunal set aside a decision of the City of Palmerston ('the Council') which had determined that certain land owned by Venture Housing Company Ltd ('Venture Housing') did not fall within the rates exemption set out in s 222(1)(g) of the Local Government Act 2019 (NT). Order 2 of the Tribunal's determination was a declaration that the lots of land at issue in Tribunal proceedings 2024-00433-CT which were made available by Venture Housing to eligible applicants pursuant to the National Rental Affordability scheme, the Venture Affordable Housing scheme and the Social Housing scheme were exempt from rates pursuant to s 222(1)(g) of the Local Government Act.[1]

[3] If granted leave, the Council proposes the following ground of appeal: that the Member erred in finding the lots the subject of Order 2 constituted land used for a non-commercial purpose and were exempt from rates by virtue of s 222(1)(g) of the Act.

[4] At the heart of this application and the proceedings below is s 222 of the Local Government Act:

(1) The following land (exempt land) is exempt from rates:

(ii) occupied by the Territory for a public purpose (other than the provision of public housing);

(b) land of the council, other than such land leased for a purpose that does not give rise to an exemption under some other provision of this section;

(d) land belonging to a religious body consisting of:

(ii) a place of residence for a minister of religion associated with a church or other place of public worship; or

(iii) a place of residence for the official head in the Territory of the religious body; or

(iv) an institution for religious teaching or training;

(f) a medical clinic or health centre conducted by the Territory;

(g) subject to subsections (3) and (4), land used for a non-commercial purpose by a public benevolent institution or a public charity that is registered with the Australian Charities and Not-for-profits Commission established under the Australian Charities and Not-for-profits Commission Act 2012 (Cth);

(h) a kindergarten, a Government school, a non-Government school, a university or other tertiary educational institution or an early childhood service owned or operated by the Territory or owned or operated by a non-Government school;

(i) land recognised by the council as a youth centre;

(i) in a units plan or building development plan registered under the Real Property (Unit Titles) Act 1975; or

(ii) of a scheme formed under the Unit Title Schemes Act 2009;

(l) land owned by a Land Trust or an Aboriginal community living area association except:

(i) land subject to a lease or a licence conferring a right of occupancy; or

(2) If land is used for 2 or more different purposes, and one or more but not all the purposes are exempt, the land is not exempt from rates unless the non-exempt purpose is merely incidental to the exempt purpose.

An allotment consists of a public museum containing a cafeteria. The allotment is exempt from rates despite the existence of the cafeteria. However, if the allotment were a restaurant attracting customers in its own right, the allotment would not be exempt from rates.

(3) Subject to subsection (4), in deciding whether land is used for a commercial or non-commercial purpose, the fact that the user is a public benevolent institution or a public charity is irrelevant and the question is to be decided according to the nature of the use and not the nature of the user.

(4) However, a non-commercial purpose does not include the land being used for a residential purpose for employees or contractors of the institution or charity.

[5] It is common ground Venture Housing operates as a Not- for- profit community housing provider. The Tribunal proceeded on that basis,[2] although that was not a decisive factor, nor as a matter of law, could it have been under the Local Government Act. The Member commented that Venture Housing is a public benevolent institution registered with the Australian Charities and Not-for-profits Commission established under the Australian Charities and Not-for-profits Commission Act 2012 (Cth). However, the fact that Venture Housing is a public benevolent institution or charity was acknowledged to be irrelevant to the question of whether the land was used for a non-commercial purpose.[3] Such an approach was plainly necessary given s 222(3) of the Local Government Act.

[6] Following Venture Housing's establishment, the Northern Territory transferred legal title of a number of properties to Venture Housing. The properties could only be used for affordable housing for eligible applicants. Continuous funding was provided by the Northern Territory Government ('NTG') under a Funding Deed dated 30 July 2012, entered into between NTG and Venture Housing.

[7] Venture Housing provided subsidised social and affordable rental housing to eligible applicants. Venture Housing made this provision by leasing its various lots so acquired at rents set by the Funding Deed consistent with other requirements such as the National Rental Affordability Scheme.[4] Another category was for those eligible for Specialist Disability Accommodation who could be charged no more for rent than 25% of the Commonwealth Disability Support Pension.[5] The income obtained from rent by Venture Housing was supplemented by the National Rental Affordability Scheme and the NDIS.[6] For tenants eligible via the National Rental Affordability Scheme, a standard Real Estate Institute, Residential Tenancy Agreement was entered.[7]

[8] Different, yet similar forms of standard tenancy agreements including the rights and obligations of the parties were used for tenants qualifying under social or disability schemes.

[9] The core of the material describing the tenancy relationships before the Tribunal was sourced from the affidavit and annexures of the Chief Executive Officer of Venture Housing.[8] As above the categories of the properties the subject of the application were described by the Chief Executive Officer, as were the categories of Venture Housing's three charitable programmes, of which two were relevant to the proceedings: social and affordable housing, including housing for the homeless, social housing and housing development and the specialist disability accommodation category.

[10] Considerable detail was provided in Ms Walsh's affidavit of 13 May 2024 and the particular annexure KEW 1 which was before the Tribunal. The Tribunal largely drew a number of its conclusions of fact from that voluminous material. This included the ultimate conclusion that the lots in question constituted land used for a non-commercial purpose and consequently were exempt from rates.

