Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Harbourlights - Strata Plan 32515 v Chief Commissioner of State Revenue [2023] NSWCATAP 265 Hearing dates: 15 September 2023 Date of orders: 29 September 2023 Decision date: 29 September 2023 Jurisdiction: Appeal Panel Before: N Hennessy, ADCJ, Deputy President Dr R Dubler SC, Senior Member Decision: 1. Leave to appeal refused. 2. Appeal dismissed. Catchwords: TAXATION AND DUTIES – Parking Space Levy – exemption - whether parking spaces 'set aside exclusively' for exempt / non-exempt purposes – whether visitor parking spaces in a residential complex can be said to be spaces that are set aside exclusively for the purpose of parking of motor vehicles 'by' persons who reside on the premises within the meaning of reg 7(1)(b) of the Parking Space Levy Regulation 2009 (NSW) and reg 8(1)(b) of the Parking Space Levy Regulation 2019 (NSW) Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Interpretation Act 1987 (NSW) Parking Space Levy Act 2009 (NSW) Parking Space Levy Regulation 2009 (NSW) Parking Space Levy Regulation 2019 (NSW) Trade Practices Act 1974 (Cth) Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 BHP Billiton Ltd v Dunning [2013] NSWCA 421 Collins v Urban [2014] NSWCATAP 17 Federal Commissioner of Taxation v Brambles Holdings Ltd (1991) 99 ALR 523 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 SAB v SEM [2013] NSWSC 253 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 Texts Cited: Nil Category: Principal judgment Parties: Harbourlights Strata Plan 32515 (Appellant) Chief Commissioner of State Revenue (Respondent) Representation: Appellant (self-represented) Crown Solicitor (Respondent) File Number(s): 2023/00229209 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Citation: [2023] NSWCATAD 172 Date of Decision: 30 June 2023 Before: E Bishop SC, Senior Member File Number(s): 2022/00274551 reasons for decision Introduction 1. On 28 July 2022 the Chief Commissioner of State Revenue (the Respondent) made a Determination pursuant to s 14 of the Parking Space Levy Act 2009 (NSW) (the Act) that the Appellant was liable to pay a Car Space Levy on five of seven car spaces, which were set aside for visitors to the property at 102 – 18 Alfred Street South, Milsons Point (the Property), a commercial and residential building that contains 33 residential units and seven commercial suites in respect of which the Appellant is the owner of the common property. 2. On 30 June 2023 the Tribunal confirmed the Respondent's assessments in this regard: see Harbourlights Strata Plan 32515 v Chief Commissioner of State Revenue [2023] NSWCATAD 172 (the Decision). 3. The Tribunal held that the visitor car spaces were not exempt parking spaces within the meaning of reg 7 of the Parking Space Levy Regulations 2009 (NSW) (the 2009 Regulation) and reg 8 of the Parking Space Levy Regulations 2019 (NSW) (the 2019 Regulation). 4. The Respondent contends the Tribunal misconstrued reg 7 / reg 8 and in particular where reg 7(1)(b) / reg 8(1)(b) makes an exemption for 'the parking of motor vehicles by persons who reside on the premises or an adjoining premises' this should encompass parking spaces set aside for visitors of persons who reside on the premises. 5. For the reasons which follow, we have decided to dismiss the appeal and hold that the Tribunal's construction of reg 7 of the 2009 Regulation and reg 8 of the 2019 Regulation is correct. Legislation 1. The relevant legislation was set out by the Tribunal at [12] – [24] as follows: 12 The PSL Act, s 3 sets out the object of the legislation as follows: 3 Object The object of this Act is to discourage car use in leviable districts by imposing a levy on parking spaces (including parking spaces in parking stations), and by using the revenue to encourage the use of public transport (in particular, public transport to and from, or within, those districts). 13 Section 8 of the PSL Act imposes a parking levy on leviable premises. It provides: 8 Imposition of parking space levy (1) A parking space levy is imposed on 1 July each year on all leviable premises. (2) The amount of the levy for any leviable premises is the amount calculated in respect of the premises in accordance with the regulations. (3) A person who, as at 1 July in any year, is the owner of leviable premises is liable for payment of the levy for the premises. (4) If the premises are owned by 2 or more persons, the owners are jointly and severally liable for payment of the levy. (5) The levy is to be paid to the Chief Commissioner. (6) The Chief Commissioner may retain from the levies paid under this section such commission (if any) as may be agreed on between the Chief Commissioner and the Minister. (7) A tax default does not occur for the purposes of the Taxation Administration Act 1996 if the levy is paid by 1 September in the year in which liability for payment of the levy arises. Note- If a tax default occurs, interest and penalty tax may be charged under the Taxation Administration Act 1996. 14 Section 7 of the PSL Act provides the following definition for leviable premises: 7 Leviable premises (1) For the purposes of this Act, premises are leviable premises in any financial year if, at any time during the previous financial year- (a) the premises were located in a leviable district, and (b) one or more parking spaces were situated on the premises. (2) Despite subsection (1), premises are not leviable premises if they are declared by the regulations not to be leviable premises. 