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[2004] NSWSC 1096
respondent. The application was dismissed and the decision under review was affirmed. [78]–[79]
The Tribunal decided that the shop’s position on a wharf over Sydney Harbour did not prevent the lease from being an interest in land for land tax purposes. It read “land” in the context of the Land Tax Management Act and treated the wharf as attached to the seabed. It also found that Sydney Harbour’s waters were internal waters within New South Wales, with the Interpretation Act providing a further basis for applying State laws to coastal waters. The Commissioner’s assessment decision was affirmed.
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2,303 words · generated 30/09/2026
Quay Pasta Pty Ltd held a lease of a shop identified in the lease as Shop W4.1, Wharf 4, The Wharves, Circular Quay. The lease began on 4 June 2000, ran for five years and eight months, and expired on 31 August 2005. On the relevant land tax dates, 31 December 2001 and 31 December 2002, Quay Pasta held the lease interest. The assessments used a taxable value of $440,000. [2]
9 cited instruments linked from this judgment.
The shop stood on one of the wharves projecting from the pedestrian area of Circular Quay over Port Jackson, also known as Sydney Harbour. The Commissioner issued land tax assessments for the 2002 and 2003 years on 24 October 2006, totalling $8,456.50. Quay Pasta objected, arguing that its lease was not a lease of “land situated in New South Wales” because the shop was located on a wharf over harbour waters. The Commissioner disallowed the objection. [3]–[6]
The Tribunal identified the central question as whether Quay Pasta’s lease interest in the shop premises was “land situated in New South Wales” for the purposes of the Land Tax Management Act 1956 (NSW). The parties accepted that, if the answer were yes, there were no other grounds for disputing the assessment. [8]–[9]
The Tribunal affirmed the Commissioner’s decision. Its reasoning addressed two connected questions: whether the premises could be “land” under the Act, and whether they were situated in New South Wales. The Tribunal also considered whether the wharf was a fixture, and whether the seabed or waters’ location affected the statutory analysis.
The starting point was the text of the Land Tax Management Act. Section 7 imposes land tax on the taxable value of land situated in New South Wales, subject to the Act’s exemptions. Section 21C(2) treats a lessee of land owned by the Crown, a local council or a county council as the owner of a notional parcel consisting of the leased land or part of it. The Act did not define “land”. [11]–[12]
The Tribunal therefore considered the Interpretation Act 1987 (NSW), which defines land inclusively to include “messuages, tenements and hereditaments” and any estate or interest in them. It also considered the definition in the Real Property Act 1900 (NSW). But it did not treat the Real Property Act registration argument as determinative. The Tribunal expressly left undecided whether registration under s 40 of that Act could itself cause the interest to be treated as land. [13], [34], [56]
A central interpretive point was that “land” cannot always be reduced to the everyday idea of dry ground, contrasted with water. At [48], the Tribunal said the word’s meaning should be identified from the provision’s context, rather than by transferring definitions or results from different legislation. It considered Risk v Northern Territory of Australia, where the High Court addressed whether seabed could be claimed under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). The Tribunal treated Risk as context-specific: that Act contained textual features distinguishing “land” from “sea”, while the Land Tax Management Act did not contain a comparable indication that a shop on a wharf should be treated differently. [40]–[48], [53]
The Tribunal also relied on the established legal breadth of the concept of land. It referred to the general legal meaning discussed in Goldsworthy Mining Ltd v Federal Commissioner of Taxation, including the observation that “land” in its legal significance can include ground, soil or earth even where the ordinary meaning may be uncertain. It considered the treatment of separate parts of buildings and airspace in Re Lehrer and the Real Property Act. Those examples supported the view that legal interests in structures are not necessarily excluded from the concept of land merely because they are distinct from ordinary ground at the surface. [49]–[52]
The fixture analysis supplied a further link between the wharf and the land beneath it. The Tribunal stated the general fixture concept as a chattel annexed to land to such a degree that law treats it as part of the land. From the construction and materials of Wharf 4, it inferred that the structure was not intended to be temporary or removable and was intended to form part of the land to which it was affixed. The wharf’s pylons were sunk into the seabed, and the Tribunal considered that the seabed was the relevant land to which the wharf was attached. [59]–[63]
On location, the Tribunal examined the statutory history of Sydney Harbour’s bed, shores and wharves. It referred to the Sydney Harbour Trust Act 1900 (NSW), which vested the bed and shores of the port and associated property in the statutory commissioners, and to the later legislative succession and transfer of assets. It also considered the geographic description in that Act and the relevant Commonwealth legislation concerning the territorial sea and coastal waters. [65]–[68]
The Tribunal considered Bistricic v Rokov and Kirmani v Captain Cook Cruises Pty Ltd (No 1). Those cases did not directly decide the precise question before it, but the Tribunal regarded them as significant support for treating Sydney Harbour as internal waters of New South Wales. Reading those decisions with the relevant legislation, it concluded that the waters of Sydney Harbour were internal waters within the State. [71]–[73]
Finally, the Tribunal identified an alternative statutory route. Sections 58–59 of the Interpretation Act define coastal waters and provide that State laws apply in and in relation to those waters, and to the seabed and subsoil beneath them, as if the waters were within the State’s limits. The Tribunal said this would be sufficient to apply the land tax provisions to land in the relevant area even if the other legal and statutory considerations were not enough. [74]–[77]
The judgment framed its task as one of applying existing statutory interpretation principles to a particular land tax question. It did not announce a general rule that seabed is always land. Instead, it distinguished between the meaning of “land” in different statutory schemes and stressed that statutory context matters. Risk was important precisely because its outcome concerned the wording, purpose and structure of the Land Rights Act, not the Land Tax Management Act. [42]–[48], [53]
Before this decision, the judgment records that authorities had already considered interests in seabed, buildings, airspace and structures attached to land. Goldsworthy and Dampier Mining were cited in argument concerning leases of seabed. Re Lehrer concerned, among other things, whether part of a building or airspace could be land for statutory purposes. Bursill Enterprises and the cited fixture authorities also formed part of the legal background. The Tribunal did not treat those authorities as establishing one universal definition; it used them to explain why the ordinary land-water distinction was not conclusive in the statutory setting before it. [35]–[39], [49]–[52], [59]–[62]
The judgment’s contribution, on its face, was to apply that contextual approach to a land tax assessment involving a shop on a wharf over Sydney Harbour. It held that the Act could encompass the lease interest and concluded that the relevant waters were within New South Wales, while also identifying the Interpretation Act’s coastal-waters provisions as an alternative basis. [53]–[55], [73]–[79]
The materials supplied contain this judgment but do not establish a subsequent state of the law. Accordingly, they do not show whether later courts adopted, narrowed or departed from the Tribunal’s reasoning. The judgment itself also does not determine the effect of s 40 of the Real Property Act on the classification of the registered interest. [56]
At [48], the Tribunal said that the meaning of “land” should be determined from the section’s context, rather than by collecting uses of the word in other statutes and importing their results. In plain English, the same word may mean different things in different Acts, so the statute being applied must be read on its own terms.
At [53], the Tribunal said there was nothing in the Land Tax Management Act indicating that a building erected over seabed must be treated differently from a building on soil. In plain English, the Act did not create the distinction Quay Pasta argued for between a shop on dry ground and a shop on a wharf over the harbour.
At [54], the Tribunal said the focus on seabed as an exclusionary factor “somewhat misses the point”. It reasoned that the wharf was attached to land, with pillars extending into the seabed, and that the shop’s position on the wharf did not change the nature of the lease interest. This linked the statutory meaning of land to the physical and legal character of the structure and the interest held.
At [55], the Tribunal summarised its conclusion: the Act’s meaning of land “can include an interest in a shop premises constructed on a wharf or jetty”. This is a contextual conclusion about the Act, rather than a statement that every structure over water is land for every statutory purpose.
At [73], the Tribunal concluded that the waters of Sydney Harbour were internal waters within New South Wales. The conclusion followed from its reading of the cited cases and legislation, including the Sydney Harbour Trust Act and the framework for coastal waters. [65]–[73]
At [77], the Tribunal added that Part 10 of the Interpretation Act would independently be sufficient to apply the relevant State law to land in the area described. In plain English, even apart from its conclusion about the harbour’s status as internal waters, the Tribunal considered the State-law extension provisions capable of supporting the assessment.
The decision is most directly relevant to a land tax dispute involving a lessee of Crown-owned premises constructed on a wharf or jetty over Sydney Harbour. The statutory mechanism mattered: s 21C(2) deemed a lessee of Crown land to be the owner of a notional parcel consisting of the land or part leased. The premises were held under a lease, the lessor was a statutory body representing the Crown, and the central dispute was whether the leased shop premises were land situated in New South Wales. [12], [15]–[18]
Its reasoning may also be relevant where a party argues that a structure is not land because it stands above water, or where the legal classification of a wharf depends on its attachment to seabed or shore. The Tribunal’s fixture analysis turned on the wharf’s construction, the pylons sunk into the seabed, and the inference that the structure was not intended to be temporary or removable. Those features formed part of the application in this case, not a universal factual test stated in exhaustive terms. [59]–[63]
The decision also highlights the importance of the particular statute. The Tribunal distinguished Risk because that case concerned different legislation with textual indications distinguishing land and sea. A dispute under another Act may require a separate analysis of its language, context and purpose. [41]–[48], [53]
The decision should therefore be read within its stated setting: NSW land tax legislation, a Crown lease of a shop on Wharf 4, and the statutory treatment of Sydney Harbour and coastal waters. The judgment does not decide all questions about seabed ownership, the geographical limits of every part of New South Wales, or the registration of every structure located over water.
No later judicial treatment is established by the material supplied. The judgment’s own references to Waterways Authority of New South Wales v Coal and Allied (Operations) Pty Limited [2007] NSWCA 276 concern a Court of Appeal decision from the same year, which the Tribunal considered as context for wharf structures, the Real Property Act and the description “dry land”. The Tribunal expressly acknowledged that whether the wharf was land was not an issue in that appeal. [52]
The judgment also discusses earlier decisions, including Risk, Goldsworthy, Re Lehrer, Bistricic, Kirmani, Georgeski and Walker. Those are authorities considered or cited by the Tribunal, not later judicial treatments of Quay Pasta itself. [40]–[52], [60]–[76]
Accordingly, this source alone does not permit a reliable account of how courts have treated Quay Pasta since 2007. Any such account would require later judgments or other legal sources not provided here.
The Tribunal expressly left open whether registration under s 40 of the Real Property Act could have the effect of treating the interest as land. It did not need to decide that point because it reached its conclusion through the Land Tax Management Act, the Interpretation Act definition and the character of the wharf and lease interest. [34], [56]
The judgment also does not establish a general answer to whether seabed is “land” for all statutes. Its reasoning depends on the context of the Land Tax Management Act and distinguishes the Land Rights Act analysis in Risk. The court described land as broader than “that which is not water” for the purposes of the issue before it, but did not state that every statutory reference to land necessarily includes seabed. [48]–[55]
The treatment of coastal waters may also depend on the precise statutory provisions applicable to a particular area and period. The Tribunal relied on the Interpretation Act’s definitions and extension of State laws, alongside the history of the harbour’s statutory administration. The source does not resolve how those provisions would apply to different waters, different boundaries or a different statutory scheme. [65]–[77]
Finally, the Tribunal’s fixture reasoning relied on an inference about the wharf’s construction and intended permanence. A different structure, lease description or evidentiary record could raise a different factual question. The judgment identifies the relevant reasoning but does not give a complete checklist for deciding every fixture dispute. [59]–[63]
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CITATION: Quay Pasta Pty Ltd v Chief Commissioner of State Revenue [2007] NSWADT 290
APPLICANT Quay Pasta Pty Ltd PARTIES: RESPONDENT Chief Commissioner of State Revenue
BEFORE: Needham J SC - Deputy President
CATCHWORDS: Land tax - whether subject matter of assessment "land"
Interpretation Act 1987 Land Tax Management Act 1956 Local Government Act 1919 Ports and Maritime Administration Act 1995 Ports Corporatisation and Waterways Management Act 1995 Real Property Act 1900 LEGISLATION CITED : Sydney Harbour Trust Act 1900 Taxation Administration Act 1996 Aboriginal Lands Rights (Northern Territory ) Act 1976 (Cth) Acts Interpretation Act 1901 (Cth) Coastal Waters (State Powers) Act 1981 (Cth) Petroleum (Submerged Lands) Act 1967 (Cth) Seas and Submerged Lands Act 1973 (Cth) International Convention on the Territorial Sea and the Contiguous Zone
Beauchamp v Winn (1873) LR 6 HL 223, at 241 Bistricic v Rokov and ors (1976) 135 CLR 552 Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (1970) 124 CLR 73 C & J Clark Ltd v Inland Revenue Commissioners [1975] 1 WLR 413 Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 35 ALR 151 Dampier Mining v Federal Commissioner of Taxation (1981) 17 CLR 408 Fern v Grafton (1836) 2 Bing NC 617, 132 ER 238 Georgeski v Owners Corporation SP49833 [2004] NSWSC 1096; (2004) 62 NSWLR 534 Goldsworthy Mining Ltd v Federal Commissioner of Taxation (1973) 128 CLR 199 Hill & ors v Lyne (1893) 14 LR 449 at 452 Inland Revenue Commissioners v Duke of Westminster [1936] AC 1 Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QBD 334 CASES CITED: Kirmani v Captain Cook Cruises Pty Ltd (No 1) [[1985] HCA 8; (1985) 159 CLR 351 Lloyd v Jones (1848) 6 CB 81; 136 ER 1182 Martyr v Lawrence (1864) 2 De GJ & Sm 261 New South Wales v The Commonwealth [1975] HCA 48; (1975) 135 CLR 337 New South Wales v the Commonwealth [1975] HCA 58; (1975) 135 CLR 337 Peace v Florenca (1976) 135 CLR 507 Prescott v Barker (1874) 9 Ch App 174 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 Re Lehrer and the Real Property Act (1960) 61 SR (NSW) 365 Reid v Smith (1905) 3 CLR 656 at 667 Risk v Northern Territory of Australia [2002] HCA 23; (2002) 210 CLR 392 Walker v Rural and General Insurance Ltd (unreported, Supreme Court of NSW, 15 December 1995). Waterways Authority of New South Wales v Coal and Allied (Operations) Pty Limited [2007] NSWCA 276 WM Collins and Sons v Co-ordinator-General of Public Works (1969) 35 QCLLR 1224
J Richardson, agent REPRESENTATION: R Seiden, barrister
ORDERS: The decision under review is affirmed.
