Trustees of charitable trusts holding property for religious groups do not qualify as a "charitable institution" under s 10(1)(d), but exemption is available under s 10(1)(g)(i) if the land is actually used as a site for worship, including ancillary surrounding land.
Later decisions that cite Commissioner of Land Tax (NSW) v Joyce
Decisions cited by Commissioner of Land Tax (NSW) v Joyce
COMMISSIONER OF LAND TAX (N.S.W.) v. JOYCE [1974] HCA 39; (1974) 132 CLR 22
Land Tax (N.S.W.)
High Court of Australia
McTiernan(1), Menzies(2), Gibbs(3), Stephen(4) and Mason(5) JJ.
CATCHWORDS
Land Tax (N.S.W.) - Exemption - Land owned by or in trust for charitable institution carried on solely for charitable purposes and not for pecuniary profit - Land owned by or in trust for any person or society and used solely as a site for a place of worship for a religious society - "Institution" - Land Tax Management Act, 1956 (N.S.W.) as amended, s. 10 (1) (d), (e), (g).
HEARING
Sydney, 1973, November 13, 14; 1974 October 25. 25:10:1974DECISION
1974, October 25.
2. The Burwood land has cottages on it, but was purchased as an area on which
a new meeting hall might be erected. (at p25)
3. Both areas of land are held by the respondent taxpayers under a trust deed
dated 27th November 1945. The trust constituted by
the deed is known as the
"Ashfield Hall Trust". The material provisions of the deed are as follows:
"DECLARATION OF TRUST2. (i) The trustees shall hold the trust property upon trust to employ it for any charitable purpose or purposes which the trustees may from time to time in their absolute discretion select.
USE OF LETTING OF HALL3. (a) The trustees may use the hall or permit the hall to be used for meetings therein of Christians for religious purposes or for any other charitable purpose or purposes which the Trustees may from time to time in their absolute discretion select but for no other purposes and may stipulate for such term such rent and such covenants and provisos in all respects as the trustees may in their absolute discretion think fit.
USE OF LETTING OF COTTAGE4. The trustees may use the cottage for the purposes of a residence for a caretaker or cleaner of the hall and for such purposes may let the cottage and stipulate for such term such rent and such covenants and provisos in all respects as the trustees may in their absolute discretion think fit.
POWER TO APPLY THE TRUST PROPERTY18. The trustees may pay or apply the trust property or any part thereof to or for the benefit of any other charitable trust whether or not the trustees of such other charitable trust include the trustees hereof or any of them." (at p25)
4. The Ashfield land and the Burwood land were assessed by the appellant
Commissioner for land tax for the year 1969-1970. Pursuant
to s. 35 (1) of the
Act the respondents objected to the assessment by the appellant of the tax
payable in respect of those areas
of land on the grounds that the land was
exempt from taxation by the provisions of s. 10 of the Act. Section 10
provides:
"(1) Except where otherwise expressly provided in this Act
the following lands shall be exempt from taxation under this
Act:
. . .
(d) land owned by or in trust for a charitable or
educational institution if the institution, however formed or
constituted, is carried on solely for charitable or
educational purposes and not for pecuniary profit;
(e) land owned by or in trust for a religious society,
where the land is held solely for, or the proceeds of
the land are devoted solely to, religious, charitable or
educational purposes, including the support of the
aged or infirm clergy or ministers of the society, or
their wives or widows or children;
. . .
(g) land owned by or in trust for any person or society
and used or occupied by that person or society solely
as a site for -
(i) a place of worship for a religious society, or a
place of residence for any clergy or ministers or
order of a religious society;
. . .
(iii) a building owned and solely occupied by a
society, club or association not carried on for
pecuniary profit;
(iv) a charitable institution not carried on for
pecuniary profit;
. . ." (at p26)
5. The grounds relied upon to support the objection were as follows:
"1. The land is owned by or in trust for a charitable institution
which is carried on solely for charitable purposes and(1) (g)
not for pecuniary profit within the meaning of s. 10 (1) (d)
of the Land Tax Management Act.
