Federal Court of Australia

Toowoomba Regional Council v Commissioner of Taxation [2025] FCA 161

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The objection decision made by the respondent dated 26 September 2024 be set aside.

3.    In lieu thereof:

(a)    the ruling of the respondent dated 21 November 2023 in respect of Question 1, to the question: “Is the Grand Central shopping centre parking facility a ‘commercial parking station’ under Section 39A of the Fringe Benefits Tax Assessment Act 1986?” be answered “No”; and

(b)    question 2 be answered “Unnecessary to answer”.

4.    The applicant file and serve submissions as to costs of not more than 3 pages not later than Monday 10 February 2025.

5.    The respondent file and serve submissions as to costs of not more than 3 pages not later than Wednesday 12 February 2025.

6.    Thereafter, costs to be determined on the papers.

7.    Liberty to apply.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    The Toowoomba Regional Council (Council) and the Commissioner of Taxation (Commissioner) , in good faith, have come to different views about the Council’s liability in respect of a fringe benefits tax issue arising in respect of car parking. Responsibly, the Council, by a letter dated 29 June 2023, by its advisors, applied to the Commissioner for a private ruling under the Taxation Administration Act 1953 (Cth) (Taxation Administration Act).

2    There were two questions posed in the Council’s application for a ruling. Question 1 was “Is the Grand Central Shopping Centre parking facility a “commercial parking station” under s 39A of the Fringe Benefits Tax Assessment Act 1986 (Cth) (FBTAA)?”. Question 2 was, “Notwithstanding whether Grand Central’s car parking facility is a “commercial parking station”, would the lowest representative fee charged with reference to s 39A(1)(a)(iii) and s 39AB of the FBTAA Act, be $7.50?”

3    Under cover of a letter, dated 21 November 2023, the Commissioner gave the Council his ruling. In respect of question 1, the Commissioner answered “Yes”. In respect of question 2, the commissioner also answered “Yes”. That position was maintained on objection.

4    The Council has exercised a right conferred by the Taxation Administration Act to appeal against that objection decision. In respect of such an appeal, an appellant has the burden of proving either that the taxation decision should not have been made or should have been made differently: see s 14ZZO(b)(ii) of the Taxation Administration Act.

5    The submission made on behalf of the Council was that the decision should have been made differently. It was submitted that the objection should have been allowed such that the ruling in respect of question 1 should have been answered “No”, with consequentially, question 2 being unnecessary to answer.

6    In Rosgoe Pty Ltd v Commissioner of Taxation [2015] FCA 1231 (Rosgoe), at [2], I observed of the ruling regime as it then stood in sch 1 of the Taxation Administration Act, at [2], “as CTC Resources NL v Commissioner of Taxation (1994) 48 FCR 397 (CTC Resources), and Commissioner of Taxation v McMahon (1997) 79 FCR 127 (McMahon), each judgments of the Full Court delivered early in the life of the private ruling regime, attest the intricacies of complying with the formal requirements of that regime, either in the making or on the review of a private ruling, presented challenges for the Commissioner of Taxation and, on review, the Administrative Appeals Tribunal. This case illustrates that those challenges remain with us.”

7    Like challenges remain where a person dissatisfied with a private ruling, chooses to exercise the alternative of the statutory appeal to this court in its original jurisdiction offered by the Taxation Administration Act, as opposed to a review of an objection decision by what is now the Administrative Review Tribunal. The ruling regime which I described in Rosgoe, the better part of a decade ago, is substantially unaltered. There has been a minor amendment, which gives, or perhaps confirms flexibility with respect to the Commissioner’s fact-finding at the objection stage, but the position remains, for all presently practical purposes, the same as outlined by me in Rosgoe, with reference to CTC Resources and McMahon.

8    That is subject to one caveat. Highlighting that caveat is best introduced by adopting, with gratitude, a summary of the features of the private ruling regime offered by Derrington J in the original jurisdiction, in Commissioner of Taxation v Eichmann [2019] FCA 2155 (Eichmann), at [22], where his Honour stated:

(a)    A private ruling is a statutory advisory opinion as to how the tax legislation would apply to a person in respect of an income year in relation to a specified “arrangement” or “scheme”: Commissioner of Taxation v McMahon (1997) 79 FCR 127 (McMahon), 140.

