Appeal Panel - Internal CITATION: Chief Commissioner of State Revenue v Greenish [2008] NSWADTAP 66 APPELLANT Chief Commissioner of State Revenue PARTIES: RESPONDENT Brenda Margaret Greenish FILE NUMBER: 079072 HEARING DATES: 17 October 2008 DATE OF DECISION: 17 October 2008 BEFORE: Needham J SC - Deputy President; Handley R - Deputy President; Bennett C - Non-Judicial Member CATCHWORDS: Statutory construction - land tax - principal place of residence exemption - deemed or actual occupation DECISION UNDER APPEAL: Greenish v. Chief Commissioner of State Revenue [2007] NSWADT282 FILE NUMBER UNDER APPEAL: 076060 DATE OF DECISION UNDER APPEAL: 12/03/2007 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Land Tax Management Act 1956 CASES CITED: Chief Commissioner of State Revenue v White [2008] NSWADTAP 27Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184 APPLICANT A Rider, barrister REPRESENTATION: RESPONDENT T Greenish, agent and B Greenish 1. The appeal is allowed ORDERS: 2. The order of the Tribunal of 3 December 2007 is set aside 3. The original decision is affirmed and the claim for a principal place of residence exemption for the Ocean Shores property for the 2005 land tax year should be refused. REASONS FOR DECISION The Appeal 1. The appeal in this matter arises out of the decision of Mr Verick, Judicial Member of this Tribunal, in Greenish v Chief Commissioner of State Revenue [2007] NSWADT 282, in which the learned Tribunal member found that the respondent, Mrs Greenish, was entitled to a principal place of residence exemption for property owned by her at Ocean Shores for the 2005 land tax year. The factual findings of the learned Tribunal member are not in dispute. 2. The appellant, the Chief Commissioner of State Revenue ("the Commissioner"), contends that the learned Tribunal member erred in construing clause 6(1) of Schedule 1A of the Land Tax Management Act 1956 and holding that the exemption therein applied to clause 7(3)(b) of that Schedule. 3. At the hearing, the respondent appeared by telephone, given the relatively small amount in issue in this appeal. The Commissioner was represented by counsel. 4. No application was made for leave to extend the appeal to the merits, and thus the appeal is confined to questions of law (section 114, Administrative Decisions Tribunal Act 1977). The Facts 5. As noted above, the facts are not in contention. These are taken from paragraph [3] of the decision in the Tribunal below. We have removed those parts of the non-contentious facts which relate to an estoppel argument in which the respondent was unsuccessful and from which there was no cross-appeal, and the background relating to a procedural argument on jurisdiction which was resolved and is not the subject of this appeal. "3. The Applicant purchased the Property as unoccupied land on 4 November 2004 with the intention of building a dwelling on it which was to become her principal place of residence. As at 31 December 2004, the Applicant was the sole registered proprietor of the Property, 4. As at 31 December 2004, the Applicant was also the sole registered proprietor of land situated at … Cressy Road, Ryde, New South Wales (Cressy Road Property), which had been the Applicant's (and her husband's) principal place of residence since 1996. 5. In May 2005, the Applicant entered into a contract for the sale of the Cressy Road Property, which was completed on 22 July 2005. 6. Following the sale of the Cressy Road Property and pending completion of construction of the dwelling on the Property, the Applicant moved into rental accommodation. 7. Construction of the dwelling on the Property did not commence until late September 2005. 8. As at 31 December 2005, the Applicant resided in rental accommodation at … , Middle Pocket, New South Wales. 9. On 11 April 2006, the Applicant moved into the dwelling on the Property and from that time on, the Property became the Applicant's principal place of residence. The events leading to these proceedings 10. On 12 September 2005, the Respondent wrote to the Applicant enclosing a Land Tax Questionnaire (Questionnaire) and a "Land Tax 2005 Factsheet". 11. The Applicant completed and returned the Questionnaire to the Respondent under the cover of a letter dated 26 September 2005. In that letter, the Applicant stated that she intended applying for an exemption from land tax for the property on the basis that she had bought the unoccupied land to build a house that was to be her principal place of residence, while she sold her existing principal place of residence. 12. On 10 May 2006, the Respondent issued a Land Tax Notice of Assessment to the Applicant in respect of the Property for the 2005 and 2006 Land Tax Years for the total amount of $1,384.00. 