Lifestyle Investments 1 Pty Ltd v Commissioner of State Revenue

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

TAXATION LIST

S ECI 2019 3254

LIFESTYLE INVESTMENTS 1 PTY LTD (ACN 083 091 016)	Appellants
LIFESTYLE INVESTMENTS 2 PTY LTD (ACN 147 278 091)
LIFESTYLE COMMUNITIES INVESTMENTS CRANBOURNE PTY LTD (ACN 138 837 573)
v
COMMISSIONER OF STATE REVENUE	Respondent

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JUDGE:	Nichols J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 November 2019
DATE OF JUDGMENT:	30 June 2020
CASE MAY BE CITED AS:	Lifestyle Investments 1 Pty Ltd v Commissioner of State Revenue
MEDIUM NEUTRAL CITATION:	[2020] VSC 397

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TAXES AND DUTIES – Land tax – exemption for land used as a registered caravan park – If only part of the land is used as a registered caravan park – Applewood Residential Developments Pty Ltd v Commissioner of State Revenue (2006) 64 ATR 291 – Land Tax Act 2005 (Vic), ss 77(1), (3).

STATUTORY INTERPRETATION – “land used as” – Macquarie University v Ryde Municipal Council [1977] 1 NSWLR 304 – Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493 – Council of the City of Newcastle v Royal Newcastle Hospital (1959) 100 CLR 1 – Sandhurst Holdings Australia Ltd v Commissioner of State Revenue (2009) 25 VR 59 – Metricon Qld Pty Ltd v Chief Commissioner of State Revenue (No 2) (2016) 102 ATR 781 – Educang Limited v Brisbane City Council [2002] QSC 374 – Council of the Town of Gladstone v the Gladstone Harbour Board [1964] Qd R 505 – City of Nunawading v Harrington [1985] VR 641 – Rosenblum v Brisbane City Council (1957) 98 CLR 35 – Caravan park – Part 4A park – Residential Tenancies Act 1997 (Vic), s 3(1) (definitions) – Land Tax Act 2005 (Vic), ss 77(1), (4).

PRACTICE AND PROCEDURE – Appeal to the trial division of the Supreme Court of Victoria from the Victorian Civil and Administrative Tribunal – Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd (2014) 45 VR 771 – Secretary to the Department of Justice v YEE [2012] VSC 447 – Osland v Secretary of the Department of Justice (No 2) (2010) 241 CLR 320 – XYZ v State Trustees Ltd (2006) 25 VAR 402 – Victorian Civil and Administrative Tribunal Act 1998, s 148.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr C J Horan QC with Mr N A Kotros	Pitcher Partners Legal Pty Ltd
For the Respondent	Mr D Williams QC with Mr D Morgan	State Revenue Office

HER HONOUR:

Introduction

The Appellant taxpayers are members of a group of companies who own land on which they operate caravan parks known as “Lifestyle Communities” which are akin to long-term residential villages. The respondent Commissioner of State Revenue (the Commissioner) assessed the Appellants’ land at De Rossi Boulevard, Wollert and at Barton Street, Bell Park as subject to land tax for the 2016 land tax year.

The Appellants unsuccessfully objected to the assessment and the matter was referred to the Victorian Civil and Administrative Tribunal (VCAT).[1]
[1]The matter was referred to the Tribunal by the Commissioner, at the request of the taxpayers, pursuant to s 106 of the Taxation Administration Act 1997 (Vic).

Section 77 of the Land Tax Act 2005 (Vic) (the Land Tax Act) provides that land is exempt land (and therefore not subject to land tax) if it is “used as a registered caravan park”. A “registered caravan park” is a caravan park within the meaning of the Residential Tenancies Act1997 (Vic) (the Residential Tenancies Act) that is registered in accordance with regulations made under that Act.

Before VCAT the Appellants contended that each of the lands was wholly exempt from land tax because the whole of each land was used as a registered caravan park. The Commissioner accepted that part of each land was exempt from land tax. VCAT rejected the appeal, deciding that the exemption did not apply to the relevant parts of either of the lands.[2]
[2]Lifestyle Investments 1 Pty Ltd v Commissioner of State Revenue (Review and Regulation) (Corrected) [2019] VCAT 920 (Reasons). The Appellants also contended before the Commissioner and before VCAT, that the lands were exempt pursuant to ss 78 and 78A of the Land Tax Act. VCAT found that the exemptions in ss 78 and 78A did not apply. The Appellants did not appeal that aspect of VCAT’s determination.

The Appellants seek to appeal the orders of VCAT, pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the VCAT Act). By that provision a party may appeal to this Court on a question of law from an order of VCAT, with leave of the Court. The application for leave and the appeal were heard before me, together.

For the reasons that follow:

(a)Determining whether land is used in whole or in part in the requisite way required that the expression, “used as a registered caravan park”, found within s 77(1) of the Land Tax Act, be construed. VCAT did not complete that task. VCAT was not in error in holding that s 77(3) permitted the Commissioner to apportion land comprising the registered caravan park, but that was only part of the relevant statutory inquiry.
(b)The Appellants’ primary case was that on a proper construction of s 77 the legislature intended that the whole of the land be taken to be used as required by s 77 once it is registered as a caravan park under the relevant regulations. That construction is erroneous. It was open to VCAT, on a proper construction of s 77, to find that each land was not, by reason of the fact that it was registered as a caravan park, wholly used as a registered caravan park.
(c)The Appellants’ alternative case was that the whole of each land was relevantly used because a number of activities, in addition to registration, were undertaken on and in relation to it. Where the statutory construction task was not completed and factual findings that would have been relevant on the proper construction of the statute were not made, it is not possible for this Court to decide, without embarking on the resolution of disputed factual questions, that there was only one right answer open to the Tribunal. Had VCAT completed its true task, it might have evaluated the evidence differently. It did not complete that task, and that was a vitiating error in relation to the Appellants’ alternative case.
(d)Leave to appeal will be granted and the appeal will be allowed.

Background

Section 77 of the Land Tax Act provides as follows:

77 Caravan parks
(1)Land is exempt land if the Commissioner determines that it is used as a registered caravan park.
(2)To obtain an exemption from land tax under this section, the owner of the land must—
(a)apply to the Commissioner for the exemption; and
(b)give the Commissioner any information the Commissioner requests for the purpose of enabling the Commissioner to determine whether the land is exempt under this section.

(3)If the Commissioner is satisfied that only a part of land is used as a registered caravan park—
(a)land tax is assessable on the remaining part of the land, unless another exemption applies to that part; and
(b)section 22 applies, [3] if necessary, for that purpose.

(4)In this section—
registered caravan park means a caravan park within the meaning of the Residential Tenancies Act 1997 that is registered in accordance with regulations made under section 515 of that Act.

[3]Section 22 of the Land Tax Act stipulates that where that section applies, the taxable value of part of the land is the same proportion of the taxable value of the whole land as the area of the part bears to the area of the whole land.

Under the Residential Tenancies (Caravan Parks and Movable Dwellings Registration and Standards) Regulations 2010 (Vic) (the RT Regulations) registration of a caravan park may be granted by the relevant municipal council.[4]
[4]Residential Tenancies (Caravan Parks and Movable Dwellings Registration and Standards) Regulations 2010 (Vic) (the RT Regulations) rr 11, 13.

Each of the Appellants’ lands consisted of a single certificate of title and the whole of each land (known as “Lifestyle Lyndarum” and “Lifestyle Geelong” respectively) is and was, at the relevant date, registered as a caravan park in accordance with the RT Regulations. That fact was not in dispute. Rather, the essential question was whether the land, being registered, was “used as a registered caravan park”.

The taxpayer’s position before VCAT reflected the practice that had been adopted at an earlier time by the Commissioner, to exempt land that was registered under the RT Regulations. In this case, the Commissioner had initially determined that the land known as Lifestyle Lyndarum was wholly exempt and that the Lifestyle Geelong land was 47% exempt, on the basis that the whole of Lifestyle Lyndarum was registered as a caravan park, but only 47% of Lifestyle Geelong was so registered. The certificate of registration for Lifestyle Geelong, when issued, applied to only part of the land but it was later revised to apply, retrospectively, to the whole of that land. The taxpayer contended that the exemption should reflect the extent of the registration, and should apply to the whole of each land.

Before VCAT the Commissioner was given leave to contend that Lifestyle Lyndarum was only partly exempt (despite having initially been determined to be wholly exempt), on the grounds that registration of the land as a caravan park was not determinative of the use of the land as a registered caravan park, for the purposes of s 77 of the Land Tax Act.