(b)    When reviewing an objection decision in respect of a private ruling the Tribunal is reviewing the correctness of an opinion as to a question of law, and must form its own view of how the taxation law applies to the scheme as identified by the Commissioner in the ruling.

(c)    The limitations on the right to object to the ruling (previously in s 14ZAZA(l)) have the consequence that on review or appeal the Tribunal is not entitled to redefine the arrangement or scheme stated by the Commissioner in the ruling, but must ascertain how the law applies to the facts as stated: McMahon at 140.

(d)    The Tribunal is not entitled to engage in the finding of primary facts. The facts stated by the Commissioner in the arrangement or scheme form the matrix in which a ruling is made about how the tax laws apply in that scenario. The Tribunal is not entitled to add to those facts and, in its determination, it cannot travel beyond them. It is not its role to investigate the facts nor ascertain whether they conform to the true facts. Indeed, the facts stated by the Commissioner are not found by him and are not identified by him as having been accepted by him.

(e)    On review neither the Commissioner nor the applicant can make good any deficiency in the scheme description. Neither the Tribunal nor the Court can make its own findings of fact, make assumptions, re-define the scheme or create its own description of the scheme: Hastie Group Ltd v Federal Commissioner of Taxation (2008) 172 FCR 496, 498 [3]; Co-operative Bulk Handling Ltd v Commissioner of Taxation (2010) 79 ATR 582, 588 [16].

(f)    The question for the Tribunal is whether the Commissioner’s opinion as to the application of the taxation laws to the arrangement or scheme is correct. Its responsibility is to go over again the objection decision and determine, for itself, how the taxation laws are to apply: Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 at 521.

(g)    In that way, the only material relevant to the Tribunal’s decision is the ruling and any documents identified in the description of the scheme which were provided by the applicant or used by the Commissioner.

9    An appeal against the orders made by his Honour in that case was allowed, see Eichmann v Federal Commissioner of Taxation (2020) 280 FCR 10, but not in a way which called into question the correctness of the summary offered by his Honour. The Full Court’s judgment supplies the caveat to which I have referred. For the purposes of that proceeding, and as is recorded at [16] of the Full Court’s judgment, the Commissioner accepted that:

16    … a Tribunal or a Court may draw inferences from ruled facts which are both obvious in nature and where there are no other possible competing inferences that might be drawn. …

10    Also in that proceeding, the appellant did not dispute the correctness of that proposition.

11    The position is identical in this proceeding. The Commissioner has voiced the same acceptance and the Council has adopted a like position. It may, in any event, be, on reflection, that the refinement that is evident in the agreed position is one which I would have allowed in Rosgoe. As will be seen, that particular view of the meaning and effect of the private ruling regime may be of some importance in the resolution of the present appeal.

12    In keeping though, with the position as I apprehended it to be in Rosgoe, and with the summary offered by Derrington J in Eichmann, the scheme specified is that specified by the Commissioner in the ruling. That is found in the ruling under the heading Relevant Facts and Circumstances, with reference to a scheme stated to have commenced on 1 April 2022 and governing a ruling for the fringe benefits tax years ended 31 March 2023 through to and including 31 March 2026. The specified scheme as stated in the ruling is:

Relevant facts and circumstances

This private ruling is based on the facts and circumstances set out below. If your facts and circumstances are different from those set out below, this private ruling has no effect and you cannot rely on it. The fact sheet has more information about relying on your private ruling.

The Grand Central shopping centre is located on the corner of Margaret and Dent Street, in Toowoomba, Queensland.

There are multiple entrances to the Grand Central car park.

In November 2014, a $500 million redevelopment commenced. Upon completion in March 2017, it doubled the floor area to 90,000 square meters, and the number of car parking spaces to 4,000 (from 2,000). Grand Central introduced paid car parking to the public on 14 June 2017.

Parking rates at Grand Central are as follows:

•    Up to 3 hours – Free

•    Up to 3.5 hours - $2.00

•    Up to 4 hours - $3.00

•    Up to 4.5 hours - $4.00

•    Up to 5 hours - $6.00

•    Up to 5.5 hours - $8.00

•    Up to 6 hours - $10.00

•    Up to 6.5 hours - $12.00

•    Up to 7 hours - $15.00

•    Over 7 hours - $20.00 (Maximum daily rate).

