EAMES and COMMISSIONER OF STATE REVENUE - [2018] WASAT 14

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: LAND TAX ASSESSMENT ACT 2002 (WA)
TAXATION ADMINISTRATION ACT 2003 (WA)

CITATION: EAMES and COMMISSIONER OF STATE REVENUE [2018] WASAT 14

MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 22 FEBRUARY 2018

FILE NO/S: DR 241 of 2017

BETWEEN: MARIA EAMES
First Applicant
CORINNE LILLIAN ONESTI
Second Applicant
AND
COMMISSIONER OF STATE REVENUE
Respondent

Catchwords:

Land tax Private residential property Private residence Exemption during construction of private residence Subdivision

Legislation:

Building Act 2011 (WA), s 58
Interpretation Act 1984 (WA), s 19
Land Tax Assessment Act 2002 (WA), s 5, s 7(1), s 17, s 17(1), s 20, s 21, s 21(1), s 24, s 24A, s 24A(1), s 24A(1)(a), s 24A(1)(b), s 24A(1)(c), s 24A(1)(d), s 24A(1)(e), s 24A(3), s 24A(4), s 24A(5), Pt 3
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(3)
Strata Titles Act 1985 (WA), s 5B(2), s 5B(2)(a)
Tax Administration Act 2003 (WA), s 40

Result:

Commissioner's decision affirmed
Application dismissed

Summary of Tribunal's decision:

The applicants, along with certain other individuals, acquired in 2005 two vacant pieces of land in South Perth. They then amalgamated the lots into one and engaged a builder to construct a block of four apartments. Those apartments were to be used, in the case of the applicants, as their respective private residences.
The applicants applied for an exemption from land tax for the amalgamated lot of land for the 2014/15 and 2015/16 assessment years. Their claim for an exemption was under s 24A of the Land Tax Assessment Act 2002 (WA), which provides that, put very broadly, 'private residential property' is exempt for two consecutive years if the 'private residence' which forms part of the private residential property is constructed during those years and completed within the second year.
The Commissioner of State Revenue refused to grant the exemption and the applicants applied to the Tribunal for a review of that decision.
The Tribunal considered the applicants' application and decided that the Commissioner's decision was correct. Upon an examination of the relevant legislative provisions, the Tribunal found that the lot of land in question was not 'private residential property' as defined in the Act. For the land to be 'private residential property', it needed to be a lot of land upon which a 'private residence' is being or has been constructed. The Act defines 'private residence' as, relevantly, a building fit to be occupied as a place of residence. By the time the building in this case was fit to be occupied as a place of residence, the Certificate of Title for the land had been cancelled. The lot of land in question had been replaced with four strata lots.
Accordingly, the requirements of s 24A were not satisfied.
The Tribunal upheld the Commissioner's decision and dismissed the application.

Category: B

Representation:

Counsel:

First Applicant              :     Mr J Ludlow
Second Applicant          :     Mr J Ludlow
Respondent:     Ms R Panetta

Solicitors:

First Applicant              :     HWL Ebsworth Lawyers
Second Applicant          :     HWL Ebsworth Lawyers
Respondent:     State Solicitor's Office

Case(s) referred to in decision(s):

Commissioner of State Revenue v Abbotts Exploration Pty Ltd (2014) 48 WAR 300, 17
Commissioner of State Revenue v Land Row Properties Pty Ltd (2010) 79 ATR 800
Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503
Commissioner of the Australian Federal Police v Courtenay Investments Ltd (No 2) (2014) 283 FLR 59
Kelly v R [2004] HCA 12; (2004) 218 CLR 216
Re Charles Lloyd Property Group Ptd Ltd and Commissioner of State Revenue (2011) 84 ATR 775
Tamas v Victorian Civil and Administrative Tribunal and Others (2003) 9 VR 154

