CITATION: Clarke v Chief Commissioner of State Revenue [2009] NSWADT 184 DIVISION: Revenue Division PARTIES: APPLICANTS Helen Clarke and Melissa Clarke FILE NUMBER: 086098 HEARING DATES: 13 January 2009, 13 February 2009 SUBMISSIONS CLOSED: 24 June 2009 DATE OF DECISION: 14 July 2009 BEFORE: Perrignon R - Judicial Member CATCHWORDS: Land tax,Reduction in land value,Allowable proportion,Mixed use land,Apportionment factor,Statutory interpretation Land Tax Management Act 1956 Taxation Administration Act 1996 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Valuation of Land Act 1916 Interpretation Act 1987 Brown v DML Resources Pty Limited (In Liq) (2001) 52 NSWLR 685 Grey v Pearson (1857) 6 HLC 61 CASES CITED: Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 Gaffey v Chief Commissioner of State Revenue [2000] NSWSC 403 BBLT v Chief Commissioner of State Revenue [2003] NSWSC 1003 APPLICANT L Stuart-Watt, agent REPRESENTATION: REPSONDENT A Rider, barrister ORDERS: 1.The decision made by the Chief Commissioner of State Revenue on 28 March 2008 to reduce the value of the land at Kenthurst for tax purposes by an allowable proportion of 88.5% is set aside, and replaced by a decision to reduce the said value for tax purposes by an allowable proportion of 99.6% 2.The decision made by the Chief Commissioner of State Revenue on 28 March 2008 to reassess the land at Kenthurst to land tax for the 2008 tax year is set aside, and replaced by a decision to reassess it to land tax based on the land value calculated in accordance with the preceding order. REASONS FOR DECISION 1 The Applicants, Dr. Helen Clarke and her daughter, Melissa Clarke, own a semi-rural parcel of land at Kenthurst in Sydney. They have occupied the property as their home for many years. From about October 1997, Dr. Clarke has also conducted a medical practice there. 2 On 1 February 2008, the Chief Commissioner of State Revenue assessed the property as being exempt from land tax, on the basis that the owners were entitled to the 'principal place of residence' exemption under section 10(1)(r) of the Land Tax Management Act 1956. In previous years, the property had also been assessed as being exempt on that basis. 3 By a Land Tax Variation Form lodged on 29 August 2007, Dr. Clarke had properly disclosed to the Chief Commissioner that the property had been used in part for a doctor's surgery since about October 1997, utilising a consulting room, a waiting room, and parking spaces for doctor and patients. The consulting room and waiting room were contained in structures separate from the dwelling. 4 On 19 March 2008, in response to a query by the Office of State Revenue, she further disclosed: a. that the property as a whole occupied 2.264 hectares, b. that of this area, 802.3 square metres was occupied by buildings, structures and parking spaces (which shall be referred to for convenience as the 'built area'), and c. that a consulting room, waiting room and parking spaces for doctor and patients accounted for 92.4 square metres – that is, about 11.5 % of the built area. 5 On learning that the land had been used in part for a non-residential purpose, the Chief Commissioner on 28 March 2008 reassessed the property to land tax for the tax years 2004, 2005, 2006, 2007 and 2008. 6 In each case, he reduced the land value for taxation purposes by 88.5%. As he later explained when disallowing an objection to the reassessments, this figure represented the 'allowable proportion' by which land value was reduced under section 9D of the Land Tax Management Act 1956. It was determined on the basis that the property was 'mixed use land' for the purposes of section 9D – the mixed uses being residential and professional – and that 88.5% of the built area was not used for business purposes. 7 The latter proportion was derived from Dr Clarke's disclosure that 11.5% of the built area was used for the medical practice. 8 Thus, on 28 March 2008, the Chief Commissioner made two decisions in respect of each tax year: a. First, a decision that land value should be reduced by an 'allowable proportion' of 88.5% pursuant to section 9D. b. Secondly, a decision to reassess the property to land tax, calculated on the reduced land value. 9 The Applicants seek review of each of these decisions, in respect of the 2008 tax year only. Apportionment factor 10 Subsection 9D(3) of the Land Tax Management Act 1956 empowered the Chief Commissioner, if he wished, to request the Valuer-General to determine an 'apportionment factor' under Division 5A of Part 1B of the Valuation of Land Act 1916. An apportionment factor is 'the proportion (expressed as a percentage) that the rental value of the part of that land that is occupied or used for non-residential purposes bears to the rental value of the mixed use land as a whole': section 14BBB, Valuation of Land Act 1916. 11 Once an apportionment factor is determined and entered in the Register of Land Values by the Valuer-General, the 'allowable proportion' by which land value is to be reduced for land tax purposes is the difference between the apportionment factor (expressed as a fraction) and 1: subsections 9D(2)(a) and (5), Land Tax Management Act 1956. 