[11] That material placed before the Tribunal included eligibility requirements in each category and the limitations on rent charged. For example, the limitation of 74.99% of market rent was lower than was required under the National Rental Affordability Scheme. Venture Housing was also required to transition tenants into other schemes due to certain subsidies ceasing. The housing within the Venture Affordable Housing Programme was made available as a community housing provider and was to be consistent with a Northern Territory Government Community Housing Asset and Tenancy Management policy in which rent was to be set at no more than 74.99% of market rent, reviewable each two years.

[12] Both the social and affordable housing policies were described in some detail by Venture Housing's CEO, who noted the percentage from which rent was calculated was at or below 25% of market rent. Less, but some detail was given of the arrangements for the Specialist Disability Accommodation. Further, the CEO described separately a form of crisis accommodation which included referrals from agencies for people in crisis, or for people who had left accommodation due to family or domestic violence or similar circumstances.[9]

[13] The schedule of allotments owned by Venture Housing which were the subject of the proceedings are set out in the principal annexure to The CEO's affidavit of 13 May 2024, together with a 10 year operational overview showing profit and loss and 10 years of audited accounts.[10] Material filed on behalf of the Council, which was also relied on by Venture Housing, included Venture Housing's Annual Report for 2020 which included its profit and loss for the financial years of 2019-2020.

[14] I mention these materials as they form a large part of the evidence before the Tribunal which assisted it to come to its ultimate finding that the land in question was used for a non-commercial purpose.

[15] The Tribunal's reasons for decision set out the lots which were at issue in the proceedings and the four types of charitable programs available to eligible applicants for housing:[11]

5.1 National Rental Affordability Scheme ('NRAS') - applicants must meet the NRAS eligibility requirements, including, inter alia, falling within the income limits as set out by the Commonwealth Department of Social Services. Pursuant to the NRAS Scheme, rent must be at least 20% less than the market rent as assessed by an independent values or indexed to the Consumer Price Index ('CPI') "The Applicant sets the rent on all of its NRAS properties at no greater than 74.99% of the market value rent, and in accordance with the NRAS maximum limits".

5.2 Venture Affordable Housing - to be eligible for this program, applicants must be working and fall under the Venture Affordable Housing income limit for their household. Rent for the program is set at no more than 74.99% of market rent which is calculated independently every two years, and pursuant to the CPI in alternate years.

5.3 Social Housing - eligibility for this program is determined by the Department of Territory Families Housing and Communities public housing eligibility criteria. Only those on the NTG's Public Housing waitlist are eligible. Rent is calculated pursuant to the NTG's Rental Rebate Policy and Rent Policy. In this program, rent is calculated at 25% of assessable household income, plus 100% of the Commonwealth Rent Assistance, and is capped at the gazetted rent.

5.4 Specialist Disability Accommodation - eligibility for this program is determined by the National Disability Insurance Agency. The amount of funding available to an eligible applicant is determined by the National Disability Insurance Scheme ('NDIS') and is not based on the applicant's income. Pursuant to the NDIS Specialist Disability Accommodation Guidelines, the Applicant can charge an eligible applicant a Reasonable Rent Contribution.

[16] The Reasons also include a helpful table covering the lots and the relevant programme which governed those lots:

30-59, 61, 63, 65, 67-85, 87-91, 93-105, 107, 109-117, 118-123

[17] The Member commented that the evidence indicated, and the Tribunal accepted, that the rental income received by Venture Housing did not cover its costs and was below market-rent. If not for the various grants and subsidies it received, Venture Housing would operate at a loss.[12]

[18] The Tribunal sought to construe s 222(1)(g), of the Local Government Act, which is germane to the principal issues. The Member noted, as is clearly the case, the term 'non-commercial purpose' is not defined in the Act, consequentially the words were to be given their natural and ordinary meaning in the absence of any indication to the contrary.[13]

[19] In determining whether land is used for a commercial or non-commercial purpose, and therefore exempt from rates, the Member accepted that s 222(3) required focus on the nature of the use, rather than the nature of the user.

[20] In the face of the competing arguments from both parties, the Member reiterated that it was the nature of the use which was determinative, and not the nature of the user. In this regard the Member held that the Council's submission was correct to direct attention to the nature of the use. The Member held that to proceed on the basis of one aspect of Venture Housing's submissions, to the effect that it's charitable objects illustrated its non-commercial purpose, would be contrary to s 222(3).[14]

[21] To determine the ordinary meaning of the phrase 'land used for a non-commercial purpose' in s 222(1)(g) the Member referred to the Macquarie Dictionary definitions of 'non-commercial' meaning 'not commercial' and 'commercial' being defined as:

1. (Adjective) Of, or in the nature of commerce.
2. Capable of returning a profit: a commercial project.
3. Capable of returning a profit: a commercial project.
4. Capable of being sold in great numbers.
5. Setting possible commercial return above artistic consideration.
6. Preoccupied with profits or immediate gains.

[22] In terms of judicial opinion on the meaning of the term 'commercial purpose' the Member drew on the following exposition from Chief Executive, Department of Lands v Whackett[15] a decision of the Queensland Land Appeal Court which considered the ordinary meaning of 'commercial purpose':

Among the ordinary English meanings of "commercial" are "of, engaged in, bearing on, commerce; interested in financial return rather than artistry" (Australian Concise Oxford Dictionary and Macquarie Dictionary) and "capable of returning a profit;...preoccupied with profits or immediate gains" (Macquarie Dictionary). "Commerce" includes the interchange of goods or commodities or services, especially on a large scale, and trade or business.