VCAT’s Orders and Reasons

VCAT decided that “only a part of the land” was in each case used as a registered caravan park such that land tax was assessable on the remaining part.[5] It ordered that the assessment for the 2016 land tax year for the subject lands be varied to exempt from land tax 47% of the Lifestyle Geelong land and 51% of the Lifestyle Lyndarum land.[6] Although the order specified the exempt portions of each land, those proportions were nominated by the Commissioner and accepted by VCAT in the absence of any contrary submission by the taxpayers.[7]
[5]Reasons, [47].
[6]Reasons, [47].
[7]Reasons, [47].

It is necessary to set out the reasons of VCAT at some length.

Under the heading, “Nature of the Lifestyle Communities” the Tribunal set out the following factual matters:

13Lifestyle Geelong and Lifestyle Lyndarum are two “lifestyle” residential communities owned and operated by the LC Group. The structure of the communities operated by the LC Group are that:
[a] resident buys a home and a share of the community infrastructure and then rents a particular site in the community for it. The home is bought under a ‘Home Purchase Agreement’. … The lease of a particular site occurs under a ‘Residential Site Agreement’. Each lease is for 90 years. The residents obviously also get the use of common areas of the community.

14The ‘homes’ to which reference is made are ‘unregistrable moveable dwellings’ as defined in the Residential Tenancies Act 1997, and include carports and garden areas.
15The residents who live in the communities are ‘permanent residents, not tourists like in tourist or camping parks’. Mr Kelly says that the residents are ‘overwhelmingly retirees’, however he conceded in cross-examination that the communities were open to anyone aged 50 or more, and that the marketing was not limited to retirees.
16Both Lifestyle Geelong and Lifestyle Lyndarum were developed on a staged basis.
17Mr Kelly attached a site plan for Lifestyle Lyndarum to his witness statement. This shows that the entire community was intended to have 155 caravan sites and was to be developed in 3 stages. As at 31 December 2015, stage 1 – which comprised 48 sites and the community infrastructure (a club house, tennis court and lawn bowls field) – was largely completed. Homes had been built on all sites and most had settled and were presumably occupied. Stage 2 comprised 40 sites, of which one was built and 13 were at frame stage. Stage 3, which comprised 67 sites, was still under development.
18Similarly, Mr Kelly attached a site plan for Lifestyle Geelong to his witness statement. This shows that the entire community was intended to have 165 caravan sites and was to be developed in 3 stages. As at 31 December 2015, stage 1 – which comprised 52 sites and the community infrastructure (a club house, tennis court and lawn bowls field) – was largely completed. Homes had been built on all but nine sites (which were still at frame stage) and 17 had settled (and were likely occupied). Stage 2 (which comprised 62 sites) and stage 3 (which comprised 51 sites) were still under development.
…
26The exemption in section 77 of the LT Act applies to land ‘used as a registered caravan park’. There is no debate that Lifestyle Geelong and Lifestyle Lyndarum are (and were at the relevant time) registered caravan parks.

There were no other findings of fact.

The parties’ principal contentions were summarised as follows:

20For the [taxpayers] it is contended that the Relevant Properties are exempt because each:
had been acquired for a particular purpose, was devoted wholly to that purpose, formed one ‘area of land’ comprising a caravan park’ was registered or ought to have been registered as such, and was operating or functioning as such, notwithstanding that there may have been little or even no immediate physical use by existing residents of sites awaiting new residents.

21The [taxpayers] submit that:
High Court authority establishes that ‘use’ – the exception does not require occupation – is a word ‘of wide import’, such that where only a part of land is used physically as a hospital or quarry (or for whatever particular purpose), in considering the remaining part, the question will generally be whether the land as a whole has been ‘wholly devoted’ to the purpose rather than whether there was an ‘immediate physical use of every part’.

22They further submit that the decision of the Victorian Court of Appeal in Applewood Residential Developments Pty Ltd v Commissioner of State Revenue (Applewood) which concerned the application of an exemption from land tax to a retirement village under construction, can be distinguished because the relevant provision considered in that case required the land to be both used and occupied as a retirement village.
23The Commissioner refers to the decision … in Applewood for the proposition that land which is mostly still to be developed is outside the analysis in Newcastle Hospital. In particular, the Commissioner relies on the observations by Nettle JA that:
in a case like the present where the project is still being developed, the land on which the project is being developed is not being used for the purpose for which it will be used once it has been developed.

24The Commissioner says that:
[n]o relevant distinction can be drawn between an exemption for retirement villages in the [former land tax legislation] and for a caravan park under the [Land Tax Act]. The only relevant distinction is that the [former land tax legislation] uses the expression “use and occupy” and the [Land Tax Act] simply uses “use”. That distinction does not assist the [taxpayers], however, because the evidence is that Stages 2 and 3 of [Lifestyle Geelong] and most of Stage 2 and all of Stage 3 of [Lifestyle Lyndarum] were neither used nor occupied as a caravan park.

(headings and citations omitted).

The Tribunal encapsulated the issue in dispute in these terms:

19In broad terms, the issue in relation to the exemption in section 77 of the LT Act is whether the reference to ‘use’ refers to current physical use as a caravan park or extends to the whole of a site acquired for and devoted to the purpose of a caravan park, albeit that some areas remain under construction.

The Tribunal commenced its analysis by observing that the issue was one of statutory construction, in which the text is the surest guide to legislative intention,[8] and noting the observations of Taylor J in Royal Newcastle Hospital[9] that the word “used” is of wide import and its meaning in any case will depend to a great extent upon the context in which it is employed.[10]
[8]Reasons, [25].
[9]Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493 (Royal Newcastle Hospital) at 515.
[10]Reasons, [27].

As to s 77 of the Land Tax Act, the Tribunal observed that it sits within Division 5 of Part 4 of that Act, which concerns exemptions and concessions relating to accommodation, each form of which is specifically defined, usually by reference to some other legislative regime,[11] and canvassed the legislative history of the section.
[11]Reasons, [30].

The Tribunal continued, analysing the decision of the Court of Appeal in Applewood Residential Developments Pty Ltd v Commissioner of State Revenue (Applewood),[12] in the following terms:
[12]Applewood Residential Developments Pty Ltd v Commissioner of State Revenue (2006) 64 ATR 291 (Applewood) at 298 [28]–[31].

36The decision of the Court of Appeal in Applewood concerned an assessment that had been overturned by this Tribunal and then restored on appeal by the Supreme Court. Nettle JA gave the lead judgement, with which Chernov and Redlich JJA agreed. In dismissing the appeal, Nettle JA confirmed that the judge was correct (and the Tribunal had erred) in finding that the exemption did not apply to the whole of the land. In particular, Nettle JA said the judge correctly stated that:
s 9(1)(j) must be read in conjunction with s 9(2AB), and the latter provides expressly for the possibility that the whole of a piece of land may be held for the purpose of a retirement village and for no other purpose and yet that only part of the land may be used and occupied as a retirement village at a specified time. Section 9(2AB) does indeed require the sort of compartmentalised approach which the judge adopted, breaking down parcels of land into components and affording exemption only to those components which are used and occupied for the specified purpose at the relevant time.

37Relevantly, Nettle JA observed:
Comparison of s 9(1)(j) and (2AB) with other exemptions provided for in s 9(1) suggests the draftsman took considerable care to narrow the exemption to land actually used and occupied as a retirement village, as opposed to land which is used or held for the purposes of a retirement village. … The draftsman has eschewed reference to use for a [specified] purpose, and instead employed the expression “used and occupied as a retirement village” in order to ensure there can be no doubt that the exemption is not engaged unless land is actually used and occupied as a retirement village at the relevant time.

38It appears that Nettle JA’s assessment of the provisions did accord with the Parliament’s intent because the legislature amended the retirement village exemption in 2003 (prior to his decision) to overcome an earlier Tribunal decision to like effect as the Tribunal’s decision in Applewood. The change removed the reference to “use” from section 9(1)(j) and removed the ancillary purpose provision. The explanatory memorandum for those amendments explained:
Sub-clause (1) substitutes section 9(1)(j) of the Land Tax Act 1958 which contains the exemption from land tax available in respect of land occupied as a retirement village. Section 9(1)(j) will now provides (sic) that land which is occupied, or currently available for occupation, as a retirement village, is exempt from land tax. This amendment is required following the decision in Burwood Terrace Pty Ltd v Commissioner of State Revenue [2002] VCAT 183. In that decision, the Tribunal determined that this exemption was available in respect of the full parcel of land even though not all of that parcel had been developed into retirement village units, was not occupied by residents, and was not even available for occupation as a retirement village. It was only intended that the exemption would be available to the extent a parcel of land is developed into units that are occupied, or completed and available for occupation. Land which is part of the same complex and used for ancillary purposes, is also exempt. The exemption was never intended to apply to the vacant or undeveloped, or uncompleted, portions of the land. The amendment is intended to clarify the scope of this exemption.