13. On 10 July 2006, the Applicant wrote to the Respondent objecting to the imposition of land tax on the Property (First Objection), essentially by repeating the reasons set out in her letter dated 26 September 2005 for her belief that the Property should be exempt from land tax. … 15. On 19 September 2006, the Respondent wrote to the Applicant in response to the First Objection and allowed her objection on the basis that the Property was exempt from the imposition of land tax pursuant to clause 7 of Schedule 1A of the LTMA. At the same time, the Respondent issued an amended assessment and refund cheque for the land tax (plus interest) that the Applicant had paid in respect of the Property. 16. The Respondent subsequently reviewed its amended assessment for the Property and determined that it was erroneous. On 23 February 2007, the Respondent wrote to the Applicant to advise of her reassessed liability for the Property and issued an amended assessment for the Property for the Tax Year in the amount of $1,384.00 (Assessment). The Respondent informed the Applicant that her liability arose under subclause 7(3)(b) of Schedule 1A of the LTMA. The Respondent also informed the Applicant that she could apply to the Administrative Decisions Tribunal (ADT) if she was dissatisfied with the Respondent's decision to reassess land tax on the Property for the Tax Year (Decision). 17. The Applicant filed an application in the ADT for a review of the Respondent's Decision. The application stated that the reasons for seeking a review were: "I received land tax assessment 10th May 2006. I objected to the assessment, but was advised I had not lodged an 'official objection', which I then did on 26th July 2006. This objection was accepted by OSR in their letter dated 19th September 2006. We have now received a new letter and notice for the same matter saying they have reviewed their decision of 19th September and changed their minds, without any new evidence." 18. "… Following correspondence between the Applicant, the Respondent's solicitor and the Respondent in relation to resolving this jurisdictional error, the Applicant lodged a formal objection to the Decision on 18 June 2007 (Second Objection), which the Respondent subsequently disallowed in a letter to the Applicant dated 28 June 2007 (Disallowance) on the grounds that the Property was not exempt from land tax under subclause 6(7)(a) and 7(3)(b) of Schedule 1A of the LTMA. …" 6. The facts may be summarised as follows:- a. The respondent purchased the Ocean Shores property on 4 November 2004. It was vacant land. b. She at all times intended to build on that land and intended that it be her principal place of residence. c. She was the registered proprietor of that property as at 31 December 2004. d. As at 31 December 2004, she was also the registered proprietor of land at Ryde, which had been her principal place of residence since 1996. She was living in the Ryde property as at that date. e. The Ryde property was sold on 22 July 2005. f. As at 31 December 2005, the respondent lived in rented accommodation pending the completion of building at the Ocean Shores property. 7. The appeal turns on whether the respondent's use and occupancy of the Ocean Shores property during the relevant taxation year was such as to attract the exemption. The Legislation 8. Again, the relevant legislative provisions are taken from the decision of the Tribunal below, which passage is not the subject of this appeal. "4. By the combined effect of sections 7, 8, and 9 of the LTM Act, land tax is levied each year on land value of all land in New South Wales owned at midnight on the thirty-first day of December immediately preceding the year for which the land tax is levied other than land which is exempt from taxation under the LTM Act. 5. In the relevant year, land used and occupied as the principal place of residence by the owner of the land was exempt under section 10(1)(r) of the LTM Act. Section 3(1) of the LTM Act defines a "principal place of residence" of a person as "the one place of residence that is, among the one or more places of residence of the person within and outside Australia, the principal place of residence of the person". 6. Section 10 of the Act sets out various categories of land that enjoy exemption from land tax under the Act. So far as it is relevant in relation to the "principal place of residence exemption", the exemption under section 10(1)(r) is in the following broad terms: "10 Land exempted from tax 1. Except where otherwise expressly provided in the Act the following lands shall, subject to sections 10B, 10D, 10E, 10G and 10P, be exempted from taxation under this Act: … (r) land that is exempt from taxation under the principal place of residence exemption, as provided for by schedule 1A." 7. The "principal place exemption" is fully expanded in clause 2 of Schedule 1A to the LTM Act, which relevantly for the land tax year under review, provided that: "(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 lot under the Strata Schemes (Freehold Development) Act 1973 or a lot under the Strata Schemes (Leasehold Development) Act 1986. (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 clause, 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 clause is referred to as the principal place of residence exemption." 