REASONS FOR DECISION Facts 1 This is an application under the Land Tax Management Act 1956 ("the Act"). The facts of this matter are not in dispute, and involve an interesting and surprisingly complex question of law. 2 As at 31 December 2001 and 31 December 2002 Quay Pasta Pty Ltd ("Quay Pasta" or "the applicant") held an interest under a lease of shop premises located on Wharf 4, The Wharves, Circular Quay ("the shop premises"). The lease was entered into on 4 June 2000 and was for a period of 5 years and 8 months, and expired on 31 August 2005. The taxable value on the interest under the lease upon which the assessments were based was $440,000. 3 The shop premises are, as will be evident from the address, physically located on one of the wharves which extend from the pedestrian area of Circular Quay out over the waters of Sydney Harbour (more properly called Port Jackson), and can be found between the edge of the pedestrian area and the ferry ticket barriers. There are a number of shops located on the wharves, although this application relates only to the applicant's shop. 4 On 24 October 2006 the Chief Commissioner of State Revenue ("the Commissioner" or "the respondent") issued a Notice of Assessment for the land tax years for 2002 and 2003 in the amount of $8,456.50 based on Quay Pasta's ownership of the interest in the lease on the relevant taxing dates of 31 December for each of the relevant years. 5 Quay Pasta has since sold its interest in the lease along with the business operated at the shop premises. 6 Quay Pasta objected to the assessment on 22 December 2006 on the basis that the interest held by it in the lease was not a lease of "land situated in New South Wales" for the purposes of the Act, due to the location of the shop premises on a wharf extending out over the waters of Port Jackson. That objection was determined unfavourably to the applicant by the Commissioner on 19 January 2007 (see tab 13, section 58 documents, Exhibit R2). The grounds for the refusal were stated to be as follows: "… the executed lease nominates the property leased as Shop W4.1, Wharf 4, the Wharves, Circular Quay, Sydney and makes no statement that it is anything but in respect to the described property. Consequently, it is considered that the lease is in respect to land, being the described shop, and not to the seabed or any other part of the wharf." 7 No internal review was sought of that decision and reliance in that regard placed upon section 96(4) of the Taxation Administration Act 1996. Instead, an application was filed with this Tribunal on 9 February 2007 (that application being filed within time) and was heard before me on 19 June 2007. Further submissions were received from the parties on 10 and 26 September 2007. Question to be decided 8 It seems to me that the question to be decided is: "Is the interest held by the applicant in the lease from the Crown of the shop premises known as Shop W4.1, Wharf 4, The Wharves, Circular Quay, "land situated in New South Wales" for the purposes of the Act?" 9 It is conceded that if that question is answered in the affirmative, then there are no other grounds for disputing the assessment of land tax. 10 The issues to be decided in this case are illuminated by the applicant in its Revised Submissions (filed 19 June 2007) as being: "1.Is the meaning of the word "land" for the purposes of the Land Tax Management Act to be ascertained by reference to one or more of: (a) the ordinary meaning of the word; (b) the definition in s 21 of the NSW Interpretation Act 1987; and/or (c) the definition in section 3 of the NSW Real Property Act 1900? 2.Is the seabed land? 3.If the seabed is land, is a shop constructed on pylons above the water above the seabed a fixture that is part of the land? 4.Is the interest that Quay Pasta Pty Ltd had in the lease an interest in land or part of land within section 21C of the Land Tax Management Act? 5.Do the geographic limits of the State of NSW end at the low water mark so that the premises are not within NSW and not within the scope of the Land Tax Management Act?" Legislation 11 The applicant's argument commences with the failure of the Act to include a definition of the term "land". "Land" is, however, referred to in section 7 as follows: "Land tax at such rates as may be fixed by any Act is to be levied and paid on the taxable value of all land situated in New South Wales which is owned by taxpayers (other than land which is exempt from taxation under this Act)." There are, of course, other references to "land" throughout the Act. 12 Section 21C of the Act provides (relevantly): 21C Liability of lessees of land owned by Crown or council (1) The Crown, a local council or a county council is not liable for land tax in respect of land it owns (except as specifically provided by Part 3). (2) A lessee (other than a sub-lessee) of land or part of land owned by the Crown, a local council or a county council is for land tax purposes deemed to be the owner of a parcel of land (the notional parcel) consisting of the land or part leased. The Crown, local council or county council is then not to be considered owner of the notional parcel. …" 13 In support of its argument as to the definition to be applied to the word "land" in section 7 and in the expression "a lessee … of land" in section 21C, the applicant relies to some extent upon the definition of "land" in section 21 of the Interpretation Act, which provides: "land includes messuages, tenements and hereditaments, corporeal and incorporeal, of any tenure or description, and whatever may be the estate or interest therein". while the respondent points to the definition in section 3 of the Real Property Act , which provides: "Land - Land, messuages, tenements, and hereditaments corporeal and incorporeal of every kind and description or any estate or interest therein, together with all paths, passages, ways, watercourses, liberties, privileges, easements, plantations, gardens, mines, minerals, quarries, and all trees and timber thereon or thereunder lying or being unless any such are specially excepted." 14 As general knowledge may not extend to the meaning of the terms "messuage", "hereditament" or the like, perhaps a short definition of each of the more unusual terms in the Interpretation Act and Real Property Act definitions of "land" may be useful. Jacobs J in Re Lehrer and the Real Property Act (1960) 61 SR (NSW) 365 at 369, 370 has helpfully undertaken this exercise in explaining the identical section of the then current Interpretation Act. "A messuage is a house, Fern v. Grafton (1836) 2 Bing NC 617, 132 ER 238, the house including its curtilage. There would seem to be denoted in the word the concept of single occupation. See Kerslake v White (1819) 2 Stark 508; 171 ER 719. Although in popular language the term "tenement" means a house or a part of a house capable of separate occupation … its strict meaning is everything in which a man can have an estate of freehold and which is connected with land. "'Tenement'", though in its vulgar acceptation it is only applied to houses and other buildings, yet in its original, proper and legal sense it signifies everything that may be holden, provided it be of a permanent nature, whether it be of a substantial and sensible or of an unsubstantial ideal kind": Beauchamp v. Winn (1873) LR 6 HL 223, at 241). The word "hereditament" is an even wider word describing interests in real property. It denotes such things as might formerly be the subject matter of inheritance: Lloyd v. Jones (1848) 6 CB 81; 136 ER 1182; Prescott v. Barker (1874) 9 Ch App 174". The lease and the lessor 15 The lease of the premises, part of which (including the front page, signature pages and Reference Schedule) was in evidence behind tab 4 of exhibit R2, was between Quay Pasta Pty Ltd as lessee and Marine Ministerial Holding Corporation (MMHC) as lessor. The Reference Schedule refers to the "Premises" as being: "Shop W4.1, Wharf 4, The Wharves, Circular Quay" and describes the "land" referred to in clause 1.1 of the Lease as "Volume 5018 Folio 1". Clause 1.1 was not included in evidence, but I was informed that the lease contains no reference to the inclusion or otherwise of the seabed, or the structure of the jetty upon which the shop premises are located. 