Sub-clause (2) substitutes sections 9(2AA) and 9(2AB) to confirm that the land can be apportioned for the purpose of the retirement village exemption. It repeals the formula in old section 9(2AB) and provides that the mechanism for determining the unimproved value of land already in the Act is to be applied for the purposes of this exemption. This ensures consistency of methodology when portions of a parcel of land are valued for land tax purposes.

39The caravan park exemption, which was introduced in 2005 with effect from 1 January 2005, was inserted after the amendment to section 9(1)(j). It was also after the Tribunal decision, but before the Supreme Court or Court of Appeal decisions, in Applewood. It is, perhaps, curious that the Parliament continued to adopt the ‘used as’ test in light of that history.
40However, importantly, at the time section 9(1)(l) was inserted into the Former Act, section 9(2AA) (which provided for a partial exemption) was amended to apply to caravan parks as well as retirement villages.
41When the caravan park exemption was re-enacted as part of the LT Act, the exemption for land that was partly used as a caravan park was maintained in section 77(3).
42Consistent with the decision of the Court of Appeal in Applewood, the full caravan park exemption in section 77(1) of the LT Act must be read together with the partial exemption found in section 77(3). It is clearly contemplated that there will be circumstances where some part, but not all, of the land which in a broad sense forms part of a ‘caravan park’ will be ‘used as’ such.
43Mr Kotros contended that this would be limited to situations where the use was for something completely different like an office building. However, that is effectively to conflate the observation of Nettle JA in Applewood that:
The fact that there may have been partially completed retirement accommodation on the disputed land no more characterised the disputed land as used and occupied as a retirement village than would a partially completed office block on part of land adjacent to a used and occupied office block characterise the construction site as land used and occupied as an office block.

44Mr Kotros also sought to distinguish Applewood on the basis that it referred to land ‘used and occupied’ as a retirement village, as compared to land ‘used’ as a caravan park. While it may be the case that ‘use’ is broader than ‘occupation’ (eg. use might extend to completed caravans that are not yet occupied), this does not grapple with the limitation the partial exemption places on the interpretation of the scope of the full exemption.
45While the Brickworks and Eaton decisions relied on by the applicants superficially support their contentions, they are distinguishable in that:
athey were decided in an entirely different statutory context, ie. planning rather than taxation;
bthe language used differs markedly, ie. ‘used for the purpose of’ as against ‘used as’; and
cthey were “all or nothing cases”, ie. there were no apportionment provisions like those applying to caravan parks in the present case.

46For these reasons, I am of the view that:
aLifestyle Geelong and Lifestyle Lyndarum were not ‘used as a registered caravan park’ as required for the land to be exempt under section 77(1) of LT Act; but
brather ‘only a part of the land’ at Lifestyle Geelong and Lifestyle Lyndarum was ‘used as a registered caravan park’, such that ‘land tax is assessable on the remaining part’ (subject to consideration of the exemption claimed under section 78A of the LT Act).

(citations omitted).

Questions on Appeal

The Notice of Appeal sets out the following questions:

1On the proper construction of section 77 of the Land Tax Act 2005, what constitutes the use of land as a ‘registered caravan park’?
2On the proper construction of section 77 of the Land Tax Act 2005, was it open to the Tribunal on the evidence to find that only 47% and 51% respectively of the land at each of Lifestyle Geelong and Lifestyle Lyndarum was used as a registered caravan park, in circumstances where all of that land was a ‘caravan park’ within the meaning of the Residential Tenancies Act 1997 (Vic) that was registered with a fixed number of sites in accordance with regulations made under section 515 of that Act?
3On the proper construction of section 77 of the Land Tax Act 2005, was it open to the Tribunal on the evidence to find that only 47% and 51% respectively of the land at each of Lifestyle Geelong and Lifestyle Lyndarum was used as a registered caravan park, in circumstances where the land at each of Lifestyle Geelong and Lifestyle Lyndarum -
ahad been acquired for an existing caravan park business of the Appellants;
bhad received the necessary planning and building permissions for development and use as a caravan park;
chad been developed as a ‘caravan park’ within the meaning of the Residential Tenancies Act 1997, comprising (1) a clubhouse, tennis court, lawn-bowling green, and other common areas and facilities, and (2) a fixed number of ‘sites’ available for occupation by ‘movable dwellings’;
dhad met the prescribed standards for operation as a caravan park, including as to fire prevention and safety, emergency management, water supply, sewerage and waste water, sanitary facilities, laundry facilities, garbage bins and lighting;
ewas registered as a caravan park with a fixed number of sites in accordance with regulations made under section 515 of the Residential Tenancies Act 1997;
fhad opened and commenced operation as a caravan park, with a significant number of sites occupied by movable dwellings, residents using the common areas and facilities, further sites being taken up progressively in accordance with demand, and residents using other areas of the land for recreational purposes;
gwas wholly devoted to use as a registered caravan park; and
hwas not being used for any other purpose?

Question 1 – Error of law in construing s 77

Question 1 should be read in the context of the matters raised in the grounds of appeal, and understood as asking whether VCAT erred in its construction of s 77 of the Land Tax Act. The provision has not been previously construed by a Court.

Submissions on the Appeal
Appellants

The Appellants’ submissions were largely concentrated on their primary positive case that land is taken to be used as a registered caravan park when it is registered as such and that the Tribunal erred in rejecting that construction (as to which, see below).

On the question of legal error by the Tribunal the Appellants contended that the Tribunal did not identify the correct legal test required by s 77 of the Land Tax Act. It was said that VCAT failed to address what was required for use of the land as a “registered caravan park”, where that term was as understood by the Residential Tenancies Act. The Tribunal in so doing, overlooked the relevant statutory context.

It was submitted the Tribunal erred in construing the references in s 77 to land “used as a registered caravan park”, as applicable only to those parts of the land within the registered caravan park that were currently physically used as a caravan park. It was said that by focussing on the footprint of the physical structures on the land (which are not fixtures and therefore not part of the land) the Tribunal effectively equated use of a registered caravan park with occupation by dwellings and other common facilities. To do so was wrong because the statutory criterion was one of use, not occupation by either people or dwellings.

It was also submitted that VCAT wrongly equated the fact of construction of dwellings on the land, with construction of land itself, concluding that relevant parts of the lands were not being used in the requisite sense because they were “under construction”. That was in error because land that is “already registered”, cannot be “under construction”. The latter point reflects the Appellants’ positive statutory construction case. Furthermore, it was not correct to describe a site on which a dwelling had not been installed or was being installed as land that is “under construction” because movable dwellings or Part 4A dwellings are not fixtures and do not form part of the land.[13]
[13]Residential Tenancies Act s 206C (with respect to “Part 4A dwellings”).

In concentrating on construction occurring on the land, occupation of the land and the presence of dwellings on the land, the Tribunal was distracted by its focus on Applewood. The Tribunal wrongly regarded the meaning and application of s 77 as being governed by principles that were applied in Applewood to a differently worded provision in a different factual and legislative context.

As to the apportioning provision in s 77(3) the Appellants contended that the Tribunal was in error in interpreting the scope of s 77(1) as being “limited by” s 77(3) and further that it was in error in reading s 77(3) as permitting or requiring the Commissioner to apportion the registered caravan park (that is, land within the registered caravan park) rather than to apportion land that is in part used as a registered caravan park and in part used for another purpose.

On the proper construction of s 77 the Appellants’ principal submission was that s 77 “harnesses” registration under a separate legislative regime (the Residential Tenancies Act), meaning that the legislature intended that once there is an extant registration of the land by the municipal council the whole of the land the subject of the registration is taken to be used as a registered caravan park for the purposes of exempting that land from land tax. Separately examining parts of registered land to enquire as to whether or not that land is “used” as a registered caravan park, is erroneous. To do so would be to add an extraneous requirement that all or part of the land be actively physically used. The specification of the criterion for an exemption from land tax by reference to the definition of “registered caravan park” drawn from the Residential Tenancies Act contemplates that the entire park is used as soon as it is opened.