The relevant "purpose" is the "object to be attained, thing intended" (Australian Concise Oxford Dictionary) or, in other words "the object for which anything ... is done, ... an intended or desired result; end or aim" (Macquarie Dictionary). In this context (and by contrast with "character") the word "purpose" seems to be subjective in nature or at least have a subjective component. So for the business or industry to have a commercial purpose there must be some intention or desire on behalf of those engaged in the business or industry to pursue commercial goals rather than merely to be engaged in the enterprise for recreational or some other purpose.

[23] The Member considered the subjective component of the word 'purpose' as used in the phrase 'non-commercial purpose' in s 222(i)(g) must effectively be removed from consideration as s 222(3) excludes the fact that the user is a public benevolent or charity from the assessment of whether objectively it was a 'non-commercial purpose'. The Member rejected the Council's submission that the question to be asked was simply "Is the letting of residential property, a non-commercial purpose?" Such a question was said not to be reflective of the ordinary meaning of the word 'commercial'.[16]

[24] In assessing the relevant material before the Tribunal, the Member said the evidence indicated that the lots available to eligible applicants under the NRAS, the Venture Affordable Housing scheme and the social Housing scheme were leased at 'rent below', and in the case of the Social Housing scheme, 'substantially below', the market rate. There was no evidence that the leasing of the lots was capable of returning a profit or that the lessor was preoccupied with profits or immediate gains. Because the properties were leased at below market rents, it was concluded it could not be said that objectively, the lessor was setting possible commercial return above other considerations.[17]

[25] On the basis of the Tribunal's objective assessment of the evidence, the Member concluded it could not be said that Venture Housing was using the land for a commercial purpose. The Member held that the land was used for a non-commercial purpose and came within the exemption provided by s 222(1)(g) of the Local Government Act.[18]

[26] The Member acknowledged that the position of the land for Disability Housing was unclear because it could not be ascertained whether the combination of NDIS payments and the Reasonable Rent Contribution resulted in rent payable to Venture Housing which is below the market rate. It was not addressed in the evidence. As a consequence, it was determined the three lots allocated to Disability Housing would need to be assessed by the Council in accordance with the Tribunal's reasoning.[19]

[27] The Tribunal accepted there may be many reasons why a landlord would accept lower rent than market rent, as had been suggested by the Council. The Tribunal accepted some of the examples could be: to secure a longer term lease, to secure a particular tenant, and in the case of negatively geared investment properties it was likely a loss would be generated. However, those circumstances may still amount to a commercial return or a commercial purpose. It all depends upon the facts in a given case.[20]

[28] The Member explained how those different scenarios may lead to different conclusions on the facts and therefore different conclusions on whether the land will be found to be used for a commercial purpose:[21]

The Tribunal accepts that there may be a myriad of reasons why a landlord may decide to accept lower than market rent. If it is to secure a longer term lease, it may be that the landlord has determined that rental market volatility may result in extended periods during which the property remains empty if a long-term tenant is not in place. In such circumstance, the landlord will be setting future possible commercial return above short-term profit considerations, which would constitute a commercial purpose.

Alternatively, a landlord may agree to below market rent to attract or assist a particular tenant. Whether the land is used for a non-commercial purpose would depend on the facts. If the particular tenant is the landlord's child, it may be that a low rent is charged for reasons which cannot be construed as commercial. Conversely, the landlord may offer a low rent to an individual who the landlord proceeds will benefit the landlord's business in other ways. In such a case it may be found that the land is used for a commercial purpose.

Finally, using the land to minimise the landlord's overall tax liability may be a commercial purpose, but does not assist the Tribunal in the resolution of these proceedings. As the above discussion illustrates, each case must be assessed on its own facts. If the Tribunal accepted the Respondent's assertion, a landlord renting property to her child for $10 per week would constitute land used for a commercial perceives. Such a proposition is not supported by the definition of the word 'commercial' or the relevant case law.

[29] Plainly, the point the Member was making was that the question of whether letting lots was a non-commercial purpose was a question of fact to be assessed objectively on the evidence.

[30] Before the Tribunal, the Council submitted various incongruous or remarkable results would follow if the construction urged by Venture Housing were to be applied more generally. For example, it may mean that housing stock, once ratable when let by the Chief Executive of Housing, would become exempt when transferred to Venture Housing. This would be so, even with the same rental terms and conditions, merely because of a change in management of the tenancies, even though the purpose in both instances was the same. It was submitted on the facts here that this was a case of NTG 'outsourcing' to Venture Housing.

[31] The Member acknowledged that some of the lots were transferred to Venture Housing as 'in-kind' funding. Venture Housing made the point that none of the NTG properties had previously been used as public housing, therefore it followed that while those lots may have been rateable when legal title vested in NTG, they were not at that time exempt pursuant to s 222(1)(a)(ii) of the Local Government Act.

[32] Additionally, the Member acknowledged and found that the fee simple estate in the subject lots was vested in Venture Housing, not in the Territory. The lots were not Crown land exempt by s 222(1)(ii) of the Local Government Act. If an entity satisfies the requirements of s 222(1)(g), namely, is a 'public benevolent institution or a public charity that is registered with the Australian Charities and Not-for-profits Commission established under the Australian Charities and Not-for-profits Commission Act 2012 (Cth)', it is entitled to rely on the section creating the exemption provided it satisfies the requirement that the land is used for a 'non-commercial' purpose.[22] In the Member's view, the fact that the land could be utilised for the same purpose by two different entities and be treated differently for rating purposes on that basis was entirely consistent with s 222 of the Local Government Act.

