Collector of Customs (Tas) v Flinders Island Community Association

[1985] FCA 273

Re: COLLECTOR OF CUSTOMS, TASMANIA
And: FLINDERS ISLAND COMMUNITY ASSOCIATION (1985) 7 FCR 205
No. TG 1 of 1985
Customs Duty - Customs and Excise

COURT

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIAN DISTRICT REGISTRY
GENERAL DIVISION
Sheppard(1), Wilcox(1) and Everett(1) JJ.

CATCHWORDS

Customs Duty - Diesel fuel rebate - Fuel used to generate electricity for residential use - Generator located in proximity to, but outside the curtilage of, the supplied houses - Whether fuel used "at" residential premises -- Factors supporting the conclusion that fuel consumed outside particular land was used "at" that land -- Houses located upon large unsubdivided allotment - Whether total allotment constituted the relevant premises.

Administrative Appeals - Finding of Administrative Appeals Tribunal based on Tribunal's understanding of traditional aboriginal concepts of communality of property - Absence of evidence of such concepts or of the extent of adherence to such concepts within subject community - Whether Tribunal entitled to rely upon its understanding of such concepts.

Customs Act 1901 s.164

Mintern-Lane v. Kercher (1968) VR 522, Homer v. Homer (1878) 8 Ch D 758, Price v. The Bala and Festiniog Railway Company (1884) 50 L.T.(N.S.) 787 referred to.

Customs and Excise - Rebates - Diesel fuel rebate - Use "at residential premises" - Meaning of "at" - Location of generator - Location outside curtilage of supplied houses - Factors relevant to find generator "at" premises - Customs Act 1901 (Cth), s 164.

HEADNOTE

The respondent operated a generator which supplied electricity to nearby houses located on a housing estate for the occupation of members of an Aboriginal community. The respondent sought a rebate for its purchase of diesel fuel under the Customs Act 1901 (Cth), s 164(1)(b). The rebate was payable on fuel purchased for use "at residential premises" to meet the domestic requirements of residents of the premises. The generator was located outside the curtilage of the supplied houses.

Held: (1) The word "at" in the Customs Act 1901 (Cth), s 164(1)(b) refers to a place of indefinite limitation. The word requires a close connection between the use and the residential premises but not use within the residential premises.

Mintern-Lane v. Kercher (1968) VR 552, Homer v. Homer (1878) 8 Ch D 758 and Price v. The Bala and Festiniog Railway Co (1884) 50 LT 787, considered.

(2) Where diesel fuel is consumed at premises outside the limits of residential premises whether it will be used "at residential premises" will depend upon the circumstances of the particular case applied to the policy of the legislation.

(3) Diesel fuel consumed at premises outside the limits of residential premises was used "at" those premises because of common ownership of the premises, their close proximity to the generator, the relationship between the owner and occupants of the residences, the communal and non-commercial operation of the generator and the fact that it genuinely fulfilled the domestic needs of the residents of the premises.

HEARING

Sydney, 1985, May 24; July 1. #DATE 1:7:1985
APPEAL

Appeal from the decision of the Administrative Appeals Tribunal which set aside the decision of the applicant to refuse a claim for rebates under the Customs Act 1901 (Cth), s 164(1)(b).

K B Procter, for the applicant.

The legislation has drawn a sharp distinction between fuel used in mining and primary production: Customs Act 1901, s 164(1)(a) where purpose is enough, and fuel used to meet requirements of occupants of residential premises in s 164(1)(b), where location of the point of use assumes paramount importance. The premises located on the respondent's estate satisfied "residential premises" set out in s 164(7) but the diesel fuel was not used at any of these - its end product was. The right to use electricity is not an appurtenance of each of the houses. Community ownership cannot move the physical location of the generator. The use of the words "at residential premises" imposed a requirement that the fuel be used in the house or building in question or at least within its grounds or other appurtenances. See Shorter Oxford English Dictionary for definitions of "premises" and "appurtenances", refer also to Mintern-Lane v. Kercher (1968) VR 552 and Price v. The Bala and Festiniog Railway Co (1884) 50 LT 787.