It was put that “from a regulatory point of view”, once registration of land as a caravan park is granted by the municipal council all of the sites in the park are taken to be available for occupation under a site agreement. That conclusion was said to follow as a matter of law, not merely as an inference that may be drawn from the fact of registration. It was said that, for example, evidence the civil works were uncompleted on parts of the land was beside the point; it is unnecessary to interrogate the use of land to that level of granularity because one need only look to the fact of registration of the whole of the land.

It was said that the linking of the criterion for an exemption from land tax with the Residential Tenancies Act requirement for the registration of caravan parks disclosed an intention that the Commissioner not be involved in “enforcing or assuming the sorts of obligations that councils have in relation to the supervision and regulation of those lands”.

The Appellants accepted that the proposition that registration of the subject land entailed or must be taken as use of that land as a registered caravan park for the purposes of s 77 of the Land Tax Act must admit of at least two exceptions – namely where land that was registered as a caravan park was not operated as such (for example, where operator had abandoned the land or entered insolvency after obtaining registration of the land) (non-use), and where the land was registered but it, or part of it, was employed for an inconsistent use, such as letting the land for use as a car park unconnected with the caravan park (inconsistent use). That being so, the Appellants accepted that they were not contending that in all cases, registration simpliciter amounted to use.

The Appellants advanced an alternative case (not plainly described as such but reflected in the differences between questions 2 and 3 in the Notice of Appeal) that even if one has to demonstrate something more than the fact of registration, that was demonstrated by the whole of the caravan park being “open for business” and being progressively filled, and by the operator taking steps to do what was required of it under the RT Regulations (providing facilities and meeting standards for safety, amenities and the like).

It was contended that the fact of registration must be taken as evidence that requirements of the RT Regulations had been met in respect of the whole caravan park (and therefore the whole of land in each case) and that in any case use by the operator or landowner in its business is sufficient – it is not necessary for the use of the land to be use by residents. Separately, it was submitted that recreational use of the land by those residents who had, at the assessment date, moved in and were making use of the land beyond their own sites, was sufficient to amount to use of the whole of each land as a registered caravan park.

In putting the alternative case (or that part of the case that focused on conduct by the operator or by residents) the Appellants implicitly acknowledged that their primary contention did not sit comfortably with the acknowledged exceptions for non-use and inconsistent use. The Appellants’ Senior Counsel candidly acknowledged that the case involved a degree of “fence-sitting” on the question whether registration itself amounted to use. Senior Counsel also acknowledged that in the statutory expression, “used as a registered caravan park”, the word “used” had to be afforded work.

The Appellants emphasised that the “use” criterion in s 77 must be construed in its statutory context, but said that their construction was supported by the authorities[14] that establish that it is usually sufficient to characterise land as used for a particular purpose if, even though there may be no immediate physical use or occupation of the whole of it for that purpose, it has been acquired for and wholly devoted to that purpose.
[14]For example, Royal Newcastle Hospital and the Privy Council decision in Council of the City of Newcastle v Royal Newcastle Hospital (1959) 100 CLR 1; Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 (Eaton & Sons).

Commissioner

The Commissioner submitted that as a matter of textual analysis s 77 contemplates that land may be registered as a caravan park but not used as such. That construction gives work to the expression, “used as”. It is thus correct to treat the reference to registration of the subject land as a caravan park within s 77 of the Land Tax Act as a threshold requirement, in the sense that once registration is established the question remains whether the land is being used as such. That being so, the correct question was asked and answered appropriately by the Tribunal.

As to the relationship between s 77 and the Residential Tenancies Act, s 77 does not incorporate by reference the whole of Part 4 and Part 4A of the Residential Tenancies Act or the regulations requiring registration. Furthermore, although the Commissioner accepted that land may be relevantly used by the caravan park operator, the fact that an operator of a caravan park has certain obligations under those provisions is of no moment for the question whether the land has been relevantly used. An obligation to do something does not mean that it has been done. It strains the language of the provision unacceptably, to conclude that because registration entails the imposition of obligations on the operator, land is necessarily being used when it is registered.

Land which is a Part 4A park is defined to comprise of sites of land that are available for occupation and on which dwellings may be situated (and common areas that are available for the use of persons occupying those sites). It was submitted that various things must therefore be done before sites within a Part 4A park are available for occupation. For example, parts of land within a registered caravan park, on which civil works are yet to be completed (for the provision of roads, water, sewerage and like infrastructure and services) cannot be said to be available for occupation and therefore used in the relevant sense (whether by an operator or by a resident). Similarly, a site on which a dwelling is partly constructed is not available for occupation while it is in that state. A resident cannot move into a partly built house and cannot move another house onto that site. As to use of the land by residents for recreational purposes, it is de minimis and irrelevant unless land accessed in that way was intended to be used and made available in that way (for example, as recreational reserves).

The Commissioner submitted that there was a temporal aspect to the requirement that land be “used as” a registered caravan park, and what s 77 requires is current use. Land is not relevantly used merely because it is intended to be made available in the future, for occupation by residents of a caravan park, although it may be the subject of a certificate of registration. Land that is being built on may be used “for” or “for the purposes of” a registered caravan park; it may be used in the future as a registered caravan park but it is not presently used as such. Otherwise, it was unnecessary to offer a touchstone for the use of land as a registered caravan park, because what is or is not being used in the requisite way will be different in each case.

As to s 77(3), it expressly contemplates the possibility that some part of the land registered as a caravan park may not be used as such. The Tribunal correctly understood that s 77(3) required consideration of what was occurring on different portions of the land and furthermore, the Tribunal’s exposition of the effect of the apportioning provision was consistent with analysis of the Court of Appeal in Applewood.

As to Applewood, the Commissioner’s case before VCAT was that it authoritatively decided the question in this case and that it could not be distinguished. That case was reiterated before me but was attenuated somewhat in oral submissions. Senior Counsel for the Commissioner said in substance that although this case is evidently not on all fours with Applewood, when one “strips away” the different statutory language considered there, the principles laid down are of general application. The Commissioner relied on Applewood for the proposition that use of the land for the purpose of constructing what it will be used for in the future is not present use for that purpose or in that way.

The proper construction of Land Tax Act s 77

Because of the Tribunal’s approach to its task, in which it concentrated largely on the significance s 77(3) and on the application of the Court of Appeal’s decision in Applewood, it is necessary to deal with the proper construction of s 77 before returning to VCAT’s Reasons and considering whether VCAT legally erred in its construction of the statute.

Land is exempt from land tax, pursuant to s 77, if it is “used as a registered caravan park”. The criterion for exemption is a composite expression and must be read in that way. Nevertheless, it is necessary to consider its constituent parts, in their context.

Used as

The word “use” (or “used”) is protean in its content,[15] and when employed in connection with land, is an expression of wide import.[16] Accordingly, its meaning will depend heavily upon its statutory context[17] and in determining what suffices for use of land in a given case regard must be had to the purpose to which land is to be put.[18] As Mahoney JA said in Macquarie University v Ryde Municipal Council: [19]

It has frequently been pointed out that ‘use’ is a term having an ordinary meaning which is both wide … and wanting in precision … The heart of the term lies in the notion of the thing in question being employed or availed of, but, according to the context, it may differ in meaning as to how or by whom the thing may be employed within its intended meaning. Thus, although ‘use’ denotes in general being employed or availed of, the context may indicate that its meaning is limited to use only in a particular manner.

[15]Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (2008) 237 CLR 285 at 294 [23].

[16]Royal Newcastle Hospital at 515.

[17]See for example Metricon Qld Pty Ltd v Chief Commissioner of State Revenue (No 2) (Metricon (No 2))(2016) 102 ATR 781 at 791 [42].

[18]Commissioner of Land Tax v Christie [1973] 2 NSWLR 526 at 533.

[19][1977] 1 NSWLR 304 at 313–4.

Where land is apparently unused, the particular use claimed will be of great significance in determining whether or not it is in fact used.[20]
[20]Eaton & Sons at 287.

The choice of language in drafting occurs in a known historical-legal context and the selection of a preposition such as “as”, or “for” (or other qualifier) may suggest an intentional rejection by the drafter of an alternative term, subject to the primacy of the immediate statutory context.[21]
[21]See the analysis of Nettle JA in Applewood at 297–8 [26].

