Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dang & Nguyen Pty Ltd v Chief Commissioner of State Revenue [2020] NSWCATAD 120 Hearing dates: 22 April 2020 Date of orders: 04 May 2020 Decision date: 04 May 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: S Goodman SC, Senior Member Decision: The Assessments are confirmed Catchwords: TAXATION AND DUTIES – Parking Space Levy – exemption – whether parking spaces "set aside exclusively" for particular purposes Legislation Cited: Administrative Decisions Review Act 1997 (NSW), ss 9, 63 Congestion Levy Act 2005 (Vic) Parking Space Levy Act 2009 (NSW), ss 4,7,8,14 Parking Space Levy Regulation 2009 (NSW), regs 2,7,9 Taxation Administration Act 1996 (NSW), ss 96,100,101 Cases Cited: Christopher CK Soo Pty Ltd & J Yap v Chief Commissioner of State Revenue [2017] NSWCATAD 281 Levitch Design Associates Pty Ltd atf Levco Unit Trust v Chief Commissioner of State Revenue [2014] NSWCATAD 215 Monsgrove Developers Pty Ltd v Chief Commissioner of State Revenue [2010] NSWADT 303 Secure Parking Pty Ltd v Commissioner of State Revenue [2016] VSC 344 Secure Parking Pty Ltd v Commissioner of State Revenue [2017] VSCA 68 Singh v Chief Commissioner of State Revenue [2016] NSWCATAD 9 Sterling House 88 Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAD 279 Texts Cited: None cited Category: Principal judgment Parties: Dang & Nguyen Pty Ltd (Applicant) Chief Commissioner of State Revenue (Respondent) Representation: Counsel: S Richardson (Respondent) Solicitors: J Preston (Agent) (Applicant) Crown Solicitor (Respondent) File Number(s): 2019/00396672 Publication restriction: Nil REASONS FOR DECISION Introduction 1. The applicant is the owner of a strata title lot (Premises), located in a building known as Millennium Tower in Sussex Street Sydney. 2. The Premises comprise: 1. a retail shop space at street level; and 2. two parking spaces on parking level 5 (Parking Spaces); 3. of Millennium Tower. 1. On 27 June 2019, the respondent issued Parking Space Levy Assessment Notices to the applicant for the financial years ended 30 June 2018 and 30 June 2019 (Assessments). The Assessments were of levies imposed by s 8 of the Parking Space Levy Act 2009 (NSW) (PSL Act). 2. The applicant objected to the Assessments and the respondent disallowed the objection. The applicant now seeks administrative review by the Tribunal. 3. The central issue for determination is whether the Parking Spaces are exempt from the parking spaces levy. 4. For the reasons developed below, I am not satisfied that the Parking Spaces are exempt. Jurisdiction and applicable law Jurisdiction 1. The Tribunal has jurisdiction to review the Assessments, pursuant to s 96 of the Taxation Administration Act 1996 (NSW) (TA Act) and s 9 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). It is the decision to issue the Assessments, not the decision on the objection, which is the subject of the review: see Singh v Chief Commissioner of State Revenue [2016] NSWCATAD 9 at [10] – [13] and the authorities there cited. 2. In conducting that review, the Tribunal is required to determine the correct and preferable decision having regard to the materials before it and the applicable law: s 63 ADR Act. 3. The material before the Tribunal comprises: 1. the application for administrative review; 2. the documents lodged by the respondent with the Tribunal under s 58 of the ADR Act; 3. an affidavit of Mr John Preston, accountant, on behalf of the applicant; 4. an affidavit of Mr Sashi Chand, an Operations Officer in the employ of the respondent, on behalf of the respondent; 5. an affidavit of Mr Ryan McGowan, solicitor, on behalf of the respondent; and 6. written and oral submissions on behalf of each of the applicant and the respondent. 1. The applicable law includes the TA Act, the PSL Act, the Parking Space Levy Regulation 2009 (NSW) (PSL Regulation) and case law relevant to the operation of these enactments. TA Act 1. Section 100 of the TA Act provides, in so far as is presently relevant: 100 Provisions relating to applications for review … (2) The applicant's and respondent's cases on an application for review are not limited to the grounds of the objection. (3) The applicant has the onus of proving the applicant's case in an application for review. 