12 By letter dated 23 July 2008, the Chief Commissioner requested the Valuer-General to determine an apportionment factor in respect of the property. For reasons which are not before the Tribunal, he did not request that an apportionment factor be determined under Division 5A of Part 1B of the Act, as he was entitled to do by section 9D(3) of the Land Tax Management Act 1956. Instead, he asked that 'a Mixed Development Apportionment Factor be conducted [sic] on the … property'. 13 Apportionment factors for 'mixed development land' are determined under Division 5 of Part 1B of the Valuation of Land Act 1916, rather than Division 5A. They can affect land value for taxation purposes under section 9C of the Land Tax Management Act 1956, but have no effect on land value for tax purposes under section 9D. 14 On or about 25 August 2008, the Valuer-General complied with the request, by determining an apportionment factor for 'mixed development land' under Division 5, and entering it in the Register of Land Values. The apportionment factor was 16%. It was expressed, correctly, to have been determined pursuant to section 14X of the Valuation of Land Act 1916 – that is, under Division 5 of the Act. For the reasons already given, it had no effect on the value of the land at Kenthurst for tax purposes under section 9D. 15 The Applicants objected to the apportionment factor. 16 On 20 November 2008, after considering their objection, the Valuer-General removed the apportionment factor from the Register of Land Values. His reasons were expressed in letters to the Office of State Revenue dated 22 December 2008, and to the Applicants' accountant dated 13 February 2009. He considered that an apportionment factor could not properly be determined under section 14X, because the land did not satisfy the definition of 'mixed development land' in section 14BB of the Act. It did not do so because Dr Clarke's consulting room was not capable of 'separate' occupation as an office, as required by section 14BB, as it had no toilet, and patients enjoyed the use of a toilet located in the dwelling. 17 The Valuer-General expressed no view as to whether the land constituted 'mixed use land' for the purpose of Division 5A. He did not determine an apportionment factor under that Division, as he had not been requested to do so. Grounds for review 18 In support of their application for review, the Applicants by their accountant advanced various grounds at different stages of the hearing. These may conveniently be summarised as follows. a. The land at Kenthurst was exempt from land tax, because it attracted the 'principal place of residence' exemption under section 10(1)(r) of the Land Tax Management Act 1956. It did so because the Valuer-General had determined that it was not 'mixed use land' for the purposes of section 9D of the Land Tax Management Act 1956, and because Melissa Clarke did not use the land for any business purpose. b. In the alternative, the removal of the apportionment factor from the Register by the Valuer-General should be construed as if an apportionment factor of zero had been entered. This compelled a reduction in land value for tax purposes of 100%, effectively exempting the property from land tax. c. In the further alternative, land value for tax purposes should be reduced by 99.6%, being the true proportion which that part of the land area which is used in connection with the dwelling bears to the total land area. 19 In response, the Chief Commissioner submitted as follows. a. The 'principal place of residence' exemption did not apply, because the property was not used solely as the owner's principal place of residence and for no other purpose, as required by clause 2 of Schedule 1A to the Land Tax Management Act 1956. b. The only concession available was a reduction of land value for tax purposes under section 9D, as the property fell within the definition of 'mixed use land' for the purposes of that section. c. As no apportionment factor had been entered in the Register of Land Values as at the taxing date of 31 December 2007, the reduction in land value could not properly be assessed by reference to any apportionment factor subsequently entered in the Register. d. On the contrary, the Chief Commissioner was empowered by section 9D(2)(b) to determine the 'allowable proportion' by which land value was to be reduced for tax purposes, by reference to the 'fair and reasonable proportion' of the land to be attributed to the dwelling. This is what he did, based on the land areas disclosed by Dr Clarke. e. For the Applicants to succeed, they must convince the Tribunal that the proportion so assessed by the Chief Commissioner was not fair and reasonable. f. On the evidence, they had failed to do so. Proceedings before the Tribunal 20 The Applicants were represented in these proceedings by their accountant. 