8. "Residential land" is defined in clause 3 of schedule 1A to the LTM Act as follows: "(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 adopted for residential purposes, other than a building or buildings: (a) comprised of lots within a strata plan or residential units, or (b) containing (out of the total of all rooms in the building or buildings) occupancies other than that of the owner, or (c) 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 building are, designed, constructed or adapted." 9. Clauses 6 and 7 of Schedule 1A relevant for purposes of this matter were, in the relevant land tax year, in the following terms: "6 Concession for unoccupied land intended to be the owner's principal place of residence (1) If the Chief Commissioner is satisfied that the owner of unoccupied land intends to use and occupy the land solely as his or her principal place of residence, the owner is taken, for the purposes of the principal place of residence exemption, to use and occupy that land as his or her principal place of residence. (2) This clause does not apply unless the Chief Commissioner is satisfied that: (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 buildings 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) 2 tax years immediately following the year in which the person became owner of the land, or (b) if the land is used and occupied for residential purposes by a person other than the owner at any time after the person became owner, 2 tax years immediately following the tax year in which the building or other works necessary to facilitate the owner's intended use and occupation of the land are physically commenced on the land. (4) The Chief Commissioner may extend the period in which this clause applies if satisfied that: (a) there is a delay in the completion or, in a case referred to in subclause (3)(b), the commencement of the building or other works necessary to facilitate the owner's intended use and occupation, and (b) the delay is due primarily to reasons beyond the control of the owner. (5) If the principal place of residence exemption applies by operation of this clause to land not actually used and occupied by a person as his or her principal place of residence on a taxing date, that exemption is revoked if the person fails to actually use and occupy the land as his or her principal place of residence by the end of the period in which this clause applies in respect of the assessment of the person's ownership of the land to continue to so use and occupy the land for at least 6 months. (6) The effect of the revocation is that the principal place of residence exemption is taken not to have applied to the land in respect of any tax year to which, but for the revocation, it would have applied. Land tax liability is to be assessed or reassessed accordingly. (7) This clause does not apply in respect of land owned by a person if: (a) the person or any member of the person's family (within the meaning of clause 12) is entitled to have his or her actual use and occupation of other land taken into account under section 9C or under this Schedule, or (b) the person or any joint owner of the land owns land outside New South Wales that is the principal place of residence of the person or joint owner, or (c) the land, or other land if combined with any adjoining land of which the person is an owner, is capable of having more than 2 residences or residential units lawfully built on it. (8) For the purpose of this clause: unoccupied land means land that is not being used or occupied for any purpose. 7 Concession for sale of former principal place of residence (1) If the Chief Commissioner is satisfied that, on a taxing date (the relevant taxing date): (a) a person is the owner of land (the former residence) that was the principal place of residence of the person on the relevant taxing date or was the principal place of residence of the person on the preceding taxing date, and (b) the person is the owner of other land (the new residence) that is being or is intended to be used and occupied by the person as his or her principal place of residence, both the former residence and the new residence are taken, for the purpose of the principal place of residence exemption, to be used and occupied by the person as the person's principal place of residence on the relevant taxing date. (2) This clause applies in respect of land owned by a person only if the Chief Commissioner is satisfied that: (a) the former residence has not been used or occupied except as the person's principal place of residence, and no income has been derived from the use or occupation of the residence, since the preceding 1 July, except: (i) income