The expression in s 77 of the Land Tax Act is, “used as”. In construing statutes dealing with land use (including in both revenue and planning contexts) courts have frequently distinguished between the expressions, “used as”; “used for” and “used for the purposes of”.[22] Those expressions do not bear fixed meaning, but the words, “used as” have been said to connote current or immediate use whereas the expression, “used for”, to convey an element of futurity, and to encompass a broader range of activities.[23]
[22]Sandhurst Holdings Australia Ltd v Commissioner of State Revenue (2009) 25 VR 59 (Sandhurst Holdings) at 72–3 [66]–[75]; Educang Limited v Brisbane City Council [2002] QSC 374 (Educang), [8], [20]–[28]; Leda Manorstead v Chief Commissioner of State Revenue (2010) 79 NSWLR 724 at 729–30 [31]–[42].
[23]See the authorities cited in the previous footnote.

Conditions stipulating that land be used for the purposes of a stated object have been understood to encompass more indirect and less immediate use than those requiring that land be used as something specified. For example, in City of Nunawading, the question was whether the land was “used for the purpose of a bakery”.[24] The Victorian Court of Appeal held that it was so used because, although the landowner no longer baked bread on it, it was used for purposes of an extant commercial bakery business. In so doing the Court observed that it was not necessary that land be used “as a bakery”, in order for it to be used “for the purposes of a bakery”.[25]
[24]City of Nunawading v Harrington [1985] VR 641 (City of Nunawading).
[25]City of Nunawading at 645.

In construing statutory criteria directed to land use it is relevant to ask whether the statute intends to include only present use, or extends to intended use, including reservation of land for future use.[26] As Gibbs J (as his Honour then was) said in Council of the Town of Gladstone v Gladstone Harbour Board,[27]

In ordinary speech, there is a difference between using land and intending to use it, and in my opinion nothing said in the Judicial Committee or the High Court in Newcastle City Councilv Royal Newcastle Hospital compels me to decide that to hold land with the intention to use it must be regarded as equivalent to using it. … Royal Newcastle Hospital establishes that land may be used although enjoyment is derived from it without any physical occupation, but it does not follow that land is used if it is merely kept with the intention of deriving enjoyment from it in the future.

[26]Council of the City of Parramatta v Brickworks Ltd (1972) 128 CLR 1, 21; Eaton & Sons at 273.

[27]Council of the Town of Gladstone v the Gladstone Harbour Board [1964] Qd R 505 (Gladstone) at 526.

Finally, it is relevant to ask (by examining the text, in its statutory context) who must use the land in order to satisfy the statutory criterion.[28] In some instances, the statute will (on its face or impliedly) require the relevant use of the land to be use by a particular person, typically the owner of the land.[29] In other instances, use of the land by any person may be sufficient to meet the statutory threshold.[30]
[28]See, eg, Council of the South Australian Institute of Technology v Salisbury Corporation (1975) 10 SASR 225 at 235 (Wells J).
[29]Roman Catholic Archbishop of Sydney v Metropolitan Water, Sewerage and Drainage Board (1928) 40 CLR 472 at 478–9 (Higgins J); see also Stephen v Federal Commissioner of Taxation (1930) 45 CLR 122 at 140 (Dixon J); Glasgow Corporation v Johnstone [1965] AC 609 at 622 (Lord Reid).
[30]The necessary inquiry is illustrated in Rosenblum v Brisbane City Council (1957) 98 CLR 35 at 46–7 in which the High Court approached the question whether land was used as a catering lounge at a particular point in time, by asking “whether it is possible to point to anyone who was using the premises as a catering lounge…” at that time (emphasis added). See also Commissioner of State Revenue v Australian Football League (2006) 14 VR 35 at 39–41 [15], [19] in which the Court of Appeal found that use of the land by the general public could qualify as a relevant use of the land for the purposes of s 9(1)(g) of the Land Tax Act 1958 (Vic) (the 1958 Act).

Caravan park

Returning to s 77, what will suffice as use of land in order to engage the exemption from land tax is revealed by the purpose to which the land is to be put, namely “as a registered caravan park”, where “registered caravan park” means “a caravan park within the meaning of the Residential Tenancies Act that is registered in accordance with the RT Regulations.”

The expression “registered caravan park” is not found in the Residential Tenancies Act. That Act defines “caravan park” and separately, provides for the making of regulations with respect to their registration.[31] The RT Regulations in turn, forbid any person from operating a caravan park unless it is registered under the regulations,[32] and provide for a system for applications, grants and renewals of registrations and the keeping of a register of caravan parks by municipal councils.[33]
[31]Residential Tenancies Act s 515.
[32]RT Regulations r 10.
[33]RT Regulations rr 11–18.

The Appellants’ argument concentrated heavily on the implications of the requirement for registration. I will turn to that in due course, but first it is necessary to consider how “caravan park” is understood in the Residential Tenancies Act.

Caravan parks under the Residential Tenancies Act include both traditional caravan parks and residential villages known as “Part 4A parks”. Residence in a Part 4A park may assume a more permanent character than in a traditional caravan park. Land within a Part 4A park is let to a site tenant under a site agreement. The tenant is then entitled to occupy a dwelling which he or she owns, on the site, as a residence.

A caravan park is defined to mean[34] –

an area of land on which movable dwellings are situated for occupation on payment of consideration, whether or not immovable dwellings are also situated there.

[34]Residential Tenancies Act s 3(1) (definition of ‘caravan park’).

Caravan parks may also be Part 4A parks, which are defined as follows:[35]
[35]Residential Tenancies Act s 3(1) (definition of ‘Part 4A park’).

Part 4A park means an area of land where—
(a)sites of land are available for occupation under a site agreement; and
(b)Part 4A dwellings may be situated on those sites; and
(c)common areas or facilities are available for the use of a person occupying a Part 4A site—

and includes a caravan park if the caravan park contains Part 4A sites

A “site” means a site in a caravan park.[36] A “site owner” means the person by whom a Part 4A site is let under a site agreement or is to be let under a proposed site agreement;[37] and a “site tenant” is the person to whom a Part 4A site is let under a site agreement or is to be let under a proposed site agreement.[38] A “site agreement” means:

an agreement under which a person lets land as a Part 4A site for the purposes of the occupation of a Part 4A dwelling on that land by the Part 4A dwelling owner as a residence.[39]

[36]Residential Tenancies Act s 3(1) (definition of ‘site’).

[37]Residential Tenancies Act s 3(1) (definition of ‘site owner’).

[38]Residential Tenancies Act s 3(1) (definition of ‘site tenant’).

[39]Residential Tenancies Act s 3(1) (definition of ‘site agreement’).

A “Part 4A dwelling” is a dwelling owned or partly owned by a site tenant, that is designed, built or manufactured to be transported from one place to another for use as a residence.[40] A “movable dwelling”, which forms part of the definition of “caravan park” but does not form part of the definition of “Part 4A park”, means a dwelling that is able to be situated at and removed from a place within 24 hours.[41]
[40]See the full definition in Residential Tenancies Act s 3(1) (definition of ‘Part 4A dwelling’).
[41]Residential Tenancies Act s 3(1) (definition of ‘movable dwelling’).

The nature of the arrangement for Part 4A parks, as evident in the definition of “caravan park” incorporated by reference in s 77 of the Land Tax Act, reflects the substance of s 206B of the Residential Tenancies Act which provides that subject to the Act and to the terms of a site agreement, a site tenant has a right to occupy and use the site to which the agreement applies; to have his or her dwelling situated on that site and to use the common areas and facilities of the Part 4A park.

With that background the following conclusions may be drawn about the requirements of s 77.

First, it is the land that must be used. The “use” requirement is directed to land, and not to dwellings.

Second, the essential character of a caravan park is that land within it is presently available. A Part 4A park is one in which sites within the park are available for occupation under site agreements and are such that dwellings may be situated on them, and also one in which common areas or facilities are available for use by residents. A caravan park that is not a Part 4A park is an area of land on which movable dwellings “are situated for occupation on payment of consideration …”.[42] It sensible to construe that requirement as descriptive of land on which dwellings may be situated once consideration is paid. The temporal element in the use requirement is thus evident in the language of the incorporated definition of “caravan park”. It is also evident in the employment of the conjunction, “as”, in the definition, “used as a registered caravan park”.
[42]Residential Tenancies Act s 3(1) (definition of ‘caravan park’).