In addition to free park when a car is parked for less than three hours, Grand Central offers reduced or free parking to its shoppers and staff in various other scenarios, including:

•    Free parking after 6pm

•    Free parking for disabled shoppers

•    Free parking for shoppers that spend more than $150 at the centre

•    Free parking for cinema patrons

•    All day parking at a flat rate of $7.50 for the centre’s staff, and

•    Customers that live outside Toowoomba and shop at Grand Central for more than three hours are provided with all day parking at a flat rate of $7.50.

The parking lots around the Toowoomba CBD are operated by the Toowoomba Regional Council. We note that the parking fees for these are as follows:

•    Clifford Street: $1.90 per hour, maximum of $6 per day.

•    Station Street: $1.90 per hour, maximum of $7.50 per day.

•    Julia Street: $1.90 per hour, maximum of $7.50 per day.

•    Chalk Drive: $1.90 per hour, maximum of $6 per day.

•    Herries/Water Street: $1.90 per hour, maximum of $6 per day.

•    Neil/Annand Street: $1.90 per hour, maximum of $9 per day.

The car parking threshold for the FBT year ended 31 March 2023 is $9.72 Grand Central has a ticketless parking system that uses licence plate recognition to track parking without the need for a paper ticket.

Upon exiting, customers will stop at the boom gates while the camera scans the license plate details and calculates the time spent and if any costs are incurred. If customers have been under 3 hours the boom gates will automatically open.

If customers have paid at the pay stations or scanned their validation bar code (from Customer Service, or the cinema ticket barcode) the boom gates will automatically open. If payment is required, a credit card can be scanned at the boom gates.

Payment machines are located at mall entrances and credit card payment can be accepted at the exit barriers.

13    Subsection 136(1) of the Fringe Benefits Tax Assessment Act 1986 (Cth) (FBTAA) defines a “commercial parking station” to mean:

“In relation to a particular day a permanent commercial parking facility where any or all of the car parking spaces are available in the ordinary course of business to members of the public for all-day parking on that day in payment of a fee but does not include a parking facility on a public street, road, lane, thoroughfare or footpath paid for by inserting money in a metre or by obtaining a voucher.

14    The regime in the FBTAA in respect of fringe benefits tax on car parks was the subject of exposition by the Full Court in Commissioner of Taxation v Qantas Airways Ltd (2014) 227 FCR 554 (Qantas Airways). It is necessary to read Qantas Airways against the background of an understanding that the controversy in that case, both before the Administrative Appeals Tribunal and on appeal in the Full Court, concerned the meaning of the word “public” in the definition of commercial parking station in s 136(1) of the FBTAA.

15    Even so, some elucidation generally of the regime, in respect of fringe benefits tax on case basis is to be found in the Full Court’s judgment. Thus, in respect of the general structure, in relation to the assessment liability term, and assessment of such fringe benefits tax, the Full Court stated in [3]:

3    Car parking facilities provided by an employer to an employee may be the provision of a fringe benefit in respect of which fringe benefits tax can be payable by the employer: s 39A of the Assessment Act. The taxable value of a car parking fringe benefit may be assessed, at the election of the employer, either using a valuation of what the staff member would have been required to pay for the car space on the assumption that it was provided on an arm’s length basis (Assessment Act, s 39D) or by reference to the lowest rate charged for all-day parking at a commercial parking station located within a kilometre of the employer’s premises (Assessment Act, ss 39C and 39DA). This latter figure may be calculated either on a day-by-day basis (Assessment Act, s 39C) or by an averaging mechanism (Assessment Act, s 39DA). Where there is more than one such parking station the least expensive is to be selected.

16    Further, in the course of rejecting submissions made by Qantas against the Tribunal’s decision, the Full Court, at [12], stated:

12    … The statute does not operate on the basis that the commercial parking station has to be something which the employee might or could use. This is made clear by s 148(1)(c) of the Assessment Act, which provides that a benefit to the employee within the meaning of the Assessment Act will have been provided, whether or not the benefit is surplus to the needs and wants of that employee. … The condition that there be a commercial car parking station within the one kilometre radius of the employer’s business premises to constitute a car parking fringe benefit is not a proxy for the value of the benefit to the employee of receiving an actual parking space at the employer’s business premises, but a proxy for determining the taxable value of a benefit provided by the employer to an employee, on which tax on the employer is imposed. This is confirmed in the reference in the definition to any of the car parking spaces being available in the ordinary course of business to members of the public for all-day parking on that day on payment of a fee. So understood, it is apparent that the word “public” should be given its ordinary meaning and there is no rationale for imputing into the definition a requirement that the commercial parking station be one that employees of the employer commuting to work by car would or could in fact use. It made sense in Virgin Blue to seek to ascertain which car spaces were “in the vicinity” of Terminal 3 by reference to the fact that the car spaces were being used by people who were driving to work from home. However, it makes no sense in assessing whether a parking station is proffered to the public to ask, on the other hand, whether that parking station is used by commuters because the tax which is imposed on the employer is on the value of the car parking that the employer has made available to employees at or in the vicinity of its business premises.

[emphasis added]

17    The Full Court also stated, at [13], that in respect of the necessity that there be a commercial parking station within one kilometre of the employer’s premises that:

13    …, it is the statute’s way of working out which car spaces are likely to be sufficiently valuable to bother either the taxpayer (or the Commissioner) in going down the path of assessment. If there is a commercial parking station within a kilometre then assessing the value of a car space provided by an employer to an employee is likely to be worthwhile, but not otherwise.

18    The Full Court also stated, at [14], the following:

14    Thirdly, there is therefore no ambiguity about the word “public”, which means what it says. Consequently there is no reason to resort either to the Second Reading Speech or the Explanatory Memorandum: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, at [33]. The current case may be contrasted with Virgin Blue where the words “in the vicinity of” were ambiguous and the Second Reading Speech was useful extrinsic material in resolving that ambiguity. Here the meaning of “commercial parking station” is, with respect, quite clear.

19    The latter informed a submission by the Commissioner in this case that it was not appropriate or permissible under s 15AB of the Acts Interpretation Act 1901 (Cth) to have regard to a relevant explanatory memorandum.

20    It may also be that that particular statement in Qantas Airways provoked the Commissioner to depart in a later public ruling from views which he had expressed in conformity with a meaning congruent with the explanatory memorandum in an earlier public ruling. But it is unnecessary in respect of an exercise of judicial power to delve further into the ways of public administration in order to decide this taxation appeal.

21    Yet further, neither public ruling is in any way binding on the Court. That is not to gainsay their importance, indeed their desirability, in relation to responsible general administration of, amongst other revenue laws, the FBTAA. They have an important role to play, both in terms of consistency of public administration, and at least providing some guidance for the wider community as to what are the Commissioner’s views. But those views are really nothing more, so far as the Court is concerned, than those of a particular litigant.

22    The Full Court did not, in Qantas Airways, have occasion to explore the subject of the question posed to the Commissioner for this private ruling by the counsel. Nor for that matter did an earlier Full Court have such occasion in Virgin Blue Airline Pty Ltd v Commissioner of Taxation (2010) 190 FCR 150. The Full Court’s conclusion, in Qantas Airways, that there was no requirement that the commercial parking station be one that employees of the employer would or could in fact use, is not of any assistance in the resolution of the present controversy, which is not to say that the observations, and particularly the passage I have emphasised from the Full Court’s judgment in Qantas Airways, are of no assistance.

23    In submissions, the Commissioner highlighted the observation made by the High Court with respect to the construction of statutory definitions in PMT Partners Pty Ltd v Australian National Parks and Wildlife Service (1995) 184 CLR 301 (PMT Partners), at 310, namely:

It is of fundamental importance that statutory definitions are construed according to their natural and ordinary meaning unless some other course is clearly required. It is also of fundamental importance that limitations and qualifications are not read into a statutory definition unless clearly required by its terms or its context, as for example if it is necessary to give effect to the evident purpose of the Act.

24    The “fundamental importance” referred to arises from the separation of powers under our Constitution. It is the legislative branch, the Houses of Parliament, which, with the approval of the Crown via the Governor General, enacts statutes. It is Parliament which approves a particular text. It falls to the executive branch, then, to administer such statutes. The judicial branch does not administer statutes but rather resolves a controversy in a proceeding in respect of a matter arising under statute.

25    The present is such a proceeding. Adhering to the observations in PMT Partners is nothing more or less than adhering to that separation of powers. Reference might also be made, but to no different end, to earlier statements as to the task of statutory construction offered by the High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, at [47] and also to Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503.