Nature of an appeal from NTCAT from which leave is sought

[33] Venture Housing submitted the Council's proposed ground is not a question of law and the application for leave should fail on that basis.

[34] Appeals from the NTCAT to this Court are confined to questions of law pursuant to s 141 of the NTCAT Act. A strict approach is taken to this issue as the type of question involved is relevant to whether or not the Court has jurisdiction. The subject matter of the appeal must be the question of law. A question of mixed fact and law is not sufficient to invoke the Court's jurisdiction in the context of appeals from NTCAT.

[35] Senior counsel for the Council drew attention to the approach in Badari & Ors v Minister for Territory Families & Anor where the Court of Appeal considered whether a point to be argued was a question of law:[23]

So far as the appellants' primary proposition is concerned, the meaning of 'landlord' is a matter of statutory construction. As already described, the term 'landlord' is given a specific and technical meaning for the purposes of the RTA. The question of who is properly characterised as the 'landlord' for the purpose of the RTA is a question of law. The question whether the facts as found satisfied a relevant definition contained in a statutory enactment properly construed is also a question of law. The appellants' proposition that the responsible Minister was the de facto 'landlord' for the purposes of s 41 of the RTA does not engage with the statutory definition in the process of construction involved in determining whether the responsible Minister fell within the definition of 'landlord' in the RTA.

[36] A comprehensive summary of the principles relevant to the fact/law distinction is helpfully set out in the text by Dean Mildren 'The Appellate Jurisdiction of the Courts in Australia'.[24] The learned author first cautions that as between an error of law and an error of fact, no satisfactory test of universal application has yet been drawn.[25] The principles summarised by Mildren are as follows:

1. In the process of arriving at an ultimate conclusion, the trial judge's first task is to find the primary facts. This often involves the evaluation of witnesses who have given conflicting accounts as to those facts. If the trial judge prefers one account to another, that decision is a question of fact which is not reviewable on appeal, even if the reason given for preferring one witness to another is patently wrong.[26]
2. The failure of the trial judge to give adequate reasons as to why the evidence of one witness was preferred to the evidence of another witness may be an error in the fact-finding process but it is not an error of law.[27]
3. Regardless of the trial judge's reasons, if there is evidence which, if believed, would support the finding, there is no error of law.[28]
4. If there is no evidence to support a finding of fact which is crucial to an ultimate finding of fact that the case fell within the words of a statute, there is an error of law.[29]
5. Findings of fact which are perverse, or against the evidence or the overwhelming weight of the evidence, or are based on reasoning which is demonstrably unsound, are not errors of law.[30]
6. If there are no primary facts on which a secondary fact could be inferred, and the secondary fact is crucial to an ultimate finding as to whether the case fell within the words of a statute, there is an error of law. If there are primary facts on which a secondary fact might be inferred, there is no error of law.[31]
7. If there are facts on which an inference might be drawn, there is no error of law. If the inference cannot reasonably be drawn, this is an error of law.[32]
8. In Collector of Customs v Agfa-Gevaert Ltd[33] the High Court referred, with apparent approval, to the decision of the Federal Court in Collector of Customs v Pozzolanic[34] which identified six general propositions when considering the distinction between questions of fact and questions of law in a statutory context:
   • The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law;
   • The ordinary meaning of a word or its non-technical meaning is a question of fact;
   • The meaning of a technical legal term is a question of law;
   • The effect or construction of a term whose meaning or interpretation is established is a question of law;
   • The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law;
   • But, when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or not is one of the fact.

[37] Particular consideration was given to the phrase 'question of law' as it appears in s 141 of the NTCAT Act in Booth v An Assessor & Anor[35] where Grant CJ stated:

[33] An appeal restricted to a question of law invokes the original jurisdiction of this Court rather than its appellate jurisdiction. As counsel submits the subject matter of the appeal must be the question of law itself, rather than some mixed question of fact and law or a matter which merely "involves" a question of law. The formulation extends to both jurisdictional and no jurisdictional errors of law.

[34] The Court's function is to determine whether there has been an error of law and, if so, to describe the nature, content and effect of that error. The dispositive powers of the Court extend to confirming or varying the decision below, or setting aside the decision below and either substituting its own decision or remitting the matter back to the Tribunal for determination in accordance with law. Before any intervention will be made, this Court must be satisfied that the error of law was such to vitiate the decision below. While this Court may substitute its own decision in that event, that does not require or authorise this Court to make findings of fact or to determine questions of mixed fact and law. The Court will only substitute its own decision in circumstances where the correct answer to the question of law is of itself determinative of the matter. (Footnotes omitted)

[38] The formulation in Booth on the approach to be taken to applications for leave to appeal from decisions of NTCAT has been strictly applied to exclude questions of mixed fact and law in other decisions of the Court. In HN v NTCAT & Ors,[36] Hiley J commented that an appeal of this kind is more in the nature of judicial review:

[9] As Grant CJ pointed out in Booth an appeal restricted to a question of law invokes the original jurisdiction of the Court rather than its appellate jurisdiction. The phrase "on a question of law" is narrower than an appeal that merely "involves" a question of law.

The subject matter of the appeal must be the question of law itself, rather than some mixed question of fact and law or a matter which merely "involves" a question of law. By so confining the nature of the jurisdiction and the duties and powers of the Court, the NTCAT Act creates an "appeal" which is more in the nature of judicial review than an appeal in the conventional sense of a rehearing. The Court's function is to determine whether there has been an error of law and, if so, to describe the nature, content and effect of that error.

