Haddad v Chief Commissioner of State Revenue (Rd)

[2011] NSWADTAP 35

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Haddad v Chief Commissioner of State Revenue (RD) [2011] NSWADTAP 35

Hearing dates:

23 June 2011

Decision date:

12 August 2011

Jurisdiction:

Appeal Panel - Internal

Before:

D Patten, Deputy President
R Perrignon, Judicial Member
C Bennett, Non-judicial Member

Decision:

1. Appeal dismissed.

2. The order made by the Tribunal on 27 January 2011 is confirmed.

3. Subject to Order 5, costs reserved.

4. In the event the respondent seeks an order for costs it may file and serve written submissions within 21 days. The appellant may file and serve written submissions in reply within a further period of 21 days. Thereafter the matter will be dealt with on the papers.

5. In the event the respondent fails to make submissions pursuant to Order 4, there will be no order as to costs.

Catchwords:

Land Tax - Principal Place of Residence - Exemption not available - No error of law

Legislation Cited:

Land Tax Management Act 1956
National Parks and Wildlife Act 1974
Nature Conservation Trust Act 2001
Threatened Species Conservation Act 1995

Category:

Principal judgment

Parties:

Sally Haddad (Appellant)
Chief Commissioner of State Revenue (Respondent)

Representation:

Counsel
A Rider (Respondent)
J Haddad (Agent - Appellant)
I V Knight, Crown Solicitor (Respondent)

File Number(s):

119005

 Decision under appeal 

Jurisdiction:

9108

Citation:

Haddad v Chief Commissioner of State Revenue [2011] NSWADT 17

Date of Decision:

2011-01-27 00:00:00

Before:

Revenue Division

File Number(s):

096068

REASONS FOR DECISION

1. APPEAL PANEL (D PATTEN (DEPUTY PRESIDENT), R PERRIGNON (JUDICIAL MEMBER), C BENNETT (NON-JUDICIAL MEMBER)): This is an appeal on a question of law from a decision of the Tribunal published on 27 January 2011. The appellant also seeks leave to appeal on the merits.

1. The decision under appeal arose from a hearing on 1 July, 14 October and 2 December 2010. The appellant by leave was represented at that hearing by her husband, Dr J Haddad, a medical practitioner. The matter was decided in the Tribunal below on what was regarded as a preliminary point of law. If it had not been so decided it is obvious that the Tribunal would have been greatly hampered by the absence from the hearing, said to be on medical grounds, of the appellant. As a consequence, the reasons of the Tribunal, and we make no criticism, contain few explicit findings of fact in a case where, apart from the preliminary question of law, the issue was essentially one of fact, namely the location of the appellant's principal place of residence (PPR) at relevant times for the purposes of the Land Tax Management Act 1956 (the Act).

1. The case concerns the correctness or otherwise of the respondent's assessment of Land Tax against the appellant for the 2004 to 2009 land tax years in respect of a property at Wadalba, on the Central Coast of NSW (the property). At paragraph 5 of its reasons the Tribunal stated "the facts not in dispute were as follows". There followed 6 paragraphs containing statements of facts which we regard as sufficient for the disposal of the appeal. Dr Haddad, who appeared by leave before us as agent for the appellant, did not suggest that the Tribunal erred in its listing of those facts as being agreed by the parties. The listed paragraphs were as follows:

1. The applicant became owner of the Wadalba property on 22 March 2002 pursuant to orders made by Family Court of Australia on 6 March 2002. The Wadalba property situated on the Central Coast of New South Wales is approximately 4.05 hectares in area. On the property there is a three-bedroom house and a free standing corrugated iron "building". The two buildings are located in the middle of the Wadalba property. The rest of the Wadalba property is vacant land with natural vegetation.

2. The applicant is also an owner of a residential property situated in Telopea, which is a large three-storey brick building with a swimming pool, that had been her permanent residence for a number of years.

3. On 25 September 2002, the applicant entered into an exclusive management agency agreement with Coastwide Property Management Centre to lease the land. The house was let to tenants from sometime in 2002 until August 2007.