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This matter comes before the Tribunal by way of an application under s 40 of the Taxation Administration Act 2003 (WA) (TA Act) made by the first applicant and the second applicant (together 'applicants') on 28 July 2017.
The applicants lodged an objection on 4 April 2017 to two decisions made by the respondent (Commissioner). The first of those decisions, addressed to the first applicant and dated 14 February 2017, is a decision of the Commissioner to refuse, in the case of the first applicant, an exemption from land tax for the assessment years 2014/2015 and 2015/2016 respectively to which the first applicant claimed she was entitled under s 24A of the Land Tax Assessment Act 2002 (WA) (LTA Act) during construction of a property at 27 South Perth Esplanade, South Perth (Property). The second decision is addressed to the second applicant and is also dated 14 February 2017. It is in substantially the same terms as the decision addressed to the first applicant.
On 1 June 2017, the Commissioner disallowed the objection and it is that decision which is the subject of the review in this proceeding.

Proceedings in the Tribunal

At the first directions hearing on 14 August 2017, the matter was referred to a mediation conference. The mediation was terminated without a resolution being achieved but the parties agreed that the matter could be determined entirely on the documents.
The parties filed a statement of agreed facts and issues on 2 October 2017. The Commissioner filed her written submissions on 19 October 2017 (Commissioner's Submissions) and the applicants filed their responsive statement on 20 November 2017 (Applicants' Response). The Commissioner's final response was filed on 12 December 2017 (Commissioner's Response).
On that date, the Tribunal's decision was reserved.

Facts

The facts of this matter as set out in the agreed statement of facts and issues are uncontroversial. The parties did not resile from any of these facts during the course of the subsequent written submissions. Accordingly, these are the Tribunal's findings of fact.
In September 2005, the applicants and three other individuals purchased Lots 50 and 51 on Deposited Plan 302200 (Former Lots 50 and 51) each of which was then a vacant lot of land. At that time, Former Lots 50 and 51 comprised the whole of the land comprised in the now former Certificate of Title Volume 912 Folio 89.
On 3 October 2005, the applicants and the other three individuals became the registered proprietors of Former Lots 50 and 51. On the same date, the now former Certificate of Title Volume 912 Folio 89 was cancelled and replaced by the now former Certificate of Title Volume 2230 Folio 18.
On 5 May 2009, the Western Australian Planning Commission approved the amalgamation of Former Lots 50 and 51 to form Lot 88 on Deposited Plan 57458 (Former Lot 88).
On 13 August 2009, Former Lots 50 and 51 were amalgamated to form Former Lot 88 being the whole of the land in the now former Certificate of Title Volume 2724 Folio 92, which was issued to replace the now former Certificate of Title Volume 2230 Folio 18. Simultaneously, the applicants became the registered proprietors of Former Lot 88 along with three other individuals.
On or around 18 June 2010, the applicants and the then other registered proprietors of Former Lot 88 entered into a joint venture agreement under which they agreed, amongst other things:
a)to build four apartments on Former Lot 88;
b)to subdivide Former Lot 88 into four individual lots on a strata plan once the apartments were completed; and
c)upon completion, each of the four owners of Former Lot 88 would own one of the apartments.
On 30 June 2011, the registered proprietorship of Former Lot 88 changed. However, the applicants remained as two of the five registered proprietors.
On 30 September 2011, the registered proprietorship of Former Lot 88 again changed but again, the applicants remained as two of the four registered proprietors.
On 3 April 2012, a building contract with Palazzo Builders Pty Ltd was signed for the construction of four apartments on Former Lot 88.
On or about 28 April 2016, the City of South Perth issued an 'occupancy permit strata' in relation to the four apartments for the purposes of, amongst other provisions, s 5B(2)(a) of the Strata Titles Act 1985 (WA).
The occupancy permit strata does not act as an occupancy permit to authorise a person to occupy a building. However, it is required in order to lodge a strata plan for registration.
On 23 May 2016, the Inspector of Plans and Surveys approved Strata Plan 70269 covering Former Lot 88.
On 3 June 2016, Certificate of Title Volume 2724 Folio 92 (for Former Lot 88) was cancelled.
Also on 3 June 2016, new Certificates of Title for Lots 1, 2, 3 and 4 on Strata Plan 70269 were issued.
On 14 June 2016, an occupancy permit in relation to the four apartments was granted under s 58 of the Building Act 2011 (WA). This occupancy permit permitted the occupancy of the apartments.
On or about 14 June 2016, and prior to midnight on 30 June 2016, the applicants and their husbands commenced occupancy of their apartments on Lots 1 and 2 on Strata Plan 70269.