15 The PSL Act, s 4 provides definitions for relevant terms in the legislation as follows: (1) "leviable district" means a district established by the regulations as a leviable district; (2) "parking space" means a space that is situated on premises in a leviable district, being a space: (a) that is used, or set aside, for the parking of motor vehicles, or (b) that is declared by the regulations to be a parking space for the purposes of this Act; (3) "premises" includes any land and any building; and (4) "owner", in relation to leviable premises, includes any person who jointly or severally, whether at law or in equity, is entitled to the premises for any estate of freehold in possession. 16 As at 1 July in any year, the owner of leviable premises must furnish a return to the respondent in relation to parking spaces on the Property: PSL Act, s 9. 17 Section 12 of the PSL Act provides that the respondent may publish Guidelines, as follows: 12 Chief Commissioner's guidelines (1) The Chief Commissioner may, by order published in the Gazette, establish guidelines, not inconsistent with this Act or the regulations, as to- (a) what does, and what does not, constitute a parking space in any particular circumstances, and (b) whether, in particular circumstances, a parking space is, or is not, to be exempted from the calculation of the levy in respect of any leviable premises. (2) Such an order may only be made with the approval of the Minister. (3) In any proceedings in which a matter referred to in subsection (1) (a) or (b) is called into question, a court must have regard to any such guideline for the purpose of determining the question. (emphasis added) 18 Section 14 of the PSL Act provides for regulations to be made to make provision for various matters, which include the manner of calculation of parking spaces; the levy amount and the manner of calculation; and the circumstances in which parking spaces may be exempted from the calculation of the levy. 19 As noted above, the relevant regulations pursuant to PSL Act, s 14 are the 2009 Regulation for levies imposed in the financial years ending 30 June 2018 and 2019; and 2019 Regulation for levies imposed for years ending 30 June 2020, 2021, and 2022. The 2009 Regulation was repealed and replaced by the 2019 Regulation. Parking Space Levy Regulation 2009 (NSW) and Parking Space Levy Regulation 2019 (NSW) 20 The 2009 Regulation, reg 3 provides that "Each district referred to in Schedule 1 is established as a leviable district for the purposes of the Act". 21 Schedule 1 provides that the identified part of the City of Sydney is a Category 1 area, and exemptions on leviable premises are covered under reg 7 of the 2009 Regulation as follows: 7 Exempt parking spaces (s 14) (1) A parking space on leviable premises in a Category 1 or Category 2 area is an exempt parking space while it is set aside exclusively for one or more of the following purposes: (a) the parking of bicycles or motor cycles, (b) the parking of motor vehicles by persons who reside on the premises or on adjoining premises, (c) the parking of motor vehicles by persons who hold mobility parking scheme authorities, (d) the parking of motor vehicles for the purpose of loading or unloading goods or passengers, but not if vehicles are permitted to park in the space otherwise than while goods or passengers are being loaded or unloaded, (e) the parking of motor vehicles by persons who, on a casual basis, provide services to the premises, other than vehicles used by employees, contractors or consultants whose usual place of work is on the premises, (f) the parking (without charge) of a mobile crane, a forklift truck, a tractor or a front-end loader, (g) the parking (without charge) of an ambulance, fire brigade motor vehicle or police motor vehicle, but only if the parking space is the one used for garaging the vehicle overnight, (h) the parking (without charge) of a motor vehicle used only for the carrying out of deliveries or the provision of services, but only if: (i) the parking space is the one used for garaging the vehicle overnight, and (ii) the owner of the vehicle is also the owner or occupier of the premises, (i) in the case of premises owned or occupied by the council of the local government area, the parking (without charge) of motor vehicles by persons other than officers or employees of the council, (j) in the case of premises owned or occupied by: (i) a religious body or religious organisation in respect of which a proclamation is in force under section 26 of the Marriage Act 1961 of the Commonwealth, or (ii) a religious body within a denomination in respect of which such a proclamation is in force, or (iii) a public charity or public benevolent institution, the parking (without charge) of any motor vehicle. (2) For the purposes of subclause (1) (b), the several lots in a strata scheme under the Strata Schemes (Freehold Development) Act 1973 or the Strata Schemes (Leasehold Development) Act 1986 are taken to adjoin each other, regardless of their location. (3) A parking space on leviable premises in a Category 1 or Category 2 area is an exempt parking space while it is an unused casual parking space or an unleased tenant's parking space. (4) For the purposes of subclause (3): (a) a parking space is an unused casual parking space if it is set aside for use by the public for