21 Initially, review was sought of the reassessments made by the Chief Commissioner in respect of the 2004, 2005, 2006 and 2007 tax years. At each of the relevant taxing dates, Dr. Clarke had owned the property jointly with her former husband. A review of those reassessments might have affected his rights or obligations. Natural justice required that he be notified of the proceedings, and given an opportunity to be heard: Brown v DML Resources Pty Limited (In Liq) (2001) 52 NSWLR 685. Orders giving effect to this were made on the first day of hearing. 22 The applications for review in respect of those tax years were then withdrawn, leaving only the reassessment for the 2008 tax year in contention. 23 Also on the first day of hearing, the Tribunal noted that no application had been made for review of the reassessment for the 2008 tax year, though the Applicants by their accountant sought review of that reassessment at the hearing. Leave to amend the application was granted, and time for doing so extended. 24 The Tribunal noted that no application for reduction in land value had been made to the Chief Commissioner in the approved form, as required by section 9D(7) of the Land Tax Management Act 1956. In the absence of an apportionment factor, no reduction was available under section 9D without such an application: section 9D(7). During the course of the proceedings, the Applicants' accountant lodged an application for reduction of land value in the approved form, dated 2 February 2009. Issues for determination 25 The issues for determination may be summarised as follows. a. Whether the 'principal place of residence' exemption applied to the land under section 10(1)(r) of the Land Tax Management Act 1956. b. If not, whether section 9D required that the value of the land at Kenthurst be reduced for tax purposes. c. If so, what was the allowable proportion by which the land value was so required to be reduced. Jurisdiction 26 The decisions of 28 March 2008 in respect of the 2008 tax year were the subject of objection under Part 10 of the Taxation Administration Act 1996. The objection was disallowed. Accordingly the Tribunal has power to review the original decisions under section 96(1) of that Act. 27 The Applicants bear the onus of proving their case: section 100(3), Taxation Administration Act 1996. Legislation 28 As at the 'taxing date' of 31 December 2007, sections 7 and 8 of the Land Tax Management Act 1956 provided as follows: "(7) Land tax … is to be levied and paid on the taxable value of all land situated in New South Wales which is owned by taxpayers (other than land which is exempt from taxation under this Act). (8) Land tax shall be charged on land as owned at midnight on the thirty-first day of December immediately preceding the year for which the land tax is levied. In this section year means the period of twelve months commencing on the first day of January." 29 Section 9(4) provided: "The land value of land, in relation to a land tax year, is the value entered in the Register [of Land Values] as the land value of the land as at 1 July in the previous year." 30 Section 9D provided as follows: "9D Reduction in land value for single dwellings on mixed use land (1) For the purpose of assessing land tax, the land value of mixed use land on which is situated one single dwelling is to be reduced by the allowable proportion in relation to the dwelling. (2) The allowable proportion for the dwelling is to be determined in accordance with whichever of the following paragraphs is applicable in the particular case: (a) if there is an apportionment factor entered in the Register in respect of that land value—the proportion determined by deducting that apportionment factor from 1, (b) if paragraph (a) is not applicable—the proportion specified in an application for a reduction under this section as the fair and reasonable proportion of the land value of the land to be attributed to the dwelling, subject to subsections (3) and (4). (3) If there is no apportionment factor entered in the Register in respect of the land value of the land, the Chief Commissioner may request the Valuer-General to determine the apportionment factor in respect of the land concerned. (4) If a request is made under subsection (3): (a) the Valuer-General must determine the apportionment factor concerned and enter it in the Register, and (b) the allowable proportion for the dwelling must be determined in accordance with subsection (2) (a). (5) Apportionment factors for the purposes of this section are to be ascertained in accordance with Division 5A of Part 1B of the Valuation of Land Act 1916. If such an apportionment factor is expressed as a percentage, the apportionment factor is, for the purposes of this section, to be converted to a fraction. Note. Division 5A of Part 1B of the Valuation of Land Act 1916 allows objections to be made against the amount of an apportionment factor. (6) The reduction under this section applies only if the following requirements are satisfied: (a) the single dwelling must be used and occupied by the owner of the land (or one of the owners) as his or her principal place of residence and for no other purpose, in which