The essence of use of land as a registered caravan park, then, is the present availability of land for occupation by site tenants or residents, and the related availability of common areas and facilities for the use of site tenants or residents. Occupation in this context refers to the situation on the land of movable dwellings or Part 4A dwellings. Use in that way must also include use of parts of the land for the purposes of an operating caravan park – such as administration offices and other necessary services, infrastructure or facilities.

The Appellants submitted that the criterion for the exemption is the use of land; not the occupation, or , “use and occupation” of land. That is true as far as it goes, but in construing the statutory criterion one must ask how it is that the statute requires that land must be availed of or employed. In this case, it must be used as a registered caravan park. Use in that way requires that sites within the land be able, presently, to be let to tenants for occupation, and common areas and facilities made available, presently, for their use.

Both parties accepted, as do I, that relevant use of the land may be use by an owner or operator of a caravan park, or by a resident. There is nothing in the language of s 77 of the Land Tax Act to suggest that it must be one or the other. A resident may use land within a caravan park by occupying a dwelling situated on it, or by using common areas or facilities. A caravan park owner may use it by making land within the caravan park available for occupation.

To elaborate, a site within a Part 4A park which is occupied by Part 4A dwelling which is let to a site tenant, is relevantly used – at least by the tenant. A site within a Part 4A park which is presently available for occupation under a site agreement (although unoccupied by a dwelling or unlet) is relevantly used – by the owner, who is making it available for occupation. Common areas or facilities that are presently available for use by persons occupying sites within the park are being relevantly used. There may be other parts of the land that are used by the caravan park operator in the course of operating the caravan park.

This construction accommodates fluctuating levels of occupancy, including periods of vacancy, that are an inherent characteristic of caravan parks.

For the reasons discussed below, s 77(3) facilitates a characterisation of the subject land in parts, asking whether any or all parts of it are used in the relevant way. That will require a factual inquiry in each case.

For example, the terms of the site agreements on which sites within a Part 4A park are let or proposed to be let may be relevant to that inquiry because they grant rights of occupation of the land (see the reference to site agreements in the incorporated definition of Part 4A park, above). Where works are occurring on part of the land, who is occupying that land and for what purpose, and what physical state the land is in, may be relevant inquiries. Parts of land where works are being conducted by or on behalf of parties who are not presently occupying or entitled to occupy dwellings on the sites as residences, might be differently characterised than land on which works are being conducted by a site tenant to install his or her own dwelling, where the owner is presently entitled to occupy a site. Major development works occurring on parts of land, directed to future occupation of sites will likely have a different significance for “use” of the land than routine maintenance works that facilitate the ordinary functioning of a caravan park.

I make these observations merely to amplify the construction analysis and to make the point that whether use of the land has occurred will require a factual inquiry in every case. As Nettle JA said in Applewood (in the context of a criterion stipulating “use and occupation”)[43] –

[B]ecause the question of the use and occupation of land is one of fact and degree, each case will turn to a greater or lesser extent on its own facts and circumstances and therefore, it is impossible to lay down proleptically how much facilities must be used and occupied before they qualify for exemption.

[43]Applewood at 299 [33].

It follows that land may be used in the business of a caravan park owner or held for the purposes of a caravan park; for example by preparing it for later letting to site tenants or for constructing works on it, and yet not be used “as a registered caravan park” in the requisite sense. Whether that is in fact so in an individual case, will be depend, once again, on a factual inquiry.

Registered caravan park

Turning to the final part of the composite expression, does this reading of the statutory text hold true when the interpretive lens is trained on the word “registered”? The constituent parts of the criterion have been considered cumulatively for convenience. But reading them together, the fact that s 77 designates as its criterion, use as a registered caravan park, does not alter the conclusions I have reached above.

As the Appellants would have it, the requirement that land be used as a registered caravan park (and not just as a caravan park) is of paramount significance. The Appellants contend that s 77 contemplates that once land that is registered as a caravan park under the RT Regulations, the whole of the registered land is taken to be used for the purposes of the Land Tax Act, and no further inquiry is needed. That construction rested essentially on two propositions.

The first was that to read s 77 as requiring anything by way of use of land beyond its registration as a caravan park (to use the Appellants’ language, to “split up” the requirements for use and registration) would be to impose a “super-added” requirement of physical use of land, not present in the text. I reject that submission. Reading s 77 as contemplating that land may be registered as a caravan park but not used as such, gives work to the expression, “used as”, whereas the Appellants’ construction does not. That reading does not import a physical use requirement. It rather acknowledges that once registration is established the question remains whether the land is being used as such.

The elision of registration and use of land appears to have its genesis in the Appellants’ second point, namely that s 77 “harnesses” registration under the Residential Tenancies Act, by “incorporat[ing] the statutory terms and concepts” employed in that Act. That concept, although eloquently put, was ultimately ill-defined. It is flawed in a number of respects.

Section 77 defines the land that will enjoy an exemption by employing its own expression (“registered caravan park”) which contains two elements drawn from the Residential Tenancies Act and Regulations: the definition of caravan park taken from the Act and the requirement of registration under the RT Regulations. The latter requirement is directed to persons and not to land – its effect is to forbid the operation of a caravan park unless it is registered.[44] The adoption of references to the Residential Tenancies Act and RT Regulations within s 77 does not serve to establish that if land is registered in accordance with the RT Regulations it must be used for the purposes of s 77. Rather, the purpose of those references is to define which land will attract the exemption, namely land that is used as a registered caravan park as opposed to land unused, or used in any other way, including as an unregistered caravan park. There is no implied equation of use with registration.
[44]RT Regulations r 10.

It was submitted that the employment by s 77 of definitions drawn from the Residential Tenancies Act discloses a legislative intention that the Commissioner not be involved in “enforcing or assuming” the sorts of obligations assigned to municipal councils in relation to the supervision and regulation of those lands and that kind of accommodation. The attempted linking of the residential tenancies and land tax regimes in this way was intended to support the ultimate proposition that once land is registered it is used for land tax purposes. The submission reads into the text concepts that it cannot reasonably support.

The Commissioner’s task in determining whether land is exempt under s 77 is a different exercise, pursuant to a different statutory function from that required of those charged with administering aspects of the Residential Tenancies Act and regulations. The vice in the Appellants’ submissions is to disregard that fact by drawing an implication from the definition and registration requirement borrowed from the Residential Tenancies Act, without any adequate textual basis (linguistic, grammatical or otherwise).

The proposition that land that is registered as a caravan park must be taken to be used as such, might be directed to resolving an apparent conundrum – that the same land can be considered not to have been “used” for the purposes of s 77 and not attract an exemption while, for the purposes of the Residential Tenancies Act, land that is registered as a caravan park should, as a matter of simple logic, be taken to meet the description of “caravan park” (including “Part 4A park”) within that Act. Similarly, by the act of certification by a municipal council a caravan park is taken to have met the requirements for registration[45] but (if the Appellants’ submission is rejected), that land might not in fact be “used” for the purposes of an exemption from land tax.
[45]RT Regulations rr 11, 13, 20–22, 23–25, 27–32A, 41, 43.

If there is such a conundrum it need not be resolved. The formulation of the exemption in s 77 makes it necessary to have regard to incorporated terms defining “registered caravan park”. But there is no basis in the language of s 77 or its statutory context (the Land Tax Act) to conclude that the relevant parts of the Land Tax Act and the Residential Tenancies Act should be read as though they are Acts in pari materia (on the same subject matter), that should be construed as one.[46]
[46]This conclusion follows from the textual analysis, as set out. For a strict approach on the reading of incorporated definitions, see The Producers’ Co-Operative Distributing Society Ltd v The Commissioner of Taxation (NSW) (1944) 69 CLR 523 at 531 (per Latham CJ).

Furthermore, the fact that the RT Regulations permit the registration of land with a “schedule of works” to be completed after the date of registration,[47] is inconsistent with the Appellants’ submission that registration establishes that the whole of the registered land is, from the moment of registration, developed into a functioning caravan park.
[47]RT Regulations rr 7, 12–13.

As noted earlier, the Appellants accepted that land registered as a caravan park could not be taken to be used for the purposes of s 77 where it was unused, or where it was used for an inconsistent purpose (such as letting it for use and to a party unconnected to a caravan park). While that concession was sensible, the acknowledged exceptions are fundamentally inconsistent with, and undermine, the Appellants’ primary contention – that registration and use of land as a caravan park are not separate or cumulative requirements; that registration entails use.