26    The difficulty here and the essence of what divides the parties is that there is no one natural and ordinary meaning in respect of the adjective “commercial” as used in the definition of “commercial parking station” in s 136(1) of the FBTAA. That adjectival word is not to be read in isolation, either from the term of which it forms part “permanent commercial car parking facility” or from the wider context of the Act or its purpose.

27    The parties are agreed - in my view, correctly - that the clause which follows “permanent commercial car parking facility” in the definition of “commercial parking station” does not define the content of what is or is not a permanent commercial car parking facility. Rather, that clause narrows the focus of the definition to a particular kind of permanent commercial car parking facility. That term is not itself defined.

28    As used as an adjective, and as the Macquarie Dictionary instructs, “commercial” can mean “of or of the nature of commerce” or “engaged in commerce”, but it can also mean “capable of returning a profit”, with the illustration offered being its use in a description “a commercial project”. It may also mean “capable of being sold in great numbers”, with the offered illustration being is the invention commercial. Like meanings are to be found of the adjective “commercial” in the Oxford Dictionary. Reference to that informs one that the etymology of the word is found in classical Latin, “commercium”, meaning, as a noun, commerce. In turn, commerce can be nothing more than business or a trade.

29    Looking to the facts of the scheme as posited by the Commissioner in his ruling, there is no doubt that this car park at Grand Central Shopping Centre in Toowoomba is deployed in commerce. From that, it was said to follow inexorably in the Commissioner’s submissions that the ruling was correct. That is certainly one meaning, as I have indicated, that can be given to commercial, but it is not, as I have mentioned, the only meaning. Here, context and, in particular, the proxy role played, as the Full Court indicated in Qantas Airways, may be very important in any choice of meanings. A choice does exist having regard to ordinary meanings of the adjective “commercial”.

30    Ordinary Australian English idiom takes one to a position identified in the Macquarie Dictionary (which is said by some to have a greater affinity with the English language in Australia) that, used adjectivally, when one describes a project or a business decision as a commercial one, it is one which is directed to the end of making a profit, and that is used in contradistinction to the adjective “uncommercial”. One describes behaviours as “uncommercial” if they are not rationally explained by a profit-making purpose.

31    The role of a proxy for value suggests that the proxy is meant to have a market-based role: commercial parking station, as opposed to a parking station that might be deployed in commerce but be completely uncommercial if viewed as a parking station alone in its operation.

32    Within s 136 of the FBTAA, the position is neutral, but not if one reads “commercial parking station” in the context in which it is used in respect of the provision of a benefit by its provider to an employee, as found in s 39A of the FBTAA. “Commercial parking station”, as defined by s 136, is found not just in s 39A(1)(a)(ii), but also and cumulatively within, materially, s 39A(1)(a)(iii), which provides:

The lowest fee charged by the operator of any such commercial parking station in the ordinary course of business to members of the public for all-day parking on the first business day of the FBT year is more than the car parking from the first business day of the FBT year is more than the car parking threshold;

33    One sees there, in combination as between s 39A(1)(a)(ii) and (iii), the proxy for value described by the Full Court in Qantas Airways. It would be an odd proxy for value, if the commercial parking station concerned, were one which, although deployed in commerce, was not operated commercially in the sense of for the purpose of a profit. That is not to say that a profit must be present, only that there be some profit-making purpose to do with the operation of the car parking station. Affording the adjective “commercial” that meaning within the definition of “commercial” parking station, fits more neatly with context and purpose, and is an ordinary meaning of the adjective commercial open as a matter of ordinary English and use. I consider the definition does have an ambiguity about it, arising from different meanings that one might afford the adjective commercial, as indicated.

34    That being so, it is permissible, as a matter of statutory construction, to have regard to the explanatory memorandum. That is the explanatory memorandum circulated by the then Treasurer, the Honourable John Dawkins MP, in respect of the Taxation Laws Amendment (Car Parking) Bill 1992, where at p 6 and p 7, the following explanation is offered in respect of the definition in the bill of “car parking station”:

In relation to the definition of “commercial parking station”, the words “permanent and commercial” have been normal dictionary meanings. For example, a car park set up, for a short period to cater for a special function (like an Easter show) would not be permanent. A car park which was not run with a view to making a profit (usually reflected in significantly lower car parking rates charged, compared with the normal market value for that facility) would not be commercial.