the parking of motor vehicles but remains unused for that purpose, and (b) a parking space is an un/eased tenant's parking space if it is unavailable for use as a parking space except under a lease or licence under which a tenant of the premises in which it is located has exclusive use of it and no such lease or licence is in force. (5) A parking space on leviable premises in a Category 2 area is an exempt parking space while it is set aside exclusively for one or more of the following purposes: (a) the parking of motor vehicles by customers of a retail shop, (b) the parking of motor vehicles on the shopping centres referred to in Schedule 2 by persons employed at a retail shop on those premises, (c) the parking of motor vehicles by guests or customers of a hotel or motel, (d) the parking of motor vehicles by members and guests of members of a registered club, (e) the parking of motor vehicles by customers of a restaurant, (f) the parking of motor vehicles by patients of a medical centre, (g) the parking of motor vehicles by customers of a car sales establishment, car servicing or repair centre, or car wash, (h) the parking of motor vehicles by clients and guests of clients of a funeral parlour, (i) the parking of motor vehicles that are displayed or stored on the premises for the purpose of their being offered for sale or hire. 22 Regulations 8 and 9 of the 2009 Regulation, and regs 9 and 10 of the 2019 Regulation provide for the calculation of the amount of the levy. 23 The 2019 Regulation, reg 4 provides that "Each district referred to in Schedule 1 is established as a leviable district for the purposes of the Act". 24 Schedule 1 provides that the identified part of the City of Sydney is a Category 1 area, and exemptions on leviable premises are now covered under reg 8 of the more recent 2019 Regulation as follows: 8 Exempt parking spaces (section 14) (1) A parking space on leviable premises in a Category 1 or Category 2 area is an exempt parking space while it is set aside exclusively for one or more of the following purposes- (a) the parking of bicycles or motor cycles, (b) the parking of motor vehicles by persons who reside on the premises or on adjoining premises, (c) the parking of motor vehicles by persons who hold mobility parking scheme authorities, (d) the parking of motor vehicles for the purpose of loading or unloading goods or passengers, but not if vehicles are permitted to park in the space otherwise than while goods or passengers are being loaded or unloaded, (e) the parking of motor vehicles by persons who, on a casual basis, provide services to the premises, other than vehicles used by employees, contractors or consultants whose usual place of work is on the premises, (f) the parking (without charge) of a mobile crane, a forklift truck, a tractor or a front-end loader, (g) the parking (without charge) of an ambulance, fire brigade motor vehicle or police motor vehicle, but only if the parking space is the one used for garaging the vehicle overnight, (h) the parking (without charge) of a motor vehicle used only for the carrying out of deliveries or the provision of services, but only if- (i) the parking space is the one used for garaging the vehicle overnight, and (ii) the owner of the vehicle is also the owner or occupier of the premises, (i) in the case of premises owned or occupied by the council of the local government area, the parking (without charge) of motor vehicles by persons other than officers or employees of the council, (2) For the purposes of subclause (1) (b), the several lots in a strata scheme under the Strata Schemes Development Act 2015 are taken to adjoin each other, regardless of their location. (3) A parking space on leviable premises in a Category 1 or Category 2 area is an exempt parking space while it is an unused casual parking space or an unleased tenant's parking space. (4) For the purposes of subclause (3)- (a) a parking space is an unused casual parking space if it is set aside for use by the public for the parking of motor vehicles but remains unused for that purpose, and (b) a parking space is an unleased tenant's parking space if it is unavailable for use as a parking space except under a lease or licence under which a tenant of the premises in which it is located has exclusive use of it and no such lease or licence is in force. (5) A parking space on leviable premises in a Category 2 area is an exempt parking space while it is set aside exclusively for one or more of the following purposes- (a) the parking of motor vehicles by customers of a retail shop, (b) the parking of motor vehicles on the shopping centres referred to in Schedule 2 by persons employed at a retail shop on those premises, (c) the parking of motor vehicles by guests or customers of a hotel or motel, (d) the parking of motor vehicles by members and guests of members of a registered club, (e) the parking of motor vehicles by customers of a restaurant, (f) the parking of motor vehicles by patients of a medical centre, (g) the parking of motor vehicles by customers of a car sales establishment, car servicing or repair centre, or car wash, (h) the parking of motor vehicles by clients and guests of clients of a funeral parlour, (i) the parking of motor vehicles that are displayed or stored on the premises for the purpose of their being offered for sale or hire. (6) In this clause- medical centre means premises that are used for the purpose of