P W Slicer, for the respondent.

It is artificial to divide the scheme of the Customs Act 1901 (Cth), s 164(1)(a) and s 164(1)(b) into purpose as opposed to location especially since "residential purposes" is only an eligible category if it is applied to specific functions or purposes. The rebate applies to the use of fuel and not to the form or method of use. The process of generation involves many parts and it would be impossible for all these parts to be found at the one location. If the applicant concedes that the generator can be located at a different place to gain the rebate where may it be located? Even on a narrow view it could be argued that the diesel fuel is used at each residence because the end product of the use of the fuel, namely, electricity is so used. Further, the supply of electricity was a service and as such occurred at the premises.

The word "at" can differ according to context. It does not necessarily involve a specific geographical location: see Re Estate of Newland (1952) 1 All ER 841 at 843. A narrow interpretation is placed upon it in penal statutes: see Mintern-Lane v. Kercher (1968) VR 552, Price v. The Bala and Festiniog Railway Co (1884) 50 LT 787 at 789, R. v. Smith (1940) 2 DLR 407 at 409-410 and Quartermaine v. R. (1980) 54 ALJR 453. Those decisions are distinguishable. The definition of "at" embraces two concepts (a) where the service is utilised and (b) that the fuel is used in the vicinity of the residential premises. The term "at the residence" must be construed by means of the general locality and purpose rather than a particular point on the land. The generator was situated at each and all of the residential premises where the fuel was used for providing domestic requirements.

Cur adv vult

Solicitors for the applicant: Australian Government Solicitor.

Solicitors for the respondent: H J Derkley:

BAG

ORDER

The appeal be dismissed.

The applicant pay to the respondent its costs of the appeal.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Orders accordingly

JUDGE1

Prior to Budget night 1982 purchasers of diesel fuel used for all purposes other than for transportation upon a public road were entitled to receive a rebate of the customs duty paid in respect of the fuel. However, as from 8 pm on that night -- 17 August 1982 -- the rebate entitlement was narrowed, by the inclusion of a new section in the Customs Act 1901 which relevantly reads as follows:

"164. (1) A rebate is, subject to sub-sections (2) and (3) and to such conditions and restrictions as are prescribed (being conditions and restrictions that relate to goods generally, to goods included in a class of goods that includes diesel fuel or to diesel fuel only), payable to a person who purchases diesel fuel, being diesel fuel upon which duty has been paid, for use by him --

(a) in mining operations or primary production (otherwise than for the purpose of propelling a road vehicle on a public road);

(b) at residential premises in --

(i) providing food and drink for;

(ii) providing lighting, heating, air-conditioning, hot water or similar amenities for; or

(iii) meeting other domestic requirements of,

residents of the premises;

(c) at a hospital or nursing home or at any other institution providing medical or nursing care; or

(d) at a home for aged persons.

(2) ...

(3) ...

(4) ...

(5) ...

(6) Rebates payable under sub-section (1) are payable out of the Consolidated Revenue Fund, which is appropriated accordingly.

(7) In this section --

...

'residential premises' means --

(a) premises used as a house; or

(b) other premises at which at least one person resides,

but does not include --

(c) premises used in the business of a hotel, motel or boarding house or a similar business;

(d) premises used as a hospital or nursing home or as any other institution providing medical or nursing care;

(e) premises used as a home for aged persons; or

(f) premises used as a boarding school;

..."

1. The Excise Act 1901 was amended by the insertion of a new s.78A in like terms.

2. The respondent, Flinders Island Community Association, is a company limited by guarantee formed to promote the welfare of, and spirit of community amongst, the residents of Flinders Island. Although the evidence is not precise, it appears that this community includes many people of aboriginal or part-aboriginal descent. The Association is the owner of a parcel of land at Lady Barron, Flinders Island, containing an area of a little over fourteen and a half acres upon which are erected a number of buildings. During the period relevant to this appeal these buildings consisted of:
   
   

(1) a concrete building which had, prior to 1980, been used by the Association as a fish factory but which was used at all relevant times partly as a fish store, pursuant to a lease from the Association to a commercial organization, and partly to house an electricity generator;

(2) a fibro building used as the office of the Association;

(3) a fibro building which had previously been used as a community tea house but was not used at any relevant time for any purpose;

(4) a concrete building, situate some 20 metres from building (1) and used as a house; and

(5) seven recently constructed houses, situate at various distances between about 30 metres and about 200 metres from building (1).

1. In 1977 the Association had prepared a plan of subdivision designed to excise from the total parcel seven residential sized allotments. The seven houses referred to in (5) above were each constructed upon one of those proposed allotments but at the relevant time the plan had not been registered, so that all of the houses remained upon the original, unsubdivided allotment. At all relevant times each of the eight houses on the estate was occupied as a residence by a member of the Association pursuant to a written tenancy agreement requiring the tenant, amongst other things, to pay to the Association a stipulated weekly rental and also "the cost of power supplied to the premises". The premises the subject of each lease was identified by reference to the number assigned to the prospective lot, in the proposed plan of subdivision, upon which it was constructed. Each of the leased areas was separately fenced.

2. The generator referred to in (1) above operated upon diesel fuel. It was used only to supply electricity to the eight houses on the estate. The generator was switched on by the office staff when they left at 5 pm on weekdays and the residents of the various houses shared responsibility, upon a roster basis, for shutting down the generator each evening. The actual cost of the diesel fuel consumed by the generator was calculated each month and divided equally amongst the tenants of the eight houses.

3. Until February 1983 the applicant, the Collector of Customs, Tasmania, accorded to the Association a rebate upon the diesel fuel used to operate the generator. However, on 1 February 1983 a telex was dispatched to the Collectors of Customs in each State by an officer of the Diesel Fuel Section of the Department of Industry and Commerce in Canberra. This telex laid down "administrative guidelines" to govern applications for rebates. It stated a "basic guideline" that "fuel is purchased by a person for use by him at his premises in meeting domestic needs". It proceeded to give "examples of eligible/ineligible usages which should enable you to make decisions on several outstanding and subsequent submissions". The examples included:
   
   

"1. Aboriginal communities/associations

Fuel used for power generation to service the community ... Diesel fuel is not used by the purchaser at residential premises (rather, the electricity is). It is used in an association owned generator to generate electricity for all electricity users in the community."

1. The applicant read the "guidelines" -- which are a quite inadequate explanation of the terms of the relevant statutory provision (s.164(1)(b)) -- as requiring him to refuse further rebates to the Association. He did so and the Association appealed against that refusal to the Administrative Appeals Tribunal. The Tribunal, which was constituted by Davies J., (the President), Mr R C Jennings Q.C. (Deputy President) and Mr R A Sinclair (Member) allowed the appeal and set aside the decision refusing the claim for rebates. From that decision the Collector appealed to this Court, contending that the decision of the Tribunal is erroneous in law. On 21 September 1984 the Hydro-Electric Commission took over the provision of power to the houses so that the appeal concerns rebates during a closed period of only about 19 months. The amount directly involved in the appeal is small but we were informed by counsel for the Collector that the appeal is regarded as having ramifications for other cases in which rebates have been claimed.

2. In its reasons for decision the Tribunal referred to a definition of the word "premises" contained in the Shorter Oxford English Dictionary, viz. "A house or building with its grounds or other appurtenances ...". It noted that the singular "premise" is confined to its use in logic so that the word "by evolution from its original meaning derived from the French and Latin ... is now used in the plural to mean the singular". The Tribunal then referred to the terms of s.23(b) of the Acts Interpretation Act 1901 which provides that, unless the contrary intention appears, words in the singular shall include the plural and concluded that it found no difficulty in construing the expression "at residential premises" as including more than one house or building. After referring to the references in s.164(1) to a home for aged persons and to an institution providing nursing care the Tribunal set out its conclusions as follows:
   
   

"16. The 'residential premises' at which the fuel is used need not be a house. It is only necessary that at least one person should reside there, provided the premises are not used in the accommodation business or as an hotel, aged persons' home or boarding school

(s.164(7)). It follows that diesel fuel, used to meet the domestic requirements of persons living ordinary independent lives in a block of flats or home units, town houses or villas, cluster houses, conjoined or detached, or in any other type of residence, is fuel which is eligible for rebate. There appears to be no limit to the number of persons whose requirements may be satisfied and no requirement as to the type of construction in which they dwell. They need have no community of interest other than the need or right to be supplied with the power generated by the fuel. The only provisos are those specifically excluded in the definition of 'residential premises'.

17. No purpose would be served by attempting to apply Anglo-Saxon concepts of living and of ownership to the provision of accommodation for aboriginal families at Lady Barron on Flinders Island. Traditionally, aboriginal communities have had a concept of community property and community interest. Traditionally, in aboriginal communities, facilities are shared. The relevant provisions of s.164 must be applied, having regard to the circumstances as they exist in the aboriginal community at Lady Barron. Similar circumstances are not likely to be repeated in Anglo-Saxon community. Section 164 is not so limited. It confers its benefit upon all members of the Australian community.

18. The community established by FICA at Lady Barron is not a community which precisely follows the pattern adopted in cluster housing developments elsewhere in Australia. Though the houses are separated, the aboriginal residents together form a community. And one facility which the community shared was the generator which provided electricity. The management of this generator was, in fact, left to members of the community, though it was supervised by FICA.

19. In our opinion, the generator was a facility for the group of homes upon the FICA estate. It served no other purpose. It did not provide a general community service, as do many generators at country towns which provide electricity for the town. It merely provided electricity for the group of houses on this aboriginal estate. Electricity was used solely for domestic purposes as defined in s.164.

20. We express no view as to what should be the decision taken with respect to a communal generator placed some distance away from the homes of other members of the Australian community. We are here dealing with homes provided for the use of members of an aboriginal community and we think it necessary to take into account traditional aboriginal concepts of community ownership and interest.

21. We are therefore satisfied that the situation of the generator in this case was such that it could be said to be at each or all of the residential premises where the fuel was used for providing domestic requirements referred to in s.164(1)(b)."

1. Counsel for the applicant, before us, conceded that the respondent was a purchaser of diesel fuel upon which duty had been paid and that the fuel had been used by the respondent for the purpose of meeting domestic requirements falling within the categories specified in s.164(1)(b). He disputed, however, that the fuel was used at residential premises for the purpose of meeting the domestic requirements of those premises. He submitted that the fuel was used at non-residential premises, that is the concrete building containing the generator, for the purpose of generating electricity to be used to meet domestic requirements at the various houses. The assumption in the submission was that each of the houses should separately be regarded as "residential premises", the fundamental question then being whether the consumption of the fuel at a generator located outside the curtilage of any house might be regarded as being use "at" such premises. As will be apparent from the portion of its reasons which we have set out above, the Tribunal approached the matter upon the basis of this submission, but answered the ultimate question adversely to the present applicant by saying that, having regard to the nature of the community at Lady Barron and of traditional aboriginal concepts of community property and community interest, the shared generator "could be said to be at each or all of the residential premises where the fuel was used".

1. It is clear, from its reasons -- see the second sentence in para.20 and the use of the word "therefore" in para.21 -- that the Tribunal's understanding of traditional aboriginal concepts of community ownership and interest was critical to its ultimate conclusion. There was, however, no evidence before the Tribunal as to the nature of those concepts or as to the extent that they found adherence amongst the persons residing upon the subject land. It is, no doubt, well known that the traditional aboriginal notion of property differs from the concepts generally adopted by Australians of European descent but the extent of application of ideas of communality may vary as between different aboriginal communities. Even amongst communities living a relatively traditional way of life upon their traditional lands there may be relevant differences in attitude. To the extent that any given community has departed from a traditional lifestyle and become settled in an urban environment those differences are likely to be magnified. And, bearing in mind that an urbanized aboriginal community will ordinarily contain many members of racially mixed descent, the genetic, environmental and educational background of members of the community may be important factors. There was no evidence before the Tribunal about any of these matters. The Tribunal is, of course, entitled to inform itself on any matter in such manner as it thinks appropriate; it is not bound by the rules of evidence: see s.33 of the Administrative Appeals Tribunal Act 1975. However, it has long been recognized as the proper practice that a tribunal of fact which takes advantage of such an entitlement should disclose its action and the sources of its information: see Ruiz v Canberra Rex Hotel Pty Limited (1974) 5 ACTR 1 at pp 7-8, McGale v Glad (1981) 36 ALR 81 at p 91. The Tribunal has not, in the present case, suggested that it did inform itself otherwise than by the evidence and, therefore, we approach the matter upon the basis that it did not. Under those circumstances, it appears to us that it was unjustifiable, and therefore legally erroneous, for the Tribunal to base its conclusion upon the application to the Lady Barron community of its understanding of traditional aboriginal concepts of community ownership and interest. In the absence of evidence to support such a course, we see no reason to approach the problem in any different manner than would have applied to any other Australian community in a similar situation.

2. The reasoning of the Tribunal involved three additional elements: that each of the eight houses, with its respective curtilage, was for relevant purposes properly described as "residential premises", that the terms of s.164(1)(b) are apt to include a case where there is a use "at" a multiplicity of residential premises and that -- at least in the circumstances of this case -- it is not fatal to the claim for the rebate that the generator at which the fuel was used was not physically located upon any one of the eight separate "residential premises". Before us counsel for the applicant did not challenge either of the first two elements. He did challenge the third element, contending that it is critical to a claim for a rebate that the actual consumption of the fuel, its "use", be upon land which may properly be described as "residential premises", that is, in the Tribunal's approach, within the curtilage of one of the houses. Rightly, in our view, he contrasted the test stipulated in para.(a) of s.164(1) -- "in mining operations or primary production" -- which is entirely purposive with the test in para.(b) which is cumulatively locational and purposive -- "at residential premises in providing" etc. However, this analysis still leaves open the question as to the degree of locational connection necessary to meet the word "at".

3. As is shown both by dictionary definitions and by the authorities, "at" is a word of flexible meaning. The first meaning attributed to the preposition by the Shorter Oxford English dictionary is: "Expressing primarily the relation of a thing to a point of space which it touches; hence, indefinitely, the place where it is, in the sense of close to, near, by, in etc.". The Macquarie dictionary refers to the word as "a particle specifying a point occupied, attained, sought, or otherwise concerned, as in place, time, order, experience etc.". It is true that, in some contexts, "at" means "within": see Mintern-Lane v Kercher (1968) VR 552 wherein it was held that a request by a police constable of a driver to furnish a breath sample, which request was made within a police car parked in the street outside a police station, was not made "at the police station". But, in that case, Newton J. recognized that in other contexts the word "at" may be apt to include a physical relationship more remote than inclusion within a particular location. At p 554 he said:
   
   

"... the meaning of the word 'at' depends very much upon context and subject-matter. If A and B agreed to meet 'at the Caulfield Police Station', they might well mean the footpath outside the Caulfield Police Station. But if A shot B on the footpath outside the Caulfield Police Station, or for that matter when B was sitting in a police car outside the Caulfield Police Station, it would not, in my view, be a natural use of the English language to say that A shot B' at the Caulfield Police Station': the appropriate expression would be 'outside the Caulfield Police Station'."

1. The comment made by Newton J. as to context and subject matter is supported by reference to two English decisions. In Homer v Homer (1878) 8 Ch D. 758 the English Court of Appeal had to construe a will devising the lands "at or within Dormstone". The testator held certain lands which adjoined, but were not within, the parish of Dormstone. The Court held that they were included within the devise. Baggallay L.J. at pp 772-773 discussed the circumstances under which it was apt to use the preposition "at" rather than "in" or "within":
   
   

"It appears to me that it would be an inaccurate form of expression to speak of houses or lands as being 'at' any locality the bounds or limits of which are at the same time expressly or impliedly indicated, though it would, on the other hand, be perfectly correct to use the preposition 'at' in reference to localities as to which no such bounds or limits are indicated. A few short illustrations will explain what I desire to convey. I should not speak of my house 'at the county of Sussex', or 'at the parish of Brighton', I should say my house 'in' or possibly, though not very probably, 'within the county or parish'. Again, I should never speak of my house or lands 'at Sussex', because the bounds or limits of the county would be implied, though the expression 'Sussex' might alone be used, but I might with perfect correctness say, I have taken a house 'at Brighton', or I met so-and-so 'at Portsmouth', because in so doing I should only indicate a locality known by a general name, without in any manner intending to introduce any idea of parochial, municipal, manorial, or other boundary. It would perhaps be more correct to say that the introduction of the prepositon 'at' before the name of a locality indicates, or may indicate, an intention on the part of the person using the expression that a meaning should be attributed to the locality named different from that which would be attributed to it if preceded by the preposition 'in' or the preposition 'within'.

A little later in his judgment Baggallay L.J. observed that "the preposition 'at' is not infrequently used in the sense of 'near to' or 'adjacent to' -- as, 'my cottage at the cross roads', ... ". James L.J. who agreed with Baggallay L.J. commented at pp 775-776:

"According to Richardson's Dictionary 'at' is used to denote near approach, nearness or proximity, adjunction or conjunction, association or consociation, connection; and that would seem to be its natural or ordinary idiomatic use in the English language. It may sometimes be equivalent to 'in' or 'within', but not because the word itself includes the idea of 'inclusion' within limits, but by reason that inclusion involves association or consociation.

You say 'I met A. at B.'s house', not because the meeting was actually inside the house, but because the idea intended to be conveyed is the consociation of the meeting with that particular house, and it would be equally true whether the meeting was inside or outside the hall door."

1. In Price v The Bala and Festiniog Railway Company (1884) 50 L.T. (N.S.) 787 a question arose whether a goods shed had been erected "at" Bala railway station in breach of a prohibition in the statute authorizing construction of the railway line. The goods shed was located 140 yards from the Bala passenger station. Chitty J. applied the words of James L.J. to hold that the shed was "at" the station.

2. Decisions based upon the meaning of a word used in a different context are of limited assistance in construing a statute but it appears to us that the analysis in Homer provides some guidance as to the proper interpretation of the word "at" in s.164(1)(b) of the Customs Act. Had it been intended to require that the use of the fuel take place upon the particular parcel of land which constitutes the relevant residential premises it would have been more natural for Parliament to have used the preposition "in" or "within". As Baggallay L.J. pointed out the word "at" is more naturally used to refer to a place of indefinite limitation. Upon this approach the word should be taken to require a close connection between the use and the residential premises but not use within the residential premises. What is a sufficiently close connection must depend upon the circumstances of the particular case (cf. Dampier Mining Company Limited v Federal Commissioner of Taxation (1982) 63 F.L.R. 158) applied to the policy evinced by the legislation. In this regard it appears that the Parliament intended to give a rebate in respect of use of diesel fuel for what might be called home generation of electricity for domestic purposes; as contrasted, for example, with the generation of electricity by a commercial or local government supplier. It is consistent with that policy, and the use of the word "at", that the generation takes place in physical proximity to the supplied houses and that the resultant electricity be used only at premises falling within the definition of "residential premises". As counsel conceded there is no discernible policy reason, other than the minimisation of rebates, for allowing a rebate to a person who has a generator installed in a shed upon his residential allotment but for denying it to his neighbour who houses the same type of generator, fulfilling the same purpose, upon land outside, though proximate to, the curtilage of his house. The most obvious practical consequence of the adoption of the argument for the Collector would be to discourage arrangements by householders for collective use of a single generator in favour of the installation of separate generators upon each separate residential allotment; a result which would tend to increase the national consumption of diesel fuel and also the total cost to revenue of the rebate scheme.