4. Sometime in June 2007 the garage connected to the house was damaged and on 17 July 2007 a fire destroyed the corrugated iron "building".

5. The last tenant vacated the house in August 2007 and no one has lived at the Wadalba property to date.

6. Electricity power to the corrugated iron "building" was disconnected on 8 August 2007 and all electricity connections to the Wadalba property were disconnected on 6 February 2008.

1. The nature of the factual dispute before the Tribunal below is encapsulated in paragraphs 13 and 14 and the first sentence of paragraph 15 of its reasons:

13 T he corrugated iron "building" was described by the applicant as "non attached two bedroom unit". The Chief Commissioner described it as a "shed".

14 The applicant claimed that the Wadalba property was her residence since she has owned it. The applicant also claimed that the three bedroom "home and its immediate surroundings only, have been rented out" and that she has "always occupied the two bedroom unit".

15 The Chief Commissioner claimed that the applicant did not use the "shed" as her principal place of residence for various factual reasons.

1. As we have indicated, in the absence of the appellant from the witness box the Tribunal below was unable to reach any final conclusion on all the factual issues, although in paragraph 59 it expressed a view on some of them against the appellant's interest:

59 The applicant, in her submissions prepared by her agent, made a number of assertions. But no hard evidence was produced to suggest that she had abandoned her principal place of residence at Telopea and established it at the Wadalba property. On the contrary, the evidence was that she continued to have strong links with her own house and spent a considerable time at her parents' home. The corrugated iron "building" was not a place where the applicant spent most of her time. Evidence such as mobile phone records to show location of calls, was not produced to support her claim that she was at the property on a continuous basis. Her own evidence was that she spent some nights at this place.

1. For the purposes of the disposal of this appeal, it can be assumed as the appellant contends that the structure described as "a free standing corrugated iron building" in paragraph 3 above constituted at relevant times up to 17 July 2007 a "non attached two bedroom unit".

1. Unfortunately the Notice of Appeal does not identify in any meaningful way the asserted errors of law committed by the Tribunal below. The "question of law arising from the Tribunal's decision" is unhelpfully stated as:

- The making of several findings of fact with no or very limited evidence.

- The making of several decisions without fact.

- Misinterpretation of the law.

- Misapplication of the law.

- Acceptance of a late threshold issue, denying the applicant opportunity to make further claim.

1. Relevant provisions of the Act are as follows:

3 Definitions

(1) In this Act, unless the context or subject-matter otherwise indicates or requires:

" flat " means a room or a suite of rooms (whether or not forming part of a building or a detached building):

(a) used or occupied as a separate dwelling, or

(b) so constructed, designed or adapted as to be capable of being used or occupied as a separate dwelling,

but does not include a single dwelling.

...

" principal place of residence " of a person means the one place of residence that is, among the one or more places of residence of the person within and outside Australia, the principal place of residence of the person.

...

" single dwelling " means a house:

(a) used or occupied as a separate dwelling, or

(b) so constructed, designed or adapted as to be capable of being used or occupied as a separate dwelling. [2004 - 2008 Tax Years]

...

9C Reduction in land value for flats on mixed development land or mixed use land

(1) For the purpose of assessing land tax, the land value of mixed development land or mixed use land on which is situated a flat is to be reduced by the allowable proportion in relation to the flat.

(2) The allowable proportion for a flat is as determined in accordance with whichever of the following paragraphs is applicable in the particular case:

(a) if there is an apportionment factor entered in the Register in respect of that land value-the proportion determined in accordance with the following calculation:

(b) if paragraph (a) is not applicable-the proportion specified in an application for a reduction under this section as the fair and reasonable proportion of the land value of the land to be attributed to the flat, subject to subsections (2A) and (2AA).

(c) (Repealed)

(2A) If there is no apportionment factor entered in the Register in respect of the land value of the land, the Chief Commissioner may request the Valuer-General to determine the apportionment factor in respect of the land concerned.

(2AA) If a request is made under subsection (2A):

(a) the Valuer-General must determine the apportionment factor concerned and enter it in the Register, and

(b) the allowable proportion for the flat must be determined in accordance with subsection (2) (a).

(2AB) Apportionment factors for the purposes of this section are to be ascertained in accordance with Division 5 or Division 5A of Part 1B of the Valuation of Land Act 1916 , as appropriate to the land concerned. If such an apportionment factor is expressed as a percentage, the apportionment factor is, for the purposes of this section, to be converted to a fraction.

(2AC) (Repealed)

(3) The reduction under this section applies only if the following requirements are satisfied:

(a) the flat must be used and occupied by the owner of the land (or one of the owners) as his or her principal place of residence and for no other purpose, in which connection the use of the land for the purpose of one, but not more than one, residential occupancy other than that of the owner under lease or licence from the owner may be disregarded if it is an excluded residential occupancy (within the meaning of clause 4 of Schedule 1A),

(b) (Repealed)

(c) an owner of the land who occupies the flat must not be an owner merely because of being a trustee,

(d) (Repealed)

(e) the owner of the land must not be a company or company jointly with another person or other persons, except in either case a trustee company acting in its representative capacity.

(4) For the purposes of determining whether a flat has been used and occupied by an owner of land as his or her principal place of residence under subsection (3) (a), clauses 8, 9 and 10 of Schedule 1A apply in respect of the flat, and that part of the land on which the flat is situated, in the same way as they apply in respect of land under the principal place of residence exemption.

(5) Unless the land concerned is land to which subsection (2) (a) applies, there is to be no reduction under this section unless:

(a) application has been made for the reduction by all the owners of the land, specifying the proportion that in their opinion is a fair and reasonable proportion of the land value of the land to be attributed to the flat, and

(b) the application is made in a form approved by the Chief Commissioner.

(6) There is to be no reduction under this section if the building on the land, or the buildings on the land together, comprise 2 flats and the land is exempted from taxation under this Act.

(6A) For avoidance of doubt, if a reduction in the land value of land is required under this section and the land is jointly owned, then, for the purposes of section 27 (3) (a), the individual interest of each of the owners of the land (including the owner who occupies the flat) is to be assessed on the basis of the land value of the land as reduced under this section.

(7) This section does not apply to land to which section 9D or 21B applies.

(8) In this section:

mixed development land has the same meaning as in Division 5 of Part 1B of the Valuation of Land Act 1916 .

mixed use land has the same meaning as in Division 5A of Part 1B of the Valuation of Land Act 1916 .

10 Land exempted from tax

(1) Except where otherwise expressly provided in this Act the following lands shall ... be exempted from taxation under this Act:

...

(p) land that is the subject of a biobanking agreement under Part 7A of the Threatened Species Conservation Act 1995 [2007 - 2009 Tax Years]

...

(p1) land that is the subject of a conservation agreement entered into under the National Parks and Wildlife Act 1974 , if the primary purpose of the agreement is the maintenance of threatened species, populations or ecological communities (within the meaning of that Act) to assist their preservation [2005 Tax Year]

(p1) land that is the subject of a conservation agreement under the National Parks and Wildlife Act 1974 , or a trust agreement registered as referred to in section 36 of the Nature Conservation Trust Act 2001 [2006 Tax Year]

(p1) land that is the subject of a conservation agreement under the National Parks and Wildlife Act 1974 , or a trust agreement registered as referred to in section 36 of the Nature Conservation Trust Act 2001 , being in either case an agreement that remains in force in perpetuity [2007 - 2009 Tax Years]

...

(r) land that is exempt from taxation under the principal place of residence exemption, as provided for by Schedule 1A,

...

Schedule 1A Principal place of residence exemption

...

Part 2 Principal place of residence exemption

Clause 2 Principal place of residence exemption

(1) Land used and occupied by the owner as the principal place of residence of the owner of the land, and for no other purpose, is exempt from taxation under this Act ... if the land is:

(a) a parcel of residential land ...

