Wentworth Park Sporting Complex Trust v Leichhardt Council

5. By notification pursuant to s 37Q of the Crown Lands Consolidation Act 1913 published in Government Gazette No 24 of 16 February 1990, the trustees of the subject land were appointed as a corporation with the name " Wentworth Park Greyhound Racing Complex ".

6. The present use and occupation of the subject land is as follows: (a) NSW National Coursing Association Ltd (NCA) and NSW Greyhound Breeders, Owners and Trainers Association Ltd (GBOTA)

By Licence Deed dated 27 September, 1985 the Trust, with the consent of the relevant Minister as required by the C L Act, granted a 20 year licence with a 20 year option to both NCA and GBOTA. Essentially, the Licence Deed gives NCA and GBOTA the right to do specified things to enable each to conduct greyhound race meetings, qualifying heats and trials and other approved events. The licence is only able to be exercised between certain hours on specified days. Each year a total 104 greyhound race meetings are conducted by NCA and GBOTA each Saturday and Monday. As well, trials are held by NCA and GBOTA twice weekly, and qualifying heats on a regular basis. NCA and GBOTA each have the right to conduct an additional 10 special events each year on part of the land. (a) Department of Sport, Recreation and Racing Erected on the land is a substantial grandstand only part of which is included in the area licensed to NCA and GBOTA. Levels 2 and 3 of the grandstand (with certain minor exceptions) are leased by the Trust to the State Government and are occupied by the Department of Sport, Recreation and Racing under a 10 year lease, being registered No. 116432, which expires on 4 September, 2001. That lease is in the process of being varied to extend the term by 12 months to 4 September, 2002. In addition to the Department occupying part of Levels 2 and 3, a large number of sporting associates are accommodated essentially as sub-occupants of the Department. The Level 2 and 3 areas are collectively referred to as Sports House. (b) Sydney All Sports Pty Ltd Also erected on the land is a free standing building known as the Broadcaster's Box. By Licence Deed dated 31 January, 2000, the Trust, with the Minister's consent, has granted a two (2) year licence with a three year option, to Sydney All Sports Pty Ltd, to conduct sports betting pursuant to a sports betting authority. (c) Energy Australia There is a registered lease, being registered No. 6775436, for an electricity substation which is located on part of the land. (d) Temporary Licences Under the C L Act, the Trust is empowered to grant temporary licences for prescribed purposes [Section 108(1) of the C L Act]. A temporary licence is defined in the Crown Lands Regulation 2000 as a licence for (in effect) a period not exceeding twelve (12) months [Regulation 32(c)]. The prescribed purposes are set out in Regulation 32(a). The Trust regularly grants temporary licences for use of various parts of the land and improvements. For example: (i) There is currently a licence to Sydney Olympic, a National Soccer League Club, to use the Oval area, and certain change rooms, for training and for that Club's junior team to play soccer matches. (ii) Numerous functions and events are conducted each year utilising function facilities within the Grandstand catering for up to 1,000 dinner guests. The dining space is supplemented by seven (7) bars and two (2) large areas for exhibitions and functions. The two (2) spaces give a combined total area of 4,000 square metres. The Trust makes available facilities, often free of charge, for a range of community groups and bodies within the Glebe and Ultimo areas for various functions including those for pensioners and underprivileged citizens, school children's annual sports carnivals, coaching clinics, etc. D. ADJUDICATON OF THE DISPUTE ISSUES

I first shall consider the question whether the subject land is relevantly owned by the Crown. If this question is answered affirmatively, it will be necessary to consider the second question, whether the land is "not held under a lease for private purposes".

If the first question is answered in the negative, the second question does not arise. Nonetheless, and for completeness, I shall still determine the second question.

Question (1): Is the subject land owned by the Crown?

Although the competing arguments have principally addressed this question by considering whether the subject land is relevantly owned by the Crown or by the Applicant, I think that the true owner is to be found elsewhere, namely that neither the Crown nor the Applicant owns the land beneficially because the subject land (as part of Wentworth Park) was dedicated in perpetuity as a park or place of public recreation by virtue of the operation of s 2 of the Blackwattle Bay Land Reclamation Amendment Act 1878.

In the celebrated judgment of Windeyer J in Randwick Council v Rutledge there is an illuminating discussion at 73 to 79 of the meaning of "dedication" in the case of a public reserve.

At p 74, Windeyer J said: It (dedication) seems to have been thought to indicate something binding the Crown and creating some rights in members of the public or a section of the public. Land reserved from sale did not pass from the control of the Crown. But lands granted for public charitable purposes were removed from the control of the Crown and were properly described as dedicated; and so also were lands granted as commons.