connection the use of the land for the purpose of one, but not more than one, residential occupancy other than that of the owner under lease or licence from the owner may be disregarded if it is an excluded residential occupancy (within the meaning of clause 4 of Schedule 1A), (b) an owner of the land who occupies the dwelling must not be an owner merely because of being a trustee, (c) the owner of the land must not be a company or company jointly with another person or other persons, except in either case a trustee company acting in its representative capacity. (7) Unless the land concerned is land to which subsection (2) (a) applies, there is to be no reduction under this section unless: (a) application has been made for the reduction by all the owners of the land, specifying the proportion that in their opinion is a fair and reasonable proportion of the land value of the land to be attributed to the dwelling, and (b) the application is made in a form approved by the Chief Commissioner. (8) For avoidance of doubt, if a reduction in the land value of land is required under this section and the land is jointly owned, then, for the purposes of section 27 (3) (a), the individual interest of each of the owners of the land (including the owner who occupies the dwelling) is to be assessed on the basis of the land value of the land as reduced under this section. (9) For the purposes of applying this section in respect of land on which there is a single dwelling and a residential occupancy other than that of the owner, the use of the land for the purpose of that other residential occupancy may be disregarded if that residential occupancy may be disregarded under the principal place of residence exemption under Schedule 1A. (10) This section does not apply to land to which section 21B applies. (11) In this section: mixed use land has the same meaning as in Division 5A of Part 1B of the Valuation of Land Act 1916 . single dwelling has the same meaning as it has in Division 5A of Part 1B of the Valuation of Land Act 1916." Principal place of residence exemption 31 Contrary to the Applicants' submission, there is no evidence before the Tribunal that the Valuer-General has determined that the land at Kenthurst is not 'mixed use land' as defined in section 14BBE of the Valuation of Land Act 1916. He has merely expressed a view that the land is not 'mixed development land' for the purposes of section 14BB of the Act. 32 Even if he did express a view that it was not 'mixed use land', or make a determination to that effect, it could not bind the Tribunal, nor would it necessarily mean that the land attracted the 'principal place of residence' exemption. 33 As at the taxing date, clauses 2 and 5 of Schedule 1A to the Land Tax Management Act 1956 provided relevantly as follows: "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) ….. (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) …. (4) The exemption conferred by this clause is referred to as the principal place of residence exemption. (5) …. ….. 5 Concession for land used for incidental business purposes (1) For the purposes of the principal place of residence exemption, if land owned by a person is used and occupied by the owner primarily for residential purposes but not more than one room is used primarily for business purposes, the use of the land for the purpose of the business may be disregarded if the business is primarily conducted elsewhere. (2) Accordingly, land does not cease to be residential land because of the use of one room primarily for business purposes, even if income is derived from the use of the land for that purpose. (3) …." 34 The land at Kenthurst did not attract the 'principal place of residence' exemption, because it was used and occupied for purposes other than as a principal place of residence, contrary to clause 2, which is to be read together with the definition of 'owner' in section 3 of that Act. The exception in Clause 5 of the Schedule did not apply, because more than one room was used in the medical practice. Application of section 9D 35 Section 9D applied to 'mixed use land on which is situated one single dwelling': section 9D(1). 36 "Mixed use land' is defined in section 14BBE of the Valuation of Land Act 1916 relevantly as follows: "(1) For the purposes of this Division, mixed use land means a parcel of land (other than mixed development land within the meaning of Division 5) that: (a) is the site of a residence occupied or used for residential purposes, and (b) is also used for non-residential purposes. (2) A residence is one or more buildings comprising: (a) one, or more than one, flat, or (b) one single dwelling. (3) For the purpose of this Division, land is occupied or used for a non-residential purpose if it is occupied or used for any purpose that is not ancillary to the use and occupation of the residence for residential purposes, such as a commercial, industrial or professional purpose. (4) Land occupied or used for non-residential purposes is not mixed use land by reason only that it is the site of a residence intended