[10] The fact that such an appeal is confined to an appeal on a question of law is an important restriction not only to the Court's jurisdiction to hear and determine the appeal, but also on the question of leave. Accordingly, the Court must be satisfied of the existence of such a question before leave is granted. The requirement for leave is a safeguard that an appeal is on a question of law and that the grounds supporting the question articulated for determination do found the subject matter of the appeal. (Footnotes omitted)

[39] Similarly, in Holt v Dental Board of Australia,[37] Brownhill J emphasised the need to ensure that the grounds of appeal clearly identify a question of law:

[20] The function of this Court on an appeal under s 141 of the NTCAT Act is to determine whether the Tribunal's decision was infected by an error of law, and does not involve any consideration or determination of the merits of the Board's application to the Tribunal.

[21] Leave to appeal should only be granted if it is in the interests of justice to do so in all the circumstances of the case. For leave to appeal to be granted, the applicant must identify a question of law (as distinct from a question of fact) which bears directly upon the relief sought in the appeal, and a real or significant argument to be put that there was error below in relation to the identified question of law. (Footnotes omitted)

[40] In Pepperill and Anor v CEO Housing,[38] Barr J emphasized the critical question was whether the Tribunal erred in law such to vitiate its decision and explained there must be 'a real possibility (as distinct from a mere or slight possibility), that error of law could (but not necessarily would) have affected the Tribunal's decision. The Tribunal's findings of fact are not open for reconsideration on the merits and necessarily stand unless infected by errors of law'.

[41] From the proposed ground of appeal standing alone, it is not clear what the 'question of law' is. As above, the proposed ground is 'The Member erred in finding that the lots the subject of Order 2, constituted land used for a non-commercial purpose and were exempt from rates by virtue of s 221(1)(g) of the Act.' It is appreciated that when assessing whether a question of law arises from a ground of appeal it is to be approached by reference to the substance of the ground. However, the conclusion that the land was used for a 'non-commercial purpose' in the circumstances of this case is as much a conclusion of fact as it is of law.

[42] A question of law does arise in the submission on the construction of s 221(1)(g) in the overall context of the Local Government Act. Council also appears to rely on an asserted error that the facts as found do not fall within the statutory provision, properly construed which is a question of law. However, that is not completely clear from the ground. The substance of the complaint is as much to the factual finding 'non-commercial purpose' as it is to the assertion that charging rent for residential properties can never amount to 'non-commercial purpose' under the Local Government Act or that the subject social housing should be excluded from exemption as is the case with public housing provided by the Territory. 'Non-commercial purpose' comprises ordinary words. The ordinary meaning of a word is a question of fact.

[43] It may be observed that the proposed ground does not on its face suggest there was error in the way the phrase 'non-commercial purpose' was construed as a matter of statutory interpretation, simply that this was not a 'non-commercial purpose' as contemplated by s 221(1)(g). As above, the Member proceeded on the basis of the ordinary meaning of the phrase, drew on a dictionary meaning to assist and one broadly comparable case (Whackett). The Member has undertaken a purely orthodox approach to statutory interpretation. If the correct meaning was attributed to 'non-commercial purpose' the application of the exemption would follow by way of the ordinary operation of the Local Government Act. Nevertheless, as it may be a matter of the interpretation of the ground of appeal, it is necessary to further consider the Council's submissions in support of the proposed ground.

[44] The Council's submissions in this Court assert a number of deficiencies in the Tribunal's reasons which it submitted constituted an error, or errors, of law.

[45] The Council submitted there was no evidence before the Tribunal of the maintenance and other costs associated, on a property by property basis of the subject lots. In such circumstances the Member was not in a position to determine whether, in respect of each property, the transaction was profitable or not.[39] Further, the Council asserted that the Member appears to have given 'significant weight' to the question of whether the leasing of the properties was intended to be a 'profitable enterprise' leading to the conclusion that the arrangement was for a 'non-commercial purpose'. Additionally, that the Member made a finding contrary to the evidence, namely "that there was no evidence to suggest that the leasing of the lots is capable of returning a profit or that the lessor is preoccupied with profits or immediate gains" and that the Member "effectively overturned the onus of proof, finding that the absence of such evidence redounded against a finding that the same constituted a 'commercial purpose'".[40]

[46] The Council's submissions do not rise to the 'no evidence' threshold, which, as above, in some instances may constitute an error of law. Although only a portion of the evidence is referred to here, it could not be said there was no evidence supporting the ultimate finding of fact that the lots were used for a 'non-commercial purpose' and were therefore exempt from rates. Although it is not appropriate for this Court to start weighing the evidence that was before the Tribunal, there was evidence referred to by the Member, and some which was not expressly referred to was filed before the Tribunal and was filed in the materials before this Court sufficient to permit an assessment to be made as to the commercial nature or otherwise of any leasing.[41]

[47] The findings of fact were made on the available evidence which was not deficient for the purposes of determining the ultimate question. Where it was deficient the Member remitted the matter (the Disability category) to the Council. There was no reversal of onus. The decision was made on the available material. The level of rent expressed as a percentage against market rent was a fact which with other factors a reasonable inference could be drawn to the ultimate conclusion. The material was relevant to each category and each lot was identified within its category. Similar evidence was accepted in Community Housing Limited v Clarence Valley Council,[42] to determine a question of whether an organisation's activities amounted to 'charitable purposes'.