16 The MMHC is a NSW statutory body created on 1 July 1995 under the Ports and Maritime Administration Act 1995 (NSW) (formerly the Ports Corporatisation and Waterways Management Act 1995). It is a "corporation sole" without employees and is managed and controlled by the Minister for Transport. It is the legal successor to the former Maritime Services Board of New South Wales, and inherited some of the assets, rights and liabilities of that Board which were not otherwise transferred elsewhere. The main function of the MMHC is to "carry out any activity or business that relates to its assets (which are substantially property holdings and investment funds) …" (see 1998-9 Annual Report of the MMHC which was referred to the Submissions of the applicant but not otherwise tendered in evidence). 17 Section 13A of the Interpretation Act (NSW) provides in relation to statutory bodies: " 13A NSW Government agencies and statutory bodies representing the Crown (1) If an Act provides that a body is: (a) a NSW Government agency, or (b) a statutory body representing the Crown, the body has the status, privileges and immunities of the Crown. (2) If an Act provides that a body: (a) is not or does not represent the Crown, or (b) is not a NSW Government agency or a statutory body representing the Crown, the body does not have the status, privileges and immunities of the Crown. (3) This section extends (without limiting its operation): (a) to a provision that is expressed to be made for the purposes of any Act or more generally, and (b) to privileges and immunities conferred by law expressly or as a matter of construction. (4) In any Act or instrument: (a) a reference to a NSW Government agency includes a reference to a body that is declared to be a statutory body representing the Crown, or (b) a reference to a statutory body representing the Crown includes a reference to a body that is declared to be a NSW Government agency. (5) In this section, the Crown includes the State and the Government of the State." 18 Section 29 of the Ports Corporatisation and Waterways Management Act 1956 provides that the MMHC is, "for the purposes of any Act, a statutory body representing the Crown" (subsection 29(2)). The applicant's submissions 19 The applicant makes two main arguments, and one subsidiary one. Firstly, it submits that the interest held at the relevant time by the applicant in the shop premises was not "land". Secondly, even if it were found that the relevant interest were "land", it was not land "situated in New South Wales". The subsidiary argument is that the wharf is not by reason of being a fixture, incorporated into land, be that land the seabed or the shore. 20 After traversing the above statutory definitions and setting out the issues, the applicant sought to argue that the shop premises leased to it by the MMHC is not "land" by relying on the ordinary meaning of the word "land", which may be summarised as "not water" (see Macquarie Dictionary, revised Third Edition, which defines "land" as "1. the solid substance of the earth's surface. 2. the exposed part of the earth's surface, as distinguished from the submerged part".) In doing so, the applicant notes that the definition in the Interpretation Act is the appropriate definition, as the term is not defined in the relevant Act (being the Land Tax Management Act) and so the Interpretation Act definition is applied to the use of the word "land" in the Act unless a contrary meaning is indicated within the legislation. That definition is an inclusive definition, and must include the ordinary meaning, and so the words following the word "includes" are subsidiary meanings. It is argued that where the ordinary meaning is apposite, it should be applied. 21 The applicant further submits that the kind of interest held by the applicant under the lease is not a messuage, tenement or a hereditament, and so the only remaining interest in the Interpretation Act definition is "land", which should be given its ordinary and everyday meaning. The submission is based not only on the specialised meanings in real property law of messuage, tenement and hereditament, but also, I infer, on the "reasonable person" test-if a reasonable person buying pasta from the shop premises were asked, "are you standing on land?" the answer would, the applicant would say, would be "no". 22 The applicant goes on to argue that, using the ordinary meaning, there is nothing in the Act that leads one to assume that "land" as used in section 7 includes the sea or the seabed below the low water mark. The applicant refers to the timing of the enactment of the Act, in that in 1956, when it was enacted, the International Convention on the Territorial Sea and the Contiguous Zone had not yet been signed (that event happened in 1958). Accordingly, it is submitted that the question of rights to the seabed was not at the forefront of the minds of the parliamentarians of New South Wales in 1956. 23 Further, the applicant points to the principle that taxing statues should be construed so as to give the benefit of any doubt to the taxpayer (see Pearce and Geddes, Statutory Interpretation In Australia, 5th edition). Also, see Inland Revenue Commissioners v Duke of Westminster [1936] AC 1 at 24-5 where Lord Russell of Killowen said: "The subject is not taxable by inference or by analogy, but only by the plain words of a statute applicable to the facts and circumstances of his case". 24 See also: Cooper Brookes (Wollongong) Pty Ltd v. Commissioner of Taxation (Cth) (1981) 35 ALR 151 at 171 per Mason and Wilson JJ; Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 at 398-399; C and J Clark Ltd v Inland Revenue Commissioners [1975] 1 WLR 413 at 419. 25 The applicant, in support of the second limb of the argument, points to the Commonwealth enactment of Seas and Submerged Lands Act 1973 (Cth) which gave sovereignty of Australian territorial seas to the Commonwealth. That Act was upheld on a challenge by the States in New South Wales v The Commonwealth [1975] HCA 48; (1975) 135 CLR 337. In 1980 that situation was somewhat modified by the Coastal Waters (State Powers) Act 1981 (Cth) which provided, in section 5: "The legislative powers exercisable from time to time under the constitution of each State extend to the making of: (a) all such laws of the State as could be made by virtue of those powers if the coastal waters of the State, as extending from time to time, were within the limits of the State, including laws applying in or in relation to the sea-bed and subsoil beneath, and the airspace above, the coastal waters of the State". 26 It is submitted that the effect of those two Acts is that, while the States have the power to make laws for the coastal waters, the title to the seabed remains with the Commonwealth. The Coastal Waters (State Powers) Act merely gives validity to laws of a State which would have effect outside the limits of that State. 27 The applicant contends that the ownership of the seabed by the Crown, if that is the legal effect of the various applicable legislation, does not necessarily make the thing that is owned "land". It cites those Acts and various cases including Peace v. Florenca (1976) 135 CLR 507 and Kirmani v Captain Cook Cruises Pty Ltd (No 1) [[1985] HCA 8; (1985) 159 CLR 351 at [9] in support of the contention that the seabed of Sydney Harbour is owned by the Commonwealth and not the Crown in right of NSW. The geographic limits of NSW end at the low water mark, so that the waters of Port Jackson are not part of NSW, despite the power of the State legislature to make laws with operation in relation to them. The applicant relies on dicta in New South Wales v The Commonwealth (supra) and in particular Barwick CJ at page 368, Jacobs J at 480 and Gibbs CJ (albeit in dissent) at 406 where his Honour said: "The waters of Port Jackson are no more within the express description contained in the instruments creating New South Wales than are the waters of the Pacific Ocean within three miles of the New South Wales coastline". 