Ryde Municipal Council v Macquarie University

Ryde Municipal Council v Macquarie University - [1978] HCA 58 - HCA 1978 case summary — Zoe

[19]

It remains to see whether any authorities stand in the way either of my interpretation of the meaning of par. (fii) or of my mode of application of it to the facts of this case. First as to meaning: I take the components of the phrase "used by the University solely for the purposes thereof" in the same order as previously. "Solely" and its equivalents in comparable legislation have been the subject of much judicial commentary but for present purposes it is enough to refer to two cases only. In Salvation Army (Victoria) Property Trust v. Fern Tree Gully Corporation [33] the question whether land was used "exclusively for charitable purposes" was in issue and it was held that the sale of produce grown at a training farm for delinquent boys in no way prejudiced the land's exemption from rates: "it would be fantastic to hold that the land would not be ratable if the appellant destroyed or gave away the surplus products resulting from such trading that remained after satisfying the needs of the inmates but that it would be ratable if it disposed of such surplus at a profit and used that profit in aid of the revenues of the institution": (per Dixon C.J. and Williams and Webb JJ. [34] ). The commercial activity involved in the sale of produce was "merely incidental to the pursuit on the land of the charitable objects of the occupier" [34] . So here the receipt of rents by the University is likewise incidental to the use of the Market for the purposes of the University. In the much cited judgment of Windeyer J. inRandwick Corporation v. Rutledge [36] , his Honour spoke of the use of "solely" and "exclusively" as familiar in rating law and as adding emphasis, its function being to exclude cases where land is used for purposes which are "collateral or independent, as distinct from incidental to the stipulated use" [37] . Applying this to the present case, there is, in my view, no element of collateral or independent purpose present in this case: the only use made of the market site by the University is in the provision of facilities to staff and students.

[25]

In Waverley Municipal Council v. New South Wales Board of Jewish Education [46] the leasing by a public charity of land owned by it to an employee to serve as his residence was held to exclude the land from exemption to rates under s. 132 (1) (h). It so operated because use as a residence was "merely additional or collateral to the purposes which characterize the Board as a public charity" (per Herron J. [47] ). With the facts of that case may be contrasted the lettings in the present case, which are undertaken exclusively and directly in the course of providing facilities to staff and students. Many facilities on a University campus, from car parks to cafeterias, from cloakrooms to barber shops, can no doubt be conducted in different ways: they may be staffed by University servants; franchises may be given to entrepreneurs who staff those facilities, charging for their use and perhaps paying the University for the franchise; leases of the facilities may be granted to tenants. However it is done, the persons operating the facilities in a sense "use" them; certainly a franchise holder does so, having a licence to enter and use the premises in question so that he may provide the facilities in question to those who are to enjoy them. But these uses of University facilities, whether or not involving leases, are but incidental to and in no way detract from the exclusiveness of the use of the facilities by staff and students. On the contrary, they promote that use and may even be found to be essential to the full exercise of that use. They are not instances of "dual use" of land, as it is sometimes called; if an adjective were to be applied to them "subservient" might be appropriate since these uses, from their purpose and effect, subserve the primary uses to which the land is devoted. To say that a University cafeteria, whether franchised or leased to a catering firm, is any the less used "solely" for the provision of meals to students than it would be were it staffed by servants of the University seems to me to involve a distortion of language and to be no less "fantastic" in result than that which was so described in the passage from the Salvation Army Case [48] which I have cited above. The facilities here in question include those afforded by banks, travel agents and retail general stores and it is scarcely conceivable that University servants should be employed in providing them. Yet their provision to staff and students may none the less be a proper purpose of a university whose campus is more or less remote from urban commercial development. Such is the situation at Macquarie University.

[31]

A further preliminary point which should be mentioned is that it is now said that the rate notice issued by the Council is invalid because the valuation on which it is based was not made in accordance with the provisions of the Valuation of Land Act, 1916 N.S.W., as amended, which governs the making of valuations by the Valuer-General in relation to land in certain parts of the State, including the municipality of Ryde. Section 26 of that Act deals with circumstances in which more than one parcel of land may be included in a single valuation notice and s. 27 (1) provides that where several parcels of land owned by the same person are not of the same class of tenure or are separately let to different persons, they shall be valued separately. Section 27 (4) then provides that, "Where a part only of a parcel of land is subject to a particular rate, the value of such parcel shall be apportioned so as to show separately the value of that part which is subject to the particular rate." The land now in question forms part of the land owned by the University and is the subject of leases relating only to small portions of that land. It is said this mode of valuation was not followed, but there was obtained from the Valuer-General a valuation only of the area subject of the leases. We were informed after the conclusion of the hearing that it was common ground that the rate as levied was invalidly levied. It was said, however, that if the correct method of valuing had been adopted the issue would be the same, namely, whether the areas the subject of the leases were ratable at all. It was urged, therefore, that the issue in this proceeding was nonetheless a live issue as between the University and the Council because if the Land and Valuation Court were to take the correct step of quashing the rate or the assessment the correct valuation procedure would presumably then be adopted by the Valuer-General and a new rate notice issued in respect of which a fresh notice of appeal would then be lodged.

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Judgment (86 paragraphs)

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