Some car parking facilities have a primary purpose to provide short-term shopper parking. To discourage all-day parking, the operators of these facilities charge penalty rates for all-day parking. These rates are significantly greater than the rates that would be charged by a similar facility which encouraged all-day parking. For the purposes of these provisions, short term shopper parking facilities, using penalty rates for all day parking, will not be treated as a “commercial parking station”.

35    That explanation offers support for a meaning of the adjective “commercial” within the statutory definition as derived from an, but not the only, ordinary meaning of the word as used in context, and having regard to purpose. Thus, the meaning which I assign in the definition to the adjective "commercial", in permanent commercial parking facility, is intended to make, or aimed at, or having the potential for financial success intended to make a profit.

36    Therein, though, lies a further conundrum in respect of the present appeal. That conundrum is the product of the ruling regime which remains, notwithstanding a lapse of almost a decade after Rosgoe, and approaching 35 years after the introduction of the private ruling regime, present in its manifestation as found in the Taxation Administration Act. In turn, and I rather thought more in sorrow than anything else, that provoked what one might describe as a fallback position on the part of the Commissioner, which was that the facts as recited in the scheme, as specified in the ruling, just do not admit of answering the question in the way urged on behalf of the Council.

37    There is, for separation of power reasons already canvassed, a need to temper a desire to provide an answer to the question posed, which is helpful both to the Council and the Commissioner in relation to the present controversy, with the thought the limitations of the regime may make it obligatory to dismiss the appeal on the rather sterile basis that the scheme as found does not admit of answering the question affirmatively or negatively, because of a deficiency in the facts, as found in the scheme as specified, and the ruling.

38    It is in that context that the caveat to which I referred at the commencement of those reasons becomes very important indeed. Do the facts in the scheme, as specified, admit of answering the question at all, or more particularly, negatively as the Council contends? There is no finding at all in terms that the Grand Central shopping centre parking station is operated for the purpose of making a profit, or to that end, in the specified facts.

39    Some endeavour was made to move outside the facts, as specified, by reference to materials annexed to the ruling application, and more particularly, with reference to the comments made in newspaper articles. But that attempt, in my view, has to be rebuffed, for reasons which I gave in Rosgoe. It is not the role of the Court to find facts in an appeal against an objection decision in respect of a private ruling, any more than it is the role of the tribunal on a review application.

40    For better or for worse, and subject to the caveat mentioned, one is confined to what is specified by the Commissioner in the scheme, as the scheme and the ruling.

41    In just that in looking to that recitation of facts, one sees that parking at Grand Central is free for up to three hours. One sees, thereafter, an escalation of fees, modest in the first instance, $2 for up to 3.5 hours, $3 for up to four hours. The significant increases come beyond four and a half hours, $6 for up to five hours, rising to a maximum of $20 for over seven hours, with between 6.5 and up to seven hours attracting a $15 fee.

42    One sees, in contrast under the “Relevant Facts and Circumstances” of the scheme as defined by the Commissioner, various Council operated car parking facilities in the Toowoomba Central Business District, which offer all-day parking fees up to a maximum of a range between $6 and $9 per day. The contrast is stark as between Grand Central and Council facilities. One also sees in respect of car parking at Grand Central, a range of other scenarios in which free parking is available, or parking at a flat rate, which bears comparison with the range for all day parking which is within the range of all-day parking offered by the Council at its facilities.

43    These facts, in my view, make it obvious that the Grand Central car parking facility is being operated to a different end to a commercial car parking facility. It is obvious from the range of fees that it is being operated to the end of complementing the operation of the shopping centre. It is being operated to the end of being an attractive force that brings in business to the shopping centre, and more particularly its tenants. It is certainly, for those reasons, being operated in trade or commerce, but considered as a car parking facility alone, the range of free parking is inconsistent with it being operated commercially for profit, as opposed to commercially in the context of a shopping centre, not a standalone car parking facility.

44    For these reasons, and particularly having regard to the position accepted by the parties as to what a court or tribunal might permissibly do in respect of a challenge to an objection decision in relation to a private ruling, I consider the facts are such as to admit of a conclusion that the Grand Central shopping centre parking facility is not a commercial parking station as defined by s 136 of the FBTAA. It is, thus, not a commercial parking station under s 39A of that Act.

Associate:    

Dated:    5 March 2025