providing health services (including preventative care, diagnosis, medical or surgical treatment. counselling or alternative therapies) to out-patients only, where such services are principally provided by health care professionals. It may include the ancillary provision of other health services. retail shop has the same meaning as in the Retail Leases Act 1994. Relevant Facts 1. The Tribunal set out the relevant facts, which are not in dispute, at [31] – [32] as follows: 31 The applicant provided comprehensive evidence about the parking spaces. I adopt the respondent's summary of facts which are not in dispute. (a) The SP32515 Harbourlights Strata Schemes Management Regulation 2016 Schedule 2 By-Laws for Pre-1996 Strata Schemes provides that ·an owner or occupier of a lot must not allow any motor or other vehicle to park or stand on any common property except with the written approval of the Owners Corporation' and 'the "Visitors Car Park" is restricted to short-term visitors to residential apartments only.' (b) The parking spaces are behind a security gate and can only be accessed by the holder of a registered access fob, or if admitted by a resident. The parking spaces are CCTV monitored and use of the access fobs are electronically recorded. The entry to the visitor parking space area is designated with a sign stating 'Visitor Car Parking. Strictly Controlled'. (c) Each individual parking space contains a sign that states 'Visitors. Residential Visitors Only.' One of the parking spaces has a further (paper) sign that states 'Priority given to mobility parking scheme and permit holders'. The photographs depicting the signage on the parking spaces are not dated. (d) JM Kelly Cleaning Services is engaged by the Applicant to provide services to the Property. Jennifer Kelly is the Building Manager at the Property. The contract for those services specifies that the Building Manager or a member of JM Kelly Cleaning Services staff will be on site at the Property for a minimum of four hours per day, six days per week. (e) Jennifer Kelly, the Building Manager at the Property, works at the Property between five to six days each week for approximately four to six hours each day. She parks her vehicle in one of the seven visitor parking spaces during that time. (f) The Applicant employs a cleaner (Liam) who works at the Property for four to six hours each day, between five to six days a week. He parks his vehicle in one of the seven visitor parking spaces during that time. (g) Contractors engaged by the Applicant who work on capital projects at the Property (lift installation, replacement of coolin9 tower, painting and remedial works) use at least two of the visitor parking spaces for eight hours a day during projects (which last at least 6 months). (h) Maintenance contractors engaged by the Applicant (gardeners, tradesmen, window cleaners, locksmiths, lift maintenance and repairs, air-conditioning, fire and insurance inspectors) occupy one to two of the visitor parking spaces for three to four hours each weekday. (i) Contractors engaged by specific residents, including tradesmen, cleaners, IT services, aged carers, real estate agents, use at least two of the visitor parking spaces for four to six hours a day for two to three days a week. (j) The parking spaces are used by the following visitors to individual residents of the Property: i. Family and friends; ii. Tradesmen attending to do repairs; iii. Carers and physiotherapists; iv. Cleaners; v. Window cleaners; vi. Gardeners; vii. Managing agents and landlords inspecting rented apartments; viii. Committee meetings; ix. Deliveries and/or installation of items; x. Deliveries of food. (k) Spaces are available for use by bike or motorcycle contractors once or twice a month. (I) There is always available access to a visitor parking space for persons holding a mobility parking scheme authorisation, either at the time the parking space is required or by prior arrangement. (m) Visitor parking spaces are used for the unloading and loading of goods or passengers approximately once a month. (n) A maximum of two spaces are vacant each day (but only rarely)." 32 A large portion of the residents on the premises are elderly. On the evidence before me I accept that the care and assistance of those elderly people extends to helping with domestic activities and transportation to and from appointments. The availability of the parking spaces for those who provide the care and assistance is of great benefit to those elderly residents. The Tribunal's Decision 1. The relevant parts of the Decision are set out at [47] – [57], [63] 47 Having considered all of the evidence, I find that the parking spaces during the relevant years were set aside exclusively for "visitor parking". That is made clear by the By-law and the evidence that the applicant enforces the By-law. I accept the applicant's evidence in this case that it did not tolerate the parking spaces being used for anything other than visitor parking. 48 I find that visitor parking comprises: (1) parking of motor vehicles by family, friends and carers, who visit or attend to residents on the premises; (2) parking by tradesmen, cleaners and other contractors and consultants to perform on the Premises (including in the individual units of residents and commercial spaces) on a casual basis; (3) for the loading and unloading of vehicles and passengers; (4) for the parking of bicycles and motorcycles including for the delivery of food; (5) For the parking of motor vehicles by mobility permit holders; (6) for parking of motor vehicles by Ms Kelly, the building supervisor or another member of her staff, to provide services on the premises; (7) occasionally the parking of heavy equipment while construction is taking place; 49 I also find that at times, one or more of the parking spaces are unused. 50 By reason of regs 7 (2009) and 8 (2019), if a parking space is set aside for a range of purposes and one of those is non-exempt, the exemption cannot apply for the reason that it cannot then be said it is set aside "exclusively" for the exempt purpose or purposes. This has relevance here because the evidence does not establish that each particular parking space on the premises is set aside "exclusively" for a specific purpose in the relevant period. Rather, a// of the parking spaces have been set aside exclusively for visitor parking which, as I have determined above, is for a variety of purposes. The question is whether all of these purposes are exempt within the meaning of regs 7 (2009) and 8 (2019). For the applicant to succeed on its arguments, it has the onus of demonstrating that either the residential exemption applies to all of the parking spaces or that one or more of the individual parking spaces are set aside exclusively for one or more exempt purposes. Residential Exemption: reg 7(1)(b) (2009 Regulation) and reg 8(1)(b) (2019 Regulation) 51 The applicant's construction of the residential exemption is that provided the parking of the motor vehicle is at the direction or control of the person who resides on the premises or adjoining premises, it is parking "by" that person. This construction is said to best uphold the purpose of the legislation - to exempt residents from the levy. 52 The process of statutory construction begins with a consideration of the text: Federal Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503; [2012] HCA 55 at [39]. This requires consideration of the ordinary and grammatical meaning of the words of the provision by reference to a// the provisions of the statute and its purpose: SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 per Kiefel CJ, Nettle and Gordon JJ at [14]. 53 In Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (2020) 282 FCR 1 Allsop CJ at [4] stated: "The principle is clear: Meaning is to be ascribed to the text of the statute, read in its context. The context, general purpose and policy of the provision and its consistency and fairness are surer guides to meaning than the logic of the construction of the provision. The purpose and policy of the provision are to be deduced and understood from the text and structure of the Act and legitimate and relevant considerations of context, including secondary material." 54 The word "by" used in the expression "parking of motor vehicles by" is an adverb which identifies the person performing the action of parking. I was not directed to any authority for the proposition that "by" had a different meaning in this context. Having regard to the residential exemption in its context, it can be seen that on each occasion in the 2009 Regulation and 2019 Regulation where the expression "parking of motor vehicles by" is used, it is directed to the identity of that person parking such as in regs 7(1)(c), 7(1)(e), 7(5)(a), 7(5)(c)-(h), regs 8(1)(c), 8(1)(e), 8(5)(a), 8(5)(c)-(h). 55 If Parliament had intended that parking of motor vehicles by guests of residents be included, it could have used words similar to that used in reg 7(5)(a) or (d) (2009 Regulation) and reg 8(5)(c) or (d) (2019 Regulation) in respect Category 2 premises. Further, if the applicant's construction of the residential exemption was accepted, it would "cover the field" and give little, if any, work to do for some of the other stated exemptions such as parking of motor vehicles by contractors and consultants providing services on the Premises (including on the individual resident's unit), who, on the applicant's construction, would presumably be otherwise covered under the residential exemption. A construction which renders other provisions otiose is not to be preferred: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [70]. 56 The construction I have given to the residential exemption is not inconsistent with the object of the legislation being to discourage car use in the area (with the imposition of the levy acting as a deterrence). I accept that it seems unfair that Parliament would cater for guests of businesses in Category 2 premises (see for example reg 7(5) (2009 Regulation), reg 8(5) (2019 Regulation)) but not guests of residents in Category 1. This is particularly so where, as submitted by the applicant, the extrinsic materials to the predecessor to the PSL Act indicated that the levy was not to apply to residential use of parking spaces. 