[48] Save for an overall construction issue with respect to the operation of the Local Government Act, if the asserted deficiencies mentioned above represent the substance of the ground of appeal, it is difficult to see how a question of law, rather than perhaps mixed fact and law arises as set out in the authorities cited above. This Court cannot be drawn into assessing the facts or investigating asserted factual errors. The proposed ground of appeal would require such an investigation to reassess the material before the Tribunal, some of which has been summarised. In as much as 'weight' is raised in the Council's submissions, questions of weight with regard to certain elements of the transactions are quintessentially questions of fact.

[49] It is clear from a number of the Council's submissions that to determine the appeal would require an assessment of mixed fact and law to determine whether properties held by Venture Housing were used for a 'non-commercial purpose'. The issues raised on behalf of the Council are put in various ways but are distilled in submissions such as 'the question is simply whether the land in question can be properly described as being used for a non-commercial purpose'[43], and 'whatever errors the Member may have made in the process of arriving at his conclusion, the ultimate error is one of outcome'.[44] Those submissions do not raise a question of law.

[50] One of the submissions which may raise a question of law, is the same or a similar question which was raised before the Tribunal, in the following terms 'Is the letting of residential property, a non-commercial purpose?' The Council submitted the answer should be 'No'.[45] The Council made the point that the answer 'no' does not change simply because the rents at which the residential property is leased, may be below market value. Further it was put: the same question may be equally framed as either: (a) "If John Citizen owned these properties and leased them to tenants on the same terms, would that constitute a "non-commercial purpose"; or (b) "did the legislature intend public housing to constitute a non-commercial purpose".[46]

[51] As above, the question whether letting a residential property could amount to a non-commercial purpose was rejected by the Tribunal as not being the appropriate or relevant question to be asked. The Member acknowledged there may be circumstances which give rise to a commercial purpose when below market rent is charged, but this was not one of them. The Council does not cavil with the notion that each case must be determined on its own facts. Plainly that is the process the Tribunal engaged in.

[52] Although some questions may raise a question of law, when analysed in context, and in substance, they were not the questions the Tribunal was required to resolve or were not relevant to the assessment the Tribunal was required to undertake. To determine whether the exemption applied, the Tribunal was required by s 222(1)(g) to first find whether Venture Housing was a public benevolent institution or public charity registered with the Australian charities and Not-for-profits Commission established under the Australian Charities and Not-for-profits Commission Act (Cth) and second, if so registered whether it was using the land for a non-commercial purpose. There is nothing in the Act which supports the proposition that residential renting cannot be considered a non-commercial purpose, provided it satisfises the charity component as well. Whether it does satisfy the non-commercial purpose depends on the facts of the case. No authority has been suggested as supporting the proposition that residential renting can never be a non-commercial purpose. Even when having regard to the Act as a whole, there is nothing to support the construction suggested by the Council.

[53] The Council drew attention to s 222(1)(a)(ii), which provides that land occupied by the Territory for the purpose of public housing is excluded from exemptions. The Council referred to the definition in the Housing Act 1982 (NT), s 5 which provides:

(a) premises that are owned or leased by the Chief Executive Officer (Housing) all the territory under a prescribed housing scheme, whether or not the premises have been let; and

(b) if the premises mentioned in paragraph (a) are:

(i) a unit in a public housing development - any common property in the development; or

(ii) an apartment, flat or townhouse in a public housing development - any common areas in the development

[54] It was submitted that since neither the Housing Act nor the Housing Regulations seek to draw any distinction between public housing provided to those with a disability or in need of assistance, and general public housing, all are excluded from the exemptions provided under s 222.

[55] Although at times definitions from other Acts can be useful or are required, in this case the Local Government Act provides a specific regime with its own definitions. In my view it would be an error to attempt to import definitions from other, albeit related subject matter legislation. In any event, title to the properties in question had passed from the Territory to Venture Housing although some rights continued to vest with the Territory by virtue of the Deed. Section 5 of the Housing Act and its Regulations are not relevant.

[56] Section 222(1)(a)(ii) specifically does not exempt public housing provided by the Territory. The Act specifically treats public housing provided by the Territory in a different way to housing provided by a charity which conforms with the requirements of s 222(1)(g). The Territory is not a charity for the purposes of s 222(1)(g). In my view there is no merit in this argument. Although the Funding Deed of 30 July 2012 reserves some rights to the Territory and places obligations on Venture Housing,[47] the finding of fact was that title had passed to Venture Housing. There is no suggestion it had not.

[57] Importantly, the Act does not provide an exemption in the circumstances of a charity which would otherwise be exempt under s 222(1)(g) if the land is being used for a residential purpose for employees or contractors of the charity: (s 222(4)). It would not be necessary to enact such an exception to the exemption in s 222(1)(g) if land owned by registered charities was to be treated in the same way as land provided by the Territory for public housing. That is, there would be no exemption in any instance of public or social housing, so no need for an exception to the exemption.

[58] Much was made in submissions suggesting the Member fell into error by giving weight to the nature of Venture Housing's status as a public benevolent institution or a public charity and thus fell foul of s 222(3). The Member stated throughout the reasons that he could not have regard to Venture Housing's charitable status in the assessment of whether the land was being used for "a non-commercial purpose". Clearly that was the approach. The fact that Venture Housing's status was mentioned by the Member at various points in the decision was unsurprising given the requirements of s 222(1)(g).