3. Upon the assumption that it was proper to regard each of the curtilages of the eight houses as constituting separate residential premises, counsel for the respondent specified six factors which, he said, make it proper to say that the subject generator was situate "at" each of those residential premises. Those factors are: common ownership of each of those "premises" by the respondent, the proximity of each house to the generator, the existence of relationships -- other than merely contractual relationships -- between the respondent on the one hand and each of the residents on the other and between the residents themselves, the supply to each resident of electricity at cost rather than as a commercial transaction, the communality of operation of the generator involving each resident taking his or her share of responsibility for the supply of electricity to them all and the fact that the generator was appropriate in size and design genuinely to fulfil the purpose of supplying the domestic needs of these eight houses. There is no question here of a colourable operation designed to disguise other purposes lying behind the installation, and operation, of the generator.

4. It may be that it is not necessary for all of the factors nominated by counsel to be present to constitute a case in which it may be said that diesel fuel consumed at a generator located outside the limits of a given parcel of residential land is used "at" those premises. However, in a case where those factors appear, it will almost certainly be correct to say that the use is "at" the premises. Where facts are fully found or undisputed the question whether they fall within the terms of a statutory provision, properly construed, is a question of law: see Hope v Bathurst City Council (1980) 144 CLR 1 at p 7 and the cases cited therein and in Neal v Secretary, Department of Transport (1980) 29 ALR 350 at p 361. In the present case the facts are undisputed. The question of law presented by the inquiry whether, upon those facts and adopting the assumption that each of the separate curtilages should be regarded as separate "residential premises", the case falls within s.164 must be answered in the affirmative. The decision of the Tribunal to uphold the claim for the rebate was the only result legally open to it. Although, as we have indicated, we take the view that the Tribunal erred in law in the reasoning it employed, the result was correct.

5. We have qualified what has been said by referring to the assumption that it is correct to treat each curtilage as constituting separate "residential premises". The Tribunal worked upon that assumption but, in so doing, it may have been misled by the form of the plan into believing that the subdivision to excise the seven allotments had actually been registered. In para.9 of its reasons for decision the Tribunal said that in 1977 "part of the estate was subdivided and in the years that followed, dwelling houses were constructed on at least seven of the average size allotments thus created". (Our emphasis). The status of the subdivision having been raised before us, counsel clarified that the position was as we have already stated and they agreed that para.9 must be taken to refer to the proposal for, rather than the fact of, subdvision. Whether or not the Tribunal so understood the position, the situation appears clearly to be that the totality of the respondent's parcel of fourteen and a half acres constituted, at all material times, a single freehold allotment.

6. Under those circumstances there is a question as to whether the totality of the land should not be regarded as "premises", using, in the manner described by the Tribunal, that plural form to mean the singular. On that basis, as the land contained eight houses, the total allotment would have answered one of the descriptions contained in the definition of "residential premises" in s.164(7), namely "other premises at which at least one person resides". On the other hand, each of the eight houses was, with its respective curtilage, at all material times separately occupied pursuant to a tenancy agreement which gave to each of the respective occupiers a right of exclusive occupation. Single "premises" do not necessarily cease to be so merely because different people have rights of exclusive possession of separate parts of them. But a particular property may be subject to such separate dealings and control as to lead to the result that it should, for some purposes at least, be considered as constituting a number of "premises". Questions of degree arise and -- in view of the conclusions already expressed -- it is unnecessary for us to express any final view on the matter.

7. The appeal should be dismissed with costs.