1. As s 100(3) states, the applicant bears the onus of proof. In Levitch Design Associates Pty Ltd atf Levco Unit Trust v Chief Commissioner of State Revenue [2014] NSWCATAD 215, the Tribunal stated at [27]: "In a review application under Pt 10 of the Act, the applicant "has the onus of proving the applicant's case" (s 100(3)). This requires the applicant to prove or establish on the balance (preponderance) of probabilities all matters necessary to enable a tribunal to answer the statutory question in the applicant's favour, and all the facts on which the applicant relies to claim any exemption. The legislation does not place any onus on the Chief Commissioner to show that the assessments were correctly made. Nor is there any statutory requirement that the assessments should be sustained or supported by evidence. The burden on the applicant is not necessarily discharged by showing an error by the Chief Commissioner in forming a judgment as to the amount of the assessment. It is for the taxpayer to discharge the burden of proof by establishing what the correct amount of an assessment should be. See Cornish Investments Pty Ltd v Chief Cmr of State Revenue (RD) [2013] NSWADTAP 25 at [5–7], [29–36] and cases there cited; see also Lend Lease Development Pty Ltd v Cmr of State Revenue (Vic); [2012] VSC 108 at [51], Conder Tower Pty Ltd v CSR [2012] VSC 107 at [46], Wesfarmers General Insurance Ltd v CSR [2009] VSC 599 at [14], Theophilas v Chief Commissioner of State Revenue [2014] NSWCATAD 100 at [41–42]. …" (emphasis added) PSL Act and PSL Regulation 1. Section 8 of the PSL Act provides, in so far as is presently relevant: 8 Imposition of parking space levy (1) A parking space levy is imposed on 1 July each year on all leviable premises. (2) The amount of the levy for any leviable premises is the amount calculated in respect of the premises in accordance with the regulations. (3) A person who, as at 1 July in any year, is the owner of leviable premises is liabe for payment of the levy for the premises. (4) If the premises are owned by 2 or more persons, the owners are jointly and severally liable for payment of the levy. (5) The levy is to be paid to the Chief Commissioner. … 1. Thus, section 8 imposes a parking space levy: 1. on 1 July of each year; 2. on leviable premises; 3. in an amount calculated in respect of the premises in accordance with the regulations; and 4. payable by the owner of the leviable premises as at 1 July of the relevant year. 1. The phrase "leviable premises" is the subject of s 7 of the PSL Act, which provides: 7 Leviable premises (1) For the purposes of this Act, premises are leviable premises in any financial year if, at any time during the previous financial year: (a) the premises were located in a leviable district, and (b) one or more parking spaces were situated on the premises. (2) Despite subsection (1), premises are not leviable premises if they are declared by the regulations not to be leviable premises. 1. The following terms used in s 7 are defined in s 4 of the PSL Act: 1. "leviable district" means a district established by the regulations as a leviable district; 2. "parking space" means a space that is situated on premises in a leviable district, being a space: 1. (a) that is used, or set aside, for the parking of motor vehicles, or 2. (b) that is declared by the regulations to be a parking space for the purposes of this Act; 1. "premises" includes any land and any building; and 2. "owner", in relation to leviable premises, includes any person who jointly or severally, whether at law or in equity, is entitled to the premises for any estate of freehold in possession. 1. Section 14 of the PSL Act provides for the making of regulations. The relevant regulations are found in the PSL Regulation, which was in force during the years of assessment, but has since been repealed. 2. Regulation 2 of the PSL Regulation defines "parking area" as meaning "that part of any premises that is used, or set aside, for the parking of motor vehicles". 3. Regulation 7 of the PSL Regulation provides, in so far as is presently relevant: 7 Exempt parking spaces (s 14) (1) A parking space on leviable premises in a Category 1 or Category 2 area is an exempt parking space while it is set aside exclusively for one or more of the following purposes: … (d) the parking of motor vehicles for the purpose of loading or unloading goods or passengers, but not if vehicles are permitted to park in the space otherwise than while goods or passengers are being loaded or unloaded, … (g) the parking (without charge) of an ambulance, fire brigade motor vehicle or police motor vehicle, but only if the parking space is the one used for garaging the vehicle overnight, (h) the parking (without charge) of a motor vehicle used only for the carrying out of deliveries or the provision of services, but only if: (i) the parking space is the one used for garaging the vehicle overnight, and (ii) the owner of the vehicle is also the owner or occupier of the premises … (3) A parking space on leviable premises in a Category 1 or Category 2 area is an exempt parking space while it is an unused casual parking space or an unleased tenant's parking space. (4) For the purposes of