2. Alternatively the land is owned by or in trust for a
religious society and the land is held solely for and the
proceeds of the land are devoted solely to religious and or
charitable and or educational purposes within the
meaning of s. 10 (1) (e) of the Land Tax Management
Act. 3. Alternatively the land is within the meaning of s. 10
of the Land Tax Management Act owned by or in trust
for a society or alternatively persons and is used or
occupied by that society or those persons solely as a site
for -
(a) a place of worship for a religious society, or,
(b) a building owned and solely occupied by a society or
association not carried on for pecuniary profit, or,
(c) a charitable institution not carried on for pecuniary
profit."
6. The appellant overruled the objection, and the respondents requested the Commissioner to treat the objection as an appeal and to forward it to the Supreme Court, as provided by s. 35 (5) of the Act. Brereton J., who heard the appeal, found in favour of the Commissioner in respect of the grounds based on sub-ss. 10 (1) (d), 10 (1) (e), 10 (1) (g) (iii) and 10 (1) (g) (iv) of the Act, but found in favour of the present respondents on the ground based on s. 10 (1) (g) (i) of the Act, but only as to land "on which the meeting or Gospel Hall is presently erected". There was an appeal by the trustees against the judgment to the extent that it was adverse to their claim for exemption and the Commissioner cross-appealed against the judgment to the extent to which it was in favour of the taxpayers.
7. Brereton J. had decided that neither the trustees, nor the Ashfield Hall
Trust were an "institution" or a "religious society"
and that the land was not
"held in trust for" the Brethren: s. 10 (1) (d) and (e). He held that the
building was not owned by the
Brethren as a "society" or "association", and
that the Brethren were
not a "charitable institution": s. 10 (1) (g) (iii) and
(iv).
He held, however, that the land on which the meeting or gospel hall is
presently erected was exempt under
the provisions of s. 10
(1) (g) (i). (1971)
2 NSWLR 226 (at p27)
8. In the Court of Appeal (1973) 1 NSWLR 402 , Kerr C.J. and Hope J.A. found
in favour of the trustees on the ground that the trustees
were a charitable
institution, and therefore found that the whole of the land was exempt from
land tax under s. 10 (1) (d) of the
Act. Hardie J.A. reached a different
conclusion. In the first place he held that neither the trustees nor the trust
were an institution
and agreed with Brereton J. in respect of s. 10 (1) (e),
but he decided that all the Ashfield land was exempt under s. 10 (1) (g)
(i).
It seems to me that the reasoning in Royal Sydney Golf Club v. Federal
Commissioner of Taxation [1955] HCA 13; (1955) 91 CLR
610 is applicable
here. (at p27)
9. The Commissioner now brings this appeal and claims that none of the land
is exempt from land tax. (at p27)
10. The conclusion which I have reached is that the trustees, who are the
"owners" of the land as defined in s. 3 of the Act, are
not an institution. In
my view, it would be a novel application of the term "institution" to apply it
to the trustees.
(at p27)
11. However, I agree that the Ashfield land is exempt under s. 10 (1) (g) (i)
of the Act. In the result, I think that the conclusion
of Hardie J.A. was
right and I also think that his reasons are
correct. I am content to adopt his
reasons and have nothing to add.
(at p27)
12. I would therefore allow the appeal in part; that is to say, the site of
the gospel hall including all the land surrounding it
constituting the total
area of the Ashfield land is exempt from land tax. (at p27)
MENZIES J. The circumstances with which the court is here concerned are set
out in full in the judgment of Stephen J. which I have
had the advantage of
reading and I do not repeat them. (at p27)
2. In my opinion no part of the land here in question is exempt from the land
tax imposed by the Land Tax Management Act, 1956 (N.S.W.) as amended. (at
p28)
3. It seems to me that the two provisions of that Act which require
consideration are pars. (d) and (g) (i) of s. 10 (1) of the Act. (at p28)
4. Land is exempt from tax under the former provision if it is owned by or
held in trust for a charitable institution. The land
both at Ashfield and at
Burwood is owned by the respondents as trustees but it seems so obvious as to
require no discussion that
the respondents themselves are not a charitable
institution. They are individuals holding as trustees for charitable purposes.
The
land is not owned by a charitable institution. If then the land or part of
it is exempt from tax under s. 10 (1) (d) it must be because the trustees hold
the land or some part of it in trust for a charitable institution. The trust,
however,
is plainly one for charitable purposes and although there is a wish
expressed by those who created the trust - i.e. that the primary
charitable
purpose to which the trust property should be devoted should be to provide a
meeting place for Christians - there is no
basis upon which to conclude that
the land is held in trust for any institution. It is certainly not held in
trust for the Brethren.
In my opinion s. 10 (1) (d) does not exempt the land
from tax. (at p28)
5. Nor do I think that any of the lands in question are exempt from tax by
virtue of s. 10 (1) (g) (i) of the Act. To be exempt under this provision land
must: (1) be owned or held in trust for any person or society; and
(2) used
or occupied by that person or society solely as a site for a place of worship
for a religious society. The respondents,
as I have said, own the land as
trustees for purposes not for persons or societies and in the exercise of the
discretion they allow
the Brethren to use the land at Ashfield as a place of
worship. The trustees do not themselves use or occupy any part of the land
as
a site for a place of worship for a religious society; they but permit the
Brethren to do so. The situation seems to me entirely
different from that
which would exist if an incorporated church body were to own land and use it
as a church; that would be a typical
case of a person both owning land and
using it for the purpose specified. The Brethren do, I consider, use the whole
of the land
at Ashfield - except the shops - but none of the land at Burwood
as the site for a place of worship and the Brethren can properly
be regarded
as a religious society. This of itself, however, is not enough to secure
exemption. If the trustees do not themselves
use or occupy the land as a site
for a place of worship for a religious society it is exempt from tax only if
it is held in trust
for some person or society by whom it is used as a site
for a place of worship for a religious society. However, because I do not
regard it as possible to construe the trust deed as constituting a trust in
favour of the Brethren regarded either as a society or
as persons or indeed,
for any persons or society, I regard s. 10 (1) (g) (i) as inapplicable. (at
p28)
6. Some reliance was placed upon s. 10 (1) (g) (iv) but as, in my opinion,
the land is not held in trust for the Brethren and the land is not used or
occupied as a site
for a charitable institution, this provision is not
applied. (at p29)
7. In my opinion the appeal should be allowed. (at p29)
GIBBS J. I have had the advantage of reading the reasons for judgment
prepared by my brother Stephen, and am in complete agreement
with them. I
would add only a few words on one aspect of the case. In support of their
submission that the Burwood land came within
the exemption conferred by s. 10
(1) (g) (i) of the Land Tax Management Act, 1956 (N.S.W.) (as amended),
counsel for the respondents laid stress on the words "land . . . used or
occupied . . . solely as a site for
a place of worship . . . ". The word
"site" can refer to a piece of ground intended for building purposes, as well
as to one on which
a building is constructed. When one speaks of "a site for a
church", rather than of "the site of a church", the words naturally suggest
that the church is to be built, but has not yet been built, on the site
mentioned. Therefore it was submitted that s. 10 (1) (g) (i) looks to the
future, and that the Burwood land, being an area on which a place of worship
was intended to be built, comes
within the exemption. (at p29)
2. I am disposed to think that the exemption conferred by s. 10 (1) (g) is
not restricted to land on which something of the kind mentioned in the
paragraph is already built or constructed. For
example, if the other
conditions laid down by the paragraph were fulfilled, land on which a church
was in the course of erection,
as well as land on which a church had been
erected, would be exempt from the tax. But the exemption is not conferred on
land which
"is a site" - to qualify the land must be "used or occupied . . .
solely as a site". When the land in fact is the site of cottages,
one at least
of which is occupied, and no steps can be taken towards the construction of a
gospel hall, because a necessary consent
has not been obtained, it seems to me
impossible to hold that the land is "used or occupied . . . solely as a site
for a place of
worship". (at p29)
3. I would allow the appeal to the extent indicated by my brother Stephen.
(at p29)
STEPHEN J. The Christian sect known as the Brethren is averse to the
ownership of property by the sect itself; its places of worship
are, in
consequence, sometimes owned by members of the sect in the locality, who hold
as trustees on charitable trusts, the premises
thus being made available as
places of worship for the local congregation of Brethren. (at p29)
2. Such is the case of the Brethren living in the Ashfield district of
Sydney; they worship in a large gospel hall in Orchard Crescent,
Ashfield but
the site of this hall and a considerable area in its vicinity is owned by the
present respondents. The trust of which
they are the present trustees takes
the form of a declaration of trust made by the original trustees in 1945
whereby the trust property
is declared to be held "upon trust to employ it for
any charitable purpose or purposes which the trustees may from time to time in
their absolute discretion select". There follows an expression of the wish of
the declarants that the primary charitable purpose
to which the trust property
should be devoted should be to provide a meeting place for religious purposes
for Christians, but this
is coupled with an unequivocal statement that this
expression of the declarants' wishes "shall not impose any obligation upon the
trustees nor be interpreted as a trust", thus ensuring that the sect shall
have neither any legal nor any equitable interest in the
trust property. In
fact the hall has always been used exclusively as a place of worship by
members of the sect of Brethren, the trustees
for the time being making it
available only for that purpose. The adjoining lands, some with buildings on
them, have been used exclusively
for purposes associated with the use of the
hall by the Brethren. (at p30)
3. The property the subject of the trust deed is not confined to the Ashfield
land but also includes land in the Sydney suburb of
Burwood, acquired so that
it might be used as a gospel hall, concourse and parking area for the
religious observances of Brethren
in that locality. Cottages are still
standing on this Burwood land, council approval for its intended use having so
far been refused,
and these cottages accordingly continue to be occupied as
residences although their occupants are charged no rent; their occupation
is
regarded by the trustees as in the nature of that of caretakers. (at p30)
4. Land tax has been assessed in respect of the whole of the Ashfield and
Burwood land owned by the respondent trustees and this
appeal is concerned
with whether these lands are exempt from land tax. In the Supreme Court of New
South Wales the learned primary
judge, Brereton J., held that only the actual
site of the Ashfield gospel hall was exempt (1971) 2 NSWLR 226 ; on appeal
(1973) 1
NSWLR 402 , a majority of the Court of Appeal Division, consisting of
Kerr C.J. and Hope J.A., held that the whole of the Ashfield
land and also the
Burwood land were exempt. Hardie J.A., on the other hand, concluded that the
whole of the Ashfield land was exempt
from tax but that none of the Burwood
land was exempt. (at p30)
5. It is from the order of the Court of Appeal Division that the Commissioner
now appeals, contending that no part of the trust
property is exempt from tax.
The respondents seek to uphold the exemption from tax of the whole of the
property. (at p31)
6. There are only two paragraphs of s. 10 of the Land Tax Management Act,
1956 (as amended) that I find necessary to set out. Paragraph
(d) confers an
exemption in the following terms:
"(d) land owned by or in trust for a charitable or educationalThat exemption depends exclusively upon the character of the owner of the land in question; if the necessary character exists all lands so owned will be exempt from tax. It was upon this paragraph that the majority of the Court of Appeal Division relied. (at p31)
institution if the institution, however formed or constituted, is
carried on solely for charitable or educational purposes and not
for pecuniary profit;".
7. Paragraph (g) (i) provides an exemption for
"(g) land owned by or in trust for any person or society andUnlike par. (d) this exemption depends upon the use to which land is put rather than the particular character of the owner. The learned primary judge relied upon this sub-paragraph but held it to be applicable only to land upon which was erected the gospel hall itself, whereas Hardie J.A. regarded it as applicable to the whole of the Ashfield land. (at p31)
used or occupied by that person or society solely as a site for -
(i) a place of worship for a religious society, or a place of
residence for any clergy or ministers or orders of a religious
society;".
8. Counsel for the respondent trustees also relied upon other exempting
provisions of s. 10 (1) but it is unnecessary to set them
out; I regard them
as presently irrelevant, for reasons which I shall later give. (at p31)
9. In s. 10(1) (d) two situations are contemplated; in the first the subject
land will be owned by an "institution", in the second
it will be held
in trust
for an "institution". In the present case, the second situation is
inapplicable, the terms of the trust
deed already referred
to prevent it from
being said that the land is owned in trust for any particular institution.