derived from an excluded residential occupancy (within the meaning of clause 4), or (ii) income derived under a lease or licence entered into by the purchaser under a contract for sale of the former residence for a period pending completion of the sale, and (b) the person became the owner of the new residence within the period 6 months before the relevant taxing date, and (c) since the person became owner of the new residence the new residence has not been used or occupied except: (i) as the person's principal place of residence, or (ii) by a tenant under a lease entered into by the previous owner, and (d) the person intends to dispose of the former residence within 6 months after the relevant taxing date. (3) If the principal place of residence exemption applies by operation of this clause to land not actually used and occupied by a person at the relevant taxing date, the exemption is revoked if: (a) the person fails to dispose of the former residence within 6 months after the relevant taxing date, or such further period as may be approved by the Chief Commissioner, or (b) the person is not actually using and occupying the new residence as his or her principal place of residence by the next taxing date immediately following the relevant taxing date. (4) The effect of the revocation is that the principal place of residence exemption is taken not to have applied in respect of any tax year to which, but for the revocation, it would have applied. Land tax liability is to be assessed or reassessed accordingly. (5) For the purposes of this clause, a person disposes of a former residence if: (a) the person ceases to be an owner of the former residence, or (b) the person enters into an agreement for the sale of the former residence." 10 Clause 12 of schedule 1A provides that for "the purposes of the principal place of residence exemption, only one place of residence may be treated as the principal place of residence of all members of the same family". 11 "Principal place of residence" of a person is defined in section 3(1) of the Act as "the one place of residence that is, among one or more places of residence of the person within or outside Australia, the principal place of residence of the person". Clause 12 of Schedule 1A restricts the principal place of residence exemption to only one place of residence for all members of the same family." The Decision 9. Leaving aside the issues of estoppels and jurisdiction, the reasoning of the decision of the learned Tribunal member on the issues to which this appeal relates commences at par [26]. 10. The learned Tribunal member examined the purpose and scope of the "principal place of residence exemption" and noted that Mrs Greenish was the owner of her "former residence" (Ryde) on 31 December 2004, and was also the owner of her "new residence" (Ocean Shores) at that time. The Ryde property was disposed of within the meaning of clause 7(3) within six months of the taxing date. The decision then goes on to recite (in paragraph [36] the revocation of the concession because Mrs Greenish "had failed to satisfy the second requirement set out in paragraph (b) in subclause 7, that she had not actually used or occupied the new residence by the next taxing date …" 11. In paragraph 37 of the decision, the learned Tribunal member said:- "The short question that the Tribunal needs to determine is whether the respondent was correct in taking the view that paragraph (b) of sub-clause 7(3) entitled the respondent to revoke the concession". 12. For ease of reference, subclause 7(3)(b) is repeated here:- "the person is not actually using and occupying the new residence as his or her principal place of residence by the next taxing date immediately following the relevant taxing date". (see also par [31] of decision). 13. The decision goes on to note the factual background, which was that the Commissioner relied on the fact that the Ocean Shores property was not being lived in by Mrs Greenish as at 31 December 2005, it being still under construction at that date (paragraph [38]). Unfortunately the letter notifying Mrs Greenish of the decision of the Commissioner apparently noted the wrong date, and referred to the fact that she was not occupying the Ocean Shores property on 31 December 2004 instead of 31 December 2005. In the end it does not matter very much, as the learned Tribunal member regarded the substantive question (correctly, in our view) as being whether she was occupying the Ocean Shoes property on 31 December 2005 (see paragraph [39]). 