57 The residential exemption requires the parking of the motor vehicle by a person who resides on the premise or an adjoining premise and not merely at the direction or control of that resident. Consequently, I am not satisfied that the parking spaces are for parking of motor vehicles by visitors that are family members, carers and friends of residents or visiting the Property in a capacity not otherwise covered under the other exemptions in reg 7 (2009 Regulation) and reg 8 (2019 Regulation), is a non-exempt purpose within the meaning of the PSL Act. … 63 As a result, I find the setting aside of the parking spaces is for a combination of exempt and non-exempt purposes and therefore is not "exclusively" set aside for one or more exempt purpose. The Appeal 1. Decisions of the Tribunal, such as the Decision before us, are internally appealable decisions and appeals can be made as of right where there is a question of law, and, otherwise with the leave of the Appeal Panel: see s 80(1) and (2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 2. In Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at [13], the Appeal Panel set out a non-exclusive list of questions of law. The principles applicable to the grant of leave were considered by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [82] – [84]. 3. Ordinarily, it will only be appropriate to grant leave to appeal in matters that involve one of the following matters: 1. Issues or principle; 2. Questions of public importance or matters of administration or policy which might have general application; 3. An injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4. A factual error that was unreasonably arrived at and clearly mistaken; or 5. The Tribunal has gone about the fact finding process in such an unorthodox manner or such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed: see BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]. 1. The Appellant puts forward three grounds of appeal. Ground 1: The proper construction of the word 'by' in reg 7(1)(b) / reg 8(1)(b) of the 2009 / 2019 Regulation Ground 2: The Senior Member erred in concluding that the parking spaces were set aside for a combination of exempt and non-exempt purposes Appellant's submissions 1. The Appellant contends that the Tribunal at [54] misconstrued the meaning of the word 'by' as identifying the person performing the action of parking. The Appellant contends that the use of 'by' in this context is necessitated by the use of the passive voice and is in fact a preposition. 2. The Appellant refers to the 'starting point' being consideration of the 'ordinary and grammatical sense' of the word 'by', having regard to the context and the legislative purpose: citing Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 per French CJ at [4]. The Appellant refers to the Macquarie Dictionary where the word 'by' as a preposition can mean 'through the agency or efficacy of', 'in conformity with' and 'with the participation of'. 3. Similarly, the Appellant refers to the Oxford Dictionary where 'by' as a preposition can mean 'through the action, agency, means, instrumentality, or causation of'. Accordingly, the Appellant submits that the identity of the person who actually parks the car should not be determinative. For example, the Appellant refers to the fact that otherwise the object of the legislation could be avoided when for example a friend or colleague of a resident may choose to use a visitor car parking space to commute to the city but at the point of parking the resident takes control of the car and physically then parks the car for the visitor thereby gaining the exemption. Similarly, the Appellant contends that if the exemption for residents was to be limited to cars owned by the resident the word 'of' should have been used rather than that of 'by'. 4. Further, the Appellant contends that if resident parking could encompass any case where a resident parks an ambulance or, for example, a car with a mobility car parking sticker to avoid the levy, there would be no effective operation of the remaining exemptions and such construction should not be preferred: citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [70]. 5. The Appellant then referred to s 33 of the Interpretation Act 1987 (NSW) and the need to favour a construction which promotes the purpose or object underlying the Act. The Appellant contends that the purpose underlying the Act would be better served by construing 'by' to mean 'through the agency or efficacy of'. 6. The Appellant then cites in support Federal Commissioner of Taxation v Brambles Holdings Ltd (1991) 99 ALR 523 where Beaumont J at [18] – [19] stated that the words 'by Council' should include 'for the purposes of a Council, with the participation, or through the agency, or efficacy of the Council'. The Appellant also cited Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Market Limited BC200205780 and its construction of the word 'by' in s 82 of the Trade Practices Act 1974 (Cth) as meaning 'as a result of'. 7. The Appellant takes issue with the Tribunal's reference to the use of the word 'guest' in regulation (8)(5)(c) and (d) at [55] of the Decision. The Appellant submits that the case of a member's club and a hotel can be distinguished from that of parking at residential premises. 8. Next, the Appellant referred to regulation 8(5)(f) which exempts spaces set aside exclusively for 'the parking of motor vehicles by patients of a medical centre'. The Appellant contends that it will frequently be the case that the parking is not physically done by the patient but by, most likely, a friend or family taking the patient to the medical appointment. According to the Appellant, to construe the regulation as requiring the physical act of parking by the patient would lead to an absurd result and frustrate the obvious intention of regulation 8(5)(f). 