[59] As above the Council agrees the phrase 'non-commercial purpose' should be given its plain and ordinary meaning , as was the approach taken below. In terms of taking the broader context into account, reliance was placed on Project Blue Sky Inc v Australian Broadcasting Commission at [69]:[48]

The primary object of statutory construction is to construe the relevant provisions so that it is consistent with the language and purpose of all of the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning then the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.

[60] Such principles plainly apply. However, there is nothing in the Tribunal's approach which indicates it was not aware of the overall context. The Member referred to the Explanatory Memorandum but did not find it helpful.

[61] The Member applied s 222(3), obviously aware of the need to decide the issue on the nature of the use and not the nature of the user. Section 222(4) clearly excludes what would otherwise be an exemption if the land being used by the charity is being used by its employees or contractors to reside. Section 222(4) contemplates residents who are earning from the charity, not, it would appear, beneficiaries of a charitable organisation such as the eligible applicants for social housing. The 'employees or contractors' can readily be differentiated from persons receiving the actual benefit of a charitable organisation. Section 222(4) does not lend support to a construction which would exclude all residential tenancies from the exemption.

[62] A broader contextual view of s 222, including ss 222(1)(a)(ii) discussed above and 222(1)(g) does not support the Council's position that the Local Government Act intended to exclude land for social housing such as that held by Venture Housing in the same way as public housing provided by the Territory is excluded. Neither has it been shown the intention was to exclude for all purposes and in all circumstances, residential housing.

[63] Although there do not appear to be decisions available on this point under the current Local Government Act, the approach taken by the Tribunal is similar to the approach taken in comparable circumstances, albeit with obvious distinctions. Under similar regimes, it is not unusual in a number of decisions where lands held by charitable organisations are found to be exempt from rates or land used for residential purposes to be exempt from the same. For example in Alice Springs Town Council v Mpweteyerre Aboriginal Corporation & Ors,[49] under the previous enactment, the Court of Appeal determined a number of Aboriginal housing corporations who had leased Crown land to provide town camp facilities in the Alice Springs Local Government area were using their land for 'charitable purposes'. It found there was no evidence to suggest that the lands were not being used for charitable purpose. It was found each association was using its respective land for charitable purposes and was exempt.

[64] Another comparative example, appreciating the obvious distinctions arose in Salvation Army (Victoria) Pty Ltd v Fern Tree Gully[50] which concerned land owned by the Salvation Army. The question whether it was used 'exclusively for charitable purposes' within the meaning of Victorian Local Government legislation. If the land was used 'exclusively for charitable purposes' it was exempt. The land was used as a farm for delinquent and underprivileged boys who were provided with accommodation and training in agricultural work. The produce was not consumed by the boys but was sold for a profit and the proceeds applied to the cost of running the farm. The High Court held the sales did not diminish the use of the land for the charitable purpose of the relief of poverty.

[65] In Aboriginal Hostels Ltd v Darwin City Council[51] the question was whether Aboriginal Hostels was a charity. The fact that payment was made for accommodation did not detract from the status or finding that Aboriginal Hostels was a charity. Similar reasoning is seen in City of Mandurah v Australian Flying Corps & Royal Australian Air Force Association (WA) Division Inc[52] where the land was used for retirement villages. Buss P said '[I]f a purpose is otherwise charitable, the purpose will not cease to be charitable merely because benefits or services are received on a contractual basis'.

[66] In Community Housing Ltd v Clarence Valley Council, the Court of Appeal (NSW_)_[53] considered whether a Community Housing provider was exempt from municipal land rates. To be exempt under the relevant legislation, the subject land used or occupied by the charity was required to be used or occupied for its charitable purposes. In the face of an assertion by the Council that the provision of housing to low income persons was not a charitable purpose and therefore not exempt, Leeming JA with whom the other Judges agreed, commented that it was common ground that the relevant exemption could be satisfied where the land owner had granted a lease over the land. The primary Judge had found that each of Community Housing Limited's properties was "occupied by a tenant of CHL or is available to be tenanted at rents which were significantly less than what the market value for rent is..." The Court of Appeal also rejected an argument that a provision which made the Crown liable for providing public housing extended to land held by Community Housing Limited.

[67] Although great care must be taken making comparisons with other jurisdictions operating under other regimes, it is not uncommon for social housing and residential leasing of various kinds to be considered charitable and not for profit even when rents are charged. The Local Government Act operates in a similar way.

[68] The substance of the ground of appeal does not in my view raise a pure question of law on its face in the sense understood from the authorities, but rather the substance raises primarily questions of mixed fact and law.

[69] A question of law is raised by suggested alternative questions discussed above or constructions in a suggested context to be preferred. Those questions or constructions were correctly dealt with by the Tribunal. The applicant Council has not demonstrated the decision was arguably wrong such as to justify the grant of leave. The questions which may amount to questions of law have no prospect of success. The decision of the Tribunal was not in error.

[70] It is accepted this matter raises difficult policy issues between two altruistic organisations who are attempting to maximise funds to provide services. The Council for its constituents and Venture Housing for vulnerable members of the community. From that perspective it is accepted there is a public interest in the issues raised.

[71] If I am wrong on the question of the grant of leave, I have in any event considered the Council's construction arguments and the question of whether the evidence meets the threshold 'non-commercial purpose'. The questions of law raised by the Council's submissions have no prospects of success.

