Licence to Bill: Your occupied miscellaneous licences are rateable

In Shire of Mount Magnet v Atlantic Vanadium Pty Ltd [2025] WASC 274, the Supreme Court of Western Australia has clarified the interpretation of section 6.26 of the Local Government Act 1995 (WA) (LGA), confirming that occupied Crown land the subject of a miscellaneous licence is not exempt from local government rating.

The ruling overturns an earlier decision of the State Administrative Tribunal (SAT) and will impact tenement holders who previously operated under the assumption that miscellaneous licences are exempt from being rateable land under the LGA. It remains to be seen whether the decision will be further appealed.

Background

The appeal arose from a dispute between the Shire of Mount Magnet (Shire) and Atlantic Vanadium Pty Ltd (Atlantic) concerning rates issued in respect of six miscellaneous licences forming part of Atlantic’s Windimurra Vanadium Project.

The Shire had not previously rated the licences, which together covered over 5,600 hectares. However, following a review of its rates record, the Shire issued rates notices to Atlantic in June 2023. Atlantic objected on the basis that the land was not rateable, relying on an exemption under section 6.26(2)(a)(ii)(I) of the LGA (the Miscellaneous Licence Exemption).

The SAT upheld Atlantic’s objection, finding that Crown land the subject of an occupied miscellaneous licence was not rateable land. The Shire appealed to the Supreme Court.

Atlantic v the Shire – relevant arguments

The dispute centred on the proper construction of section 6.26 of the LGA, which establishes the framework for determining whether land within a local government area is rateable. Subsection (1) sets out the general position that all land is rateable unless expressly exempted. Subsection (2) details specific examples where land is not rateable, including certain categories of Crown land. Notably section 6.26(2)(a)(ii)(I) reads as follows:

“(2) The following land is not rateable land —

(a) land which is the property of the Crown and — …

(ii) is unoccupied, except —

(I) where any person is, under paragraph (e) of the definition of owner in section 1.4, the owner of the land other than by reason of that person being the holder of a prospecting licence held under the Mining Act 1978 in respect of land the area of which does not exceed 10 ha or a miscellaneous licence held under that Act …”

Atlantic submitted that Crown land the subject of a miscellaneous licence should be treated as non-rateable regardless of whether it is occupied. It argued that the exception in section identified above was intended to exclude miscellaneous licences from rateability entirely and irrespective of use. Atlantic relied on the structure and wording of the provision, in particular the placement of the word “except” immediately after the word “unoccupied”, together with the legislative history ie amendments introduced by the Acts Amendment (Mining Tenements) (Rating) Act 1984 (Acts Amendment) and associated second reading speeches. It contended that the legislative intention was to simplify rating and preserve the non-rateability of miscellaneous licences, and that requiring an annual assessment of occupation would undermine the effectiveness and efficiency of the rating system.

Practically, its argument was based upon the premise which miscellaneous licence holders have assumed was the case until now.

The Shire disagreed and, on the other hand, contended that under a proper reading of section 6.26 of the LGA, all land is rateable unless it clearly falls within one of the specific exemptions in section 6.26(2). It argued that the exemption in the Miscellaneous Licence Exemption  applies only to unoccupied Crown land and that a miscellaneous licence does not itself displace the requirement that the land be unoccupied. The Shire submitted that once land is occupied, it would fall outside the exemption and is subject to rating under section 6.26(1). It further argued that its interpretation of the provision correctly aligned with the statutory purpose of supporting local government revenue and was consistent with the policy intent of the LGA.

The Supreme Court’s decision

The single question before the Court was whether Crown land the subject of an occupied miscellaneous license, is, or is not, rateable land, the answer to which turned on the proper construction of section 6.26 of the LGA.

Justice Solomon allowed the appeal, holding that the SAT had erred in its construction of the Miscellaneous Licence Exemption. His Honour emphasised the well-established principle that statutory interpretation must begin and end with the text, considered in its full legislative context. On a natural reading of the provision, his Honour determined that the exemption only applies where Crown land is unoccupied; the presence of a miscellaneous licence does not, of itself, exempt land from rating. Once land becomes occupied, his Honour considered that the precondition for the Miscellaneous Licence Exemption falls away.

In rejecting Atlantic’s construction, Justice Solomon found that its alternative reading was strained and inconsistent with the natural meaning of the provision. Although his Honour considered Atlantic’s dependence on the legislative history, including amendments introduced by the Acts Amendment and the related second reading speeches, and that these materials referred to a policy intent to, amongst other things, preserve the non-rateability of miscellaneous licences, that extrinsic material was found not to displace the clear statutory language of the provision. His Honour warned against relying too heavily on legislative history to infer meaning not supported by the text, supported by reference to the High Court’s decision in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd.¹

Further, the Court rejected arguments that occupation should be deemed irrelevant due to the ancillary nature of miscellaneous licences or administrative inconvenience. The Court also noted that local governments play an active role in the grant of miscellaneous licences, reinforcing their legitimate interest in raising revenue from such uses.

Implications of the decision

His Honour’s decision is contrary to the basis on which many tenement holders have historically operated; equally, it is contrary to the basis on which local governments have rated land the subject of miscellaneous licences. The decision is two pronged: being a coup to local governments and providing a means to raise additional revenue, while also providing additional costs to mining companies in an already uncertain and unstable economy.

It is yet to be seen whether Atlantic will seek to appeal Justice Solomon’s findings. In any event, absent any appeal to the contrary, his Honour’s decision provides judicial certainty on the operation of the Miscellaneous Licence Exemption. The Court has confirmed that occupation, whether by infrastructure, accommodation, or otherwise, is the key determinant of whether land the subject of a miscellaneous licence is ratable.

More broadly, the decision affirms a restrictive approach to statutory exemptions from rating and demonstrates that courts will not extend the scope of such exemptions beyond what is expressly provided.

Lavan comment

The decision is of significance for local governments and tenement holders across Western Australia’s mining sector. It provides an additional means by which local governments may raise revenue, while mining companies across the State will be hoping that Atlantic seeks further appeal before the Western Australian Supreme Court of Appeal to overturn the decision and return the status quo.

Millie Richmond-Scott, Mihali Palassis and Aleksa Kovacevic are all members of Lavan’s Restructuring, Disputes and Insolvency Team. They often advise mining companies and local governments on issues arising under the Mining Act 1978 (WA) and related legislation, such as the LGA. If you or your colleagues are affected by this decision or have any particular questions about it, our experienced Lavan team is here to help.

Disclaimer

The information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.

Footnotes

[1] (2012) 250 CLR 503 at [39].