9. Further, the Appellant contends that the Tribunal was wrong at [55] to say that the Appellant's construction would cover the field. There still would be work to do in, for example, reg 8(1)(c) – (i), where it is anyone other than the resident who provides for access to the space, for example a concierge or security guard. Also, there would still be work for the regulations in the context of a mixed-used property, such that these exemptions would apply where the parking spaces were used in connection with the commercial aspect of the property. 10. In conclusion, the Appellant contends that the resident exemption should apply to visitors at least in the case of a property where access to the parking spaces is only obtained if admitted by residents and thus 'because of the actions of the residents'. Respondent's submissions 1. The Respondent essentially upholds the Decision and reasoning of the Tribunal below. 2. In addition, the Respondent sought to focus on the overall context of reg 7(1) and 8(1). The Respondent points out that there are three types of exemptions: exemptions concerned with the type of vehicle using the parking space, exemptions concerned with the ultimate purpose of the person using the parking space and exemptions concerned with the identity of the person using the parking space. 3. The exemptions concerned with the type of vehicle used the indefinite article 'a'; the exemptions concerned with purpose used the word 'for' and the exemption concerned with the identity of the user of the parking space used the word 'by'. The Respondent submits that if reg 7(1)(b) and 8(1)(b) were directed towards parking spaces set aside for any purpose authorised by, or associated with, a person who resides at the premises, as the Appellant submits, then reg 7(1)(b) and 8(1)(b) would have used the word 'for' rather than the word 'by'. Consideration 1. In our view, the proper construction of the word 'by' in reg 7(1)(b) and 8(1)(b) gives rise to a question of law and leave to appeal is not required. 2. We agree with the submissions of the Respondent and we also agree with the reasons of the Tribunal in affirming the Assessments. 3. Reg 7(1)(b) and 8(1)(b) are to be construed having regard to their context. This requires consideration of the regulations as a whole and the purpose of the provisions. Context should be considered at the first stage of the construction and not at some later stage when ambiguity might be sought to arise: see SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14] and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [78] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47]. 4. In this regard, it is not enough merely for the Appellant to point to one possible dictionary meaning of the word 'by'. What is required is a construction of the word 'by' which is consistent with the surrounding text and the surrounding legislation, as well as the purpose underlying the legislation. In particular, the words 'persons who reside on the premises or adjoining premises' that follow the word 'by' necessarily qualifies the word by and provides the subject of the clause – namely, a person who actually resides at the premises or adjoining premises. 5. Further, the full context is whether or not it can be said that the parking space 'is set aside exclusively for' the parking of motor vehicles by persons who reside at the premises or adjoining premises. In this regard, the focal point of the words is on persons 'who reside on the premises' which means persons who 'dwell permanently or for a considerable time': see Macquarie Dictionary online. 6. The other context for the word 'by' is the other exemptions as provided for in reg 7(1) and 8(1). As pointed out by the Respondent there are three types of exemptions which focus either on the type of vehicle, the ultimate purpose of the parking or the identity of the person using the parking. Where the focus is on the identity of the person using the parking, the word 'by' is used. 7. Taking fully this context into account, the word 'by' is closely associated with the person using the car parking space rather than the purpose of the parking or the type of vehicle being used. In contrast, the Appellant's construction tends to merge the identity of the person immediately using the car parking space with that person's ultimate purpose, being to visit the premises with the permission of a resident. 8. Further, we agree with the reasoning of the Tribunal below that it is of relevance that in a Category 2 area there is reference to 'guests' as being an exempt category of car parking which could have easily been provided for in the case of residential premises, but it has not been. We further agree with the Tribunal's reasoning that the fact that the Appellant's construction would render some of the exemptions otiose is a relevant factor. 9. Overall, the construction proffered by the Appellant, where reg 7(1)(b) and 8(1)(b) includes visitors parking at residential premises, is not consistent with the more obvious and natural meaning of the word 'by' when the whole context of the statute is considered. The Tribunal correctly rejected the Appellant's submission that 'by' meant 'at the direction or control of', noting that such a construction was so broad as to cover most exemptions in reg 7(1) and 8(1) and leaving many exemptions in reg 7(1)(b) and 8(1)(b) with little work to do. 10. The Appellant refers to the exemption dealing with patients to a medical centre. Common sense would suggest that the case of a patient being driven to a medical centre does come within the exemption. However, such a situation is different to the setting aside of spaces for visitors to a residential complex. 11. The authorities relied upon by the Appellant do not assist. The case here is concerned with the construction of different words in a different statutory context. 12. We find the example given of a resident switching the driving with a visitor's vehicle in order to attract the exemption to be unpersuasive. A parking space would not be exempt merely because a resident switched with the driver and parked the vehicle in the visitor car parking space. This overlooks the requirement that the parking space must be 'exclusively set aside' for parking by the residents. 13. Accordingly, we reject these grounds of appeal. Ground 3: Mobility parking space Appellant's submissions 1. The Appellant contends that the Tribunal failed to consider relevant evidence in respect of mobility parking. 2. Reg 7(1)(c) and 8(1)(c) provide an exemption for mobility parking which is set aside for persons who hold mobility parking scheme permits. The Appellant submits that whilst there was no signage there was one space nearest the steps which was wider than the others and 'usually used by disabled persons'. 3. Further, the Appellant submits that 'disabled persons were usually dropped off at the lift foyer door by their drivers who then park at any of the visitor spots'. 4. The Appellant contends that the Tribunal erred when it relied upon the lack of a sign at a parking space to indicate mobility parking and the Tribunal erred in concluding that all the spaces were set aside for a combination of exempt and non-exempt purposes at [62]. Respondent's submissions 1. The Respondent, in essence, submits that there is no basis for contending that the Tribunal should have concluded that the parking space closest to the stairs in the Property were set aside for persons who hold mobility parking scheme permits because there was simply no evidence before the Tribunal to support such a proposition of fact. Consideration 1. This ground of appeal does not involve a question of law and hence leave to appeal is required. 2. The relevant finding of fact by the Tribunal is at [61(1)]: (1) I accept the applicant's evidence that throughout the relevant period, there was always a space available for mobility scheme parking. This is an exempt purpose under reg 7(1)(c) or reg 8(1)(c). Where all of the parking spaces are set aside for exempt purposes, I would not be required to determine specific periods for which a specific parking space would be set aside for mobility scheme parking. Here however, as there is no differentiation between particular parking spaces, I am unable to be satisfied that a specific parking space was designated exclusively for mobility scheme parking. I note the evidence that signage was put above one particular parking space indicating it was for mobility scheme parking but the evidence does not establish when this particular space was first designated for this exclusive purpose. The photograph taken is of a paper sign stuck on the wall and is dated after the relevant period the subject of this dispute. It seems likely from the date that sign was erected, that particular parking space was exclusively set aside for that use, however, I am not satisfied on the evidence that this designation was in place in the relevant period. 1. The Appellant has failed to demonstrate that the above finding was obviously or clearly wrong or that the Tribunal went about the fact-finding process in some unorthodox way. 2. We agree with the submissions of the Respondent that there was essentially no evidence before the Tribunal that any particular parking space(s) was designated to be used by a person who holds a mobility parking scheme authority in the relevant period or that such parking space was set aside exclusively for that use. 3. Accordingly, the Tribunal cannot be said to have erred or failed to consider the evidence that was before it. 4. At the hearing the Appellant tendered photographs of a sign at one of the parking spaces that states 'priority given to mobility parking scheme permit holders'. However, the evidence disclosed that the sign was not present during the relevant financial years and so is not relevant. 5. In our view, the Tribunal correctly found, on the evidence, that whilst a space was available for mobility parking scheme permit holders there was no differentiation between parking spaces so that it could not be said that any particular space was 'exclusivity set aside for mobility scheme parking'. 6. Accordingly, we reject this ground of appeal. Notice of Contention 1. The Respondent contends that the Tribunal erred in finding at [61(5)] 'that for periods of time one or more of the parking spaces were unused casual parking spaces' for the purposes of the unused casual parking space exemption in reg 7(3) and 8(3). In light of our decision above, we do not need to consider this contention. 2. Further, even if we were to uphold the Appellant's grounds of appeal, success on the Respondent's notice of contention would not alter the result of the appeal ultimately. 3. For this further reason, we decline to deal with the Respondent's alleged notice of contention. Conclusion 1. The orders of the Appeal Panel are: 1. Leave to appeal refused. 2. Appeal dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 September 2023