Issue

The parties both agree that the issue before the Tribunal is whether a partial exemption in relation to Former Lot 88 under s 24A of the LTA Act ought to have been granted for the 2014/2015 and 2015/2016 assessment years.

Legislation

The relevant provisions of the TA Act are as follows:
40. Right of review by State Administrative Tribunal
(1)A person dissatisfied with the Commissioner's decision on an objection or on an application for an extension of time for lodging an objection may apply to the State Administrative Tribunal for a review of the decision.
(2)A person ceases to be entitled to apply to the State Administrative Tribunal for a review of a decision on an objection against an interim assessment if the assessment following the interim assessment is made before the person makes an application under subsection (1) for a review of the decision.
(3)Subsection (1) does not apply to, or in respect of, a decision if this Act expressly provides that the decision is not subject to review under this Act.
The relevant provisions of the LTA Act are as follows:
4.       Terms used
The Glossaries at the end of this Act and the Taxation Administration Act 2003 respectively define or affect the meaning of some of the words and expressions used in this Act, and also affect the operation of other provisions.
5.       Taxable land
Land tax is payable, in accordance with the land tax Acts, for each financial year for all land in the State except land that is exempt under section 17.
…
7.       Liability to pay land tax
(1)Land tax payable on land for an assessment year is payable by the person who is or was the owner of the land at midnight on 30 June in the previous financial year.
…
17.Exempt land
(1)Land is exempt from land tax for an assessment year if
(a)the Commissioner grants an exemption for the assessment year under section 20; or
(b)it is exempt for the assessment year under another provision of this Part.
(2)Unless this Part provides otherwise, an exemption under a provision of this Part referred to in subsection (1)(b) applies, in accordance with section 18, to the whole or part of a lot or parcel of land.
18.Whole and partial exemptions
(1)In this section
exemption provision means a provision of this Part referred to in section 17(1)(b);
relevant requirements, in relation to an exemption provision, means one or more of the following by virtue of which land is exempt under the provision
(a)it is used, reserved or occupied for a purpose or purposes specified in the provision;
(b)it is used, owned or occupied by, vested in or held in trust for, a person or persons of a class or classes specified in the provision;
(c)it is of a class or description specified in the provision.
(2)If an exemption under an exemption provision applies to a lot or parcel of land then
(a)the whole of the lot or parcel is exempt if all of the relevant requirements of the provision apply in respect of the whole of the lot or parcel; and
(b)otherwise, only a part of the lot or parcel is exempt.
(3)An exemption that applies only to a part of a lot or parcel of land as referred to in subsection (2)(b) applies to the lot or parcel to the same extent that the relevant requirements of the exemption provision apply in respect of the lot or parcel.
…
24A.Construction of private residence, 2 year exemption for
(1)Private residential property (except property held in trust) that is owned by an individual is exempt for 2 consecutive assessment years if
(a)the commencement date for the construction of the private residence that forms part of the property is
(i)in the first assessment year; or
(ii)in any previous financial year and part of the construction is carried out in the first assessment year;
and
(b)the completion date for the construction is in the second assessment year; and
(c)at midnight on 30 June immediately before the first assessment year, the individual owned the land on which the private residence is constructed; and
(d)the individual is the first occupant of the private residence; and
(e)the individual uses the private residence as his or her primary residence during the second assessment year.
(2)However, the property is not exempt if
(a)the individual or any other person derived any income from the property in the period between the beginning of the first assessment year and the time when the property was first occupied; or
(b)any other private residential property owned by the individual is exempt for either assessment year under another provision of this Division as a result of its use by the individual as his or her primary residence.
(3)The individual may apply for the exemption in the approved form after the commencement date for the construction.
(4)The Commissioner may require the individual to notify the Commissioner in the approved form of
(a)the completion date for the construction; and
(b)when the individual occupies the private residence.
(5)The Commissioner is to make any reassessment necessary to give effect to this section.
Clause 1 of the Glossary to the LTA Act contains the definitions of the relevant terms as follows:
assessment year, in relation to land tax, means the financial year for which the land tax is, or is to be, assessed[.]
commencement date, for the construction or refurbishment of a private residence, means
(a)if the residence is to be constructed or refurbished under a building contract the date when the contract is made; or
(b)if the residence is to be constructed or refurbished by an ownerbuilder the date when the building permit for the work is granted under the Building Act 2011[.]
completion date, for the construction or refurbishment of a private residence, means the date when the construction or refurbishment is completed to the point where the residence is ready for occupation[.]
land includes all tenements and all interests in land[.]
lot has the meaning given in clause 2[.]
parcel means 2 or more lots of land that are treated as a single property under clause 2[.]
private residence means a building or part of a building that was occupied, or fit to be occupied and intended by the owner to be occupied, as a place of residence of one or more individuals, except a building or part of a building that is
(a)used as a hotel, motel, hostel, lodging house or boarding house; or
(b)ordinarily used for holiday accommodation; or
(c)used as an educational institution, college, hospital or nursing home; or
(d)used as a club; or
(e)used as a home for aged or disabled persons by an eligible organisation within the meaning of the Aged or Disabled Persons Care Act 1954 of the Commonwealth; or
(f)prescribed or of a prescribed class[.]
private residential property means
(a)a lot of land on which there is a private residence; or
(b)a parcel of land on which there is a private residence constructed so that part of the residence stands on each of the lots of land that constitute the parcel; or
(c)an interest in a home unit; or
(d)for the purposes of sections 24, 24A, 27, 27A and 28 a lot of land on which a private residence is being or has been constructed[.]
subdivided, in relation to land, has the meaning given in clause 3[.]
Clause 2 of the Glossary relevantly defines 'lot' as follows:
… a defined portion of land
(a)which is the whole of the land the subject of
…
(ii)a certificate of title registered under the Transfer of Land Act 1893; or
…
(vii)a lot depicted on a strata plan or survey‑strata plan where the land the subject of the plan has been subdivided within the meaning given in clause 3(1)(d) or (e)[.]
Clause 3 of the Glossary relevantly defines 'sub divided' as follows:
(1)Land is subdivided when
…
(d)in the case of land that is the subject of a strata plan
(i)if the plan is required to be accompanied by a certificate under the Strata Titles Act 1985 section 25 the plan is approved by the Commission; or
(ii)if not an occupancy permit or a building approval certificate required under the Strata Titles Act 1985 section 5B(2) is granted under an application mentioned in the Building Act 2011 section 50(1)(a) or (b);
…
(2)An approval referred to in subclause (1) is conclusively presumed to have been given on the date appearing in the approval as endorsed on the plan, instrument or application referred to in that paragraph.
Section 5B(2) of the Strata Titles Act 1985 (WA) provides:
(2)A strata plan lodged for registration shall be accompanied by
(a)an occupancy permit granted under an application mentioned in the Building Act 2011 section 50(1)(a); or
(b)a building approval certificate granted under an application mentioned in the Building Act 2011 section 50(1)(b).