28 The argument can be summarised as being that the Crown can grant title to the seabed, but by doing so, it is not necessarily granting title to land.. 29 A further argument put by the applicant was that the wharf was not a fixture by reason of its attachment to the seabed, as the seabed itself was not land. While ownership of land generally extends both above and below the surface, the argument really stands or falls on the decision as to whether the seabed is "land". Nor, the applicant argues, can a fixture on land which extends out over the seabed become land as that is "contrary to established land law". That submission was not supported by any reference to authority. 30 In making the two main arguments, the applicant referred throughout to the decision of the High Court in Risk v Northern Territory of Australia [2002] HCA 23; (2002) 210 CLR 392. That decision is discussed separately below. The respondent's submissions 31 The respondent notes that the reference to the "Crown" in section 21C(2) of the Act is defined, by reason of section 3, as "statutory bodies representing the Crown", and relies upon the various legislative provisions set out above to establish that the MMHC (the lessor at the relevant time) was a statutory body representing the Crown. 32 The respondent submitted that the right to deal with the seabed of Sydney Harbour is vested solely in the Crown: Hill and ors v Lyne (1893) 14 LR 449 at 452. That sovereignty was legislatively preserved by s 14 of the Seas and Submerged Lands Act which stated: "Nothing in this part affects sovereignty or sovereign rights in respect of any waters of the sea that are waters of or within any bay, gulf, estuary, river, creek, inlet, port or harbour and: (a) were, on 1st January 1901, within the limits of a State; and (b) remain within the limits of the State: or, in respect of the airspace over, or in respect of the seabed or subsoil beneath, any such waters". 33 The respondent cites Kirmani v Captain Cook Cruises (supra) and Bistricic v Rokov and ors (1976) 135 CLR 552 at 559 that Sydney Harbour forms part of the internal waters of New South Wales. The ownership of land and the "bed and shores and waters of the port" was vested in the Sydney Harbour Trust Commissioners by reason of the operation of section 27 of the Sydney Harbour Trust Act 1900 (NSW), which body was later replaced by the Maritime Services Board and later by the MMHC. In 2000, all assets, rights and liabilities of the MMHC were transferred to the Waterways Authority by reason of section 40A of the Ports Corporatisation and Waterways Management Act 1995. (It should be noted that the applicant cites subsection 16(3) of that Act in disputing this assertion). At the time of the assessments, the lease was in the name of the MMHC, but the assets had been transferred to the Waterways Authority as a statutory body representing the Crown. 34 As for the proper statutory definition of "land", the respondent relies upon s 21 of the Act as well as the definition under the Real Property Act, given that the interest relied upon is a lease interest which is registered under the Act. The respondent further points to the doctrine of indefeasibility and to section 40(1) of the Real Property Act to ground a submission that because there is a properly registered Certificate of Title to the shop premises, that Certificate of Title is conclusive evidence that the shop premises is property which falls within the meaning of "land" as defined in the Real Property Act. Therefore, the respondent argues, the interest in land held by the applicants at the relevant time is an interest in land which may be subject to land tax under section 7 of the Act by incorporation under land subject to tax by section 21C of the Act. 35 As to whether the seabed is land, the respondent notes that while the seabed may not fall within the conversational or dictionary definition of land, and has been held in Risk v Northern Territory of Australia (see below) not to be "land" for the purposes of a Land Rights statute, there is no reason why an interest in the seabed may not be "land" and good policy reasons why it should be so. For instance, in Goldsworthy Mining Ltd v Federal Commissioner of Taxation (1973) 128 CLR 199, a contention similar to the present was made that a dredging lease of the seabed at Port Hedland was not an interest in land. Mason J said (at 210): "There is no reason for thinking that, at common law, a lease cannot be granted of portion of the sea-bed, provided that the property the subject of the grant is defined with sufficient certainty. There may be some question whether the sea-bed answers the description of "land" in every sense in which that word is used. But in general the word in its legal signification includes any ground, soil or earth ( Halsbury's Laws of England , 3rd edition, volume 32, page 249". 36 In Goldsworthy, the Acts Interpretation Act 1901 (Cth) definition-for all practical purposes identical to that in the NSW Act - was applied in order to bring the dredging lease under the definition of a lease of land. That decision was later affirmed (see (1975) 132 CLR 463). The respondent relied on a number of other decisions, such as Dampier Mining v Federal Commissioner of Taxation (1981) 17 CLR 408 (lease of a seabed was found to be "land" for the purposes of the taxing statue), WM Collins and Sons v Co-ordinator-General of Public Works (1969) 35 QCLLR 1224 at 142 (a wharf was part of the land upon which it stood) and Georgeski v. Owners Corporation SP49833 [2004] NSWSC 1096 at [57] (slipway and jetty a fixture). If it is found to be a fixture, it is submitted that the interested leased to the applicant was an interest in land. 37 The respondent sought to draw an analogy between the many cases which have found that airspace was land to ground the submission that the seabed could be land. For instance, Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (1970) 124 CLR 73 and Re Lehrer and the Real Property Act (1961) 51 SR (NSW) 365. The applicant's submissions in reply 38 The applicant submitted that registration of the lease under the Real Property Act did not affect the underlying classification of the interest involved; registration of something other than land did not, by the act of registration, make it land. The relevant definition, if there was one, was that in the Interpretation Act (but the applicant remained of the view that the proper meaning of the word "land" in the Act was the common, ordinary meaning. 39 The applicant submitted that the decisions of Goldsworthy and Dampier Mining needed to be revisited in the light of the decision of the High Court in Risk (see below) and noted that in those cases, the assumption that the seabed was not land did not have to be tested Risk v Northern Territory of Australia 40 Both parties relied on this decision in support of their respective contentions. It repays careful reading and analysis for that reason. 41 Risk concerned an application under the Aboriginal Lands Rights (Northern Territory) Act 1976 (Cth) ("the Land Rights Act") for the determination of a traditional land claim which included a claim over an area which included islands and the bed of bays and gulfs of the mainland and the claimed islands. The Aboriginal Land Claim Commissioner determined that that part of the claim which was seaward of the low-water mark was not land that could be the subject of an application under the relevant section. 