(2) Land is not used and occupied as the principal place of residence of a person unless:

(a) the land, and no other land, has been continuously used and occupied by the person for residential purposes and for no other purposes since 1 July in the year preceding the tax year in which land tax is levied, or

(b) in any other case, the Chief Commissioner is satisfied that the land is used and occupied by the person as the person's principal place of residence.

(3) If the owner of land is entitled to the exemption conferred by this clause, no other person is liable to be assessed for taxation under this Act in respect of the land during the period of the owner's entitlement to the exemption.

(4) The exemption conferred by this clause is referred to as the " principal place of residence exemption" .

Clause 3 Residential land-meaning

(1) In this Schedule, " residential land " means land that is used and occupied for residential purposes and for no other purpose, that use and occupation being use and occupation of a building or buildings designed, constructed or adapted for residential purposes, other than a building or buildings:

(a) comprised of lots within a strata plan or residential units, or

(b) containing (out of the total of all rooms in the building or buildings) occupancies other than that of the owner, or

(c) from any part of which income is derived.

(2) Land does not cease to be used and occupied as provided by subclause (1) by reason of there being on that land any building or improvement that is used or occupied for a purpose ancillary to the purposes for which the building is, or the buildings are, designed, constructed or adapted.

Part 3 Concessions in application of principal place of residence exemption

Clause 4 Concession for land on which there is one other residential occupancy

(1) For the purposes of the principal place of residence exemption, if a building or buildings used or occupied for residential purposes contains or contain a residential occupancy other than that of the owner, the use of the building or buildings for the purpose of that residential occupancy may be disregarded if:

(a) the residential occupancy is an excluded residential occupancy, and

(b) the building contains or buildings contain (out of a total of all rooms in the building or buildings) not more than one of those excluded residential occupancies (not including the occupancy of the owner).

(2) For the purposes of this clause, each of the following residential occupancies is an " excluded residential occupancy" :

(a) one room,

(b) one suite of rooms (not being a flat) each room of which all occupants of the suite are entitled to occupy,

(c) one flat,

(d) one suite of rooms (not being a flat) each room of which all occupants of the suite are entitled to occupy, and one room,

(e) one flat and one room,

(f) 2 rooms, each of which is separately occupied.

(3) Accordingly, land does not cease to be residential land because there is on the land one, but not more than one, such excluded residential occupancy, even if income is derived from the residential occupancy.

Clause 5 Concession for land used for incidental business purposes

(1) For the purposes of the principal place of residence exemption, if land owned by a person is used and occupied by the owner primarily for residential purposes but not more than one room is used primarily for business purposes, the use of the land for the purpose of the business may be disregarded if the business is primarily conducted elsewhere.

(2) Accordingly, land does not cease to be residential land because of the use of one room primarily for business purposes, even if income is derived from the use of the land for that purpose.

(3) Nothing in this clause affects, or is affected by, clause 3.

Clause 6 Concession for unoccupied land intended to be owner's principal place of residence

(1) An owner of unoccupied land is entitled to claim the land as his or her principal place of residence, if the owner intends to use and occupy the land solely as his or her principal place of residence. In such a case, the owner is taken, for the purpose of the principal place of residence exemption, to use and occupy the unoccupied land as his or her principal place of residence. It is an offence under section 55 of the Taxation Administration Act 1996 to make a statement to a tax officer, or give information to a tax officer, orally or in writing, knowing that it is false or misleading in a material particular.

(2) This clause does not apply unless the Chief Commissioner is satisfied that:

(a) the land is unoccupied because the owner intends to carry out, or is carrying out, building or other works necessary to facilitate his or her intended use and occupation of the land as a principal place of residence, and

(b) if those building or other works have physically commenced on the land, no income has been derived from the use and occupation of the land since that commencement, and

(c) the intended use and occupation of the land is not unlawful.

(3) This clause applies in respect of the assessment of a person's ownership of land only in the period of:

(a) 2 tax years immediately following the year in which the person became owner of the land, or

(b) if the land is used and occupied for residential purposes by a person other than the owner at any time after the person became owner, 2 tax years immediately following the tax year in which the building or other works necessary to facilitate the owner's intended use and occupation of the land are physically commenced on the land.

(4) The Chief Commissioner may extend the period in which this clause applies if the owner of the unoccupied land demonstrates that:

(a) there is a delay in the completion or, in a case referred to in subclause (3)(b), the commencement of the building or other works necessary to facilitate the owner's intended use and occupation of the land, and

(b) the delay is due primarily to reasons beyond the control of the owner.

(5) If the principal place of residence exemption applies by operation of this clause to land not actually used and occupied by a person as his or her principal place of residence on a taxing date, that exemption is revoked if the person fails to actually use and occupy the land as his or her principal place of residence by the end of the period in which this clause applies in respect of the assessment of the person's ownership of the land and to continue to so use and occupy the land for at least 6 months.

(6) The effect of the revocation is that the principal place of residence exemption is taken not to have applied to the land in respect of any tax year to which, but for the revocation, it would have applied. Land tax liability is to be assessed or reassessed accordingly.

(7) This clause does not apply in respect of land owned by a person if:

(a) the person or any member of the person's family (within the meaning of clause 12) is entitled to have his or her actual use and occupation of other land taken into account under section 9C or under this Schedule, or

(b) the person owns land outside New South Wales that is the principal place of residence of the person or a member of the person's family (within the meaning of clause 12), or

(c) the land, or the land if combined with any adjoining land of which the person is an owner, is capable of having more than 2 residences or residential units lawfully built on it.

(8) For the purposes of this clause: "unoccupied land" means land that is not being used or occupied for any purpose."

...

Clause 8 Concession for absences from former residence

(1) If the Chief Commissioner is satisfied that:

(a) a person is the owner of land ( " the former residence" ) that has been used and occupied by the person as his or her principal place of residence for a continuous period of at least 6 months, and

(b) the person uses and occupies other land (whether or not in New South Wales), that is not owned by the person, as his or her principal place of residence,

the person is taken, for the purpose of the principal place of residence exemption, to continue to use and occupy the former residence as his or her principal place of residence.

(2) The maximum period for which a person may be taken, under this clause, to continue to use and occupy a former residence as a principal place of residence is 6 years starting at the end of the last period (of at least 6 months) during which the former residence was used and occupied by the person as a principal place of residence ...

[2004 Tax Year]

(3) If the principal place of residence exemption applies to the former residence of a person by operation of this clause, the exemption is revoked if the person is the owner of the former residence at the end of the 6-year period referred to in subclause (2) and fails:

(a) to resume actual use and occupation of the residence as a principal place of residence by the end of that period, and

(b) to continue that use and occupation for at least 6 months.

(4) The effect of the revocation is that the principal place of residence exemption is taken not to have applied to the former residence in respect of any tax year to which, but for the revocation, it would have applied. Land tax liability is to be assessed or reassessed accordingly.

(5) If the principal place of residence exemption is revoked, the reassessment of land tax liability more than 5 years after an initial assessment was made in respect of the land is authorised. Section 9 of the Taxation Administration Act 1996 provides the Chief Commissioner cannot make a reassessment of tax liability more than 5 years after an initial assessment. That provision does not apply if reassessment after that period is authorised by a taxation law.

[2005 to 2009 Tax Years]

(3) If the principal place of residence exemption applies to the former residence of a person by operation of this clause, the exemption ceases to have effect if the person is the owner of the former residence at the end of the 6-year period referred to in subclause (2) and fails:

(a) to resume actual use and occupation of the residence as a principal place of residence by the end of that period, and

(b) to continue that use and occupation for at least 6 months.

(6) This clause applies in respect of the assessment of a person's ownership of land in a tax year only if the Chief Commissioner is satisfied that no income has been derived from the use or occupation of the former residence in the preceding tax year, except as permitted by subclause (7).

(7) Income may be derived from the use or occupation of the former residence in a tax year if:

(a) the income is derived from a lease, licence or other arrangement under which a person has a right to occupy the former residence and the period for which any such right of occupation is conferred does not exceed a continuous period of 6 months, or a total period of 182 days, in the tax year, or

(b) the income is derived from any arrangement under which a person occupies the former residence, but the income is no more than is reasonably required to cover council, water and energy rates and charges and maintenance costs of the owner in respect of the residence.

1. Despite the appellant's failure to identify with any precision the legal matters she wishes to argue, we will deal with the points raised so far as we can glean them from the argument before us and the documents attached to the Notice of Appeal.

1. The first ground of appeal concerns the possibility of the appellant being entitled to the principal place of resident exemption provided for by Schedule 1A. The simple answer to the appellant's claim is that the Wadalba property is not a parcel of residential land within cl 2(1)(a) of Schedule 1A. That conclusion flows from the fact that, up to July 2007, there were two separate buildings on the property, one comprising a 3 bedroom house leased for residential purposes and the other a 2 bedroom unit occupied by the appellant. By operation of cl 3(1)(c), the circumstance that income was derived from the 3 bedroom house takes the property outside the definition of "residential land" unless one of the concessions in Part 3 applies, there being no suggestion that cl 3(2) is applicable.

1. Of the concessions in Part 3, the appellant relied on that contained in cl 4 for the period up to 7 July 2007, when the unit was destroyed by fire. The appellant contended that it was the 2 bedroom unit which constituted her PPR. To attract the operation of cl 4, the appellant must show that the 3 bedroom house was a residential occupancy contained within the building - i.e. the 2 bedroom unit occupied by the appellant as her PPR - and that it was an 'excluded residential occupancy within the meaning of cl 4(2). On the uncontested evidence, the house was not contained within the 2 bedroom unit. The two were separate. Even if it were otherwise, the 3 bedroom house did not fall within any of the criteria set forth in cl 4(2). The 3 bedroom house seems to fall squarely within the definition of "single dwelling" in s 6(3) of the Act and is therefore excluded from the definition of "flat". Nor as a matter of construction could it be said that a 3 bedroom dwelling constitutes a "suite of rooms (not being a flat)" within either cl 4(2)(b) or 4(2)(d). The expression "suite of rooms" has a well-established meaning in common parlance as rooms which are not designed to be occupied as a separate dwelling e.g. rooms lacking a bathroom, toilet facilities, a kitchen or laundry facilities.

1. Accordingly the appellant, whatever the factual merits of her claim to occupy the 2 bedroom flat, cannot on the facts found by the Tribunal below establish her claim to the PPR exemption at anytime up to 7 July 2007.

1. In relation to the period subsequent to 7 July 2007, when the 2 bedroom unit was destroyed by fire and the 3 bedroom dwelling was no longer subject to a lease, it was argued that the cl 6 "concession for unoccupied land intended to be the owner's principal place of resident" applied. The Tribunal below dealt with this question at para 50 of its reasons:

50 In this matter the Wadalba property was not "unoccupied land". The applicant became owner of the Wadalba property on 6 March 2002 and in the land tax years 2004 to 2007 it was used to earn rental income. Clause 6 exemption was accordingly not available to the applicant for those years. It was claimed that the last tenant vacated the Wadalba property in August 2007. The applicant has produced very little evidence to show that any works to facilitate the owner's intended use and occupation of the property has commenced. In any case the exemption under clause 6 (4)(b) for the land tax years 2008 and 2009 would have only been available provided the works were completed by August 2009. Clearly, that has not happened on the applicant's own statement. The power to grant the applicant an extension under clause 6(4) can only be exercised if "the delay is primarily to reasons beyond the control of the owner". No such evidence was before the Tribunal. The applicant was also not entitled to the clause 6 exemption for the land tax years 2008 and 2009.