Accordingly the
land, if it is to fall
within this exemption, must be capable
of being regarded as owned by an institution. In fact the only owners
of the
land are the
four trustees; are they, then, such an institution as is
described by the sub-section, an institution "formed
or constituted" and
capable of being "carried on" for certain purposes? It is not the verbal
infelicities involved in these two phrases
when sought to
be applied to the
trustees that principally influence me to answer "No" to this question. Rather
it is because the
evidence, when
examined, establishes to my satisfaction that
the respondents are no more than simple trustees and possess no quality
or
function
which could justify their being described as an institution. These
four trustees are in no sense the governing body of
the religious
sect known
as the Brethren or of any congregation of that sect. Among the Brethren there
is no clergy but there are
elders, members
of a congregation with great
experience and thought to possess particular moral worth. There are also
Levites, those
who preach the
Gospel, journeying to meet with and speak to
other congregations of the Brethren. There are also members who are authorized
to celebrate
marriages conducted in accordance with the beliefs of the
Brethren, it being a recognized denomination for the purposes
of the Marriage
Act 1961 (Cth). There is no evidence that any of the four trustees holds any
of these offices, if they may be so described, in any congregation
of the
Brethren; even if they did, it is clear that no group of elders or Levites
controls the affairs either of the Brethren at
large or of any single
congregation of Brethren. On the contrary, all decisions are taken by the
particular congregation as a whole,
"the group itself is the governing body",
and all decisions are unanimous, unanimity being attained by discussion and
moral persuasion,
the Scriptures and their interpretation by four venerated
teachers over the past 150 years providing the answers to such questions
as
arise for decision. (at p32)
10. In such circumstances the search for anything answering the description
of an institution is not likely to be rewarding, certainly
it is not to be
found in the trustees, either individually or collectively; they do meet from
time to time, make decisions and keep
minutes of their proceedings but these
proceedings relate exclusively to the management of the trust property and not
to the general
affairs of the Brethren. They have no standing in relation to
the religious practices of any congregation and control neither the
general
funds of the Brethren in New South Wales or in Sydney nor even those of the
Ashfield congregation; these latter are deposited
to the credit of a joint
account in the names of three or four other members of the Brethren who attend
to their proper expenditure.
(at p32)
11. The trustees' only function is the management of the trust property
consistently with the Trust Deed and with the wish it expresses
that the trust
property should primarily be devoted to providing a meeting place for
Christians. The performance of this function
cannot, in my view, confer upon
these four trustees the quality of an "institution", however widely that term
may be construed. (at
p32)
12. In Stratton v. Simpson [1970] HCA 45; (1970) 125 CLR 138, at p 158 , Gibbs J. said of
the word "institution" that, although
its meaning must
depend on its context,
it
would not ordinarily connote a mere trust; his Honour referred to Minister
of National
Revenue v. Trusts
and Guarantee Co. Ltd. (1940)
AC 138 . Here the
context appears to me very much to reinforce the ordinary connotation
of the
word
as not extending to a mere trust;
par. (d) recognizes that the
institutions of which it speaks may either themselves
own property
or else may
have property held upon
trust for them by trustees; it thus distinguishes
between the institution and the
trustees of
property held upon trust for it or
its charitable purposes. It legislates in terms of the owner of land, legal or
equitable,
and
requires that owner to be an institution
carried on for
particular purposes; where no trustees are interposed between the legal
title
to the land and the institution it is
the legal owner of the land which must
be an institution having those purposes; where
the intervention
of trustees
occurs the paragraph
looks beyond them to the institution for which the land
is held upon trust and
is in no way concerned
with the characteristics of
those trustees. (at p33)
13. In the present case the only relevant owners of land are the four
respondents who are trustees of a charitable trust but are
not themselves an
institution and there exists no other landowning entity to look to in order to
satisfy the characteristics of an
institution for which the paragraph calls.
(at p33)
14. It may be noted that the meanings assigned to "institution" by Lord Esher
M.R. in Mayor, etc. of Manchester v. McAdam (1895)
1 QB 673, at pp 681-682
and, on appeal, by Lord Herschell (1896) AC 500, at p 507 , are in my view
inapplicable to these trustees
and the same may be said of the meaning of that
word adopted by Higgins J. in Young Men's Christian Association v. Federal
Commissioner
of Taxation [1926] HCA 2; (1926) 37 CLR 351, at pp 360-361 . (at p33)
15. For these reasons I consider that s. 10 (1) (g) (d) has no application to
any of the subject lands. (at p33)
16. The exemption afforded by par. (g) (i) of s. 10 (1) will apply (inter
alia) if land owned by any person is used by that person solely as a site for
a place of worship for a religious
society. Part at least of the Ashfield land
is undoubtedly used as a place of worship; it also seems to be clear that at
least that
part of the Ashfield land is "used" by the four respondents "as a
site for a place of worship". It is so used by being applied to
that purpose;
it is not necessary, for this purpose, to establish, as is no doubt the case,
that the four respondents personally
worship there; the terms of sub-pars (v)
and (vi) of s. 10 (1) (g), relating to the use of land as a cemetery or public
gardens, are enough to dispose of the notion that personal use is required
so
as to satisfy the requirement that the land in question be "used" by the owner
"as a site for" the various purposes specified
in par. (g). (at p33)
17. Part at least of the Ashfield land in question being, then, used by the
respondents at the material time as "a site for a place
of worship for"
members of the Brethren, the question arises whether this satisfies the
requirement involved in the words "a place
of worship for a religious
society". (at p33)
18. The appellant relied upon Re Thackrah (1939) 2 All ER 4 , in which
Bennett J. held that a bequest to the proper officer of the
Oxford Group
failed for want of any identifiable association or society of individuals
banded together under the name of the Oxford
Group; the absence of rules, of
some constitution, was held to be fatal; in their absence there was nothing
"by which those who are
supposed to be members are tied together" (1939) 2 All
ER, at p 6 . (at p34)
19. The evidence discloses no written rules or constitution of the Brethren
but does reveal that each congregation is a close-knit
and intimate group the
members of which not only know one another well but feel themselves to be
linked together by close bonds of
common faith; "it is a very intense
organization" in which "everyone feels responsible for the whole company to be
kept right" and
the conduct of each member is apparently open to the scrutiny
of all. There are members of the Brethren throughout the world, distinguished
by their commitment to the teachings of their founder, John Nelson Darby, and
of subsequent teachers. (at p34)
20. In the Sydney district there are about fifty small congregations of
Brethren each with its own meeting place and the Ashfield
hall provides a
central meeting place for all. To join the Brethren involves acceptance, by
decision of the whole of the members
of a particular local congregation, as a
believer in the teachings of the sect and by baptism as a Brethren; in
addition there follows
a review of credentials at the central meeting place in
the particular city, in Sydney at the Ashfield hall. Membership, when thus
attained, is not membership of a particular congregation but of the whole
company of Brethren throughout the world. (at p34)
21. There is no Australia-wide organization of Brethren and to the extent
that anything in the nature of organization may be said
to exist it appears to
be based upon groups identified by residence within a particular city. The
denomination is not only recognized
for the purposes of the Commonwealth
Marriage Act but also features in the Commonwealth and State Year Books as a
named Christian
denomination, being the smallest of all separately
identified
sects, having had, at the time of the 1966 census, some 15,000 members
throughout Australia, and some 4,500 in New South
Wales. (at p34)
22. Although in Re Thackrah (1939) 2 All ER 4 it was no doubt necessary to
seek for rules or a constitution when it was to "the
secretary or other proper
officer" of the Oxford Group that the bequest was made, I would not, in the
context of s. 10 (1) (g), consider
their absence to be fatal to the existence
of a "religious society". It was so as to identify those who might be
joined
together
by some common bonds so as to form an association that Bennett J.
sought unavailingly for rules or a constitution.
Here, although
rules be
absent, yet the distinguishing features of a common belief and common
acceptance of recognized doctrine clearly
identify
members of the Brethren and
this is accompanied by the outward manifestation of regular worship together
in congregations,
the members
of which are very conscious of their membership,
which is only conferred upon those thought worthy and which may be forfeited
by
acts of unworthy conduct. (at p35)
23. The phrase "religious society" in s. 10 (1) has been said to bear the
intended primary sense of a religious denomination (Theosophical
Foundation
Pty. Ltd. v. Commissioner
of Land Tax (1966) 67 SR (NSW) 70, at p 82 , per
Sugerman J.A., Christian Enterprises Ltd. v.
Commissioner of Land Tax (1968)
88
WN (Pt 2) (NSW) 112, at p 121 , per Walsh J.A.) and the Brethren does in my
view in all respects
answer the description of a religious denomination.
(at
p35)
24. I accordingly conclude that part at least of the Ashfield land is used by
the respondents as a site for a place of worship for
a religious society. Nor
am I disposed to restrict the area so used to the site upon which the gospel
hall itself is erected together
with its immediate curtilage. The uses to
which other portions of the Ashfield land is put, the vacant land as a car
park for those
attending services at the hall and as access ways to and from
the car park, the buildings as rest rooms for those attending services,
as
furniture storage areas for equipment used in the gospel hall, as shelters for
passengers alighting from cars bringing them to
services and as premises for
the hall caretaker, all these appear to me to be directly ancillary to and
dependent upon the use of
the gospel hall as a place of worship. As was said
by Hardie J.A. in the Court of Appeal Division "surrounding land used for
purposes
ancillary to those of the church building, is within the description
contained in the exempting provision" (1973) 1 NSWLR, at p 411
; I agree, with
respect, with his Honour's view that this accords with the approach adopted by
this Court, in a somewhat different
context, in Royal Sydney Golf Club v.
Federal Commissioner of Taxation [1955] HCA 13; (1955) 91 CLR 610, at p 626 ; the vacant land
and buildings
to which I have referred all subserve and contribute to the
enjoyment
of the gospel hall as a place of worship and
are a part of
the "site
for a place of worship". In saying this I of course exclude
the areas upon
which two shops stand, areas which
it was conceded
by the respondents formed
no part of the site claimed to fall within
the exemption. (at p35)
25. As to the Burwood land, it is in no sense "used" as a site for a place of
worship and is not therefore within this exemption.
It follows that I would
regard all of the Ashfield land other than the two shop-sites, but none of the
Burwood land, as exempt from
taxation by reason of s. 10 (1) (g) (i) of the
Act. (at p35)
26. The respondents sought also to rely upon other exempting provisions of s.
10 and I should state shortly why I do not regard
those provisions as helpful.
Section 10 (1) (e) applies only to land "owned by or in trust for" a religious
society; the respondents
are not themselves such a society nor
do they hold in
trust for any religious society, the terms of the trust deed are conclusive
in
this regard. Section 10 (1) (g) (iv) grants exemption, inter alia, to land
owned by a person and used by that person solely as
a site for "a charitable
institution
not carried on for pecuniary profit". If s. 10 (1) (g) (i) applies
to most of the Ashfield land,
as I think it does, the respondents gain nothing
from seeking to rely upon sub-par.
(iv) which can have no wider scope, in the
circumstances,
than has subpar. (i); indeed to do so raises possible
difficulties in relation
to the meaning of "institution" in par. (iv). I
prefer
to rest upon sub-par. (i) and to express no view concerning sub-par.
(iv).
(at p36)
27. I would allow this appeal to the extent that the order of the Court of
Appeal Division upheld in its entirety the respondents'
objection to the
appellant's assessment. The objection should be allowed in respect of all the
Ashfield land other than the sites
of the two shops having frontages to the
Hume Highway but the objection should be disallowed so far as concerns the
whole of the
Burwood land. (at p36)
MASON J. I am in agreement with the separate reasons for judgment prepared by
Stephen J. and Gibbs J. and with the order proposed
by Stephen J. (at p36)
2. I would merely add that the volume and difficulty of the litigation that
has already arisen from the appellants' claims to exemption
from rates and
land tax in respect of the subject lands suggest that consideration might be
given to the introduction of a more uniform
statutory approach to exemption
from both rates and land tax. (at p36)
ORDER
Appeal allowed in part.
Order of the Supreme Court of New South Wales, Court of Appeal Division, set aside and in lieu thereof order that the appeal to that Court be allowed in respect of the whole of the respondents' land situate in the Municipality of Ashfield other than the shop sites forming part thereof and that otherwise the respondents' objection to the appellant's assessment be disallowed and that the cross-appeal to that Court be dismissed.
Order that the appellant pay such costs of the hearing at first instance as were attributable to the issues on which the respondents have been successful. Further order that the appellant pay two-thirds of the respondents' costs of the appeal to the Court of Appeal Division and the whole of the costs of the cross-appeal to the Court of Appeal Division. Further order that the respondents pay to the appellant one-third of the costs of the appeal to this Court.