14. In pars [40]-[42], the learned Tribunal member said:- "the substantive error in the respondent's objection decision was the respondent's failure to take into account the provisions of clause 6 which provide a concession for unoccupied land intended to be the owner's principal place of residence and which applied to the 2005 land tax year". [41] Under subclause 6(1) the owner of unoccupied land who intends to use and occupy the land solely as his or her principal place of residence is taken, for the purposes of the principal place of residence exemption under the LTM Act, in particular Schedule 1A to the LTM Act, to use and occupy that land as his or her principal place of residence for the 2 tax years immediately following the year in which the person became owner of the land … [42] The concession under subclause 6(2) is only available if the land is unoccupied because the owner intends to carry out … works necessary to facilitate his or her intended use and occupation of the land as a principal place of residence …" 15. In paragraph [45] the learned Tribunal member noted that the concession under clause 6 did not apply where the owner "is entitled to have his or her actual use and occupation of other land taken into account under Schedule 1A". In par [46], the learned Tribunal member held that the applicant satisfied the requirements set out in subclauses 6(2) and (3) on 31 December 2005, and was not, at that date, entitled to have her use and occupation of any other land taken into account under Schedule 1A. 16. The learned Tribunal member thus found that when determining the question of whether Mrs Greenish was "actually using and occupying the new residence as her principal place of residence on 31 December 2005", the Commissioner should have had regard to the deeming provisions found in subclause 6(1) of Schedule 1A. That deeming provision reads:- "(1) If the Chief Commissioner is satisfied that the owner of unoccupied land intends to use and occupy the land solely as his or her principal place of residence, the owner is taken, for the purposes of the principal place of residence exemption, to use and occupy that land as his or her principal place of residence." 17. As a result, the matter was remitted to the Commissioner for proper consideration of "the factual position as at the correct relevant taxing date" (i.e.: 31 December 2005). The appellant's submissions 18. The Commissioner contends in this, in line with his position in other appeals, that there is a "golden rule" in land tax law which is that a person may only have one principal place of residence at any one time (with the limited concessions set out in the Schedule) (see also Chief Commissioner of State Revenue v. White [2008] NSWADTAP 27 at [26]). The principal place of residence exemption is found in Part 2 of Schedule 1A and is defined as being an exemption to the general rule that land in New South Wales is subject to land tax. Counsel for the Commissioner then developed his theme of the "golden rule" with a "hub and spoke" argument. 19. The "principal place of residence exemption" which is set out in Part 2 of Schedule 1A is the hub of the Schedule. Each of the specific and carefully worded concessions to the exemption is a spoke leading away (or possibly to) the hub. 20. One of the spokes is subclause 6(1) of Schedule 1A, which deems a person who intends to, but does not actually, use and occupy land as their principal place of residence to do so for the purposes of the principal place of residence exemption (a reference to Part 2 of the schedule). 21. Subclause 7(1), also in Part 3, and another spoke, deemed a person to use and occupy both the new and former residences as their principal places of residence, but only if they fulfill all the statutory requirements, including "actual" use and occupation. 22. The Commissioner's submissions alleged an error by the learned Tribunal member that the deemed use and occupation available to an applicant under clause 6(1) was available to be applied to provisions of Schedule 1A other than the principal place of residence exemption in Part 2, such as clause 7(3)(b). A secondary ground of appeal was whether, if such an application were allowed, that Mrs Greenish's deemed occupation was actual use of the property. 23. Using the hub and spoke analogy, counsel for the Commissioner submitted:- "… consistent with the scheme of Schedule 1A having a hub and spoke structure, the spoke in clause 6 of Part 3 fed only into the hub in clause 2 of Part 2 – it did not feed into the other spokes in Part 3, such as clause 7." 24. The submissions for the Commissioner then went on to examine whether, if deemed occupation were possible by applying clause 6, it was sufficient to comply with the provisions of clause 7. It was submitted that Mrs Greenish was not actually occupying the property, as it was under construction and she was living in rental accommodation. It was submitted that the Tribunal made an error of law by holding that her occupation of the property was actual use. The respondent's submissions 25. The respondent limited her submission to whether she did, in fact, "actually use" the property as her principal place of residence. She sets out in her written submissions, and added to those submissions orally, the steps she took in relation to her use of the property. 