Jurisdiction of the Tribunal

These proceedings fall within the Tribunal's review jurisdiction. The review is to be by way of a hearing de novo; s 27(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review; s 27(3) of the SAT Act.

Operation of the LTA Act

References in these reasons to section numbers where the name of an Act does not follow, are references to section numbers of the LTA Act.
Under s 5, land tax is payable for each financial year for all land in Western Australia except as provided under s 17.
Under s 7(1), land tax payable on land for each financial year is payable by the person who is or was the owner of the land at midnight on 30 June in the previous year.
Section 17 provides that land is exempt from land tax if the Commissioner grants an exemption for the assessment year under s 20 or if the land is exempt under another provision of Pt 3 of the LTA Act (which comprises s 17 s 43A).
Under s 21(1), private residential property (except properties held in trust) is exempt from land tax if the property is used by the owner as its primary residence at midnight on 30 June in the financial year before the assessment year.
Sections 24 and 24A both deal with exemptions which may apply where a new residence which is intended to be used as the owner's primary residence is being constructed on land but, because of the construction, the owner is not using it as its primary residence on the relevant date. It is the exemption in s 24A which is relevant in this case.
Turning to s 24A, the Commissioner has provided a summary of how she considers that the exemption operates; Commissioner's Response paras 6 11. The Commissioner's summary is in my view entirely consistent with the wording of s 24A and correct. It is useful to set it out here because it deals with a concern raised by the applicants that '… it will not be possible to know, until more than 12 months after 30 June in the previous year, whether the owner as at that 30 June in the previous year is entitled to the exemption'; Applicants' Response para 69.2.