for use for the purpose of accommodating a person or persons responsible for the security or maintenance of the building or buildings. (5) The reference in this section to a parcel of land is a reference to a parcel of land required to be separately valued, or to land included in one valuation, pursuant to this Act. (6) … (7) In this section: flat means a room or a suite of rooms: (a) occupied or used as a separate dwelling, or (b) so constructed, designed or adapted as to be capable of being occupied or used as a separate dwelling, but does not include a single dwelling, a strata lot or a dwelling, or a portion of a building, under company title that is rated in accordance with section 547 of the Local Government Act 1993 . single dwelling means a house: (a) occupied or used as a separate dwelling, or (b) so constructed, designed or adapted as to be capable of being occupied or used as a separate dwelling, but does not include a strata lot or a property commonly known as a shop and dwelling. …" . 37 In contrast to the definition of 'mixed development land' in section 14BB, section 14BBE does not require that 'mixed use land' include an 'office' capable of 'separate' occupation. 38 The Tribunal is satisfied that the Kenthurst property constituted 'mixed use land' for the purposes of section 14BBE, because it was the site of a dwelling used by the Applicants for residential purposes, and because the land was also used for non-residential purposes - namely, a medical practice. 39 It follows that the land value must be reduced for tax purposes by an 'allowable proportion' calculated in accordance with section 9D. 40 As section 9D applied to the land, the operation of section 9C was excluded by subsection 9C(7), which provided: "This section does not apply to land to which section 9D or 21B applies." Apportionment factor – section 9D(2)(a) 41 Section 9D(2)(a) provided that, where 'an apportionment factor is entered in the Register' in respect of the land value of the land, the 'allowable proportion' was to be determined by deducting the apportionment factor, expressed as a fraction, from 1. Where section 9D(2)(a) did not apply, the allowable proportion fell to be determined under paragraph (b) of section 9D(2). 42 The Applicants have submitted that paragraph (a) applied, because by removing the apportionment factor of 16% from the Register on their objection, the Valuer-General by necessary implication indicated that an apportionment factor of zero applied. 43 Section 9D(5) provided that 'apportionment factors' for the purposes of section 9D were to be as ascertained by the Valuer-General under Division 5A of Part 1B of the Valuation of Land Act 1916 – that is, under section 14BBA of the Act. On the evidence, no apportionment factor was determined under Division 5A, because the Chief Commissioner did not request it under section 9D(3). 44 It follows that section 9D(2)(a) did not apply, and that the 'allowable proportion' fell to be determined under paragraph (b). 45 Even if the apportionment factor of 16% entered in the Register had been determined under Division 5A, it was later removed. There is no indication in the Register that an apportionment factor of zero has ever been determined or entered. The argument that the Register should be construed as displaying an apportionment factor of zero contradicts the face of the Register, and must be rejected. 46 It is unnecessary to decide whether the result would have differed if an apportionment factor had been determined under Division 5A, and entered in the Register after the taxing date. Application for reduction – section 9D(2)(b) 47 As indicated above, subsection 9D(2)(b) was expressed in the following terms. "(2) The allowable proportion for the dwelling is to be determined in accordance with whichever of the following paragraphs is applicable in the particular case: (a) …, (b) if paragraph (a) is not applicable—the proportion specified in an application for a reduction under this section as the fair and reasonable proportion of the land value of the land to be attributed to the dwelling, subject to subsections (3) and (4)." (emphasis added) 48 At hearing, much of the evidence was directed to identifying the 'fair and reasonable proportion' of the land to be attributed to the dwelling. It was common ground that, where paragraph (b) applied, the Chief Commissioner must determine the 'allowable proportion' by reference to the 'fair and reasonable proportion of the land … to be attributed to the dwelling". That argument was predicated on the assumption that the Chief Commissioner had a discretion, conferred by that paragraph, to calculate and determine the 'allowable proportion'. 49 However, as the Tribunal indicated at hearing, the words emphasised above in paragraph (b), when read according to their ordinary and natural meaning, refer not to a figure determined by the Chief Commissioner, but to one specified by the taxpayer in his or her application for reduction of land value. If Parliament had intended the opposite result, it need only have substituted for those words a phrase like, 'the proportion determined by the Chief Commissioner …'. It did not do so. 50 Statutes are interpreted by reference to the presumed intention of the legislature, which is to be found primarily in the ordinary and natural meaning of the language used by it: Grey v Pearson (1857) 6 HLC 61; Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129. 