26. Those steps were:- a. instructing a draftsman, surveyor, and obtaining approval of the plans; b. constructing the dwelling from late September 2005. 27. The respondent says that the purchase of the land was for the "actual and intended purpose" of building her and her husband's principal place of residence. It is common ground that she did not live there as at 31 December 2005, when she lived in rented accommodation (nor, although it is not really relevant, at 31 December 2004, when she lived at Ryde). Consideration 28. "An individual cannot have more than one principal place of residence" – see Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184 at [57], [60] (in the context of election between residences). 29. Schedule 1A sets out an exemption to the general requirement that land in New South Wales is subject to land tax. That exemption appears in Part 2 of the Schedule. Subclause 2(4) provides:- "(4) The exemption conferred by this clause is referred to as the principal place of residence exemption ." 30. Part 3 of the Act is entitled "Concessions in application for principal place of residence exemption". So far as one is entitled to take such things into account, that title appears to bolster the submissions of the Commissioner. 31. The "concessions" listed include:- a. clause 4 – land on which there is one other residential occupancy (such as a flat or separately occupied room or rooms; b. clause 5 – land used for incidental business purposes; c. clause 6 – unoccupied land intended for use as the owner's principal place of residence (a term harking back to clause 2 in Part 2); d. clause 7 – sale of former principal place of residence; and e. clause 8 – absence from the residence (for example, for work relocations or the like) and so on. 32. There is much strength in the contention that each of those concessions refers to a separate factual situation. It is conceivable that some of those factual situations may overlap; in those cases, the Commissioner must be careful not to confuse the factual situations which give rise to each of the concessions and, in effect, to combine them (see, for example, the "death of owner" concession in clause 9 and the "tenancy after death" concession in clause 10, in which the application of both concessions could cause some confusion). 33. It seems to us that the learned Tribunal member did just that when assessing the concession available to Mrs Greenish for the sale of her former residence in this matter. In applying the question of whether Mrs Greenish was entitled to a concession for an intended place of residence, the learned Tribunal member applied part of the concession for the "unoccupied land" concession to bring Mrs Greenish within the "sale of former residence" concession. In order for Mrs Greenish to qualify for either concession, she would have had to have fulfilled each of the statutory conditions set out in the relevant clause of the Schedule. 34. In relation to the "sale of former residence" concession, the questions which should have been asked, and the answers which, on the evidence and referring only to relevant statutory requirements, should have been given, were:- a. (clause 7(1)(a)) - was Mrs Greenish the owner of land that was her principal place of residence (i.e., Ryde) on 31 December 2004? (yes); b. (clause 7(1)(b)) – was Mrs Greenish the owner of other land that was intended to be used and occupied by her as her principal place of residence (i.e., Ocean Shores) on 31 December 2004? (yes); c. (clause 7(2)(b)) – did Mrs Greenish become the owner of Ocean Shores within the period of six months before 31 December 2004? (yes); e. (clause 7(2)(d)) – did Mrs Greenish intend to dispose of Ryde within six months of 31 December 2004? (yes); f. (clause 7(3)(a)) did Mrs Greenish dispose of Ryde by entering into an agreement for its sale (clause 7(5)(b) within six months of 31 December 2004? (yes): and g. (clause 7(3)(b)) – did Mrs Greenish "actually use and occupy" Ocean Shores as her principal place of residence by 31 December 2005? (no). 35. Mrs Greenish would succeed in claiming the clause 7 concession were her answer "yes" to each of the questions. As the last question was answered "no", she was not entitled to a clause 7 concession unless the clause 6 "deeming" provision applied to transform her occupancy of the Ocean Shores property into "actual" use. 36. The learned Tribunal member held, not that the respondent was "actually" using the property, but that she "was entitled to the concession available to owners of unoccupied land under clause 6 and deemed under subclause 6(1) to actually use and occupy the property as her principal place of residence on 31 December 2005" (par [48]). 