Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FSX v Chief Commissioner of State Revenue [2024] NSWCATAP 169 Hearing dates: 16 February 2024 Date of orders: 29 August 2024 Decision date: 29 August 2024 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member G Blake AM SC, Senior Member Decision: (1) Pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the true names of the Applicant and her husband are not to be disclosed, including by way of publication or broadcast. (2) Leave to appeal is refused. (3) The appeal is dismissed. (4) There is no order as to the costs of the appeal. (5) In the event that an application for a different costs order is made in accordance with the directions below, order 4 above ceases to have effect and the following directions apply: (a) Any application for a different costs order is to be filed and served, supported by evidence and submissions, within 7 days of the date of these orders; (b) Any evidence and submissions in response to the application for a different costs order are to be filed and served within 14 days of the date of these orders. (c) Any material in reply is to be filed and served within 21 days of the date of these orders. (d) The Appeal Panel may dispense with a hearing and determine any application for a different costs order on the basis of the written submissions and evidence provided. If the parties oppose this course, they should make submissions on this issue when complying with the directions as to their submissions on the substantive costs application. If a hearing is not dispensed with the parties will be notified of a date for hearing to determine the application. Catchwords: APPEALS - Leave to appeal - Principles governing - Leave to appeal refused APPEALS – Scope of question of law - Appeal dismissed TAXES AND DUTIES - Land tax – Construction and application of cl 6(2)(c) of Sch 1A to the Land Tax Management Act 1956 (NSW) – Requirement that "intended use and occupation" of land be lawful as part of claim for principal place of residence exemption Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 60, 64, 80 Land Tax Management Act 1956 (NSW), ss 7, 10, 10T (repealed), Sch 1A, cll 2, 3, 6, 8 Cases Cited: Alcan (NZ) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 Amirbeaggi v Matrix Group Co Pty Ltd [2021] NSWCA 21 Associated Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680 Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 AW v WW (No 2) [2024] NSWSC 146 Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2020) 275 FCR 385; [2020] FCAFC 50 Collins v Urban [2014] NSWCATAP 17 Commissioner of Land Tax v Christie [1973] 2 NSWLR 526 Commissioner of Police (NSW Police Force) v Adam [2022] NSWSC 789 Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493; [1957] HCA 15 Crystele Designer Homes Pty Ltd v Wood [2023] NSWCATAP 242 De Marco v Chief Commissioner of State Revenue [2013] NSWCA 86 ENT19 v Minister for Home Affairs (2023) 97 ALJR 509; [2023] HCA 18 Estate of Bovaird v Milstern Retirement Services Pty Ltd [2022] NSWCATAP 174 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 Frediani v Hall t/as Happy Camper Conversions [2024] NSWCATAP 134 FVA v Commissioner of Police, NSW Police Force [2024] NSWCATAP 127 Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 Hermes Nominees Pty Ltd v Shepherd [2024] NSWCATAP 36 Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325 Jain v Dr N Kalokerinos Pty Ltd [2023] NSWCATAP 141 Julie (a pseudonym) v John (a pseudonym) [2024] NSWSC 964 Klan v Federal Commissioner of Taxation (1985) 80 FLR 320 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; [2013] NSWCA 180 Marrickville Metro Shopping Centre Pty Limited v Marrickville Council [2010] NSWCA 145; (2010) 174 LGERA 67 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs, Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Re Bolton ex parte Beane (1987) 162 CLR 514; [1987] HCA 12 Rogers v Vinoly [2016] NSWCATAP 2 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Samchris Pty Ltd v Keogh [2024] NSWCATAP 125 SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 Soulis v R & A Henry Auto Repairs Pty Ltd [2021] NSWCATAP 338 Tamas v Victorian Civil & Administrative Tribunal & Ors (2003) 9 VR 154; [2003] VSCA 113 West Australian Newspapers Ltd v Bridge (1979) 141 CLR 535; [1979] HCA 10 Wollondilly Shire Council v Styles [2024] NSWCATAP 104 Yuen v Thom [2016] NSWCATAP 243 Texts Cited: Chief Commissioner of State Revenue, Ruling LT 082v5: The principal place of residence exemption Category: Principal judgment Parties: FSX (Appellant) Chief Commissioner of State Revenue (Respondent) Representation: Counsel: I Young and O Berkmann (Appellant) J Mitchell (Respondent) Solicitors: Stratos Lawyers (Applicant) Crown Solicitor (Respondent) File Number(s): 2023/00291901 Publication restriction: Pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the true names of the Applicant and her husband are not to be disclosed, including by way of publication or broadcast. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2023] NSWCATAD 219 Date of Decision: 18 August 2023 Before: R Perrignon, Senior Member File Number(s): 2022/00091110; 2022/00261923 REASONS FOR DECISION Summary 1. In the decision at first instance, the Tribunal confirmed the land tax liability of the appellant landowner, as assessed by the respondent. 2. These proceedings stem from an unusual arrangement put in place by the appellant, whereby she is developing a home on the upper levels of multi-level premises with space for commercial premises below. Provision of the commercial space was a legal requirement of development consent, but actual use of the commercial space in that manner was not. The commercial space cannot, under current laws and regulations, be lived in. However, so that she may take advantage of the prestigious location of the property and the views afforded from the upper levels of the development, the appellant always intended to leave the commercial space vacant, unless and until the relevant legislative provisions changed and it could be incorporated into the residence. 3. The respondent has assessed land tax in the 2021 and 2022 years on the total area of the development, including the commercial space, which was confirmed on review by the Tribunal. The appellant maintains that land tax is not assessable on the land, as she will utilise it solely, and lawfully, as a principal place of residence. She appeals on that basis. 4. We are not satisfied that the Tribunal made any error of law or other error. Accordingly, we have dismissed the appeal and refused leave to appeal. Non-disclosure 1. In conformance with the decision at first instance, we are satisfied that, due to the nature of the appellant's husband's work, it is desirable that the identifying particulars of the appellant and her husband are not disclosed: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 64(1)(a). The bases for the Tribunal's decision 1. The Tribunal was provided with an extensive list of agreed facts, summarised at [8] of its decision (Decision): "(1) Under the Local Environment Plan, the land is zoned B1 Neighbourhood Centre. (2) It is prohibited under the Local Environment Plan for development consent to be granted for residential accommodation on the land without a commercial space on the ground floor. (3) The Local Environment Plan provided: shop top housing means one or more dwellings located above ground floor retail premises or business premises Note – Shop top housing is a type of residential accommodation – see the definition of that term in this Dictionary. (4) Condition 3 of the development consent required specific development applications to be lodged for approval in connection with the initial usage of any retail or commercial area within the development, prior to occupation of the premises. (5) What was required was either a development consent to such use, or a complying development certificate allowing for 'initial use' of commercial premises after construction. (6) Subject to fulfilment of condition 3, certain areas on the ground floor (marked in red on a plan appended to the Agreed Facts) are able to be lawfully used and occupied exclusively for non-residential (commercial) purposes. They may not lawfully be used for residential purposes. (7) No consent to use of those areas has been sought by FSX pursuant to condition 3. (8) In the absence of an application for initial use, the areas marked red must remain vacant. (9) It is not unlawful for FSX to refrain from seeking approval for initial use of those areas, or to leave the commercial spaces vacant. (10) Certain other areas on the ground floor (marked green in the plan) are able to be lawfully used and occupied exclusively for residential purposes. They may not lawfully be used for non-residential purposes. (11) Other areas on the ground floor (marked white in the plan) may lawfully be used for either residential or commercial purposes. (12) The remaining areas of the development may only be used and occupied exclusively for residential purposes. (13) Condition 9 of the development consent requires that a glass shop front for window display purposes be retained." 1. The Tribunal at [4]-[6] and [26]-[39] found, relevantly, that: "4 The Chief Commissioner does not dispute that FSX intended to occupy the land as her principal place of residence, but disputes that she intended to occupy it 'solely' for that purpose. The Chief Commissioner says that, objectively determined, FSX's intention was to use and occupy the land partly as her principal place of residence and partly as a commercial premises. 5 The Chief Commissioner does not dispute that requirements (a) and (b) of subclause 6(2) were satisfied, but disputes that requirement (c) was satisfied. The Chief Commissioner submits that the use and occupation of the land solely as a principal place of residence is unlawful, because it contravened the terms of the development consent, which was for both residential and commercial use, and it contravened the Local Environment Plan, under which the land was zoned B1 Neighbourhood Centre in which exclusive development for exclusively residential purposes was prohibited. 6 The issues for determination are: (1) whether, at the relevant times, FSX intended to use and occupy the land 'solely' as her principal place of residence, and (ii) if so, whether use and occupation of the land solely for that purpose is unlawful. … 26 Whatever might be said of applying for development consent on the basis that designated spaces be reserved for a use which neither spouse intended, none of these circumstances causes me to doubt the evidence of FSX and her husband as to their true intention. I am satisfied that at all relevant times – including, as at the taxing dates for the 2021 and 2022 tax years – FSX intended to use and occupy the land solely as her principal place of residence. The primary requirement of clause 6(1) is satisfied. … 27 The Chief Commissioner says exclusive use as a principal place of residence is unlawful, because: (1) it contravenes the terms of the development consent, which was for both residential and commercial use, and (2) it contravenes the Local Environment Plan, under which the land is zoned B1 Neighbourhood Centre. 28 As at the date of development consent in 2015, the Local Environment Plan permitted Council to grant development consent for 'shop top housing' as it was then defined. Council was satisfied that the plans, as submitted, fell within the definition of shop top housing, and gave its consent. On the evidence, that consent remains current, as modified at FSX's request. There is no evidence to suggest that development consent has been withdrawn, or that it has been rendered ineffective by reason of the amendments to the definition of shop top housing which took effect in December 2021, or by any other cause. 29 The respondent has not drawn my attention to any legislative provision or principle of law to support the proposition made by Ms Sneyd that the change to the definition of 'shop top housing' in the Local Environment Plan in December 2021 operated to vary the terms of the 2015 development consent as modified with respect to the 2022 tax year. I am not satisfied that it did. 30 I am satisfied that the development consent for the development described on the plans as submitted, with approved modifications, remained current in respect of both tax years. Development in accordance with those plans is and was lawful. 31 Whether the intended use of the land solely for residential purposes is lawful is, however, a different issue. As indicated, I am satisfied that the intention of FSX was to leave the commercially designated areas vacant until such time, if ever, that its use for residential purposes became lawful. 