51 Nevertheless, a construction which would promote the purpose or object of an Act, whether expressed in the Act or not, is to be preferred to one which would not do so: section 33, Interpretation Act 1987 (NSW). Though not expressed in the Land Tax Management Act 1956, the purpose of the Act is to provide, among other things, for a system of imposing land tax on land in New South Wales, and for concessions and exemptions from land tax. These objects are consistent with section 7(2) of the Taxation Administration Act 1996. 52 In their context, the words emphasised above in section 9D(2)(b) form part of a scheme to provide a tax concession in respect of land on which a dwelling is situated, but for which, by reason of mixed land use, the 'principal place of residence exemption' in Schedule 1A of the Act is not available. 53 Where the Valuer-General has determined an apportionment factor under Division 5A of the Valuation of Land Act 1916, and entered it in the Register of Land Values, that figure forms the basis of the 'allowable proportion' to be deducted by the Chief Commissioner from the land value in assessing land tax: section 9D(2)(a). 54 Where no such apportionment factor has been entered in the Register, the land value for tax purposes is ascertained by reference to subsection 9D(2)(b). This, on its face, provides for self-assessment of the 'allowable proportion' by the taxpayer. If the Chief Commissioner does not wish to adopt that self-assessment, subsection 9D(3) empowers him to request the Valuer-General to determine an apportionment factor. The Valuer-General is obliged to comply: section 9D(4). Once entered in the Register, this apportionment factor forms the basis of the 'allowable proportion', and to that extent has the effect of overcoming the taxpayer's self-assessment, if different. 55 The word "may" in subsection 9D(3) indicates that the Chief Commissioner, if he wishes, may refrain from requesting the Valuer-General to determine and enter an apportionment factor, and proceed to an assessment of land tax without one. In those circumstances, subsection 2(b) operates to ensure that there some reduction in land value is available to the taxpayer, despite the lack of an apportionment factor in the Register. 56 Such a result is not contrary to the purpose or object of the legislative scheme. It gives effect to the manifest intention of Parliament that there be some reduction in land value, even where no apportionment factor is determined by the Valuer-General. It also enables the Chief Commissioner, if he wishes, to overcome the effect of a taxpayer's self-assessment by obliging the Valuer-General to determine an apportionment factor under Division 5A. 57 Interpreted in this way, section 9D does not empower the Chief Commissioner to determine the amount of the allowable proportion. His function is to reduce land value for tax purposes by the allowable proportion, ascertained in accordance with the section – that is, by reference to the apportionment factor, or in its absence, to the taxpayer's self-assessment expressed in an application for reduction in land value. 58 The Chief Commissioner's lack of power to determine the amount of the allowable proportion is supplied by the Valuer-General's power to determine an apportionment factor. The entrusting of that power to the Valuer-General may well reflect a view that, by reason of his peculiar expertise, the Valuer-General is better equipped to engage in the process of valuation for land tax purposes. 59 For these reasons, the interpretation of the words emphasised in section 9D(2)(b) in accordance with their ordinary and natural meaning promotes the purposes of the legislation. 60 In February 2009, the Applicants belatedly applied to the Chief Commissioner, in the approved form, for a reduction in land value for tax purposes. In their application, they specified 99.6% as being the proportion of the land value applying to the residence. That figure constitutes 'the proportion specified in an application for a reduction under this section as the fair and reasonable proportion of the land value of the land to be attributed to the dwelling', referred to in section 9D(2)(b). 61 For that reason, section 9D in this case required that the value of the Kenthurst property be reduced for tax purposes by an 'allowable proportion' of 99.6%. Application made after the taxing date 62 As indicated above, the Chief Commissioner argued that an apportionment factor entered in the Register after the taxing date could not affect the determination of the 'allowable proportion' pursuant to section 9D, even if it were entered before the Tribunal made its decision in these proceedings. That argument was based on an interpretation of section 9A of the Land Tax Management Act 1956 by the Supreme Court of New South Wales in Gaffey v Chief Commissioner of State Revenue [2000] NSWSC 403, approved in BBLT v Chief Commissioner of State Revenue [2003] NSWSC 1003. 