subclause (3): (a) a parking space is an "unused casual parking space" if it is set aside for use by the public for the parking of motor vehicles but remains unused for that purpose, and (b) a parking space is an "unleased tenant's parking space" if it is unavailable for use as a parking space except under a lease or licence under which a tenant of the premises in which it is located has exclusive use of it and no such lease or licence is in force. (5) A parking space on leviable premises in a Category 2 area is an exempt parking space while it is set aside exclusively for one or more of the following purposes: (a) the parking of motor vehicles by customers of a retail shop, (b) the parking of motor vehicles on the shopping centres referred to in Schedule 2 by persons employed at a retail shop on those premises, (c) the parking of motor vehicles by guests or customers of a hotel or motel, (d) the parking of motor vehicles by members and guests of members of a registered club, (e) the parking of motor vehicles by customers of a restaurant, (f) the parking of motor vehicles by patients of a medical centre, (g) the parking of motor vehicles by customers of a car sales establishment, car servicing or repair centre, or car wash, (h) the parking of motor vehicles by clients and guests of clients of a funeral parlour, (i) the parking of motor vehicles that are displayed or stored on the premises for the purpose of their being offered for sale or hire. 1. The chapeau to reg 7(1) provides that a parking space on leviable premises in a Category 1 or Category 2 area is an exempt parking space "while it is set aside exclusively for one or more of the following purposes" (emphasis added). 2. Within the PSL Act and the PSL Regulation, the concept of a parking space being set aside is quite distinct from the concept of a parking space being used. This is clear from: 1. the definition of "parking space" in s 4 of the PSL Act, which refers to a space "that is used, or set aside for the parking of motor vehicles"; 2. the definition of "parking area" in reg 2 of the PSL Regulation, which refers to "that part of any premises that is used, or set aside, for the parking of motor vehicles"; 3. regs 7(1) and (5) of the PSL Regulation, which provide that a parking space in a particular Category area is exempt while it is "set aside" exclusively for one or more of various specified purposes; 4. the exemptions provided for by regs 7(1)(g) and (h), which are only available if the parking space "is the one used for garaging the vehicle overnight"; and 5. regs 7(3) and (4), which provide that a parking space is exempt as: 1. an "unused casual parking space" if it is "set aside for use by the public for the parking of motor vehicles but remains unused for that purpose"; and 2. an "unleased tenant's parking space" if it is "unavailable for use as a parking space except under a lease of licence under which a tenant of the premises in which it is located has exclusive use of it and no such lease or licence is in force". 1. The Congestion Levy Act 2005 (Vic) draws a similar distinction between the concepts of "set aside" and "use". In Secure Parking Pty Ltd v Commissioner of State Revenue [2017] VSCA 68, Whelan JA (with whom Maxwell P and Tate JA agreed) said at [64]: "The Act could not be clearer in distinguishing between the concept of 'setting aside' and the concept of 'use'. In the definition of a 'parking space' the existence and significance of that distinction is expressly stated. A space may be 'set aside' whether or not it is used. The distinction between the two concepts also clearly emerges in the different requirements provided for in relation to exemptions, some of which are based on exclusive use and some of which are based on either setting aside or exclusive use. .." 1. The same clear distinction exists between the concepts of "set aside" and "use" in the PSL Act and the PSL Regulation. 2. A parking space is set aside when it is separated out or apart for a particular purpose: see Secure Parking Pty Ltd v Commissioner of State Revenue [2016] VSC 344 at [66] – [67], and on appeal: Secure Parking Pty Ltd v Commissioner of State Revenue [2017] VSCA 68 at [65]. 3. Such setting aside requires both an intention to set aside the parking space for a particular purpose and an act giving effect to that intention: see Monsgrove Developers Pty Ltd v Chief Commissioner of State Revenue [2010] NSWADT 303 at [46]-[47]; Secure Parking Pty Ltd v Commissioner of State Revenue [2017] VSCA 68 at [65]. 