1. Though the Tribunal below did not say so expressly, its reference to 'very little evidence' suggests that it was not satisfied that works to facilitate the owner's intended use and occupation had commenced, and we interpret that paragraph accordingly. As a consequence of that finding, and of the fact that the appellant became owner in 2002, the appellant was unable to satisfy the requirements of cl 6(3), and the cl 6 concession did not apply to the land.

1. Other matters argued related to the appellant's claim that she is entitled to exemptions under s 10 of the Act. This matter was dealt with in para 52 of the Tribunal's reasons:

52 The matter that remains is the claim made by the applicant that she was entitled to land tax exemption under s 10(1)(p) and (p1) of the Act. I agree with the submissions made by Mr Rider for the respondent as follows. In respect of the 2007 to 2009 land tax years, no exemption was available to the applicant because the Wadalba property was not "the subject of a biobanking agreement under Part 7A of the Threatened Species Conservation Act 1995 . In respect of the 2004 land tax years, the exemption under s 10(1)(p1) did not apply because no evidence was produced that the applicant had obtained an approval from the Director-General of National Parks and Wildlife to use the Wadalba property primarily "for the maintenance of endangered species native to Australia to assist their preservation". In respect of the 2005 to 2009 land tax years, the applicant was not entitled to an exemption as the Wadalba property was not land that was subject of a conservation agreement under the National Parks and Wildlife Act 1974 or a trust agreement registered as referred to in section 36 of the Nature Conservation Trust Act 2001 .

1. The claims for exemption were rejected on the basis that the appellant failed to prove any factual basis for them. The factual findings are not challenged nor can we discern any error of law.

1. Section 1 of the Threatened Species Conservation Act 1995 defines biobanking agreement as an agreement entered into under Division 2. In Division 2 s 127D(1) it is provided that the Minister "may enter into an agreement relating to land with the owner of the land for the purpose of establishing a biobank site". There was evidence in the form of an affidavit by Liam Boyle, affirmed 17 September 2010, that no such agreement has been entered into in respect of the Wadalba property.

1. In the same affidavit, Mr Boyle indicated that despite his inquiries he could find no evidence of any approval of the Director General of National Parks and Wildlife to use the Wadalba property primarily for the maintenance of endangered species native to Australia to assist their preservation. In the absence of any contrary evidence produced by the appellant, she carrying the relevant onus, there seems no basis for challenging the Tribunal's conclusion that the exemption was not established.

1. Section 69B of the National Parks and Wildlife Act 1974 permits the Minister to enter into a conservation agreement with the owner of land. There is no reason to challenge the Tribunal's finding that no such agreement was entered into.

1. Mr Boyle's affidavit further deposed to the fact that no agreement was registered in respect of the Wadalba property on the public register under the Nature Conservation Trust Act 2001 . Again in the absence of contrary evidence there is no reason to challenge the Tribunal's finding that there is no such agreement.

1. Finally the appellant raised an entitlement to relief under s 9C of the Act. This claim was not raised below and therefore cannot be relied on before us as an error of law. In any event, there would have been no basis for granting such relief, as there is no evidence either that an apportionment factor had been entered in the Register as required by s 9C(2)(a), or that application had been made to the respondent pursuant to s 9C(5)(a).

1. In the result, no error of law by the Tribunal at first instance has been revealed. In our opinion, in the absence of an error of law, no reason has been advanced for us to give leave to extend the appeal to the merits. In any event, such leave would be futile as in light of what we have said above, an appeal on the merits would be bound to fail.

1. We make these orders:

1. Appeal dismissed.

2. The order made by the Tribunal on 27 January 2011 is confirmed.

3. Subject to Order 5, costs reserved.

4. In the event the respondent seeks an order for costs it may file and serve written submissions within 21 days. The appellant may file and serve written submissions in reply within a further period of 21 days. Thereafter the matter will be dealt with on the papers.

5. In the event the respondent fails to make submissions pursuant to Order 4, there will be no order as to costs.

**********

Decision last updated: 12 August 2011