63 Though he did not do so in his written submissions, the Chief Commissioner might have argued on similar grounds that an application for reduction in land value, made after the taxing date but before the Tribunal reached its decision, was of no effect. 64 However, the terms of section 9A considered by the Court were materially different from those of section 9D. There is nothing in the wording of section 9D(2)(b) to indicate a parliamentary intention that an application for reduction in land value to which it refers is of no effect unless it has been made on or prior to the taxing date. 65 Section 7 of the Land Tax Management Act 1956 provides that land tax is to be levied and charged on land 'as owned at' midnight on the taxing date. However, it does not preclude a reassessment based on an application for reduction in land value made after that date. 66 In any event, section 63(1) of the Administrative Decisions Tribunal Act 1997 provides: "In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, …" 67 This requires the Tribunal to decide what the correct and preferable decision 'is', rather than what it might have been at the time of the making of the decision under review. Nothing in the section precludes the Tribunal from having regard to facts which have occurred since the making of the original decision. On the contrary, the Tribunal is required to have regard to any factual material which is relevant. In this case, that includes the application for reduction in land value made by the Applicants on 2 February 2009. Use of the dwelling 68 It was open to the Chief Commissioner to argue that, if the Applicants satisfied their onus of proving that the decisions under review should be set aside, those decisions ought be replaced by a determination less favourable to the Applicants – namely, that section 9D did not apply at all, with the consequence that land tax ought be reassessed on the full land value. 69 Such an argument could have drawn support from Dr Clarke's admission that one of the toilets in her home was available for use by patients if they wanted it, with the result that her dwelling was not 'used and occupied by the owner of the land (or one of the owners) as his or her principal place of residence and for no other purpose', as required by section 9D(6). 70 It is possible to imagine arguments for and against such an interpretation of subsection (6), and on the first day of hearing, it seemed the Chief Commissioner would present arguments in favour. However, in his final submissions, the Chief Commissioner indicated that, when making his decisions of 28 March 2008, he elected not to rely on subsection (6) 'as a matter of practice and policy', and did not rely on it before the Tribunal. He conceded only that, on the evidence, the Tribunal 'could find' that subsection (6) 'may preclude' the operation of that section. 71 As is his right, the Chief Commissioner made no submission to the effect that his decision ought be substituted with a determination that section 9D does not apply, and that land tax ought be assessed on the full value of the land. In the absence of any such submission, it is unnecessary to decide the issue. Determination of issues 72 The Tribunal finds as follows in respect of each issue for determination. a. The land at Kenthurst does not attract the 'principal place of residence' exemption under section 10(1)(r) of the Land Tax Management Act 1956, because it is used in part for a non-residential purpose, and because more than one room is used in the medical practice. b. The land attracts the operation of section 9D of the Land Tax Management Act 1956, because it falls within the definition of 'mixed use land' in section 14BBE of the Valuation of Land Act 1916. Accordingly, its value for tax purposes is to be reduced by an 'allowable proportion' ascertained in accordance with section 9D. c. The land value should be reduced for tax purposes by an 'allowable proportion' of 99.6%, being the proportion of the land value attributable to the dwelling and specified in the Applicant's application for reduction of land value dated 2 February 2009. Orders 73 The Tribunal makes the following orders: 1. The decision made by the Chief Commissioner of State Revenue on 28 March 2008 to reduce the value of the land at Kenthurst for tax purposes by an allowable proportion of 88.5% is set aside, and replaced by a decision to reduce the said value for tax purposes by an allowable proportion of 99.6%. 2. The decision made by the Chief Commissioner of State Revenue on 28 March 2008 to reassess the land at Kenthurst to land tax for the 2008 tax year is set aside, and replaced by a decision to reassess it to land tax based on the land value calculated in accordance with the preceding order. 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.