Insofar as the Appellants’ case rested on the fact that the RT Regulations impose obligations on a registered caravan park operator to comply with safety standards and provide facilities and the like,[48] as establishing use of land upon registration, the existence of an obligation does not itself establish compliance with the obligation or use of the land in that way.
[48]RT Regulations rr 20–22, 23–25, 27–32A, 41, 43.

The Appellants said that their reading of the text was supported by reference to legislative policy. It was said that a regime that equates registration under the RT Regulations, with use of land for the purposes of an exemption from land tax, engenders administrative certainty and convenience, and that that outcome (in the taxing legislation) was evidently intended because it is consistent with the need to encourage the continued growth of residential villages as a means of addressing housing affordability problems in Victoria that were acknowledged in the extrinsic materials for the residential tenancies framework for caravan parks.[49]
[49]Victoria, Parliamentary Debates, Legislative Assembly, 12 August 2010, 3313 (the Hon Tony Robinson MP).

Although I accept that the Appellants’ reading of the provision might well engender certainty and convenience, that argument does not ultimately assist. An Act may have several purposes, some of which tend in favour of one construction and others that tend against it.[50] Where there is doubt about the extent to which a provision pursues a purpose, or where a provision strikes a balance between competing interests, statutory purpose may provide little assistance in interpreting a statute.[51] And nor does resort to purpose assist where it can be stated only at a high level of generality.[52] Each of those difficulties beset the Appellants’ argument. The imputed legislative purposes are an amalgam of those discerned in the taxing statute and the residential tenancies regime. They are stated very generally. Although revenue raising is an equally general purpose (by itself, usually unhelpful as an aide to construction)[53] it could be employed against the Appellants’ construction as a countervailing consideration. Ultimately, fixing on legislative purpose in this manner in this case deflects from the statutory text rather than assisting its construction.[54]
[50]Saraswati v The Queen (1991) 172 CLR 1 at 21 (McHugh J).
[51]Carr v Western Australia (2007) 232 CLR 138 at 142–3 [5]–[6] (Gleeson CJ).
[52]Esso Australia Pty Ltd v Australian Workers’ Union (2017) 263 CLR 55 at 588 [69] (Gageler J).
[53]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue(NT) (Alcan Alumina) (2009) 239 CLR 27 at 47–8 [51].
[54]See Commissioner of Taxation for the Commonwealth of Australia v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ); Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378 at 411–2 [88]–[89] (Kiefel J); Alcan Alumina at 47–8 [51].

The Apportionment provision

The Appellants submitted that because that land is title-based for land tax purposes (one title, one land)[55] the function of s 77(3) is to allow for the possibility that a landowner might use only part of land comprised in a single certificate of title for the relevant exempt purpose. That s 77(3) allows for that possibility is plainly correct.
[55]Lotus Projects Pty Ltd v Commissioner of State Revenue [2017] VSC 63.

However, the Appellants went further and said that it was an error to read s 77(3) as permitting the apportionment of land that comprised the registered caravan park, as opposed to apportioning land, only part of which is a registered caravan park. I reject that submission. Nothing in the language of s 77(3) permits the implication of that limitation. If, by application of the criterion for the exemption in s 77(1), the Commissioner is satisfied that only part of the land is relevantly used, s 77(3) permits it to be apportioned accordingly. The presence of s 77(3) within s 77 does not require the question whether the land is in use to be approached by adopting an assumption that the whole of the land (the sum of its parts) cannot be used for a single purpose. The extent to which the land is relevantly used will depend upon the application of the criterion for the exemption (in this case, use as a registered caravan park). On the other hand, it follows from both s 77(1) and s 77(3) that land should not be assessed as relevantly used simply on the basis that another part of the same land is so used.[56]
[56]See the analysis in Applewood at 297–8 [26] concerning s 9(2AB) of the 1958 Act.

In Applewood, Nettle JA (with whom Chernov JA and Redlich JA agreed) said of a like provision in the Land Tax Act 1958 (Vic) (the 1958 Act), that it specifically provides for the possibility of parts of land being used and occupied for a specified purpose while other parts are not.[57] That language is also apt to describe the effect of s 77(3).
[57]Applewood at 297 [25].

Section 9(2AB) of the 1958 Act applied to the exemption from land tax applicable to retirement villages and provided, “[i]f the Commissioner is satisfied that part only of land is used and occupied as a retirement village and for no other purpose, the unimproved value of the land must be reduced for the purposes of land tax by an amount calculated in accordance with the formula [as set out].” The condition for apportionment in s 9(2AB) of the 1958 Act (as contained in the first phrase within that section) is in materially identical terms to the relevant part of s 77(3), although the criterion for the exemption (“used and occupied as a retirement village …”) and the formula for apportionment are different. In Applewood, the Tribunal had taken the view that it would have been artificial to divide one block of land in the fashion contended for by the Commissioner.[58] Nettle JA said of s 9(2AB) that it must be read in conjunction with s 9(1)(j) (the provision providing for an exemption from land tax for retirement villages), and that,[59]

section 9(2AB) does indeed require the sort of compartmentalised approach which the judge adopted, breaking down the parcels of land into components and affording the exemption only to those components which are used and occupied for the specified purpose at the relevant time.

[58]Applewood at 294 [10].

[59]Applewood at 295 [16].

The “compartmentalised” approach of which Nettle JA spoke in Applewood requires a characterisation of the land with a view to determining what part of it is in fact used in the requisite way at the date of assessment for the relevant land tax year.

As the Court observed in Applewood, the assessment of land tax has a temporal aspect to it. Land tax is an annual tax and so the question whether it is used (or employed in the manner that the applicable criterion stipulates) is to be answered by reference to the state of the land at the relevant time.[60] As the trial judge in Applewood put it, if the Commissioner considers that part of the land is not exempt, it is for one year only. If, by the time of the next assessment the land is relevantly used, the exemption will apply.[61] In the case of s 77, both s 77(1) and s 77(3) require temporally focused assessments.
[60]Applewood at 295 [13].
[61]Commissioner of State Revenue v Applewood Residential Developments Pty Ltd (2005) 60 ATR 89, 104 [53] (Hansen J).

It is convenient to note at this point that by contrast, registration of land as a caravan park under the RT Regulations is for a minimum period of two years.[62] By itself, that fact is not determinative of the Appellants’ construction point, but it illustrates the separate functions of the taxing and residential tenancies provisions.
[62]RT Regulations r 14.

The Appellants submitted that it is usually sufficient to characterise land as used for a particular purpose if, even though there may be no immediate physical use or occupation of every part of it for that purpose, the land has been acquired for and is wholly devoted to that purpose. In that way, the parts in current usage give character to the whole. That proposition is derived from Royal Newcastle Hospital.[63] In that case, which establishes that land may be used although it is not physically occupied, the land had been acquired and wholly devoted to the project which had in fact been carried out on the land. The question was whether the land was “used for the purposes” of a public hospital. There, the hospital intentionally derived actual and present advantages from it by keeping it in its virgin state and so creating a clear atmosphere that was understood to benefit its patients.[64]
[63]Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493 (Royal Newcastle Hospital), affirmed on appeal to the Privy Council in Council of the City of Newcastle v Royal Newcastle Hospital (1959) 100 CLR 1.
[64]Royal Newcastle Hospital at 514–5, 505; Council of the City of Newcastle v Royal Newcastle Hospital (1959) 100 CLR 1 at 3–4. See also Gladstone in which Gibbs J discusses Royal Newcastle Hospital at 526.

The question posed by s 77 is different and requires that the land be characterised so as to establish whether the whole or any part of it was used as a registered caravan park at the relevant date.[65] Although the analysis will differ with the facts in each case, it is not hard to envisage land that is devoted wholly to a project or purpose but is not presently capable of being occupied by residents or tenants, or being made available for occupation by them. Such land might well be used in or for the purposes of the operator’s business or be held for the purposes of a registered caravan park, but not be used as a registered caravan park.
[65]Compare Applewood at 296 [19]–[20] and Sandhurst Holdings at 72–3 [67]–[74] in which, in each case, the Court similarly distinguished Royal Newcastle Hospital.