42 The leading judgment was given by Gleeson CJ, Gaudron, Kirby and Hayne JJ and the central question was determined as being "whether the seabed of bays or gulfs within the limits of the Northern Territory can be the subject of claim under the Land Rights Act." 43 Section 50 of the Land Rights Act delineates the functions of the Lands Rights Commissioner and subsection (1)(a) of that section provides: "(1) The functions of a Commissioner are: (a) on an application being made to the Commissioner by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land, being unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals …" 44 "Unalienated Crown land" and "alienated Crown land" are defined terms, and those definitions appear in the judgment at paragraph [12]. In paragraph [21] of the majority judgment their Honours say, "No doubt, the Land Rights Act's definition of "Crown Land" is the starting point for considering the question". At the relevant time, the definition of Crown Land in the Land Rights Act was as follows: "Crown Land" means land in the Northern Territory that has not been alienated from the Crown by a grant of an estate in fee simple in the land, or land that has been so alienated but has been resumed by, or has reverted to or been acquired by, the Crown, but does not include: (a) land set apart for, or dedicated to, a public purpose under an Act; or (b) land the subject of a deed of grant held in escrow by a Land Council." 45 The High Court ultimately dismissed the appeal and held that "'land in the Northern Territory', when used in the definition of "Crown Land' in the Lands Rights Act does not include the seabed of bays or gulfs" (paragraph [35] per the majority) and the appeal was dismissed (see also [68] per McHugh J, paragraph [93] per Gummow J, and paragraph [128] per Callinan J). 46 Notwithstanding the finding that the Court's decision was limited to the definitions of "Crown Land" under the Land Rights Act, the applicant relied upon various statements, including that of the majority at [26], McHugh J at [41] and Gummow J at [82]-[83], to the effect that "land" would not normally include the seabed, and that the definition in the Interpretation Act was confined to interests, rather than the substantial question of "what is land" in the physical sense. 47 The High Court used a number of "textual indications" to ascertain the meaning of the terms in the Land Rights Act. Most importantly (see paragraph [28]) the Land Rights Act distinguished between "land" and "sea", in particular in section 73(1)(d), which referred to a 2km buffer zone to permit a traditional use of waters within that zone, recognising the Aboriginal tradition which did not distinguish between "land" and "sea" for the purpose of determining rights to traditional land. As McHugh J said at [42], "… whether or not land in the Land Rights Act includes the seabed depends on the history, context and purpose of the Land Rights Act (see Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 381)." His Honour did not exclude the seabed being held to be land for the purposes of other statutes (at [42])) Is the interest in the shop premises "land" for the purposes of the Land Tax Management Act? 48 Following the approach of the High Court in Risk, the appropriate way to determine the meaning of the word "land" is not to take examples of the use of that word in other statues and point to decisions on other wording, but to take the section in context and ascertain a meaning within that context. 49 The general meaning of the word "land" is, as defined in the Oxford English Dictionary (online edition), "1. a. The solid portion of the earth's surface, as opposed to sea, water.". A secondary definition is complementary to this definition: "2. a. Ground or soil …". "Land" has been defined in many places, as long ago as Coke on Littleton where the definition included "all castles houses and other buildings for castles, houses etc". Obviously, in the case of a legal definition for such a common word with so many shades of meaning, context is all. As can be seen from the introduction to chapter 2 of Professor Butt's book on Land Law (4th edition, 2001, Law Book Co), a definition of "land" merely as the solid part of the earth, as opposed to the oceans or waters, is inadequate. As Mason J said in Goldsworthy (at 210), "There may be some question whether the sea-bed answers the description of "land" in every sense in which that word is used. But in general the word in its legal significance includes any ground, soil or earth (Halsbury's Laws of England, 3rd edition, volume 32, page 249)". That view that "land" is broader than merely being "that which is not water" is one which, in my view, should be adopted here. 50 The primary reason for the ordinary meaning of the word "land" being inadequate for land law purposes is the application of the Latin maxim cuius est solum eius est usque ad coelum et ad inferos-"the person who owns land owns it from the heavens above to the centre of the earth below". The parties made mention of the fact that the lease itself does not mention any rights in the seabed, presumably on behalf of the applicant in answer to the presumption around which this maxim is centred. The rights of land ownership above and below the surface is, of course, limited to some extent by statute-see, for example, various town planning and aviation statutes, as well as mining laws-but generally the maxim is a reflection of the law-see Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QBD 334, which referred to Martyr v Lawrence (1864) 2 De GJ and Sm 261 in support of the principle that a lease of a single-storey ground floor premises would include the lease of the airspace above. It was argued in Kelsen that a failure to mention any lease of airspace displayed a contrary intention and therefore the airspace was excluded, but that submission was rejected (at 340-1). 51 The question of whether "land" for various statutes can be something other than the soil upon which the ground rests has had an affirmative answer settled for many years. For instance (and this is only one of many), in Re Lehrer and the Real Property Act (supra), Jacobs J (in 1961) noted one of the questions to be decided in that case was: "… whether part of a building or the air space taken up by that part of a building is, distinctly from the soil up which the building rests, "land" within the meaning of the Local Government Act 1919 …" (at 368) In answer to that question, his Honour said (at 369): "It has not been argued … that there cannot be a good conveyance or transfer in fee simple of air space of the upper floor of a building … It would appear that the possibility of such a fee has long been stated in English Law. "A man may have an inheritance in an upper chamber through the lower buildings and soil be in another" ( Coke on Littleton: Sheppard's Touchstone 206) . It appears that there could be a feoffment of such a part of a building; thus the part of a building could be regarded as a tenement and hereditament at common law and could be dealt with in the same manner as could the actual soil upon which the building rested. … That it is an interest in real property may be accepted, but is it, apart for statutory definition, "land"?" (and at 370): … My conclusion is that the word "land" at common law prima facie includes buildings on the soil, but is not appropriate to describe the building alone or any part thereof, even if it be the subject of an interest in realty separate from the soil itself. However, a separate estate in a part of a building would be "land" within the meaning of section 21(3) of the Interpretation Act of 1987. It was so held by Roper J in Resumed Properties Department v Sydney Municipal Council (1937) 13 LGR 170 …" 52 The Courts have had no difficulty in deciding that interests in buildings or other structures built over land or water have been interests in land. One such example is Bursill Enterprises Pty Ltd v Berger Bros Trading Co Pty Ltd (supra), in which a transfer of a building built over a right of way was held to be a transfer of land, rather than a grant of an easement. Interestingly, recently the Court of Appeal considered in Waterways Authority of New South Wales v Coal and Allied (Operations) Pty Limited [2007] NSWCA 276 the position relating to development consent relating to a "wharf, … at the centre of the present controversy, [which] is erected mainly on Lot 2 and was already in situ at the time the lease was granted on 13 January 1972. Lot 2 forms part of the bed of Sydney Harbour and does not adjoin dry land. The wharf stands wholly within and occupies substantially the whole of Lot 2. At the shore end of the wharf, the wharf extends over an area of the eastern boundary of Lot 2 and a retaining wall and is affixed to dry land, slightly inland from the retaining wall. The land between the eastern boundary of Lot 2 and dry land is also Crown land." Granted, the question of whether the wharf was "land" or not was not an issue in that appeal; but there seems to have been no question in the minds of the learned members of that Court (Beazley, McColl and Campbell JJA) that the Real Property Act applied to the wharf, nor that the seabed was "land", noting the use of the differential "dry land" when referring to that which the applicant would have me hold is "land" only. 53 It seems to me that the applicant's submission that the seabed is, or, more properly, the location of the shop premises on a wharf above the seabed is incapable of being "land" for the purposes of the Act should fail because, unlike the land/water divide in the Land Rights Act in Risk, or the question of an unapproved subdivision under the Local Government Act 1919 which was examined in Re Lehrer, there is nothing in the Act which would indicate that a building erected over the seabed should be differently treated from such a building located on the surface of the soil, nor does the context or history of the enactment require such a conclusion. 54 The definition of land in the Interpretation Act, as explained by Jacobs JA in Re Lehrer and, as no contrary intention was pointed to in the Act nor is one readily available on a reading of the Act, the word "land" in the Act includes a lease interest, as either a tenement or a hereditament. In my view the concentration on the issue of the seabed as an exclusionary factor for the interesting being "land" somewhat misses the point; the wharf is attached to land, it is constructed with pillars extending into the seabed itself which is no doubt within the definition of "soil" or "ground", and the fact that it does not rest on the Earth's surface, but on a wharf, does not change the very nature of the interest held by the applicant at the relevant time as an interest in "land". 55 In summary, the meaning of "land" in the Act can include an interest in a shop premises constructed on a wharf or jetty for the purposes of the Act. 56 Having come to that conclusion, I do not need to decide the respondent's argument that s 40 of the Real Property Act has the effect of, essentially, deeming the interest to be land by reason of its registration. Is the land "land situated within New South Wales? 57 While the shop premises may be "land", are they "situated in New South Wales"? 58 The applicant argues that the waters of Port Jackson are not part of New South Wales, but are part of the territorial sea of the Commonwealth of Australia. The respondent counters that the waters are part of New South Wales, but alternatively the wharf is a fixture attached to land which is part of New South Wales. 59 Dealing first with the fixture argument: as is well known, a fixture is a chattel annexed to land to such a degree that it becomes treated by law as part of the land - see Reid v Smith (1905) 3 CLR 656 at 667. 60 The recent case of Georgevski v Owners Corporation SP 49833 (supra) dealt with the question of whether a jetty was a fixture, and also with Crown land interests in tidal waters. The jetty here was described as being "a timber jetty … (with one end) embedded in the soil. Its other end is supported by piers or pylons sunk into the river bed some six metres out into the stream. This timber structure, consisting essentially of supported bearers to which floorboards are fastened, is referred to as "the jetty"." The jetty was the subject of a licence from the Crown which referred to the jetty as an "improvement". While there was a lack of evidence about the actual length of time the jetty had been in place or the intention of the person who built it, Barrett J was able to infer, from the nature of the jetty itself, that the person who built it "must be presumed to do so without any intention or expectation of later taking them up and making them into a jetty (or anything else) elsewhere" ([54], 550). 61 His Honour took the view that, in those circumstances, the jetty was a fixture under the maxim quicquid plantatur solo solo cedit; or what is attached to the land becomes part of the land. He noted the similar view taken in Wm Collin and Sons Pty Ltd v Co-ordinator-General of Public Works (supra) at 142, which related to a wharf below the high-water mark of the Brisbane River. 62 Like Barrett J, I can infer from the method and materials of construction of Wharf no 4 that it was unlikely that any person considered the wharves temporary or removable, and that they were intended to form part of the land to which they were affixed. If the relevant land is the seabed of Port Jackson, then the wharf is a fixture and part of that land. If the relevant land is the shore, being the pedestrian precinct of Circular Quay, then the wharf is part of that land. 63 It seems to me on the principles of the laws of fixtures that the land or soil to which the wharf is affixed is the seabed of Port Jackson, as that is where the pylons are sunk and how the wharf itself maintains its stability. The question then arises, is it then land "in New South Wales"? 64 The applicant relies upon the ownership of the seabed by the Crown in right of the Commonwealth, and the respondent relies upon the principle that a harbour is "internal waters" and thus part of a State. Again, the respondent relies heavily upon the fact of registration of the lease and that the property is Torrens title, which fact is said to be conclusive evidence that the property is located within New South Wales. Who is correct? 65 The boundaries of Sydney Harbour is the high water mark (see attachment "A" to this decision for the boundaries of Sydney Cove). Section 27 of the Sydney Harbour Trust Act 1900 (NSW) vests in the "commissioners" (construed by section 3A to refer to the Maritime Services Board of NSW) the following: "the bed and shores of the waters of the port, all land now vested in the Government within the boundaries of the port, and the lands resumed, purchased or reclaimed by the Crown in connection with or used for wharfage purposes as described in Schedule 2, together with all light-houses, light-ships, leading lights and marks, beacons, wharfs, cranes, engines, dredges, tugs, shipping appliances, and all other the property of the Crown subject to the interest of any persons in such land existing at the time of the passing of the Act ( and there follows an irrelevant proviso ). 66 Schedule 2 of the Act provides a description of the area referred to in s 27, which, being mainly lists of surveying directions, will not be totally reproduced here, but which relevantly notes that the area is: "bounded by a line …closely following high-water mark around all bays, coves, rivers, creeks, inlets, indentations, points, promontories, headlands, &c, on the southern shores of Port Jackson … to the eastern side of Bennelong Point, at a point due east of the north-eastern extremity of Port Macquarie … thence by a line due south to the southern side of the street known as Circular Quay; thence by that side of that road generally north-easterly to highwater mark on the north-eastern side of Dawes' Point …" 67 The Sydney Harbour Trust Act was held to apply to the wharf the subject of the Court of Appeal decision in Waterways Authority of New South Wales v Coal and Allied (Operations) Pty Limited (supra). That Act was repealed by the Ports and Maritime Administration Act 1995 (formerly the Ports Corporatisation and Waterways Management Act 1995) and the assets, rights and liabilities of the Maritime Services Board transferred as set out in Schedule 2 to that Act to the MMHC and its successors. 68 The delineations of Sydney Harbour (or Port Jackson) must be read along with the Seas and Submerged Lands Act 1973 (Cth), which reflects the United Nations Convention on the Law of the Sea ("the Convention") and provides the framework for the determination of the boundaries of the Australian territorial sea. The Convention came into force on 16 November 1994. The Seas and Submerged Lands Act reproduces that Convention in its Schedule and provides for straight "baselines" to be drawn across the mouths of rivers, bays and harbours in order to measure the territorial sea. Otherwise, the coast is measured by the "low-water datum known as Lowest Astronomical Tide (LAT) as the datum upon which the territorial sea can be predicted under average meteorological conditions" (see Australia's Maritime Boundaries, Geoscience Australia, ). 69 Various Court decisions are useful in determining the status of the wharf as being located within or outside NSW and on the status of Sydney Harbour as either part of the territorial sea, or the internal waters of NSW. The applicant relies upon New South Wales v the Commonwealth [1975] HCA 58; (1975) 135 CLR 337, in particular upon a passage by Barwick CJ at 368; Jacobs J at 480-481, and Gibbs J (who dissented) at 406. The most directly relevant of those passages is the last, where his Honour says: "If what I have said is incorrect, it would be difficult to see on what principle internal waters came to be part of a colony. The waters of Port Jackson are no more within the express description contained in the instruments creating New South Wales than are the waters of the Pacific Ocean within three miles of the New South Wales coastline". 70 The passages relied upon by the applicant refer to whether the original instruments creating New South Wales included Sydney Harbour as part of the colony. Much legislative water, if I may be pardoned the pun, has passed under that particular bridge since then. 71 In contrast, the respondent points to two High Court decisions which it says establishes that Port Jackson is part of the internal waters of NSW. The first is Bistricic v Rokov (supra), in which the Court held that an act of the UK did not apply to Australian States in relation to a personal injury which occurred on a ship moored in Sydney Harbour. Jacobs J held, without any gainsaying of this proposition by the other members of the Court, that "the injury was suffered in internal waters of New South Wales" (at 559). 72 The second decision is that of Kirmani v Captain Cook Cruises Pty Ltd [No 1] (supra). This too involved an issue of personal injury on a vessel within Sydney Harbour, this time on a vessel involved in a scenic harbour cruise. Gibbs CJ, at 360, said: "The defendant company, which is incorporated in New South Wales, alleged that Captain Cook II was used only to carry passengers on cruises wholly within the waters of Sydney Harbour and was not a seagoing vessel." and at 369: "The question then arises whether the repeal of section 503 of the Merchant Shipping Act, in its application to ships which are on the internal waters of a state at the time when an injury is sustained, and which are not otherwise the subject of activities which would render applicable one or other of the powers of the Commonwealth Parliament, is a matter within the authority of the Commonwealth within section 9(1) [of the Statute of Westminster] … No authority is needed to support the statement that a ship which is used entirely within the limits of internal waters, and never goes to sea, is not a sea-going ship". 73 While, again, neither of those decisions were answers to a specific question, "Is Sydney Harbour part of the internal waters of the state of New South Wales", they lend significant authority to the contention by the respondent that it is, indeed, part of those internal waters. When read with the terms of the Convention, the provisions and Schedule of the Seas and Submerged Lands Act, the provisions of the Sydney Harbour Trust Act and its successors, it is my view that the waters of Sydney Harbour are internal waters within New South Wales. 74 In any event, Part 10 of the Interpretation Act is headed "Application of State laws to coastal waters" and defines "coastal waters of the State" in section 58 as: "(a) the part or parts of the territorial sea of Australia that is or are within the adjacent area in respect of the State, other than any part referred to in section 4 (2) of the Coastal Waters (State Powers) Act 1980of the Commonwealth, or (b) any sea that is on the landward side of any part of the territorial sea of Australia and is within the adjacent area in respect of the State, but is not within the limits of the State." and "territorial sea of Australia" as: "the territorial sea of Australia within the limits referred to in section 4 (1) of the Coastal Waters (State Powers) Act 1980 of the Commonwealth." 75 Section 59 then goes on to provide for the application of State laws to coastal waters as follows: "The laws of the State apply in and in relation to: (a) the coastal waters of the State, and (b) the sea-bed and subsoil beneath, and the airspace above, the coastal waters of the State, as if the coastal waters of the State, as extending from time to time, were within the limits of the State." 76 Part 10 of the Interpretation Act was construed in the context of the Management of Waters and Waterside Lands Regulations (NSW) and the Water Traffic Regulations (NSW) and with reference to the Petroleum (Submerged Lands) Act 1967 and the Coastal Waters (State Powers) Act by Bainton J in Walker v. Rural and General Insurance Ltd (unreported, Supreme Court of NSW, 15 December 1995). His Honour undertook much of the legislative journey taken above and held that "the conclusion to be drawn from this extraordinary verbosity is that the licensing requirements which previously applied in "enclosed waters" now apply in waters up to 3nm from the coast." 77 Similarly, the effect of Part 10 of the Interpretation Act would be sufficient, if the case law and other legislative provisions were not, to apply the provisions of the Act to allow assessment for land tax of "land", in the sense of a three-dimensional space, which is located over the waters of Sydney Harbour. Conclusion 78 Given the findings that: (a) lease of the shop premises located on a wharf over the waters of Sydney Harbour may be "land" for the purposes of the Land Tax Management Act 1956; and (b) the waters of Sydney Harbour are within New South Wales; then the result that the application must be dismissed must follow. 79 The decision of the respondent is affirmed.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Quay Pasta Pty Ltd
Chief Commissioner of State Revenue
(1976) 135 CLR 552
(1970) 124 CLR 73
(1996) 186 CLR 389
(1981) 35 ALR 151
(1981) 17 CLR 408
(2004) 62 NSWLR 534
(1973) 128 CLR 199
(1985) 159 CLR 351
The application was dismissed and the decision under review was affirmed. [78]–[79]
(1975) 135 CLR 337
(1976) 135 CLR 507
(1998) 194 CLR 355
(1905) 3 CLR 656
(2002) 210 CLR 392
(1975) 132 CLR 463