At p 75/76 Windeyer J said: Attorney-General v Eagar (1864) 3 S.C.R. (N.S.W.) 234 established that lands impressed with a trust could not be diverted by the Crown to purposes alien to the trust. Its authority that such lands were dedicated is undiminished. And in connection with the very lands there in question, the legislature later adopted the words dedicated in the Church and School Lands Dedication Act, 1880. But, in so far as the decision in Attorney-General v. Eagar appeared to place dedicated lands outside the authority of the legislature, it was mistaken. It was a later and even greater mistake to think that lands appropriated and taken into use by the Crown for a particular purpose (without the creation of any trust) became dedicated to that purpose and could not thereafter be used by the Crown for another purpose. All this was fully considered in Williams v. Attorney-General for New South Wales (the Government House Case (1913) 16 C.L.R. 404; (1915) A.C. 573; (1915) 19 C.L.R. 343). It suffices to say here that there can be no dedication in any strict sense unless a public trust be created. In the case of land vested in trustees as a public reserve in the form of a park or open space, to be maintained for the recreation of the public generally and not for the profit of any individuals, no difficulty arises; for the devotion of land to such a purpose is clearly charitable.

In my judgment, this passage aptly describes the status (original and continuing) as a park or place of public recreation dedicated in perpetuity of the subject land (forming part of Wentworth Park) with the ultimate legal consequence that the beneficial ownership of the land has passed out of the control of the Crown.

There is no evidence that the legislature has ever taken action to terminate that dedicated status of the subject land. The Crown Lands Act 1989 and its legislative antecedents did not affect this status - all that they have done is to provide for successive appointments of statutory trustees to control and manage the subject land for its dedicated purpose.

I say this, notwithstanding the fact that the 1873 and 1878 Acts dealing with the Blackwattle Bay Land Reclamations were repealed by the Statute Law Revision Act 1898 because as s 1 of that Act provides: This Act shall not affect the validity, invalidity, effect or consequences of anything already done or suffered - or any existing status or capacity - or any right, title obligation or liability already acquired, owned or incurred…..

In the certificate of the Commissioner for the Consolidation and Revision of the Statute Law appended in that Act, it is stated, inter alia, in relation to the savings clause included in the Act Its effect is to preserve untouched all the past operation of the Acts repealed, even where that past operation is of a permanent and continuing character.

In my judgment, the dedication in perpetuity as a park or place of public recreation of the land comprising Wentworth Park (including the subject land) created by the 1878 Blackwattle Bay Land Reclamation Amendment Act continued after the repeal of that Act by the Statute Law Revision Act 1898 and so continues to the present time because no relevant legislation has been passed having the effect of dissolving or discharging that dedication in perpetuity.

It follows for the reasons I have given that the subject land has not been shown to be owned by the Crown, because its beneficial use and enjoyment was, and remains, vested in the public by virtue of the 1878 Act. Apart from that beneficial interest, the only other interest is that of the statutory trustees appointed to control and manage the subject land under the successive Public Parks Acts, the Crown Lands Consolidation Act and (currently) the Crown Lands Act 1989.

This conclusion is sufficient in itself to dispose of the entire proceedings because the exemption from rates claimed by the Applicant is predicated, in part, upon the land being owned by the Crown.

But does this conclusion create any doubt as to the Applicant's liability to the rate assessments, the subject of the present proceedings since liability, in the case of land not owned by the Crown, is fixed by s 560 upon the "owner" of the land on which the rate is levied?

My conclusion (and the reasons for it) that the subject land is not owned by the Crown, is premised upon the common law and equitable concepts of ownership of land. However, the liability of an owner of land imposed by the Local Government Act 1993, s 560 is to be understood in the light of the definition of "owner" contained in the dictionary to the Act. In particular, the provisions of par (b) are relevant because the subject land is not "Crown land" as that term is defined (ie it does not include "land dedicated for a public purpose").

There are two bases upon which it may be held that the Applicant falls within limb (b) of the statutory definition -

(i) it is entitled to the land for an estate of freehold in possession by virtue of the estate vested in it by s 100 of the Crown Lands Act 1989 ; and hence falls within subpar (i) of par (b) ; or

(ii) it is entitled to receive, or is in receipt of, the rents and profits of the land "whether as beneficial owner, trustee…or otherwise" and hence falls within subpara (ii) of par (b).

Of the two bases, the second-mentioned is, in my opinion, more clearly established.

The Applicant receives considerable annual sums for rent and for licence fees payable by various lessees and the licencee of the subject land: see Gladstone Town Council v Gladstone Harbour Board (1964) 11 LGRA 231.

The present case is a far stronger case than that case where it was held that the trustees appointed under the Queensland Land Acts 1910 to 1960 were not in receipt of any interest in the land, which remained Crown land, but were nevertheless "owner" of the land for the purposes of the Queensland Local Government Acts even though the statutory definition of "owner" did not include within the expression "person entitled to receive rents etc a person so entitled as a "trustee" and receiving them as "trustee".

The definition of "owner" in the Local Government Act 1993 includes in limb (b)(ii) a person in receipt of rents and profits "whether as beneficial owner or trustee". Without having to decide whether the Applicant is in receipt of the rents derived from leases and licences of the subject land "beneficially" it is clear that if they are not receiving the rents beneficially, they are receiving them as "trustee".

Accordingly, for the foregoing reasons, I would hold that the Applicant is relevantly the "owner" of the subject land within the meaning of subpar (ii) of par (b) of the definition of "owner".

This means that it is not necessary to consider whether the Applicant falls within the other relevant limb of the definition ie subpar (i) of par (b). However, for completeness, I would hold that the Applicant does also come within this provision of the definition upon the basis of the estate vested in it by s 100 of the Crown Lands Act 1989, understood in the light of the fact that the beneficial ownership is vested in the public (Rutledge)..

In so concluding, I would not, with great respect, describe that estate as merely a "statutory fiction" as did Barrett J in a different context in Townsend v Waverley Council (2001) NSWSC 384.

Nor with great respect would I regard s 100 as merely reinforcing the powers of management of the reserve conferred upon the trustees, as did Waddell J in Forster Homes For the Aged Trust v Great Lakes Shire Council (1976) 1 NSWLR 577 at 580. That case is distinguishable from the present case inasmuch as it involved a situation where the land remained "Crown land" within the meaning of the Crown Lands Consolidation Act 1913, whereas the subject land clearly is not Crown land (and has not been so since the 1878 Act).

Moreover, Waddell J recognised at 580 that it might fairly be said that while the land was being devoted to the reserved public purpose that it should be regarded, in that context, as being owned by the trustees. However, such a conclusion was foreclosed, in his Honour's view, by the application of the definition of "owner" contained in s 4 of the Local Government Act 1919 which included the following proviso: The Crown shall be deemed to be the owner of all lands of the Crown

Significantly, this proviso was not included in the definition of "owner" contained in the 1993 Local Government Act. Its absence here provides a further reason for distinguishing the Forster Homes case.

Accordingly, for all of the foregoing reasons, I would hold that the Applicant is relevantly the owner of the subject land within the meaning of subpars (i) and (ii) of par (b) of the statutory definition.

In so concluding, I would also hold that the Applicant is not a statutory body representing the Crown. It is not declared to be a statutory body representing the Crown by any relevant legislation and my consideration of the provisions of Part 5 of the Crown Lands Act that I have earlier reached leads me to conclude that it should not be so held. Those provisions indicate an independent role of a reserve trust, albeit subject to Ministerial control in respect of the exercising of certain powers, cf Townville Hospital Board v Townsville City Council (1982) 149 CLR 282. This conclusion is supported by my review of the legislative antecedents to the Crown Lands Act. It is also supported by the terms of the rate exemption provided in s 556(1)(b) recognising that land used as a "public reserve" may be vested in "the Crown, a public body or trustee".

For all the foregoing reasons, I conclude that the subject land is not owned by the Crown. This conclusion means that the Applicant's claim to exemption from rates based upon s 555(1)(a) must fail.

For completeness, I shall consider the second question, but briefly, upon the necessary assumption that the land is relevantly owned by the Crown.

Question 2: Is the land not held under the lease for private purposes?

The true nature and scope of this aspect of the exemption from rates conferred by s 555(1)(a) has been extensively expounded by recent decisions of the Court of Appeal. They are collected and discussed and applied in my recent decision in Quality Parks Pty Ltd v Maclean Shire Council (2002) NSWLEC 77 , I do not here repeat what I there said but simply refer to it.

In my judgment, the uses to which the subject land is put pursuant to the licences to the NSW National Coursing Association Limited and The NSW Greyhound Breeders Owners and Trainers Association Limited means that is is clearly held thereunder for private purposes.

The licence is relevantly a "lease" (as defined by the Local Government Act).

The use of the subject land made by the licensees is clearly the dominant use made of the subject land, just as it was held to be in the earlier Land and Valuation Court decisions concerning the subject land that I have earlier referred to.

Because of the existence of that dominant use, the Applicant has not even attempted to establish that the land is not held under lease for private purposes.

Instead, it seeks to rely upon the existence of the other forms of leases and licences as justifying a finding that part (s) of the subject land is relevantly 'not held under lease for private purposes".

I am unable to accept this submission. The dominant characteristic of the several uses made of the subject land is the existence and use of the Greyhound racing track and the related facilities by the two licensees that I have earlier mentioned. This dominance eclipses the other uses made of the subject land and leads me to conclude that the subject land, as an un-subdivided unit, is relevantly held under lease for private purposes. Accordingly, the Applicant has not established that the land (assuming that it is relevantly owned by the Crown) is not held under lease for private purposes. E. CONCLUSIONS

For all of the foregoing reasons I hold that the subject land is not exempt from rates under s 555(1)(a) of the Local Government Act as claimed by the Applicant.

Accordingly, I make the following orders

1. The appeal be dismissed.
2. Exhibits be returned
3. Question of costs be reserved.

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