32 Land that is left vacant is not necessarily unused or unoccupied. In Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493, the High Court of Australia found by majority that 292 acres of virgin bush was used (per Taylor and Webb JJ) and occupied (per Williams and Webb JJ) for the purposes of a public hospital, whose buildings stood on an adjacent thirty-six acres divided from the bushland by a fence, notwithstanding the fact that the hospital had left the bushland vacant. 33 Royal Newcastle Hospital was applied by the Court of Appeal in Commissioner of Land Tax v Christie [1973] 2 NSWLR 526. Counsel for the Applicant relied on the following passage from the judgment of Bowen J in Christie at 533-534 with respect to the meaning of 'use' and 'occupation': "Use" has regard to the purpose to which the land is put. Under sec 9(3)(e) it must be shown to have been devoted to the purpose of constituting the site of the dwelling house. Provided there is a unity in the land in question in a physical sense and a unity in what is done in devoting it to the purpose of providing or constituting the site and provided there is a sufficiently proximate and not too remote connection between the dwelling house and its requirement or the requirements of its users or occupants on the one hand and the whole of the land in question on the other had then this element will be sufficiently established to demonstrate "use" as the site of the dwelling house. "Occupation" is not synonymous with legal possession. It includes possession, but it also includes something more: see Newcastle City Council v Royal Newcastle Hospital. It involves an element of control, of preventing or being in a position to prevent the intrusion of strangers (Newcastle City Council v Royal Newcastle Hospital). It is for this reason that physical presence or physical presence on every part of the land does not have to be shown in order to establish occupation. If it were necessary to prove physical presence on every part of a residential block to secure the deduction a substantial proportion of residential blocks could well be denied it. It is not uncommon in our community for there to be portions of such blocks which are rarely or never visited. Indeed, as these present cases illustrate, there may well be portions of such block which are precipitous, or are under water or are covered with dense bushland and which are therefore, in a practical sense difficult if not impossible to traverse physically. This does not mean that they are not "occupied" in a legal sense. To hold otherwise would be to subvert the obvious intent of s 9(3)(e). Nor, although the presence of fencing may be some evidence of occupation, does the absence of fencing establish that there is no occupation: Newcastle City Council v Royal Newcastle Hospital. 34 As to the meaning of 'use', Applicant's counsel also relied on the following statement of principle in Metricon Qld Limited v Chief Commissioner of State Revenue (No 2) [2016] NSWSC 332 at [70] – emphasis added: I see no reason to read down s10AA(3) to require that a competing use against which the primary production use is to be measured must be a physical use. As noted earlier in these reasons, "use" has more than one ordinary meaning. An ordinary meaning of "use" includes employing land for a purpose, putting it in service or turning it to account. This need not be a physical use. …. But "Use" does require doing something with the land, whether it be using it physically or by putting it to advantage, for example, by letting it. 35 In his written submissions, counsel for FSX urged the Tribunal to accept the following conclusion: "The advantage to which the commercial space [on the ground floor] is put is to facilitate the Applicant's intended and subsequent actual use of the [land] as her principal place of residence. Without such an area being physically incorporated into the architectural designs, the construction of her resident would not be possible." 36 Applying the principles of interpretation in Christie and Metricon, I accept the Applicant's submission that the 'advantage to which the commercial space [on the ground floor] is put is to facilitate [her] intended and subsequent actual use of the [land] as her principal place of residence'. In other words, the facilitation of her use of the land as a principal place of residence was always the 'use' to which the commercial areas were put, and the use which she at all material times intended. 37 Her intention to leave the designated commercial spaces vacant, while using and occupying the balance of the land as her principal place of residence, amounted to an intention to use the commercial spaces for the purposes of using and occupying the land as her principal place of residence. That is so, even if (as I accept) she intended them to remain vacant, and never to go there unless and until their use as residential spaces became permitted. 38 The parties have agreed that the areas marked red on the ground floor plan as being exclusively designated for commercial use may not lawfully be used for residential purposes. For the reasons given, in the circumstances of this development, FSX's intention to leave them vacant amounted to an intention to use them for residential purposes. As the parties agree, that use is unlawful. 39 Requirement (c) of clause 6(2) is not satisfied. The principal place of residence exemption does not apply. The decisions of the Chief Commissioner with respect to the 2021 and 2022 land tax years must be confirmed." Scope and nature of internal appeals 1. An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. To succeed in an appeal, the appellant must demonstrate either an error on a question of law, which, except in an appeal from an interlocutory decision, may be argued as of right; or that permission (that is, "leave") to appeal should be granted to bring the appeal: NCAT Act, s 80(2)(b). What is a question of law for the purposes of s 80(2) of the NCAT Act? 1. Following the reasoning in a body of decisions of the Supreme Court and Court of Appeal, the Appeal Panel has recently confirmed that a question of law in the context of s 80(2)(b) should be interpreted similarly to "a question of law alone" or a "pure question of law." It excludes questions of mixed fact and law and, of course, questions of fact (at least unless they are facts of a jurisdictional nature): see for example Soulis v R & A Henry Auto Repairs Pty Ltd [2021] NSWCATAP 338; Jain v Dr N Kalokerinos Pty Ltd [2023] NSWCATAP 141; Crystele Designer Homes Pty Ltd v Wood [2023] NSWCATAP 242; Hermes Nominees Pty Ltd v Shepherd [2024] NSWCATAP 36; Wollondilly Shire Council v Styles [2024] NSWCATAP 104; Samchris Pty Ltd v Keogh [2024] NSWCATAP 125; FVA v Commissioner of Police, NSW Police Force [2024] NSWCATAP 127; Frediani v Hall t/as Happy Camper Conversions [2024] NSWCATAP 134. 2. We will proceed on that basis and not, as proposed by the appellant, on the basis that a mixed question of fact and law is, relevantly, a question of law. In that regard, we do not find the decision in Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 (Haritos) persuasive given the different statutory regime considered there and the contrary conclusion reached by courts in New South Wales that are within our appellate hierarchy, referred to in the decisions of the Appeal Panel that are referenced in [9] above. What are the principles governing leave to appeal? 1. The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough as a summary to refer to Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28], where Gleeson JA (with Macfarlan JA and Payne JA agreeing) said (citations omitted): Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong. 1. Further, as Basten JA said (White JA agreeing) in Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325 at [9], cited with approval in Amirbeaggi v Matrix Group Co Pty Ltd [2021] NSWCA 21 at [9] per Basten and Meagher JJA: ... more is required than identification of error on the part of the trial judge, even if it can be said that the error is reasonably clear. Generally, the court will also need to be satisfied that there is a matter of some public importance engaged and that the costs of further litigation are not disproportionate to the amount in issue. Further, it should be established that, to leave any putative error uncorrected, would give rise to a substantial miscarriage of justice. A new hearing? 1. We may decide to conduct a new hearing if we are satisfied that the grounds for appeal warrant it: NCAT Act, s 80(3)(a). A new hearing under s 80(3) of the NCAT Act is a hearing de novo, or "from the beginning": Yuen v Thom [2016] NSWCATAP 243 at [17]. 2. Whilst we may decide to conduct a new hearing, the parties did not ask us to do so here and we were not satisfied that the grounds for appeal warranted it. Relevant legislative provisions 1. Pursuant to s 7 of the Land Tax Management Act 1956 (NSW) (LTMA) land tax is levied on the taxable value of all land in New South Wales unless it is exempt. 2. Land is exempt from taxation under the principal place of residence exemption, as provided for by LTMA, s 10(1)(r) when read with Sch 1A. 3. The principal place of residence exemption is contained in cl 2 of Sch 1A of the LTMA. During the relevant land tax years cl 2 provided: 2 Principal place of residence exemption (1) Land used and occupied by the owner as the principal place of residence of the owner of the land, and for no other purpose, is exempt from taxation under this Act, in respect of the year commencing 1 January 2005 or any succeeding year, if the land is— (a) a parcel of residential land, or (b) a strata lot or, subject to this Schedule, land comprised of 2 or more strata lots. (2) Land is not used and occupied as the principal place of residence of a person unless— (a) the land, and no other land, has been continuously used and occupied by the person for residential purposes and for no other purposes since 1 July in the year preceding the tax year in which land tax is levied, or (b) in any other case, the Chief Commissioner is satisfied that the land is used and occupied by the person as the person's principal place of residence. (3) If the owner of land is entitled to the exemption conferred by this Schedule, no other person is liable to be assessed for taxation under this Act in respect of the land during the period of the owner's entitlement to the exemption. (4) The exemption conferred by this Schedule is referred to as the principal place of residence exemption. (5) The principal place of residence exemption is subject to the restrictions set out in Part 4. 1. Residential land is defined in cl 3 of Sch 1A to the LTMA. During the relevant land tax years cl 3 provided: 3 Residential land—meaning (1) in this Schedule, residential land means land that is used and occupied for residential purposes and for no other purpose, that use and occupation being use and occupation of a building or buildings designed, constructed or adapted for residential purposes, other than a building or buildings— comprised of strata lots or residential units, or containing (out of the total of all rooms in the building or buildings) occupancies other than that of the owner, or from any part of which income is derived. (2) Land does not cease to be used and occupied as provided by subclause (1) by reason of there being on that land any building or improvement that is used or occupied for a purpose ancillary to the purposes for which the building is, or the buildings are, designed, constructed or adapted. Note— Clause 4 allows one residential occupancy to be disregarded in applying the principal place of residence exemption. Clause 5 allows the use of land for purposes ancillary to a business conducted at a different place to be disregarded in certain circumstances. 