1. Leave to appeal is refused.
2. These reasons will be forwarded to the legal representatives.
3. If either party is making an application for costs or if a consent costs order is to be filed, leave is granted to approach Chambers for the finalisation of costs.

[1] Reasons, [2024] NTCAT 15, pp 13-14.

[2] Reasons, [2024] NTCAT 15 p3 at [3].

[3] Reasons, [2024] NTCAT 15 p6 at [10].

[4] Affidavit of Sarah Thurgood, 21 August 2024, Annexure ST-1 at clause 33.22.

[5] Affidavit of Karen Walsh, Venture Housing's CEO, 13 May 2024 at 242.

[6] Affidavit of Karen Walsh, Venture Housing's CEO, 13 May 2024, [24]-[37].

[7] Affidavit of Karen Walsh, Venture Housing's CEO, 13 May 2024, [25]-[42].

[8] Affidavit of Karen Walsh, Venture Housing's CEO, 13 May 2024.

[9] Affidavit of Karen Walsh, Venture Housing's CEO, 13 May 2024, [55]-[57].

[10] Affidavit of Karen Walsh, Venture Housing's CEO, 13 May 2024, Annexure KEW-1, 90-94, 700-1100.

[11] Reasons, [2024] NTCAT 15, pp 3-4 at [5].

[12] Reasons, [2024] NTCAT 15 p5 at [7].

[13] Reasons, [2024] NTCAT 15, p6 at [9].

[14] Reasons, [2024] NTCAT 15, p6 at [12]-[14].

[15] [1995] QLAC 5 at 12-13.

[16] Reasons, [2024] NTCAT 15, p8 at [8]-[9].

[17] Reasons, [2024] NTCAT 15 p8 at [10].

[18] Reasons, [2024] NTCAT 15 p8 at [14].

[19] Reasons, [2024] NTCAT 15 p8 at [12].

[20] Reasons, [2024] NTCAT 15 pp8-9 at [13].

[21] Reasons, [2024] NTCAT 15 p9 at [14]-[16].

[22] Reasons, [2024] NTCAT 15 p15, at [21]-[22].

[23] Badari & Ors v Minister for Territory Families and Urban Housing & Anor: Badari & Ors v Minister for Housing and Homelands & Anor: Nadjamerrek & Ors v Chief Executive Officer (Housing) [2025] NTCA 1 at [74]. Attention was also drawn to Rallen Australia Pty Ltd v Sweetpea Petroleum Pty Ltd [2023] 376 FLR 239 at [8] and other cases relying on a line of authority from Wilson v Lowery [1993] NTCA 127; (1993) 4 NTLR 79 at [84].

[24] Second Edition, The Federation Press 2023 at [2-20].

[26] R v District Court of the Metropolitan District Holden at Sydney; Ex parte White [1996] HCA 69; 116 CLR 644 at 654; Azzopardi v Tasman UEB Industries LTD (1985) 4 NSWLR 139 at 156; Haines v Leves (1987) 8 NSWLR 442 at 469-470; Wilson v Lowery [1993] NTCA 127; (1993) 4 NTLR 79 at 84 (CA).

[27] Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 at 191 (CA); Intertransport International Private Ltd v Donaldson [2005] VSCA 303; King v Chief of Army [2012] ADFDAT 4 at [53]- [59].

[28] Nicolia v Commissioner of Railways [1972] ALR 185 (HC); Wilson v Lowery [1993] NTCA 127; (1993) 4 NTLR 79 at 84; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139.

[29] See authorities cited above; Tiver Constructions Pty Ltd v Clair [1992] NTSC 86; (1992) 110 FLR 239; Wilson v Lowery [1993] NTCA 127; (1993) 4 NTLR 79 at 84 (CA); Haines v Leves (1987) 8 NSWLR 442 at 156.

[30] Haines v Leves (1987) 8 NSWLR 442 at 469-470; Wilson v Lowery [1993] NTCA 127; (1993) 4 NTLR 79 at 84-85 (CA).

[31] Wilson v Lowery [1993] NTCA 127; (1993) 4 NTLR 79 at 85.

[32] Instrumatic Ltd v Supabrase Ltd [1969] 1 WLR 519 at 521; [1969] 2 All ER 131 at 132. Edwards v Bairstow [1955] UKHL 3; [1956] AC 14; Wilson v Lowery [1993] NTCA 127; (1991) 4 NTLR 79 at 85.

[33] [1996] HCA 36; 186 CLR 389.

[34] (1993) 43 FLR 280 at 287.

[35] [2019] NTSC 89 at [33]- [34].

[36] [2020] NTSC 48 at [9].

[37] [2023] NTSC 28 at [20]- [21].

[38] [2023] NTSC 90 at [32].

[39] Applicant's submission in support of the application for leave to appeal, 16 December 2024 [5]-[6].

[41] For example, the two affidavits filed by Venture Housing's Chief Executive Officer and one by the later Acting Chief Executive Officer.

[42] [2015] NSWCA 327.

[43] Applicant's submissions in support of the application for leave to appeal, 16 December 2024 at [30].

[45] Applicant's submission in support of the application for leave to appeal, 16 December 2024 at [41].

[47] Annexure ST1 to Affidavit of Sarah Kelly Thurgood, 21 August 2024.

[49] (1997) 13 FLR 236.

[50] [1952] HCA, 85 CLR 159.

[51] (1985) 75 FLR 197.

[52] [2016] WASCA 185.

[53] [2015] NSWCA 327.