Section 24A(3) permits an individual to apply for the exemption after the commencement date of the construction of the private residence but before the completion of the construction. The individual may subsequently be asked to notify the Commissioner of the completion date of the construction and the date upon which the individual occupies the private residence; s 24A(4).
The Commissioner may then make any necessary reassessment to give effect to s 24A; s 24A(5).
I infer that it is open to the individual to dispense with the provisional assessment and merely apply for a reassessment if and when the elements of s 24A have been met.
Whichever approach is taken by the individual, it is clear from the wording of s 24A that a final assessment of the availability or otherwise of the relevant exemption can only be made retrospectively, upon completion and occupation of the building concerned. I will refer to this again later in these reasons.

Commissioner's position

In essence, the Commissioner's position is that none of the elements of s 24A(1) has been met in this case, with the effect that the exemption in s 24A does not apply.
The Commissioner submits that in relation to s 24A(1)(a), although construction began in the 2011/2012 assessment year and part of the construction was carried out in the 2014/2015 assessment year, the private residences that were constructed never formed part of Former Lot 88, because Former Lot 88 ceased to exist on 3 June 2016, prior to the building being occupied or fit for occupation. Consequently, the Commissioner says that it cannot be said for the purposes of s 24A(1)(a) that there were 'private residences that form part of the property, being Former Lot 88'; Commissioner's Submissions para 51.
With regard to s 24A(1)(b), the date of completion of the construction of the building, 14 June 2016, was, as required, in the second, 2015/2016 assessment year. However, the 'private residences' that had been constructed never formed part of Former Lot 88, because Former Lot 88 ceased to exist on 3 June 2016, prior to the building being occupied or fit for occupation. By 14 June 2016, the only relevant lots in existence were lots 1 4 inclusive on Strata Plan 70269.
In the case of s 24A(1)(c), the Commissioner accepts that at midnight on 30 June 2014, the applicants owned (in part) Former Lot 88. However, the Commissioner says that 'private residences' were never situated on Former Lot 88. By the time the building concerned constituted 'private residences' within the meaning of the LTA Act, Former Lot 88 was no longer in existence and so in the Commissioner's view it cannot be said that the private residences were constructed on Former Lot 88.
In relation to s 24A(1)(d), the Commissioner concedes that the applicants were the first occupants of the relevant residences. However, the residences did not form part of Former Lot 88, but instead were part of the new strata lots.
Finally, in relation to s 24A(1)(e), the Commissioner agrees that applicants used the residences as their primary residences during the second assessment year, namely the 2015/2016 assessment year. However, once again, the residences upon completion did not form part of Former Lot 88, but instead were part of the new lots.