1. In the years we are concerned with, the relevant parts of cl 6 of Sch 1A of the LTMA provided: 6 Concession for unoccupied land intended to be owner's principal place of residence (1) An owner of unoccupied land is entitled to claim the land as his or her principal place of residence if the owner intends to use and occupy the land solely as his or her principal place of residence. In such a case, the owner is. taken, for the purpose of the principal place of residence exemption, to use and occupy the unoccupied land as his or her principal place of residence. … (2) This clause does not apply unless: (a) the land is unoccupied because the owner intends to carry out, or is carrying out, building or other works necessary to facilitate his or her intended use and occupation of the land as a principal place of residence, and (b) if those building or other works have physically commenced on the land, no income has been derived from the use and occupation of the land since that commencement, and (c) the intended use and occupation of the land is not unlawful (3) This clause applies in respect of the assessment of a person's ownership of land only In the period of: (a) 4 tax years immediately following the year in which the person became owner of the land, or (b) if, after the person became owner and before the building or other works physically commence, the land is used and occupied for residential purposes by another person 4 tax years immediately following the tax year in which the other person ceases to use and occupy the land for those purposes. (4) Without limiting subclause (3)(a): (a) this clause does not apply in respect of the assessment of a person's ownership of land in a period referred to in subclause (3) (b) unless the Chief Commissioner is satisfied that, by the end of the first of the 4 tax years concerned: (i) the building or other works will be, or have been, physically commenced, or (ii) significant steps will be, or have been, taken to enable those works to physically commence, and (b) if the building or other works are not physically commenced by the end of that tax year (or the Chief Commissioner is not satisfied that, by the end of that tax year, significant steps have been taken to enable those works to physically commence): (i) the principal place of residence exemption applying by operation of this clause to the land is taken not to have applied to the land in respect of that tax year (unless subclause (3)(a) applied to the assessment in that tax year), and (ii) land tax liability is to be assessed or reassessed accordingly. … (8) For the purposes of this clause: unoccupied land means land that is not being used or occupied for any purpose. 1. Previously, s 10T(2)(a) of the LTMA had provided for a 'residential purposes' test in the following terms (emphasis added): 10T Concession for unoccupied land intended to be owner's principal place of residence (1) If the Chief Commissioner is satisfied that the owner of land (or, if there are joint owners, any one or more of them) intends to use and occupy the land solely as his or her principal place of residence, that intended use and occupation of the land is to be regarded as its actual use and occupation for the purposes of section 10(1)(r). (2) This section does not apply unless: (a) the land is within a residential zone under a planning instrument or, if not within a zone under a planning instrument, is land that the Chief Commissioner is satisfied is to be used for residential purposes, and (b) the Chief Commissioner is satisfied that the intended use and occupation of the land is not unlawful, and (c) while the owner is the owner, the land is not used or occupied except as his or her principal place of residence. 1. However, that provision was removed from the LTMA over 20 years ago. The principles of statutory interpretation to be applied 1. Resolution of the appeal involves an issue of statutory interpretation. The principles of statutory interpretation were not in dispute between the parties. They were recently summarised by the plurality of the High Court (Gordon Edelman, Steward and Gleeson JJ) in ENT19 v Minister for Home Affairs [2023] HCA 18; (2023) 97 ALJR 509 at [86]-[87] as including the following principles: 1. the starting point is the text of the provision in issue, with regard also to be had to its context and purpose; 2. context should be regarded at the first stage and not at some later stage, and in its widest sense, including by reference to legislative history and extrinsic material; 3. the natural and ordinary meaning of a word is important, but understood in its statutory, historical or other context, another meaning of a word may arise; 4. if a word's ordinary meaning is not consistent with the statutory purpose of the Act, that meaning must be rejected; 5. the context of the words, consideration of the consequences of adopting a provision's literal meaning, the purpose of the statute and the principles of construction may thus lead a court to adopt a construction that departs from the literal meaning of the words of a provision; 6. one such principle is that legislation must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals; 7. as Gageler J explained in SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at [41], "statutory text must be considered from the outset in context and attribution of meaning to the text in context must be guided so far as possible by statutory purpose on the understanding that a legislature ordinarily intends to pursue its purposes by coherent means"; 8. where conflict appears to arise in construing an Act, "the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions", and this "will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'": Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at 382 [70]; and 9. ultimately, the task in applying the accepted principles of statutory construction is to discern what Parliament is to be taken to have intended. Determination of the grounds of appeal Introduction 1. We agree with the respondent that the appellant's eight grounds of appeal may be appropriately grouped and, in part, dealt with together. Characterisation of the grounds of appeal 1. In her notice of appeal, the appellant has grounds of appeal in which she has: 1. provided the following glossary: "Agreed Facts means the parties Agreed Statement of Facts in Relation to Planning Issues filed in the Proceedings on 7 March 2023. Decision means the decision of the Tribunal in the Proceedings dated 18 August 2023. Land means the land having the address of [address omitted]. LTMA means Land Tax Management Act 1956 (NSW). NCAT Act means Civil and Administrative Tribunal Act 2013 (NSW). Proceedings means NCAT proceedings no. 2022/00091110 and 2022/00261923." 1. raised the following seven "questions of law": "1. Did the Tribunal err at [31] of the Decision by identifying the wrong issue or asking the wrong question, namely: "Whether the intended use of the land solely for residential purposes is lawful"? 2. Did the Tribunal err at [31] of the Decision by construing the words or phrase, "the intended use and occupation of the land is not unlawful", in Clause 6(2)(c) of Schedule 1A of the LTMA, as if it read instead, "Whether the intended use of the land solely for residential purposes is lawful"? 3. Did the Tribunal err at [38] and [39] of the Decision in applying a wrong principle of law by substituting the words or phrase, "the intended use and occupation of the land is not unlawful", in Clause 6(2)(c) of Schedule 1A of the LTMA, with the question set out at [31] of the Decision, namely: "Whether the intended use of the land solely for residential purposes is lawful"? 4. Did the Tribunal err at [38] and [39] of the Decision in finding Clause 6(1) read in conjunction with Clause 6(2)(c) of Schedule 1A of the LTMA was not satisfied in circumstances where: a. there was no dispute as to the facts; b. the Tribunal accepted, at [8] of the Decision, the expert evidence set out in the parties' Agreed Statement of Facts in relation to Planning Issues; c. the Tribunal accepted, at [8(9)] that "it is not unlawful for FSX to refrain from seeking approval for initial use of those areas, or to leave the commercial spaces vacant"; d. the Tribunal made the findings of fact set out in [26] and [30] of the Decision including that "Development in accordance with those plans is and was lawful", with the consequence that the facts having been fully found, resolution of the Proceedings necessarily fell within the description of the words or phrases in Clause 6(1) and 6(2)(c) in Schedule 1A of the LTMA? 5. Did the Tribunal err at [31], [38] and [39] of the Decision by taking into account an irrelevant consideration, namely, "Whether the intended use of the land solely for residential purposes is lawful"? 6. Did the Tribunal err at [38] of the Decision by concluding "FSX's intention to leave them [the areas of the designated commercial space] vacant amounted to an intention to use them for residential purposes" which "use is unlawful" in circumstances where, on the facts as found, there was no evidence or other material to justify the making of the decision? 7. Did the Tribunal err in that its Decision was so unreasonable that no reasonable person could have come to it?" 1. raised the following "mixed questions of fact and law" for which she seeks leave to appeal if we decline to follow and apply Haritos (which we have referred to as ground 8): "1. Did the Tribunal err by concluding at [39] of the Decision that the "Requirement (c) of clause 6(2) is not satisfied" and in reaching that conclusion in circumstances where: a. it identified the wrong issue or asked the wrong question at [31]; b. there was no dispute as to the facts given the Tribunal accepted, at [8] of the Decision, the parties' Agreed Statement of Facts in Relation to Planning Issues; c. it made the findings of fact set out in [26] and [30] of the Decision; d. it took into account an irrelevant consideration at [31] and [38], namely, "Whether the intended use of the land solely for residential purposes is lawful". 1. In Commissioner of Police (NSW Police Force) v Adam [2022] NSWSC 789 (Adam) Beech-Jones CJ at CL heard an appeal under s 56(1)(e) of the Crimes (Appeal and Review) Act 2001 (NSW) which conferred on a prosecutor a right of appeal to the New South Wales Supreme Court against an adverse costs order made by the Local Court in summary proceedings, which are not with respect to an environmental offence, "but only on a ground that involves a question of law alone". His Honour held at [18]-[21]: "[18] As for s 56(1), "[a] question of law alone" as distinct from a question of law or a complaint about error of law, is a question that "can be stated and considered separately from the facts with which it may be connected in a given case" (see Williams v The Queen (1986) 161 CLR 278 at 287; [1986] HCA 88 per Gibb CJ at [314] per Wilson and Dawson JJ). [19] Even so, a conclusion of mixed fact and law can be challenged on an appeal restricted to a question of law alone if it can be determined that that conclusion "[p]roceed[ed] from a misdirection of law" (Williams at 287). In R v PL [2009] NSWCCA 256 at [27], Spigelman CJ stated that a contention that a presiding judicial officer erred may involve a question of law alone if a stand alone legal proposition can be identified which was a "distinct and separate step in the reasoning process". [20] In Bimson, Roads and Maritime Services v Damorange Pty Limited [2014] NSWSC 734 at [41], I stated as follows: "If that task [of identifying a question of law in abstract terms] is undertaken, then the consequential questions that will arise are whether the lower court or tribunal either answered that question or proceeded on an assumption concerning that answer, whether its answer or assumption was correct or incorrect, and whether that answer or assumption was material to the outcome, in the sense that it could have affected the outcome..." [21] Leaving aside the approach to materiality that is referred to in this passage, the end result is that an appeal on a question of law alone may raise a question of law, the answer to which is obvious. Further, the appeal will only "involve" that question of law alone if that answer was a "distinct and separate step in the reasoning process" of the court below (PL supra), even accepting that such a step may only be implicit in the lower court's reasoning. Answering that question will only of itself lead to a conclusion that a decision should be set aside if the court either addressed that question incorrectly or proceeded on an assumption as to the answer which was incorrect and it was material to the outcome. If the court did not proceed on a misapprehension as to the law, then, at most, its decision will only be affected by an error or mixed fact of law and no question of law alone will ultimately either arise or be involved in the proceedings (see White v DPP [2021] NSWSC 1629 at [13])." 1. The interpretation of a statute or contract is directed to the ascertainment of the document's actual and true meaning. When the document is properly construed, there is only one correct meaning. It is for this reason that the proper construction of a statute is a question of law: Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2020) 275 FCR 385; [2020] FCAFC 50 (Bianco Walling) at [66] (Flick, White and Perry JJ). 2. In Rogers v Vinoly [2016] NSWCATAP 2 (Rogers) at [11]-[14], the Appeal Panel relevantly explained when a question of law will arise in the context of the construction or application of a statutory provision: "[11] The question whether the undisputed facts necessarily fall or do not fall within the provision of a statutory enactment properly construed is generally a question of law. Hope v Bathurst City Council (1980) 144 CLR 1 at 7; Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389 at 395. 