4. The act giving effect to the intention to set aside a parking space for a particular purpose may take a variety of forms. One such form is the posting of appropriate notices which are in place and visible at all relevant times: see Monsgrove Developers Pty Ltd v Chief Commissioner of State Revenue [2010] NSWADT 303 at [47]; Sterling House 88 Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAD 279 at [20]; Christopher CK Soo Pty Ltd & J Yap v Chief Commissioner of State Revenue [2017] NSWCATAD 281 at [24]. 5. The requirement in reg 7(1)(d) that the parking space is set aside "exclusively" for the purpose of the parking of motor vehicles for the purpose of loading or unloading of goods or passengers, indicates that no other purpose (except another exempt purpose/s or an incidental purpose) is allowed: Sterling House 88 Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAD 279 at [20]; Christopher CK Soo Pty Ltd & J Yap v Chief Commissioner of State Revenue [2017] NSWCATAD 281 at [24]. 6. Regulation 9 of the PSL Regulation provides formula for the calculation of the amount of the levy: 9 Amount of levy (s 8) The amount of the levy for any premises for any financial year is the sum of the amounts determined in accordance with the following formula in relation to each parking space on the premises: "A" represents the amount payable in relation to the parking space. "B" represents the base rate of the levy for the premises for that year. "N" represents the number of days during the previous financial year for which: (a) the premises were in a leviable district, and (b) the parking space was in existence, and (c) the parking space was not an exempt parking space. "Y" represents the number of days in the previous financial year (365 or 366, as the case may be). (emphasis added) Matters in issue 1. It is common ground that during the 2018 and 2019 financial years: 1. the Premises were "premises", as defined in s 4 of the PSL Act; 2. the applicant was the owner of the Premises; 3. the Premises were in a leviable district; and 4. the Parking Spaces were situated on the Premises. 1. It follows from the common ground described above that s 7(1) of the PSL Act is satisfied. The applicant does not contend that any relevant regulation operated so as to declare the Premises not to have been leviable premises and thereby that s 7(2) is engaged. Thus, the Premises are leviable premises under s 7 of the PSL Act. 2. As the Premises are leviable premises, s 8 of the PSL Act operates to impose a parking space levy which the applicant, as owner of the Premises, is liable to pay to the respondent, in an amount calculated in respect of the Premises in accordance with the PSL Regulation. 3. The formula for the calculation of the amount of the levy, as noted above, is set out in reg 9 of the PSL Regulation. The effect of this formula (in particular the variable N) is that the levy is payable only for days on which all three components of N existed, and thus that the levy is not payable for any days on which a parking space was exempt. 4. The applicant contends that at all times during the years of assessment, the Parking Spaces were exempt parking spaces, by reason of the operation of regs 7(1)(d) and (h). 5. It is common ground that the Parking Spaces are on leviable premises in a Category 1 area. Thus the issues requiring resolution concern the applicability of: 1. reg 7(1)(d) and in particular whether during the years of assessment: 1. each Parking Space was set aside exclusively for the purpose of the parking of motor vehicles for the purpose of loading or unloading goods or passengers; and 2. vehicles were not permitted to park in each Parking Space otherwise than while goods or passengers were being loaded or unloaded; and 1. reg 7(1)(h) and in particular whether for each Parking Space during the years of assessment: 1. that Parking Space was set aside exclusively for the purpose of the parking (without charge) of a motor vehicle used only for the carrying out of deliveries or the provision of services; 2. that Parking Space was the one used for garaging the vehicle overnight; and 3. the owner of the vehicle was also the owner or occupier of the Premises. 1. The determination of these issues requires consideration of the underlying facts. Findings of Fact 1. The facts set out below are uncontroversial, save to the extent indicated. 2. The applicant is a company whose directors are, and have been since its incorporation in 1999, Mr Dang and Mr Nguyen. The applicant's accountant is Mr Preston, who appeared for the applicant at the hearing in this proceeding and provided the only affidavit evidence on behalf of the applicant. 3. The applicant owns the Premises and has entered into a lease with Fayad Group Pty Ltd (Lessee), which operates a convenience store in part of the Premises, at street level. The lease describes the "property leased" as "Certificate of Title Folio Identifier 120 SP57164 PART being known as 120, Millennium Tower…". 