The applicants' position

The applicants consider that the criteria in s 24A(1) are satisfied and that the exemption for Former Lot 88 for the assessment years 2014/2015 and 2015/2016 should be allowed.
The applicants say that, 'when considering whether the exemption applies, very close attention must be paid to the actual wording of subsection 24A(1) … which sets out the five criteria that must be satisfied for the exemption to apply'; Applicants' Response para 17.
Turning first to s 24A(1)(a), the applicants say that the commencement date for the construction of the 'private residence' that formed part of the 'private residential property' either:
a)was in the first, 2014/2015 assessment year; or
b)was in a previous financial year and part of the construction was carried out in the 2014/2015 assessment year.
The applicants say that it is necessary to note that:
a)the LTA Act draws a distinction between a 'private residence' and 'private residential property'; and
b)section 24A(1)(a) focuses on the former concept, not the latter concept.
The applicants contend that the Commissioner is erroneously confusing these two concepts.
The applicants say that, importantly:
a)the term 'private residence' is defined in the Glossary in such a way that it can refer to a building under construction (and therefore a building not yet ready to be occupied) on a 'private residential property' (providing that the owner intends the building to be occupied as a place of residence of one or more individuals);
b)the term 'private residential property' is defined in the Glossary in such a way that it can refer to a lot of land on which a 'private residence' is being constructed (and is therefore not yet ready to occupy); but
c)the two definitions are not drafted in such a way that for the exemption to apply they require the 'private residential property' on which a 'private residence' is under construction to be still in existence at the time the relevant building is first occupied as a residence[.]
As for s 24A(1)(b), the applicants point out that the completion date for 'the construction' was in June 2016, during the second, 2015/2016, assessment year. The applicants submit that 'the construction' must be a reference to the construction of the applicants 'private residences' referred to in s 24A(1)(a), because only the 'private residences', not the 'private residential property' (or Former Lot 88) were capable of being constructed.
The applicants again point out what they see as the distinctions between 'private residences' and 'private residential property'. Again, the applicants say, the Commissioner is confusing these concepts.
As required by s 24A(1)(c), the applicants say that at midnight on 30 June 2014, the applicants owned the 'land' on which the relevant 'private residences' were later constructed.
Once more, the applicants point to the Commissioner's confusion of the distinction between 'private residences' and 'private residential property'.
On this point, the applicants also say that it is important to note that the question under s 24A(1)(c) is not whether the applicants owned the 'lot' on which the 'private residences' were later constructed, but whether they owned the 'land' on which those 'private residences' were later constructed. The applicants say that there is a difference between 'lot' and 'land' but says that the Commissioner is also erroneously confusing these two concepts.
The applicants say that, as required by s 24A(1)(d), each applicant was the first occupant of the relevant 'private residence'.
Finally, pursuant to s 24A(1)(e), the applicants say that each of them moved into, and therefore used, the relevant 'private residence', which the applicants submit is the 'private residence' referred to in s 24A(1)(a), as their primary residences during the assessment year ending 30 June 2016.
The applicants once more stress the importance of the question raised by s 24A(1)(e), which is not whether the relevant applicant used the 'private residential property' referred to in the chapeau to subsection 24A(1) during that year, but rather whether the relevant applicant used the relevant 'private residence', which the applicants submit once more is the 'private residence' referred to in s 24A(1)(a), during that year. Thus the applicants say that it does not matter whether, at the relevant time, the 'private residential property' referred to in the chapeau no longer existed.
The applicants conclude that it follows that all five of the criteria set out in s 24A(1) have been satisfied, with the consequence that the relevant 'private residential property', namely Former Lot 88, was exempt from land tax for the 2014/2015 and 2015/2016 assessment years.

Principles of statutory interpretation

The modern approach to statutory construction in Western Australia is purposive; Commissioner of State Revenue v Abbotts Exploration PtyLtd (2014) 48 WAR 300 (Abbotts) at [160]. This approach was summarised in Edelman J in Commissioner of theAustralian Federal Police v Courtenay Investments Ltd (No 2) (2014) 283 FLR 59 at [14]:
The key integers in the exercise of determining the effect of Parliament's intention in [the relevant statutory provision] are statutory text, context and purpose. The starting point, and the end point, is the text. But, although the statutory text is the 'surest guide' to Parliament's intention, the text must be read in the widest sense of context, including the general purpose and policy of the provision'.
In Kelly v R [2004] HCA 12; (2004) 218 CLR 216 at [84], McHugh J said this:
However, a legislative definition is not or, at all events, should not be framed as a substantive enactment. In Gibb v Federal Commissioner of Taxation, (citation omitted) Barwick CJ, McTiernan and Taylor JJ stated:
The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense – or are to be taken to include certain things which, but for the definition, they would not include. … [Definition] clauses are … no more than an aid to the construction of the statute and do not operate in any other way.
(emphasis added)
In addition, as Dixon CJ once pointed out, 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. At issue here is not the meaning of the phrase 'in the course of official questioning' when read in isolation. The issue is the meaning of s 8(2) when read with the aid provided by the definitions of 'confession or admission' and 'official questioning' in s 8(1), by the evident policy of s 8 and by the mischief that it sought to overcome[.]
I may have regard to extrinsic materials and legislative history without having to invoke the provisions of s 19 of the Interpretation Act 1984 (WA) (Abbotts at [91]), but legislative history and extrinsic materials cannot be relied upon to displace the clear meaning of the statutory text; Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39].
Taxation statutes, including the LTA Act, are to be interpreted in a technical matter: ReCharles Lloyd Property Group Ptd Ltd and Commissioner of State Revenue (2011) 84 ATR 775 at [781]; Commissioner of State Revenue v Land Row Properties Pty Ltd (2010) 79 ATR 800 at [816].