21. [12] The Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Pozzolanic) identified five general propositions in relation to the distinction between questions of law and fact. These were extracted by the High Court in Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389 at 395 (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ) (Agfa-Gevaert): … 5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law." (26) Hope v Bathurst City Council (1980) 144 CLR 1 at 7, per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed; Australian National Railways Commission v Collector of Customs (SA) (1985) 8 FCR 264 at 277, per Sheppard and Burchett JJ. In Pozzolanic, the Full Court qualified the fifth proposition. The Court said that, when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact. (27) Pozzolanic (1993) 43 FCR 280 at 288, citing Hope (1980) 144 CLR 1 at 8. [13] In relation to the fifth proposition, in Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 Hill J noted at 16 as follows: The rule that a question of fact is involved in determining whether facts fall within the meaning of a word once that meaning is ascertained, may cause confusion. The confusion comes about because there are actually two related rules, the distinction between which is not always readily apparent. The first of these rules is generally expressed as being that where the facts have been fully found or there is no dispute as to the facts and the question is whether those facts necessarily fall within the description of a word or phrase in a statute, that will be a question of law. This is the sixth proposition enunciated by [Jordan] CJ in the Australian Gas Light Co case. The rationale for this principle is clear enough. If only one meaning is open but a tribunal arrives at a different meaning, underlying the Tribunal's conclusion must be an error of principle, that is to say, an error of law. The second related principle is that where the facts found are capable of falling within or without the description used in the statute, the decision which side of the line they fall on will be a decision of fact and not law. Such a decision will generally involve weight being given to one or other element of the facts and so involve matters of degree. [14] The Full Federal Court in Commissioner of Taxation v Crown Insurance Services Limited (2012) 207 FCR 247 said at [39]: When the statute under consideration has no technical meaning, but is understood in its plain ordinary meaning, a question of law will arise if the facts found must necessarily have come within the statutory description, but only a question of fact will arise if the facts found are capable of coming within the statutory description. In that second case, no question of law arises because, as Hill J said at 16 in Sharp Corporation of Australia Pty Ltd v Collector of Customs, the decision "will generally involve weight being given to one or other element of the facts and so involve matters of degree". To put it another way, a choice between two conclusions open on a consideration of the facts is a question of fact." 1. The question of whether there was no evidence to support a factual finding is a question of law, not a question of fact: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 (Kostas) at [91] (Hayne, Heydon, Crennan and Kiefel JJ). 2. In AW v WW (No 2) [2024] NSWSC 146 (AW (No 2)), Kunc J considered the question of what constitutes a "question of law" for the purposes of an appeal under cl 14(1)(b) of Sch 6 to the NCAT Act from a decision of the Guardianship Division of the Tribunal. Relevantly, his Honour made the following observations at [9] and [52] (referring to Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680): "[9] ... The reason, in summary, is that in the relevant provision of the GA a "question of law" means a pure question of law, and not a question of mixed fact and law (or anything else). The question advanced by AW is not a pure question of law because it requires the Court to investigate the facts before the Tribunal in an inquiry which is, first, less and other than the demanding inquiry undertaken to determine jurisdictional error for grounds such as 'Wednesbury unreasonableness' or constructive failure to exercise jurisdiction and, consequentially, is in reality an invitation to a merits review. …" "[52] Their Honour's exclusion at [109] of "a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts" is a reminder of one source of complication in this area of discourse, being that some questions of law, properly framed and understood as such, will require an examination of the facts. However, in my respectful opinion, this latter category is generally and necessarily confined to submissions of jurisdictional error on grounds such as 'Wednesbury unreasonableness' or constructive failure to exercise jurisdiction. This reflects the nature of such challenges which the High Court summarised in its recent judgment of Mounib Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 (emphasis added): 25 The making of a decision, the decision-maker having failed to inquire about a relevant fact or matter, may involve jurisdictional error capable of characterisation as either a constructive failure to exercise jurisdiction or a legally unreasonable exercise of a particular duty or power. While decisions have expressed the criteria for an error of this kind as including that the potential fact was readily ascertainable and was critical or central to the decision, these criteria merely reflect the usually high threshold for a conclusion that a power has been unreasonably exercised as a matter of law. 1. In Julie (a pseudonym) v John (a pseudonym) [2024] NSWSC 964 (Julie v John) at [102], Meek J cited AW (No 2) at [9] and [52] with approval. 2. We are satisfied as to the following matters in relation to the grounds of appeal in the notice of appeal: 1. questions 1 to 3 and 5 raise the question of the proper interpretation of cl 6(2)(c) of Sch 1A of the LTMA and having regard to the principles in Bianco Walling at [66] are questions of law within s 80(2)(b) of the NCAT Act; 2. question 4 raises the question of whether the facts fully found necessarily fall within the description of a word or phrase in cl 6(2)(c) of Sch 1A of the LTMA and having regard to the principles in Rogers at [11]-[14] is a question of law within s 80(2)(b) of the NCAT Act; 3. question 6 raises the question of whether there was no evidence to support a factual finding and having regard to the principles in Kostas at [91] is a question of law within s 80(2)(b) of the NCAT Act; 4. question 7 raises the question of whether there was a legally unreasonable exercise of a particular duty or power by the Tribunal and having regard to the principles in AW (No 2) at [9] and [52] and Julie v John) at [102] is a question of law within s 80(2)(b) of the NCAT Act; 5. question 8 raises a mixed question of fact and law. We note that the appellant did not contend that having regard to the principles referred to in Adam at [19] this ground raises a question of law. In these circumstances, having regard to the principles referred to in [9] and [10] above, leave to appeal is required. 1. It follows that the appellant has an appeal as of right in respect of grounds 1 to 7 and can only appeal in respect of ground 8 if she obtains leave to appeal. Questions 1, 2 and 3 – correct identification of the statutory test Appellant's submissions 1. The appellant submits that the Tribunal improperly substituted the statutory test in cl 6(2)(c) of Sch 1A of the LTMA as to whether the appellant's intention to use and occupy the land solely as her principal place of residence (PPR) was or was not lawful, with one in which the appellant must have an intention to use the land "solely for residential purposes [that] is lawful." Though the Tribunal at [31] correctly identified the latter question as 'a different issue', it was neither a question posed to the Tribunal by either party, nor one which was, properly, to be answered. 2. Therefore, the Tribunal has posed for itself, and then proceeded to answer, an irrelevant and improper question. 3. The express twin findings, first, that the appellant complied with cl 6(1) and second, that the development was lawful, ought properly to have concluded the matter. The only conclusion that could have been reached once the Statement of Agreed Facts was accepted by the Tribunal and upon the rejection of the respondent's opposing grounds (at [30]), was a finding that cl 6(2)(c) was satisfied. 4. The appellant submits that the Decision at [38]-[39] has the effect of inserting the respondent into the role of a local authority. The Tribunal was not at liberty to, nor did it have the power, to conclude that the appellant had acted, or would act, unlawfully in circumstances where the Council did not form any such a view and the Statement of Agreed Facts proved otherwise. The development consent remains valid, and the appellant is aware of no events which would prevent the development from reaching completion and achieving an occupation certificate. 5. As ground 1, the appellant says the Tribunal's misidentified the relevant issue and the question it was tasked to answer in respect of cl 6(2)(c). At [31], the Tribunal substituted the words in cl 6(2)(c) with the following words or phrase: "Whether the intended use of the land solely for residential purposes is lawful is, however, a different issue." (emphasis added) 1. The issue that should have been identified and the question that the Tribunal should have asked, were the words of the statute as enacted in cl 6(2)(c). 2. As to question 2, the appellant submits that the words of the statute should be construed as they are written and enacted. The appellant cites Alcan (NZ) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, where the plurality (Hayne, Heydon, Crennan and Kiefel JJ) said at [47] with citations omitted that: "This court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy." 1. Further, as was stated by Ormiston J in Klan v Federal Commissioner of Taxation (1985) 80 FLR 320 (Klan) at 326: "In all cases the words of the statute must be considered and it is dangerous to accept a gloss on those words as if they are substituted in the Act itself." 1. Similarly, the words of a Minister must not be substituted for the text of the law: Re Bolton; Ex parte Beane (1987) 162 CLR 514; [1987] HCA 12 (Re Bolton) at 518 per Mason CJ, Wilson and Dawson JJ. 2. A fortiori, it is improper for the substituted words to come, not from the Minister's speech as per Re Bolton, or a judicial gloss as per Klan, but rather a repealed precursor provision where that repeal was both considered and deliberate. 3. The appellant submits that, contrary to [31], [38] and [39] of the Decision, use of the land "solely for residential purposes" was not and could not have been a requirement in cl 6(2)(c) where that expression does not appear. What was previously considered a "mischief" in the predecessor provision to cl 6(2)(c), being the former s10T(2)(a), was expressly repealed as a restriction on the principal place of residence (PPR) exemption more than two decades ago. The Tribunal fell into error by applying the restriction once found in the exemption as it was previously enacted. The Tribunal did not give cl 6(2)(c) its proper construction. 4. As to question 3, it is an extension of questions 1 and 2. The Tribunal applied the wrong principle of law by improperly substituting the words or phrase, "the intended use and occupation of the land is not unlawful", in cl 6(2)(c), with the question set out at [31] of the Decision, namely: "Whether the intended use of the land solely for residential purposes is lawful". 1. A wrong principle of law was applied as cl 6(2)(c) has no "residential purposes" requirement and the words of the statute are to be given their plain and ordinary meaning. Respondent's submissions 1. The respondent submits that these questions should be rejected for three reasons. 2. Firstly, the Tribunal expressly set out the terms of cl 6(1) and cl 6(2) of Sch 1A of the LTMA at [3] of the Decision. At [4] of the Decision the Tribunal identified that one of two determinative matters in dispute was, under cl 6(1), whether the appellant intended to use the land "solely" as her principal place of residence (excluding all other purposes). At [6] of the Decision, the Tribunal identified the applicable test under cl 6(2)(c) as the second of two determinative matters. At [36] the Tribunal made a finding as to cl 6(1), that the 'use' to which the commercial areas were put was as the appellant's principal place of residence, there being no dispute that the use of the remaining areas met that condition. At [39] the Tribunal made its determination of the second determinative matter, finding that cl 6(2)(c) was not satisfied. 3. Secondly, paragraphs [31] and [38] of the Decision, properly construed, are findings of fact made by the Tribunal in the course of the determination process and not a statement of an incorrect statutory test or interpolation of a repealed statutory predecessor to cl 6. Paragraphs [31] and [38] must be read in the context of the Decision as a whole, the Tribunal having earlier identified the two determinative matters in paragraphs [4] and [6] of the Decision being as to the application of cl 6(1) and cl 6(2)(c). 