37. We are of the view that the deeming provision in clause 6 cannot apply to rescue the quality of Mrs Greenish's use of the Ocean Shores property on 31 December 2005 by elevating it to an "actual" use and occupation. We agree with the Commissioner that the "spoke" of the clause 7 concession leads only to the "hub" of the clause 2 exemption, and cannot be bolstered (or, for that matter, diminished) by application of any other provisions, deeming or otherwise, in any of the other separately specified concessions. 38. The word "actually" is not defined in the Land Tax Management Act but it has an ordinary meaning of an actual or existing fact (see Macquarie Online Dictionary) or a legal meaning of "real, arising from fact rather than operation of law" (see Australian Legal Dictionary). The words "actually use and occupy" refer to the use and occupation as a principal place of residence, not to intended use (such as construction and planning of a dwelling, the activities pointed to by the respondent in argument). In order to qualify for the concession in clause 7, Mrs Greenish would have to be physically occupying the Ocean Shores property as her home. It is common ground that she and her husband were living in rented accommodation at this time. 39. Accordingly, on this ground, the appeal should be allowed. 40. If we are wrong in this, and a deemed occupation is sufficient, would Mrs Greenish qualify for the deemed occupation by reason of a proper application of clause 6 of the Schedule? It is instructive in analysing the clause 6 "unoccupied land" concession if one goes through the same question and answer exercise with clause 6. The clauses, questions and answers are as follows:- a. (clause 6(1)) – did Mrs Greenish intend to use and occupy Ocean Shores as her principal place of residence as at 31 December 2004? (yes) b. (clause 6(2)) – was the land unoccupied because Mrs Greenish intended to, or was carrying out, building works necessary to facilitate her intended use and occupation as a principal place of residence as at 31 December 2004, and was the intended use and occupation not unlawful? (yes) c. (clause 6(3)(a)) – did 31 December 2004 occur within two tax years after the purchase of the Ocean Shores property? (yes) d. (clause 6(5)) – did Mrs Greenish actually use and occupy the land as her principal place of residence within two tax years of 31 December 2004? (yes) e. (clause 6(7)) – was Mrs Greenish entitled to have her actual use and occupation of other land taken into account (either under section 9C or under Schedule 1A)? (if 31 December 2004 is the date to be taken into account – yes; if 31 December 2005 is the date to be taken into account – no). 41. In order for a clause 6 concession to apply, all but the last question must be answered "yes". The last question, dealing with clause 6(7), must be answered "no". Accordingly, we must determine whether 31 December 2004 or 31 December 2005 is the correct date to determine whether Mrs Greenish was entitled to have her "actual use and occupation of other land" taken into account. 42. Clause 6(7) does not include a reference to a taxing date. The learned Tribunal member considered that Mrs Greenish was entitled to the clause 6 "unoccupied land" concession as at 31 December 2005, and that may be right (see par [46]). However, the question here is whether she was so entitled as at 31 December 2004, and clearly, as she had the benefit of a principal place of residence exemption on that date in relation to Ryde, she was not. The concession for unoccupied land is focused on the factual situation as at the taxing date – 31 December 2004 – and the proper time for consideration of whether another property was able to taken into account (in this case Ryde) is the taxing date for the land tax year in question. 43. The learned Tribunal member fell into error in applying the deemed occupation available by way of the clause 6 concession at 31 December 2005 to Mrs Greenish's "sale of former residence" concession under clause 7 for the tax year of 2004. In our view the two concessions should not be mixed, and Mrs Greenish would need to succeed wholly under one or the other in order to be able to claim the principal place of residence exemption for Ocean Shores for the 2005 tax year. 44. In other words, even if Mrs Greenish was entitled to an unoccupied land (clause 6) concession as at 31 December 2005, she was not so entitled at 31 December 2004 because of her ownership of the Ryde property. Further, she was not entitled to a sale of former residence concession (clause 7) at 31 December 2005, because she was not actually occupying the Ocean Shores property as her principal place of residence. To meld the two concessions is an incorrect application of the Schedule.+ Orders 1. Accordingly, the appeal should be allowed. The order of the Tribunal of 3 December 2007 is set aside. 2. The original decision is affirmed and the claim for a principal place of residence exemption for the Ocean Shores property for the 2005 land tax year is refused. 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.