Disposition

From a consideration of the LTA Act as a whole, Pt 3 in particular, and also the legislative materials referred to in Appendix 2 of the Commissioner's Submissions, the intention of Parliament in respect of s 24 and s 24A is in my opinion clear. In my view, that intention was to extend the 'primary residence' exemption from land tax contained in s 21 to include land upon which an individual's primary residence is being constructed, either for one assessment year (s 24) or for two assessment years (s 24A), depending on the duration of the construction period.
However, I do not consider that the text of s 24A can be read in a way which will meet that intention in the particular circumstances of this case.
The exemption from land tax being sought by the applicants is for the 2014/2015 and 2015/2016 assessment years and is an exemption for Former Lot 88 under s 24A.
The chapeau of s 24A(1), when read with the aid of the definitions of 'private residential property' and 'private residence' provide as follows:
A lot of land on which a building that was occupied, or fit to be occupied and intended by the owner to be occupied, as a place of residence is being or has been constructed is exempt for two consecutive assessment years[.]
The section then requires that all of the criteria set out in paras [a] to [e] are met.
I agree with the applicants that the resolution of the issue before the Tribunal requires close attention to the words of s 24A.
As I stated earlier in these reasons, it is my view that when considering the words of s 24A, the analysis of whether the criteria in s 24A(1) are met should take place, in the words of the Commissioner, on an 'after the fact' basis; Commissioner's Response paras 26 and 71. This is supported by the fact that a 'private residence' is, by definition, a building occupied or fit to be occupied and intended to be occupied (my emphasis) as a place of residence. It seems to me that the criteria in s 24A(1) cannot therefore be applied at any time prior to the completion date for the construction other than provisionally as allowed for in s 24A(3).
I emphasise the word 'and' merely because the applicants at para 22.1 of the Applicants' Response seem to be reading that 'and' as 'or'.
The inclusion of the words 'is being or has been constructed' in the definition of 'private residential property' for the purposes of s 24A does not, contrary to the applicants' submission, mean that a 'private residence' can be a residence still under construction. A private residence, to fall within the definition of that term, must be occupied or fit to be occupied and intended to be occupied as a place of residence. Words to the effect of 'being or has been constructed' are not found in the definition of 'private residence' but instead are found in the definition of 'private residential property'. The expression 'private residence' quite clearly means a building occupied or fit to be occupied as a place of residence, and cannot extend to a building still under construction.
Turning then first to the criterion in s 24A(1)(a), the reference in that section to 'the property' is clearly a reference to the same property mentioned in the chapeau of s 24A(1). The definite article before the word 'property' means in my view that 'the property' being referred to is the 'private residential property' already mentioned earlier in the same section; Tamas v Victorian Civil and Administrative Tribunal and Others (2003) 9 VR 154 at [8]:
… it is a natural and correct use of English to employ the definite article when one is referring to a person or thing already identified expressly or by implication[.]
Similarly, 'the private residence' referred to in s 24A(1)(a) is a reference to the same 'private residence' which by implication is identified in the chapeau of s 24A(1).
Turning next to the criterion set out in s 24A(1)(b), the requirement is that the completion date for 'the construction' is in the second assessment year.
Because of the use of the definite article before the word 'construction', I am satisfied that the construction being referred to is the construction of the 'private residence' that forms part of 'the property'. That property is, in this case, Former Lot 88.
The 'completion date' is a defined term and is the date when the private residence is ready to be occupied. The date of the issue of the occupancy permit, and thus the completion date, was 14 June 2016.
With regard to s 24A(1)(c), I consider that the private residence there mentioned is again the private residence which by implication is identified in the chapeau of s 24A(1) and expressly referred to in s 24A(1)(a).
The reference to 'the land on which the private residence is constructed' is, again because of the use of the definite article before the word 'land', is the lot of land identified by implication in the chapeau to s 24A(1).
In s 24A(1)(d), I consider that the words 'the private residence' refer to the same private residence identified by implication in the chapeau of s 24A(1) and expressly in s 24A(1)(a) and (c). Again, I draw this conclusion from the use of the definite article before the words 'private residence' in that section.
Finally, the words 'the private residence' in s 24A(1)(e) is in my view a reference to the private residence already identified by implication in the chapeau of s 24A(1) and expressly in s 24A(1)(a), (c) and (d).
It therefore follows that I agree with the Commissioner's submission (Commissioner's Submissions para 37) that when the relevant defined terms are included in s 24A(1) in full, it reads as follows:
1)A lot of land on which a building or part of a building occupied or fit to be occupied as a place of residence is being or has been constructed that is owned by an individual is exempt for two consecutive assessment years if
a)the commencement date for the construction of the occupied private residence that forms part of the lot of land on which the private residence is being or has been constructed is
i)in the first assessment year; or
ii)part of the construction is carried out in the first assessment year; and
b)the completion date for the construction of the occupied private residence that forms part of the lot of land on which that private residence has been constructed is in the second year; and
c)at midnight on 30 June immediately before the first assessment year, the individual owned the lot of land on which the occupied private residence that forms part of the lot of land has been constructed; and
d)the individual is the first occupant of the private residence that forms part of the lot of land on which the private residence has been constructed; and
e)the individual uses the private residence that forms part of the lot of land on which the private residence has been constructed as his or her primary residence during the second assessment year.