4. At [30], the Tribunal found that, on the evidence, the proposed development on the land was the subject of development consent and was lawful. At [31], the Tribunal distinguished between the proposed development being lawful and the intended use of the land by the applicant solely for residential purposes being lawful. The reference to the time at which the use of the commercial spaces for residential purposes may become lawful was a reference to the agreed facts recorded at (6) and (7) of paragraph [8] of the Decision and the appellant's lay evidence recorded at (10) of paragraph [9] of the Decision. It was a statement of fact, based on the evidence and not the introduction of a different test. 5. At [36], having considered the authorities in Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493; [1957] HCA 15 (Royal Newcastle Hospital) and Commissioner of Land Tax v Christie [1973] 2 NSWLR 526 (Christie) regarding the meaning of use and occupation, the Tribunal found that the use of the vacant commercial spaces on the land was to facilitate the appellant's intended and actual use of the land as her principal place of residence. That was a finding the appellant submitted the Tribunal should make. As a consequence of that finding, the Tribunal also found, at [37], that the appellant intended to use the commercial spaces for the purpose of using and occupying the land as her principal place of residence. 6. At [38], the Tribunal made a finding that the appellant's intended use of the property (objectively determined) was unlawful. Again, that was a finding of fact, based on the evidence, and not the introduction of a different test. The first sentence of [38] explicitly references the agreed fact at (6) of paragraph [8] of the Decision. The second sentence of [38] merely reflected the findings at [36] and [37]. The third sentence of [38] again records the agreed fact at (6) of paragraph [8] of the Decision that the commercial spaces could not lawfully be used for residential purposes. The Tribunal considered those factual matters to be material to its ultimate finding as to non-satisfaction of cl 6(2)(c): at [39]. That is not indicative of asking the wrong question, identifying the wrong Issues, or misconstruing cl 6(2)(c). It only discloses the matters of fact that were considered material to the Tribunal in reaching the conclusion that cl 6(2)(c) was not satisfied. The respondent submits that it is hardly surprising that the matters of fact germane to cl 6(1), namely as to the intended use and occupation of the land as a principal place of residence, were also germane to cl 6(2)(c), in the sense that a finding of fact as to satisfaction of cl 6(1) bore on the non-satisfaction of cl 6(2)(c). That is, if cl 6(1) was satisfied, because it was found that the land was solely to be used as a residence (being the appellant's principal place of residence), cl 6(2)(c) could not be satisfied because it could not be demonstrated that the use of the land solely as a residence was not unlawful. 7. Read in context, it is clear that the reference to use of the commercial spaces for "residential purposes" at [30] and [38] was a reference to the evidence in that regard, the submissions made by the appellant, and the fact that the satisfaction of cl 6(1) meant that cl 6(2)(c) was not satisfied. 8. Therefore, the respondent submits, there is no basis found in the Decision itself or the materials before the Tribunal to support the appellant's submission that the reference to "residential purposes" meant the Tribunal had applied the different, and repealed, statutory provision in s 10T(2)(a) of the LTMA. 9. Thirdly, the ultimate determination by the Tribunal at [39] referred to cl 6(2)(c) of Sch 1A of the LTMA and not some other test. The Tribunal was not required to set out the terms of cl 6(2)(c) again at [39], having already done so earlier in the Decision. Having made the factual findings at [36] to [38] of the Decision, pertinent to cll 6(1) and 6(2)(c), it was sufficient for the Tribunal merely to conclude that cl 6(2)(c) was not satisfied. That conclusion at [39] was the application of cl 6(2)(c) in terms. 10. The respondent submits that the reasons for the Decision are to be read fairly and as a whole and not to be construed minutely and finely with an eye keenly attuned to the perception of error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 272 per Brennan CJ and Toohey, McHugh and Gummow JJ) and that "[t]he function of an appellate review is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard". Appellant's submissions in reply 1. The appellant submits that this is not a case of reading the Decision fairly and as a whole resolving her concerns. She submits that the point is best illustrated by comparison with the actual text of cl 6(2)(c) with that which the Tribunal articulated at [31], noting: 1. clause 6(2)(c) reads: "the intended use and occupation of the land is not unlawful." 1. whereas, at [31] the Tribunal states: "Whether the intended use of the land solely for residential purposes is lawful is, however, a different issue." 1. The Tribunal's departure from the issues it correctly identified at [3] and [6] of the Decision to its identification of a "different issue" from [31] onwards is unexplained beyond an articulation that there was a "different issue". The reasoning thereafter culminating in the finding at [39] is problematic beyond the respondent's concession the Tribunal expressed its reasoning "in a shorthand form". What is set out at [31] is indeed a "different issue" but it is further the incorrect issue to that relevant to the statutory test prescribed in cl 6(2)(c) and an error of law. 2. The words of the statute did not direct the Tribunal to consider a "residential purpose" in preference to the actual language in the statute. When the Decision is read fairly as a whole, the conclusion at [39] merely referred to the statute but the conclusion was reached by identifying a "different issue" at [31], with the various findings at [36]-[38] wrongly directed at that "different issue". 3. If accepted that cl 6(2)(c) was not construed correctly as manifested in the "different issue" at [31] and thereafter with various findings at [36]-[38] (directed towards the determination of that "different issue" in substitution to the legal test prescribed in the text of the statute), all findings of fact or law directed towards the "different issue" have no bearing on the determination of the correct legal test. 4. Further, notwithstanding the respondent urging the Appeal Panel to leave the Decision undisturbed, the respondent seemingly takes issue with part of the reasoning therein without filing a cross appeal; for example, criticism is raised at the Decision and the significance of the appellant's intention to leave the putative designated commercial space vacant in the context of both cll 6(1) and 6(2) of the LTMA and similarly the respondent suggests the Tribunal may have erred in relation to cl 6(1). However, this appeal is only concerned with the correct construction and application of cl 6(2)(c) of the LTMA. 5. The expression "residential purpose" in cl 6 is confined to the instance in cl 6(3)(b) that operates so as to extend the exemption beyond the initial 4 years. This is because there may be one or more pre-existing residential occupants on the land which is actually being used and occupied for residential purposes, i.e. subject to an existing residential tenancy or occupancy. This explains why cl 6(3)(b) is strictly concerned with land that "is used and occupied" (i.e. actual use and occupation), "for residential purposes by another person", before the building or other works physically commence. This correlates with the land being capable of being used and occupied for residential purposes at that particular time. 6. In juxtaposition to other provisions in Sch 1A, such as cl 2 (read with cl 3), cl 6 creates a statutory fiction to give effect to its purpose of exempting "unoccupied land", expressly defined in cl 6(8) as "land that is not being used or occupied for any purpose". Within that context, to read cl 6(2)(c) as if it contained a "residential purpose" requirement would give no work to the statutory expression "unoccupied land" in cl 6(1). 7. In the present matter, it was the respondent who urged the Tribunal to apply a "residential purpose" gloss to the statute, the genesis of which appears in the respondent's written submissions at first instance: "At [57]: The relevant planning instruments and development consent that apply to the Property in this case do not permit that the whole of the Property can he used for residential purposes. At [68]: "Residential use of the areas designated for commercial purposes on the ground floor of the Property is prohibited. To the extent that the Applicant intends to use the ground floor for residential purposes, including having exclusive access to the Property through a residential entry point, that intended use is prohibited and so is unlawful for the purposes of clause 6(2)(c) of Schedule 1A of the LTMA." (emphasis added, footnotes omitted) 1. The first line at [31] was not a finding of fact but the identification of a wrong and different issue which ousted the text of the statute in cl 6(2)(c). The words adopted by the Tribunal, and specifically the opening word "[w]hether" expressed that it was not a finding of fact but the asking of a (wrong) question. 2. To the extent that the finding made by the Tribunal at [38] was a finding of fact to be 'read in the context of the Decision as a whole', it notably does not accord with the second determinative matter the Tribunal had correctly identified at [3] and [6(2)] of the Decision. 3. Neither the respondent's position as understood by the Tribunal (at [4]) nor the Tribunal of its own accord (at [6]) made reference to the need to establish a 'residential purpose' within the words of cl 6(2)(c). 4. The Tribunal's finding at [30] that, on the evidence, the development consent for the development described on the plans as submitted, with approved modifications, remained current in respect of both land tax years and that development in accordance with those plans is and was lawful. However, the Tribunal's finding at [30] was decisive as to satisfaction of the statutory test posed in cl 6(2)(c). 5. Indeed, the respondent's own revenue ruling LT 082v5: The principal place of residence exemption states, in relation to the determinative issue in cl 6(2)(c): "The intended residential use of the land must be permitted by the relevant planning laws of local and state government authorities." (emphasis added) 1. There can be no dispute that the intended use of the land was permitted by the relevant planning laws and as determined by the Council. 2. In De Marco v Chief Commissioner of State Revenue (2013) 83 NSWLR 445; [2013] NSWCA 86 (De Marco), the Court of Appeal (Basten JA and Gzell J writing separately) held that cll 2, 3 and 8 in Sch 1A of the LTMA are not to be read as implying a requirement of lawfulness in examination of use and occupation of land. As the revenue ruling states, that outcome is achieved by having permissibility (lawfulness) to be determined by local and state government authorities properly seized with jurisdiction to determine permissibility by reference to relevant planning laws. As Gzell J noted at [127], to put the Chief Commissioner in the shoes of the local and state government authorities: "will burden the Chief Commissioner with the examination of facts in relation to claims for principal place of residence exemptions and with the need to make determinations as to whether the claims should be allowed or rejected in terms of relevant environmental planning instruments or DCPs if cl 2, cl 3 and cl 8 of the Schedule are to be interpreted as the Chief Commissioner submits, Those tasks lie outside the scope of the Chief Commissioner's general administration." (emphasis added) 1. The respondent's role in respect of cl 6(2)(c), and by extension that of the Tribunal, is confined to determining whether the appellant's intended use and occupation of the land as her principal place of residence is not unlawful with reference to the development consent granted by Council. If there is compliance with relevant planning laws (as the Tribunal found there was at [28] and [30]), this conclusively answers the test in cl 6(2)(c). There is force in this approach as it reserves the determination and arbitration of planning laws within the remit of local and state authorities with the oversight of the jurisdiction so conferred. 2. The Decision at [36] is harmonious with the Tribunal's conclusion on the first determinative issue that the appellant intended to use and occupy the land solely as her principal place of residence (at [26]). It had no bearing on the correct determination of the second determinative issue as to whether that intended use and occupation was not unlawful. Further, it was directed at the "different issue" erroneously identified at [31] and not cl 6(2)(c). 3. At [38], the Tribunal found that the appellant's intention to leave the designated commercial space vacant amounts to an intention to use [the designated commercial space] for residential purposes. It was that intention which was held to be an unlawful use. But that was not the issue which the Tribunal was tasked with determining; cl 6(2)(c), properly construed, asks whether the intended use and occupation of the land [as the owner's principal place of residence] is not unlawful. It only becomes necessary to answer the test posed in cl 6(2)(c) if the requisite intention to use and occupy the land as a PPR in cl 6(1) is firstly answered in the affirmative. Clause 6(2)(c) operates as a qualification to cl 6(1) such that even if the requisite intention to use and occupy as a principal place of residence existed, it must nevertheless be permitted in accordance with the relevant planning laws of local and state government authorities, as acknowledged in the respondent's ruling. 4. There is support for this construction of cl 6(2)(c) in Tamas v Victorian Civil & Administrative Tribunal & Ors (2003) 9 VR 154; [2003] VSCA 113 (Tamas) at[8]-[9], where Callaway JA said: "Why then did Parliamentary Counsel say, "the representative"? It is that question which raises the second point for consideration. The reason, in my opinion, is that it is a natural and correct use of English to employ the definite article when one is referring to a person or thing already identified expressly or by implication. As Ormiston JA pointed out in the course of the hearing, there is an illustration of that in of that in the first two lines of s109(4) itself. They refer first to "a party" but then, the person or thing having been identified, to "the party". The definite article was chosen before "representative" because Parliamentary counsel had in mind one or some or all of the kinds of representative that had been identified earlier in the Act, namely the various persons who may represent a party pursuant to s 62, 84 or 89. …. To my mind it is the plain meaning of the expression "the representative" that it refers back to one or more of the kinds of representative earlier identified in the Act and not to other persons who may, in a more general sense, be said to be representatives of a party. That produces a result that is consistent with the context in which s 109(4) finds itself. …" (emphasis added) 1. Applying Tamas to cl 6(2)(c), the definite article ("the") and its subsequent words ("intended use and occupation of the land is not unlawful") refers to the owner's intended use and occupation as a principal place of residence in the context of cl 6(1). The actual language employed in cl 6(2)(c) does not invite the decision maker to search for a different intention than the owner's intended use and occupation as a principal place of residence once it is established the primary requirement in cl 6(1) is satisfied. The finding at [38] is not a finding that cl 6(1) and 6(2)(c) directs one to make. 2. The finding at [38] was not open to the Tribunal as its earlier satisfaction as to cl 6(1) (at [19]-[20] and [26] together with its findings at [28] and [30]) compelled the Tribunal to conclude satisfaction as to the statutory test in cl 6(2)(c). The respondent urges the Appeal Panel to accept that the Tribunal's satisfaction as to the test in cl 6(1) 'meant that cl 6(2)(c) was not satisfied'. The respondent's position is misconceived and must be rejected as it involves a material departure from the actual language employed in cl 6(2)(c) and it requires the interpolation of an intended use and occupation not being the same which the Tribunal reached (at [26]), being the specific subject matter for determination. Resolution 1. Firstly, we are not persuaded that the Tribunal had reference to, or was directly influenced by, the long-repealed s 10T(2)(a) of the LTMA. There is no evidence that the Tribunal was referred to that section that we were taken to, nor reason to draw an inference that it had it in mind when making its decision. If interpretive error crept into the Tribunal's decision, that was not the window through which it entered. 2. Secondly, the appellant's reliance on the comments of Gzell J at [127] of De Marco is misplaced. There, the Court was asked to impute a requirement of "lawfulness" into cl 8 of Sch 1A of the LTMA as it was at that time, where the Parliament had not sought to include such a requirement in the statutory text. His Honour's comments address that issue, in that context. Relevantly, the requirement for lawfulness in cl 6(2)(c) of the LTMA also existed at the time and it was cited by the Court in contradistinction to what was contained in cl 8. 3. Had Gzell J intended his comments at [127] to relate to provisions other than cl 8, it is inconceivable that his Honour would not have commented on how such a position could apply to the statutory language of cl 6(2)(c) in that context. 4. Thirdly, we are not persuaded that the Tribunal's reference at [31] to "[w]hether the intended use of the land […] is lawful" was anything more than a paraphrasing of the correct statutory test in cl 6(2)(c) that was acceptable, and which did not add an impermissible gloss, where the correct test had been identified and stated earlier in the Decision. The phrase "intended use" fairly encompasses "use and occupation" and "not unlawful" is indistinguishable from "lawful" in this context: in a like manner see, West Australian Newspapers Ltd v Bridge (1979) 141 CLR 535; [1979] HCA 10 at 542 per Gibbs J; De Marco at [72] per McColl JA (dissenting but not on this point). 5. However, whether that paraphrasing, and the respondent's submissions at first instance led the Tribunal to pose for itself and answer the wrong question remains to be considered, as does the issue of whether the words we have excised from the quote, being "solely for residential purposes" is indicative of the Tribunal conflating the tests to be applied or is simply reflective of it inserting a factual finding as to what the appellant's intent was. 6. The resolution of that issue requires an assessment of whether the proper interpretation and application of cl 6 of Sch 1A of the LTMA requires the whole of the land to be used as a PPR or, to put it another way, whether the land must be used "solely" as a PPR in a lawful manner in the context of the dispute between these parties. 7. In that regard, it is apparent from a plain reading of cl 6 of Sch 1A of the LTMA that a person may meet the terms of cl 6(1) by intending to use and occupy the land solely as a PPR but have the apparent benefit of the deeming aspect of that provision become arid if they do not also meet the terms of cll 2(a),(b) and (c). Further, they must not be caught by the time limitations in cl 6(3), as clarified by cl 6(4), which is not an issue here. To use the words of the statute, cl 6(1) "does not apply unless" the terms of cl 6(2) are also met. 8. Consequently, we disagree with the appellant's contention (see [35], [73] and [74] above) that, having found that the appellant met the terms of cl 6(1), on the agreed facts, and that the development consent was 'lawful' (Decision at [30]), that the Tribunal's enquiry was concluded. 9. Clause 6(2)(c) directs an enquiry as to whether the "intended use and occupation of the land is not unlawful" and not solely whether development of the land was lawful, which is why the Tribunal posed for itself the separate question at [31] of the Decision to that which it had answered at [26] and [30] of the Decision. The fact that the development is permitted in accordance with the relevant planning laws of local and state government authorities, as acknowledged in the respondent's ruling, forms part but not all of that assessment. 10. The determination of whether the appellant's intended physical use and occupation of only the upper levels of the development (and the areas on the ground floor not marked in red), given the nature of how the appellant intended to utilise the sections of the ground floor marked in red to facilitate that use (unless and until the relevant laws changed), is relevant. To give a simple example, had the appellant intended to use and occupy the area marked in red as part of the residence, that use and occupation would be unlawful despite the development itself being lawful. 11. Such a conclusion does not offend the principle in Tamas. It is the appellant's objectively ascertained actual intended use and occupation of the land that must be carried through to the assessment in cl 6(2)(c), not the deemed outcome in cl 6(1). To read the statute otherwise would deny cl 6(2)(c) of any operative effect and be contrary to the clear intent of the clause read in context. 12. It is also important to note that the Tribunal's consideration of that issue followed immediately after [31] of the Decision, given that decision makers commonly set out their reasoning process sequentially: New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [77] per Bell P (as the Chief Justice then was). 13. As a result, we are not satisfied that grounds 1 and 2 are made out. More particularly, we would answer each question of law with the answer "no". The answer to question 3 requires prior consideration of grounds 4 and 6. Grounds 4 and 6 – correct application of the statutory test and a finding made without evidence Appellant's submissions 1. The Tribunal accepted the appellant's lay evidence and the Statement of Agreed Facts. The intention to leave the designated perfunctory commercial spaces vacant was not unlawful and neither was the development of the land, which complied with the existing development consent: Decision at [8], [26] and [30]). The Tribunal's findings had the consequence that the facts, having been fully found, resolved the proceedings by falling squarely within the description of the words or phrases in cll 6(1) and 6(2)(c). 2. The appellant submits that the Tribunal erred at [31] and [38]-[39] by finding that the appellant's intention to leave the areas marked red on the ground floor plan as being exclusively designated for commercial use as vacant, amounted to an intention to use them for residential purposes that was unlawful. The appellant's lay evidence was uncontested, the Tribunal satisfied itself by considering the expert evidence and reconciling material points of differences with the parties' Statement of Agreed Facts. The evidence as accepted, and the facts as found did not establish that leaving the designated perfunctory commercial space vacant amounted to an unlawful use. The Tribunal erred in its conclusions at [38] and [39] as there was no evidence or other material before the Tribunal to reach that conclusion. Respondent's submissions 1. The respondent submits that it was not sufficient to satisfy cll 6(1) and 6(2)(c) of Sch 1A of LTMA that the appellant intended to leave the commercial spaces vacant. 2. The Tribunal found that the appellant intended to use the commercial spaces for the purposes of using and occupying the land as her PPR at [36] and [37]. That finding was based on the following: 1. the sworn evidence of the appellant and her husband that their intention was to use and occupy the land solely as their home, that they had no intention to use and occupy the land for any other purpose and that the inclusion of the commercial spaces was solely to facilitate development consent for the land as shop top housing: Decision at [9] and [19]); and 2. the submission by the appellant that, on the basis of that evidence, her intended use of the land was to "facilitate [her] intended and subsequent actual use of the [land] as her principal place of residence": Decision at [35]. 1. The Tribunal accepted the appellant's admission in her Reply Submissions as to her intended use of the land. That was open to the Tribunal in circumstances where use and occupation of one part of a parcel of land may characterise the otherwise vacant part of the land as used and occupied for a particular purpose: Royal Newcastle HospitaI. 2. The respondent says that, to the extent that the appellant submits that the Tribunal was bound by the agreed facts, the Tribunal correctly concluded at [18] that the appellant's intended use of the commercial spaces was to be ascertained objectively and not solely by reference to the appellant's subjective intention. Further, there is no concept of estoppel as to the operation of revenue laws or in administration of those laws by an administrative decision maker. Accordingly, the agreement as to facts did not constrain the Tribunal's fact finding or preclude it from making factual findings as to intended use of the commercial spaces on other material before it. 3. Having found that the appellant intended to use the commercial spaces for the purposes of using and occupying the land as her principal place of residence, on the basis of the matters outlined above, and the application of the principles in Royal Newcastle Hospital and Christie as to the use of part of the land characterising the use of a vacant part of the land, the Tribunal found that intended use was unlawful. 4. The respondent submits that finding was the only available finding open on the evidence before the Tribunal in circumstances where the evidence of the appellant's own expert and the agreed statement of facts was that the commercial spaces could not lawfully be used for residential purposes. It necessarily followed that the Tribunal could not be satisfied that the intended use was not unlawful for the purposes of cl 6(2)(c) of Sch 1A of the LTMA. Appellant's submissions in reply 1. The respondent does not properly engage with questions 4 and 6. It is not appropriate for the respondent to criticise the Tribunal's satisfaction of the primary requirement in cl 6(1) in circumstances where the respondent has not cross-appealed on that particular question of law. 2. The Tribunal found at [26]: "I am satisfied that at all relevant times - including, as at the taxing dates for the 2021 and 2022 tax years - FSX intended to use and occupy the land solely as her principal place of residence. The primary requirement of clause 6(1) is satisfied." 1. The Tribunal's findings at [36]-[37] were directed at an intended use and occupation of a subcomponent of the land is at odds with its finding at [26]; that approach is inconsistent with the rule of statutory construction in Tamas and was made in support of the "different issue" at [31]. It was neither open to nor necessary for the Tribunal to make the findings at [36]-[37] as to cl 6(2)(c). 2. The respondent elides the Tribunal's finding at [26]. That finding encompassed the appellant's intended use and occupation of "the land" and not a subcomponent of it as is the focus of the respondent's submissions. The respondent's emphasis on the Tribunal's reasoning at [36]-[37] merely serves as to draw attention to the incongruency in the Tribunal's reasoning as to [3] and [6] at its substitution as a "different issue" at [31]. 3. The respondent's position does not conform with the approach as to use and occupation as expressed in cases such as Christie and Royal Newcastle Hospital. The Tribunal held, at [26], that it was satisfied the appellant intended to use and occupy the land solely as her PPR. In doing so, conformably with the statutory test in cl 6(4), the Tribunal was satisfied there was no other intended use or occupation of the land by the appellant. It does not necessarily follow that the entirety or whole of the land must be physically occupied. This was acknowledged by the Tribunal at [33], citing Christie at 533-534. 4. Here, the putative designated commercial space was intended to be kept vacant; and as the Tribunal correctly held in relation to the primary requirement in cl 6(1), that did not preclude a finding the appellant held the requisite intention to solely use and occupy the land as her PPR. 5. Seemingly, the Tribunal's approach was agitated by the respondent's written submissions at the primary hearing, where it was submitted: "At 44: Central to both of the above issues is whether the intended use and occupation must be of the whole of the Property as a PPR. At 51: …This means that the Property cannot be intended to be used for any other purpose and necessarily, that the entirety of the Property must be intended to be used as a PPR. At 52: The intention of the Applicant to use part of the Property, being the upper levels, as a residence is not sufficient to satisfy clause 6, which applies to the land as a while [scil whole] and thus the entirety of the Property. At 57: The relevant planning instruments and development consent that apply to the Property in this case do not permit that the whole of the Property can be used for residential purposes. At 69: The intended residential use of the Property as a whole is therefore not permitted by the relevant planning laws and consents. Any intention to use and occupy the Property as a whole solely as a PPR is not lawful, In those circumstances the Tribunal cannot be satisfied that the intended use and occupation of the Property solely as a PPR is not unlawful." 1. The respondent promotes a construction of cl 6 that requires the whole of the land to be used and occupied, contrary to Christie and Royal Newcastle Hospital, as demonstrated by the submission that: "This means that the entirety of the Land must be intended to be used for a principal place of residence and that the Land cannot be intended to be used for any other purpose" (emphasis added) 1. The Tribunal fell into error by failing to correctly apply Christie and Royal Newcastle Hospital. The Tribunal had already satisfied itself on the primary requirement in c 6(1) by finding at [9(10)], [19]-[20] and [26] that the appellant intended to solely use and occupy the land as her PPR. That required the Tribunal to accept, as it did, that the appellant intended to leave the designated commercial space "vacant"; that space was nevertheless intended to be used and occupied in the sense described in Christie and Royal Newcastle Hospital; but that use and occupation (being its use to facilitate development consent for the appellant's PPR), did not amount to an unlawful use of the land. 2. The error in the Tribunal's logic is illustrated at [28] and [30] in that the development consent remained current and was and is lawful, yet contrary to those findings, at [38], an intended use and occupation was found to be unlawful. Leaving the designated commercial space vacant could not have been unlawful because the Tribunal found it was not unlawful to leave that space vacant and to not apply for an initial use for commercial use: at [8(9)] and [24]. 3. In a hearing which involved no dispute as to the facts, the Tribunal made findings of fact at [8], [9(10)], [19]-[20], [24], [26] and [30] with the consequence the facts were fully found; it was those facts to which the Tribunal did not apply the correct statutory test, manifesting in the erroneous finding and conclusion it reached at [38] and [39] respectively. The only conclusion it could have reached, having already found at [19]-[20], [26], [28] and [30], was that the development is and was lawful which fell within cll 6(1) and 6(2)(c) of Sch 1A. 4. The intention of the appellant to leave the designated commercial space vacant was not unlawful, and the respondent's submission as to why the exclusive use of the land as a PPR was unlawful was rejected by the Tribunal at [30]. It does not follow that a finding by the Tribunal that the designated commercial space could not lawfully be used for residential purposes amounted to an unlawful use for the purposes of cl 6(2)(c) of Sch 1A of the LTMA. 5. The appellant submits that the approach adopted by the respondent promotes an extraordinary approach to statutory construction which is contrary to established principles of law. In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 (Consolidated Media Holdings) at [39], the High Court (French CJ, Hayne, Crennan, Bell and Gageler JJ) unanimously held (footnotes omitted): "This Court has stated on many, occasions that the task of statutory construction must begin with a consideration of the statutory text. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself." 1. It is not a matter for the respondent to assert it is open to construe a statute by freely inserting words simply because Parliament did not include an express prohibition against doing so; that approach was rejected by the Court of Appeal in De Marco. The respondent urges an approach being the reverse of what the High Court propounded in Consolidated Media Holdings because it suggests the imposition of a long-repealed requirement in the predecessor provision, former s 10T of the LTMA is open on the words of the statute. Context has utility because it illustrates that Parliament expressly repealed the former 'residential purpose' requirement. In that context, it is inconceivable that Parliament intended it be subsequently implied or re-introduced within the words of cl 6(2)(c). 2. The appeal concerns whether the Tribunal erred in construing cl 6(2)(c) and does not involve a review of the Tribunal's finding that the requirement of cl 6(1) was met by the appellant (at [26]). It is not open to the respondent to agitate, nor for the Appeal Panel to disturb, the decision as it relates to its findings on cl 6(1) in the absence of a cross appeal. Resolution 1. At this point, the horns of the dilemma raised by these proceedings become clear. To succeed at first instance, the appellant needed to demonstrate that, in accordance with the principles in Royal Newcastle Hospital and Christie, her non-use of the area marked in red on the ground floor (in a day to day or physical sense), would nonetheless meet the test of use and occupation. Otherwise, the land would be assessed for land tax, as has occurred. 2. At the same time, the appellant needs to rely on the lawfulness of her exercise of her development consent, which remains lawful only if she does not use or occupy the area marked in red on the ground floor (in a day to day or physical sense) as part of her residence. 3. At this point, we are able to answer the question posed by ground 4 as to whether the facts established by the agreed facts, coupled with the Tribunal's findings at [26] and [30], meant that the appellant necessarily fell within the description in cl 6(1) of Sch 1A of the LTMA. The answer to that question is "yes". However, that answer is not material in terms of identifying error, because the initial satisfaction of cl 6(1) was not the end of the Tribunal's necessary enquiry under cl 6(2)(c), as we found earlier at [85]. 4. Similarly, we can answer the question posed by ground 6, as to whether the Tribunal's conclusion that "FSX's intention to leave [the areas of the designated commercial space] vacant amounted to an intention to use them for residential purposes" which "use is unlawful" was reached without evidence or other material to justify the making of the decision? The answer to that question is "no". The accepted evidence of the appellant that she intended "to leave [the areas of the designated commercial space] vacant" was sufficient evidence upon which the Tribunal could reach its conclusion, having regard to its interpretation of the statute. Whether that conclusion was correct is a different question. 5. It is convenient now to return to ground 3 and the question it poses, which is whether the Tribunal erred at [38] and [39] of the Decision in applying a wrong principle of law by substituting the words or phrase, "the intended use and occupation of the land is not unlawful", in cl 6(2)(c) of Sch 1A of the LTMA, with the question set out at [31] of the Decision, namely: "[w]hether the intended use of the land solely for residential purposes is lawful?" 6. Again, the answer to this question is "no". As we found at [80] the question the Tribunal posed at [31] of the Decision, excluding the words "solely for residential purposes" was an acceptable paraphrasing of the statutory test. The reason for the Tribunal's use of the words "solely for residential purposes in the Decision at [31] becomes apparent in the Decision at [37] and [38] because it relates to the consideration and application of the principles contained in Royal Newcastle Hospital and Christie to the facts as found, which the Tribunal engaged in between [32] and [36] of the Decision. Ground 5 – whether the Tribunal took into account an irrelevant consideration Appellant's submissions 1. The appellant submits that the Tribunal erred by taking into account an irrelevant consideration by the words or phrases it substituted at [31] in lieu of the words or phrases of cl 6(2)(c). The substituted words or phrases were irrelevant as the legislation does not require the intended use of the land be solely for residential purposes. Respondent's submissions 1. In considering the use of the land for "residential purposes" the Tribunal did not take into account an irrelevant consideration. That factual matter was germane to cl 6(1) which, if satisfied, was germane, as a matter of fact, to the non-satisfaction of cl 6(2)(c). That is, the finding that the intended use of the land was solely as a principal place of residence, it could not be demonstrated, as a matter of fact, that such intended use was not unlawful. 2. An irrelevant consideration is a matter which is prohibited from being considered because, having regard to the subject matter, scope or purpose of the decision making power, it can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious. There are a range of matters that can be taken into consideration between a mandatory consideration and an irrelevant consideration which the decision-maker may weigh or disregard without committing an error of law: Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; [2013] NSWCA 180 at [9] per Basten JA (Beazley P agreeing). 3. There is nothing in cl 6 of Sch 1A of the LTMA generally that prohibits consideration of whether the appellant intended to use and occupy the land for residential purposes. It is plainly a matter of fact material to cl 6(1), an issue conceded by the appellant at Appeal Book, Tab 13, p.1454. Consideration of whether the land was intended to be used as a PPR requires regard to be had to the purpose to which the land is put. 4. In any event, for reasons consistent with the respondent's submissions in respect of questions 1 to 3, the Tribunal's consideration of "residential purposes" was in the context of consideration of the evidence before it regarding the use of the commercial spaces for "residential purposes". That was not an irrelevant consideration. 5. There is also nothing in cl 6 of Sch 1A of the LTMA generally that prohibits consideration of whether the intended use of the land was lawful or unlawful. Clause 6(2)(c) clearly indicates that such a factual inquiry is relevant and determinative. In circumstances where the appellant had the onus of satisfying the Tribunal that the intended use or occupation of the land was "not unlawful" the Tribunal could not be satisfied of that matter where it had found that an intended use of the commercial spaces as a principal place of residence was unlawful. The Tribunal was not obliged to express its conclusion by saying in terms, "I am not satisfied that the intended use and occupation of the land is not unlawful" when it did so in summary terms at [38] and [39]. Resolution 1. For the reasons we have given when determining the earlier grounds of appeal, we agree with the respondent's position. Had the Tribunal intended to import the terms of the former s 10T(2)(a) of the LTMA to consideration of cl 6(2)(c), it would have imported an irrelevant consideration. However, as we have found, that is not what occurred. Rather, it was the nature of the use the appellant intended for the premises, considered in total, that went to the question of lawfulness that the Tribunal was required to consider in cl 6(2)(c). In the context of these proceedings, that use was solely as a principal place of residence in accordance with the development consent she had obtained. Ground 7 – whether the decision was so unreasonable no reasonable person could have come to it Appellant's submissions 1. The appellant submits that the Tribunal erred at [31] and [38]-[39] by finding that the appellant's intention to leave the areas marked red on the ground floor plan as being exclusively designated for commercial use as vacant, amounted to an intention to use them for residential purposes that was unlawful. The appellant's lay evidence was uncontested, the Tribunal satisfied itself by considering the expert evidence and reconciling material points of differences with the parties' Statement of Agreed Facts. The evidence as accepted and the facts as found did not establish that leaving the designated perfunctory commercial space vacant amounted to an unlawful use. The appellant submits the Tribunal erred in its conclusions at [38] and [39] of the Decision as there was no evidence or other material before the Tribunal to reach that conclusion. Respondent's submissions 1. The respondent submits that the appellant seeks to deploy the concept of Wednesbury unreasonableness, which is a concept more appropriate to judicial review of the exercise of statutory discretions (Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at 76 per McHugh J and at 87 per Gummow J) rather than fact finding in a merits review decision: Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 at 36 per Brennan J. 2. In any event, no such unreasonableness is made out. The Tribunal did not identify or apply the incorrect statutory test or fail to consider the relevant legal principles. For the reasons set out the findings of fact made by the Tribunal were open to it on the evidence before it and the Tribunal correctly applied the statutory test to those facts. Resolution 1. Again, for the reasons we have given above, this ground is not made out and the answer to the question it poses is "no". Whilst the concept of legal unreasonableness has bled beyond the bounds of discretionary decision making (Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [85] per Nettle and Gordon JJ), the simpler way to challenge the Tribunal's method of statutory interpretation and application of a statute to the facts as found is usually to demonstrate that either or both aspects of the decision were wrong, rather than to invoke the concept of legal unreasonableness. Where the Tribunal's decision is not discretionary, but rather demands a unique outcome, the correctness standard of appellate review applies. 2. To find that the Tribunal's decision was unreasonable in the Wednesbury sense would require, as Lord Greene MR stated in Associated Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 at 230, 'something overwhelming'. In Marrickville Metro Shopping Centre Pty Limited v Marrickville Council [2010] NSWCA 145; (2010) 174 LGERA 67, Tobias JA referred to the Wednesbury formulation in the following terms at [104]-[106]: 104 Finally, as her Honour noted at [115], in Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) 138 LGERA 11 Spigelman CJ, with whom Beazley JA and myself agreed, stated at [129]: "Perhaps the most appropriate formulation [of Wednesbury unreasonableness] is whether the decision is 'illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds". 105 This formulation was adopted by myself in Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 at [71]. It was also adopted and applied by myself, with the agreement of Mason P and Hodgson JA, in Notaras v Waverley Council [2007] NSWCA 333; (2007) 161 LGERA 230 at [122]. In Notaras I cited (at [124]) [31] of the judgment of Biscoe J in Save Our Streets Inc v Settree [2006] NSWLEC 570; (2006) 149 LGERA 30 where His Honour drew a distinction between a decision which the court considers is unreasonable and a decision which the court considers is so unreasonable that no reasonable body could have come to it. The latter required "something overwhelming": Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [44]. 106 In Wednesbury itself, Lord Greene MR at [229] referred to the relevant unreasonableness as "something so absurd that no sensible person could ever dream that it lay within the power of the authority". In Bromley London Borough Council v Greater London Council [1983] 1 AC 768 at [821], Lord Diplock defined Wednesbury unreasonable decisions as those which "looked at objectively, are so devoid of any plausible justification that no reasonable body of persons could have reached them". In Puhlhofer v Hillingdon London Borough Council [1986] UKHL 1; [1986] 1 AC 484 at 518, Lord Brightman said that the unreasonableness must be "verging on an absurdity". (emphasis in original) 1. We do not accept that the Tribunal's reasoning process or the conclusion it reached, even if they could be demonstrated to be objectively wrong, meets that test. Ground 8 – appeal on the merits, subject to leave Appellant's submissions 1. The appellant submits that the Tribunal erred in failing to apply the correct principle of law in relation to cl 6(2)(c) of Sch 1A of the LTMA to the undisputed facts found by the Tribunal at [8], [26] and [30] and reached a mistaken conclusion at [38] and [39] of the Decision that: 1. the appellant's intention to leave the areas marked red on the ground floor plan as being exclusively designated for commercial use vacant amounted to an intention to use them for residential purposes is unlawful; 2. clause 6(2)(c) of Sch 1A of the LTMA is not satisfied; and 3. the exemption in cl 6 of Sch 1A of the LTMA does not apply. Respondent's submissions 1. The respondent submits that this ground does not arise as the Tribunal did not err in its construction or application of cl 6(2)(c) of Sch 1A of the LTAA. 2. The respondent also submits that even if the Appeal Panel was minded to grant leave to extend the appeal to the merits, the Appeal Panel would not reach a different result. 3. The requirement in cl 6(1) of Sch 1A is that the appellant intend to use the land solely as a principal place of residence. This means that the entirety of the land must be intended to be used as a principal place of residence and that the land cannot be intended to be used for any other purpose. If the Tribunal erred in finding that the appellant intended to use the commercial spaces as her principal place of residence, then the alternate finding must be that the appellant did not intend to use the commercial spaces as her principal place of residence. Accordingly, the appellant did not intend to use the land, as a whole, solely as her principal place of residence and cl 6(1) is not satisfied. Resolution 1. Having resolved the questions of law posed by the appellant, there is no further issue of principle or general public importance to be considered in the appeal. The matter turns on the need to consider a very specific and unusual factual matrix. 2. Here, we return to the dilemma earlier identified. Having relied upon the principles identified in Royal Newcastle Hospital and Christie to establish that she intends to use the entire property for residential purposes, the appellant cannot escape the conclusion that such use is unlawful as it is forbidden under the development consent. In that regard, we agree with the respondent's submissions at [135] above and, as a consequence, there is no more than an arguable injustice. 3. Leave to appeal is refused. Conclusion 1. For these reasons the appeal should be dismissed in respect of grounds 1 to 7 and leave to appeal should be refused in respect of ground 8. Costs of the appeal 1. Upon completion of our determination of the substantive appeal, we have had regard to the parties' position as to costs and the preliminary submissions they have made in that regard, in accordance with directions made in the appeal. 2. The appellant sought an order for indemnity costs of the appeal and of the proceedings at first instance. It is inappropriate for us to determine an application for costs of the first instance proceedings in the absence of an order in that regard in those proceedings that is a subject of the appeal, for the reasons set out in Estate of Bovaird v Milstern Retirement Services Pty Ltd [2022] NSWCATAP 174 at [26]. Any application in connection with costs of the proceedings at first instance should be first brought in the Administrative and Equal Opportunity Division. As to her costs of the appeal, the appellant has been unsuccessful and there is no other reason she should be awarded costs. 3. The respondent indicated a desire to be heard on the issue of costs, but only addressed opposition to the appellant's application, rather than evincing an intention to make an application for the costs of the appeal. 4. Having regard to the outcome of the appeal, we do not need to hear further from the parties. Section 60(1) of the NCAT Act applies, and the parties are to bear their own costs in the absence of special circumstances warranting another outcome. 5. We will make no order as to costs of the appeal, with the effect that the parties are to bear their own costs, but in case we have misinterpreted the respondent's position we will grant liberty to apply to the respondent to make an application for costs, if that was intended. Orders 1. Our orders are as follows: 1. Pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the true names of the Applicant and her husband are not to be disclosed, including by way of publication or broadcast; 2. Leave to appeal is refused; 3. The appeal is dismissed; 4. There is no order as to the costs of the appeal. 5. In the event that an application for a different costs order is made in accordance with the directions below, order 4 above ceases to have effect and the following directions apply: 1. Any application for a different costs order is to be filed and served, supported by evidence and submissions, within 7 days of the date of these orders; 2. Any evidence and submissions in response to the application for a different costs order are to be filed and served within 14 days of the date of these orders. 3. Any material in reply is to be filed and served within 21 days of the date of these orders. 4. The Appeal Panel may dispense with a hearing and determine any application for a different costs order on the basis of the written submissions and evidence provided. If the parties oppose this course, they should make submissions on this issue when complying with the directions as to their submissions on the substantive costs application. If a hearing is not dispensed with the parties will be notified of a date for hearing to determine the application. ********** 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 August 2024