4. The Parking Spaces: 1. are within the Premises, on parking level 5 of Millennium Tower, being a level for which security access is required; 2. comprise: 1. a larger Parking Space, with an area of approximately 38 square metres (also known as the tandem space); and 2. a smaller Parking Space, with an area of approximately 16 square metres; 1. are within separate wire cages, each with a lockable garage door at its entrance. 1. Mr Preston's evidence is that: 1. the Parking Spaces: 1. are not part of the property leased to the Lessee; 2. are not able to be used by any other party; 3. are not the subject of any arrangement by which consideration is received; 1. "There is no other use of the subject property. It is exclusively engaged in materials handling for purchase and resale on a retail basis". 1. I deal further with this evidence, and whether it should be accepted, at [61] and [69] – [72] below. 2. On 1 September 2017, the applicant lodged with the respondent a Parking Space Levy Annual Return for the financial year ended 30 June 2017. That Return was signed by Mr Dang and claimed that each Parking Space was exempt under reg 7(1)(d). 3. On 4 September 2017, an employee of the respondent asked Mr Dang whether he was able to provide documentary evidence to substantiate the claimed exemption. 4. On 5 September 2017, Mr Dang replied: "Lot 120, SP57164 is a retail lot of the building. The garages are in the single title Lot 120, they are not separate. The garages are included in the retail lease, see attached. The locked up garages are used for loading & unloading goods for the convenience-store only. The small garage is used for small loadings, the tandem one is utilised for loadings by Utes or delivery vans. They are not allowed to use for car-spaces…" 1. On 12 September 2017, the respondent issued a notice of assessment to the applicant in respect of the Parking Spaces, for a nil assessment. The notice of assessment treated the Parking Spaces as exempt. 2. On 16 April 2019, the respondent issued a notice of assessment to the applicant in respect of the Parking Spaces. In this notice of assessment, the levy was applied, without exemption. 3. On 30 April 2019, Mr Dang wrote to the respondent asserting that the Parking Spaces were exempt and recording the applicant's objection to the assessment. 4. There followed a desktop and field audit by the respondent. 5. On 25 June 2019, as part of the field audit and following an exchange of emails between Mr Dang and Mr Chand, Mr Chand and Mr Caolie on behalf of the respondent met with Mr Fayad, the director of the Lessee, at the Premises and inspected the Parking Spaces. During that visit, Mr Chand: 1. observed: 1. on the ground parking floor, there were two parking spaces adjacent to which there were signs: "Loading Dock Only. Strictly No Parking" and "Loading Dock. No Parking"; 2. on parking level 5, the Parking Spaces and that: 1. there was no signposting to indicate that the Parking Spaces were to be used for loading and unloading; 2. each Parking Space had a cage-like fence around its perimeter, save for the front which was a lockable garage door; 1. a Toyota Prado, registered in the name of Mr Fayad, was parked in the larger Parking Space; 2. no vehicle was parked in the smaller Parking Space; and 3. the floor of the smaller Parking Space had some grease or oil marks near the front of that space; and 1. did not observe any loading or unloading into or out of the Toyota Prado. 1. On 27 June 2019, the Assessments were issued. 2. On 16 August 2019, the applicant lodged its objection to the Assessments. In that objection, signed by Mr Dang, the applicant acknowledged that the Parking Spaces were within a "leviable premises", and asserted that those spaces were exempt under reg 7(1)(d) and (h). 3. The "basis for exemption" was described as: "The spaces are secure, locked and fully enclosed. Inventory items that are for resale in the Retail premises are stored, delivered or located within the enclosure on a regular basis subject to the seasonal requirements of the retail lot" 1. On 11 November 2019, the objection was disallowed. Consideration 1. As noted above, the applicant bears the onus of proving that reg 7(1)(d) or (h) applies. Applicant's submissions 1. The applicant's submissions are directed at the words within subparagraph (d) of reg 7(1), without reference to the chapeau to reg 7(1) and the requirement therein that the Parking Spaces had been set aside for the purpose of the parking of motor vehicles for the purpose of loading or unloading goods or passengers (requisite purpose). The applicant's submissions do not address, at least directly, the operation of the chapeau to reg 7(1), or the elements of reg 7(1)(h). 2. The applicant's principal submissions are as follows: 1. no person other than the applicant has permission to use the Parking Spaces because: 1. at a legal level, the Parking Spaces are not: 1. subject to the lease to the Lessee; 2. leased to or occupied by any other party; 3. the subject of any arrangement by which consideration is paid for them; 1. at a factual level, there are physical barriers to access to the Parking Spaces, namely: 1. the Parking Spaces being located on parking level 5, which is only accessible with a security card; 2. each Parking Space being contained within a cage with a lockable garage door; 1. the Parking Spaces are "made available to the Lessee on the basis they are used for loading and unloading on an ad hoc basis"; 2. the Lessee is exclusively engaged in the purchase and sale of retail goods and material handling to that end and no other activity takes place within the property; and 3. the respondent, to succeed, needs to establish that a reasonable person would infer that permission had been granted to park in the Parking Spaces when those space were not being used for materials handling. Regulation 7(1)(d) 1. For reg 7(1)(d) to apply, the applicant is required to prove for each Parking Space that during the years of assessment: 1. each Parking Space was set aside exclusively for the requisite purpose; and 2. vehicles were not permitted to park in each Parking Space otherwise than while goods or passengers were being loaded or unloaded. Were the Parking Spaces set aside exclusively for the requisite purpose? 1. There is no evidence of any intention to set aside the Parking Spaces for the requisite purpose, or of any act taken to achieve that purpose. 2. The applicant has submitted that the Parking Spaces were "made available to the Lessee on the basis they are used for loading and unloading on an ad hoc basis". However, there is no evidence which supports this submission. 3. Further, there is an indication in the materials before the Tribunal that the Parking Spaces were being used for another purpose, namely storage of goods. The applicant's objection, signed by Mr Dang, includes: "The spaces are secure, locked and fully enclosed. Inventory items that are for resale in the Retail premises are stored, delivered or located within the enclosure on a regular basis subject to the seasonal requirements of the retail lot" (emphasis added) 1. Mr Dang, who is (and was during the years of assessment) a director of the applicant has not made an affidavit in this proceeding or otherwise made himself available for cross examination. The only affidavit evidence on behalf of the applicant has been provided by Mr Preston, the applicant's accountant. While Mr Preston asserts that "I have visited the site on many occasions and am thoroughly familiar with the property in general and the Lot, being Lot 120 in Strata Plan 57164 in particular", this evidence is not specific as to when such visits were made and during what time periods (and even whether the visits occurred during the years of assessment). Further, Mr Preston's evidence that the Parking Spaces were used exclusively for "materials handling for purchase and resale on a retail basis" is expressed in general terms, not specifically confined to loading and unloading of goods. "Materials handling" is sufficiently broad to include storage. 2. Whilst this indication relates to the use of the Parking Spaces, it is nevertheless raises doubts as to whether the Parking Spaces were set aside exclusively for the requisite purpose. If the Parking Spaces had been set aside exclusively for the requisite purpose, it might be thought unlikely that Mr Dang would tolerate their use for another purpose. 3. For the above reasons, I am not satisfied that the Parking Spaces were set aside exclusively for the requisite purpose. Were vehicles not permitted to park in the space otherwise than while goods or passengers were being loaded or unloaded? 1. Contrary to the applicant's submission, it is not necessary for the respondent to prove that a reasonable person would infer that permission had been granted to park in the Parking Spaces when they were not being used for materials handling. The respondent bears no onus and it is for the applicant to prove all matters necessary to enable the Tribunal to answer the statutory question in the applicant's favour, including all the facts on which the applicant relies to claim any exemption: see Levitch Design Associates Pty Ltd atf Levco Unit Trust v Chief Commissioner of State Revenue [2014] NSWCATAD 215 at [27]. 2. This limb of reg 7(1)(d) requires proof that: 1. there was permission to park in the Parking Spaces while goods and passengers were being loaded and unloaded; and 2. vehicles were not otherwise permitted to park in the Parking Spaces. 1. The applicant's submission seems to be that these matters are proven because: 1. there was a general prohibition on parking in the Parking Spaces, as a result of the absence of any legal right in anyone other than the applicant to use those spaces, coupled with the physical barriers to entry to them; 2. nevertheless, the Parking Spaces were "made available to the Lessee on the basis they are used for loading and unloading on an ad hoc basis". 1. These matters are insufficient to establish that vehicles were not permitted to park in the Parking Spaces otherwise than while goods or passengers were being loaded or unloaded, for the following reasons. 2. First, it is not clear that no person other than the applicant had a legal right to use the Parking Spaces. 3. On the one hand, as noted above at [40], the effect of Mr Preston's evidence is that no person (other than the applicant) has a right to use the Parking Spaces. The lease describes the "property leased" as "Certificate of Title Folio Identifier 120 SP57164 PART being known as 120, Millennium Tower …". It is not clear what the reference to "PART" means. One available interpretation is that this is a reference to that part of Lot 120 which houses the convenience store, and that interpretation is supported by Item 17 and cl 6.1 of the lease which provide that the only permitted use under the lease is "convenience store". On such an interpretation, no person (other than the applicant) has a right to use the Parking Spaces. 4. On the other hand, that PART is described as "120, Millennium Tower", which is broad enough to include the Parking Spaces within the property leased. In this regard, Mr Dang in his 5 September 2017 email wrote: "The garages are in the single title Lot 120, they are not separate. The garages are included in the retail lease, see attached." 1. If Mr Dang is correct, the Lessee had a right to use the Parking Spaces under the lease apparently without restriction. 2. The state of the evidence does not allow me to be satisfied that no person other than the applicant had a legal right to use the parking spaces. 3. Secondly, as noted above, there is no evidence to support the submission that the Parking Spaces were made available to the Lessee on the basis they are used for loading and unloading on an ad hoc basis. 4. Thirdly, there is no evidence that any permission given to the Lessee to use the Parking Spaces was limited and did not include parking at times other than when goods or passengers were being loaded and unloaded. 5. Fourthly, the uncontradicted evidence of Mr Chand is that on 25 June 2019, he observed: 1. in the larger Parking Space, a Toyota Prado, registered in the name of Mr Fayad, was parked and there was no loading or unloading taking place; 2. the floor of the smaller Parking Space had some grease or oil marks near the front of that space. 1. The first of these matters is an instance of the larger Parking Space being used in a manner inconsistent with there being an absence of permission to simply park in the that space. Notably, there is no evidence from the applicant which suggests that such parking was contrary to the permitted use of the larger Parkin Space. 2. The second of these matters is consistent with a vehicle or vehicles being parked in the smaller Parking Space for extended periods with the front of the vehicle (where the engine is typically located) facing toward the garage door. Such parking appears to be inconsistent with vehicles being parked for the loading and unloading of goods as it would be difficult to load and unload goods from the rear of a vehicle parked in such a position. Regulation 7(1)(h) 1. I turn now to reg 7(1)(h). The starting point in considering this regulation is the identification of a particular vehicle. The applicant must identify such a vehicle and prove that: 1. the vehicle was used only for the carrying out of deliveries or the provision of services; 2. a particular Parking Space was set aside exclusively for the parking of that vehicle, without charge; 3. that Parking Space was used for garaging the vehicle overnight; and 4. the vehicle is owned by a person who is the owner of occupier of the Premises. 1. The only vehicle identified in the evidence is the vehicle which belongs to Mr Fayad, the director of the Lessee. There is no evidence capable of establishing the matters listed in (1) to (4) in the preceding paragraph with respect to that vehicle. Conclusion 1. For the reasons set out above, neither reg 7(1) (d) nor reg 7(1)(h) of the PSL Regulation applies. Pursuant to s 101(a) of the TA Act, the Assessments are confirmed. Order 1. The Assessments are confirmed. ********** 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: 04 May 2020