Conclusion

Applying these provisions to the facts of this matter, it is clear that at no stage did Former Lot 88 have constructed upon it a 'private residence', that is, a building occupied or fit to be occupied by the owner as a place of residence. By the time the building was fit to be occupied by the owner as a place of residence, Former Lot 88 had ceased to exist.
Dealing specifically with each of the criteria in s 24A(1), in relation to s 24A(1)(a), although construction of the residence began in a previous financial year and part of the construction of that residence was carried out in the first assessment year, namely 2014/2015, the private residences that were constructed and completed on 14 June 2016 never formed part of Former Lot 88, because by the date of completion when the residence became a 'private residence', Former Lot 88 had ceased to exist. Accordingly, for the purpose of s 24A(1)(a), there were no private residences that formed part of Former Lot 88.
With regard to s 24A(1)(b), although completion of the residences on 14 June 2016 was in the second or 2015/2016 assessment year, the private residences formed part of Lots 1 4 on Strata Plan 70269, not Former Lot 88.
With regard to s 24A(1)(c), at midnight on 30 June 2014 the applicants owned in part Former Lot 88. However, by the time the building constituted 'private residences', those private residences could not be described as being on Former Lot 88.
With regard to s 24A(1)(d), the applicants were individuals and were the first occupants of the residences which had been constructed. However, the residences were not 'private residences' on Former Lot 88.
Finally, in relation to s 24A(1)(e), the applicants being individuals used the residences as their primary residences during the second or 2015/2016 assessment year. However, the residences were not 'private residences' on Former Lot 88.
It follows that in my view none of the criteria set out in s 24A(1) has been satisfied and the Commissioner's decision to refuse the applicants application for an exemption for Former Lot 88 for the 2014/2015 and 2015/2016 assessment years is the correct decision.

Orders

1.The decision of the respondent made on 1 June 2017 to disallow the applicants' objection to the land tax assessment in relation to Lot 88 on Plan 57458 being the whole of the land comprised in Certificate of Title Volume 912 Folio 89 is affirmed.

2.The application for review is dismissed.

I certify that this and the preceding [92] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT