Opinion Number. 759

Subject

DEFENCE PURPOSES WHETHER OWNERS OF BUILDING USED AS MILITARY HOSPITAL ARE LIABLE FOR MUNICIPAL RATES: EXEMPTION FROM RATES OF LAND USED FOR CHARITABLE PURPOSES: WHETHER USE AS MILITARY HOSPITAL IS CHARITABLE

Key Legislation

LOCAL GOVERNMENT ACT 1906 (N.S.W.): CHARITABLE USES ACT 1601 (IMP.)

Date
Client
The Secretary, Department of Defence

The Crown Solicitor advised on 3 March 1916 that the Commonwealth was not liable for municipal rates and that under the Local Government Act 1906 of New South Wales the owners of the asylum(2) would not be liable, while the military authorities were in occupation, if the land was being used for public charitable purposes.

The file has been returned by the Acting Secretary, Department of Defence, with the following minute:

Further advice is desired in this matter as to whether the use of this land as a military hospital is considered a use for public charitable purposes. If such is not the case, on the cessation of its use as an asylum for destitute children, the land becomes rateable and the Commonwealth will have to pay compensation to the owners in accordance with amount involved. But if its use as a military hospital is considered a public charitable use, the use for such purposes has been continuous and the land will not be rateable.

It is understood that in Great Britain the definition of the Act of 1601 (Charitable Uses, 43 Eliz. 4) still holds good, in which the 'maintenance of sick and maimed soldiers and mariners' is a charitable object.

In the Commissioners of Income Tax v. Pemsel [1891] A.C.531, the House of Lords dealt with the question of what are charitable purposes in English law.

Among these purposes it included the maintenance of sick and maimed soldiers and mariners (vide Wharton's Law Lexicon, 12th edn, p. 160).

This decision is based on the preamble to the Charitable Uses Act, 43 Eliz. c.4, an Imperial Act in force in New South Wales (vide Bignold's Imperial Statutes in Force in New South Wales, Vol. 2).

In my opinion, as the asylum is exclusively used for the maintenance of sick and maimed soldiers and mariners, the owners are exempt from the payment of municipal rates under the Local Government Act 1906 of New South Wales.

[Vol. 15, p. 18]

(1)Date in Opinion Book incomplete.

(2)Randwick Asylum, Sydney.