Finally, on the construction of s 77, the Commissioner contended that the fact that s 78A of the Land Tax Act provides that land is exempt if one of four types of facilities is being constructed on the land (namely a residential care facility, a supported residential service, a residential service or a retirement village)[66] does not include registered caravan parks, reveals a legislative intention not to provide an exemption for land on which a caravan park is “under construction”. As I have said earlier, the presence of construction works on the land might inform the factual conclusion as to use one way or the other, but I do not consider that s 78A adds meaningfully to the construction task in respect of s 77. One cannot sensibly draw from the presence of s 78A within Division 5 of Part 4 of the Land Tax Act, a conclusion as to what “use” of the land as a caravan park means.
[66]Land employed for these purposes is the subject of exemptions from land tax as provided in ss 76, 76A and 78.

It should be apparent from the foregoing analysis that I do not consider that the meaning of the expression, “used as a registered caravan park” as found in s 77 of the Land TaxAct was determined in the decision of the Court of Appeal in Applewood. I accept the Appellants’ submissions in this respect. The provision in Applewood was s 9(j) of the 1958 Act which provided that, “land which is used and occupied as a retirement village and for no other purpose, is exempt from land tax”, where retirement village was in substance defined as a complex containing residential premises predominantly or exclusively occupied by retired persons in pursuance of a tenancy agreement or other right.[67]
[67]See the full definition in the 1958 Act s 3(1) (definition of “retirement village”).

While the reasoning in Applewood is instructive in the respects discussed, that does not alter the fact that that case did not construe the provision in issue in this case. As the Court of Appeal said in Sandhurst Holdings, in the course of considering the exemption from land tax then contained in s 9(1)(g) of the 1958 Act, decisions on analogous cases are usually of limited assistance as their outcomes may depend on even subtle differences in language or factual context.[68] Here, the provisions at s 77 of the Land Tax Act and s 9(1)(j) of the 1958 Act need only be set out in order to expose their differences. Both provisions employ the conjunction, “as”, but stipulate a different means of exploitation (“use” and “used and occupied … and for no other purpose”) of a different object (a registered caravan park and a retirement village).
[68]See for example, Sandhurst Holdings at 69 [44], 72 [66] (Dodds-Streeton JA); 60 [2] (Buchanan JA). See also Metricon (No 2) at 792 [46]–[47] (White J).

It also follows from the analysis above that I do, however, consider that the analysis in Applewood concerning the construction of the apportionment provision in that case (s 9(2AB) of the 1958 Act) may be applied by analogy for the purpose of construing the effect of s 77(3).

Section 9(2AB) of the 1958 Act and s 77(3) of the Land Tax Act concern different exemption criteria (“used and occupied as a retirement village and for no other purpose” and “used as a registered caravan park”) and employ different formulae for assessing part of land to tax. However, the condition for apportionment (“if the Commissioner is satisfied that part only of the land is [used] or [used and occupied]”) is in each case expressed in materially identical terms, and the provisions evidently serve the same function. In each case they expressly permit the part assessment of land for land tax (with one part of land exempt and the other taxable), and provide the means of assessment (which, in the case of s 77, is by reference to s 22 of the Land Tax Act). Section 77(3) has identical counterparts in the other provisions of Division 5 of Part 4 of the Land Tax Act,[69] which exempt from land tax land employed in connection with particular forms of accommodation.[70] In each case the apportionment provision fulfils that same function.
[69]See ss 75(5), 76(3), 76A(3), 78(2), 78A(7).
[70]See ss 75, 76, 76A and 78.

Did VCAT err in its construction of s 77?

As noted earlier, the Appellants contend that VCAT did not perform the task required of it. It did not identify the correct legal test in that it failed to address what was required for use of land as a registered caravan park as defined in s 77. Instead, the Tribunal considered only those parts of the land that were “currently physically used” as a caravan park and equated use of the land with occupation of it by dwellings and other common facilities. Further, VCAT wrongly equated the fact of construction of dwellings on the land, with construction of the land itself.

Relatedly, the Appellants submitted that VCAT wrongly considered that s 77(3) permitted or required the Commissioner to apportion land comprising (or within) the registered caravan park, rather than to apportion land that is in part used as a registered caravan park and in part used for another purpose, and wrongly regarded the meaning and application of s 77 as being governed by principles that were applied in Applewood.

Whether the Tribunal identified the correct legal test is a question of law.[71]
[71]Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd (2014) 45 VR 771 (Cosmopolitan Hotel) at 783 [48] (Warren CJ).

On an appeal of this kind reasons are not to be examined overly zealously with a view to finding error[72] and nor should a court expect the degree of exactitude which might be found in the reasons for judgment of a court.[73] The court may have regard to the inferences that necessarily arise from what is expressly stated.[74] It remains true, however, that an order of a Tribunal stands or falls by the reasons that are given to support it[75] and eyes should not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party’s case.[76]
[72]Secretary to the Department of Justice v YEE [2012] VSC 447, [96] (Kyrou J).
[73]Dudas v Monash City Council [2012] VSC 578 (Dudas), [106] (Kaye J).
[74]Mildura Rural City Council v VABDS Developments Pty Ltd (2012) 193 LGERA 185, 196 [40]; Dudas, [106].
[75]Chu v Telstra Corporation Limited [2009] FCA 1384, [33] (Gray J) (on an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth)).
[76]Soliman v University of Technology, Sydney (2012) 207 FCR 277 at 295–6 [57] (Marshall, North and Flick JJ).

VCAT’s path of reasoning was essentially as follows:

(a)The issue in relation to s 77 is, broadly, whether the reference to “use” refers to current physical use as a caravan park, or extends to the whole of the site acquired for and devoted to the purpose of a caravan park albeit that some areas remain “under construction” or “under development” ([19], [17]);
(b)The taxpayer contended that the whole of the land was exempt because it was one area of land, wholly devoted to the purposes of a caravan park, registered as such and operating as such, albeit that there was little or no immediate physical use by existing residents of sites awaiting new residents ([20]);
(c)It is “curious” that parliament adopted a “used as” test for the caravan park exemption in s 77, given the fact that before the introduction of s 77 the exemption for retirement villages had been amended to substitute “used and occupied as a retirement village and for no other purpose,”[77] with “occupied, or currently available for occupation as a retirement village”.[78] The change had been made to clarify that the exemption for retirement villages was not intended to apply to vacant or undeveloped portions of land ([38]–[39]);
(d)However, the partial exemption (apportionment) provision that had applied to retirement villages was also applied to caravan parks from the commencement of s 77 ([40]);
(e)In Applewood it was observed that in the context of s 9(j) and s 9(2AB) [of the 1958 Act] the exemption was not engaged unless land was actually used and occupied as a retirement village at the relevant time ([37]);

(f)Sub-section 77(3) must be read with s 77(1), which contemplates that some part but not all of the land which in the broad sense forms part of a “caravan park” will be used as such ([40]–[42]);
(g)In Applewood it was decided that the presence of partially completed retirement village accommodation on the land did not characterise it as used and occupied as a retirement village ([44]). Other authorities were distinguishable ([45]);
(h)“Use” may be broader than “use and occupation” and might extend to completed caravans that are not yet occupied, but “this does not grapple with the limitation that the partial exemption places on the interpretation of the scope of the full exemption.” ([44]);
(i)Accordingly, each of the lands was used only in part as a registered caravan park. The portions of lands so used were identified by the Commissioner, were not the subject of contrary submissions by the taxpayer, and were accepted as such ([46]–[47]).

[77]The 1958 Act s 9(j), inserted by Land Tax (Revision) Act 1991 (Act No 74/1991) s 11(1).

[78]The 1958 Act s 9(j), substituted by State Taxation Acts (Further Miscellaneous Amendments Act 2003 (Act No 113/2003) s 10(1).

The context for that reasoning included the identification of the factual matters and the parties’ arguments, as set out earlier.

It follows from the earlier analysis that I consider the Tribunal correctly construed s 77(3) as contemplating that some part but not all of the land which forms part of a registered caravan park may be used as such.[79] The use of the expression “caravan park” rather than “registered caravan park” at paragraph 42 of the Tribunal’s Reasons is not to the point. It is sufficiently clear from the Reasons that the Member considered that s 77(3) had the effect that relevant use of land, for the purposes of s 77, is present use. That conclusion was correct. As I have said above, that conclusion may in any event be drawn from the text of s 77(1).
[79]Reasons, [42].

It also follows that the Tribunal was not in error in holding that s 77(3) permitted the Commissioner to apportion land comprising the registered caravan park. The Member was correct to draw that conclusion by reference to the reasoning of the Court of Appeal in Applewood.

However, the effect of s 77(3) is not the end of the inquiry. As discussed earlier, the fact that s 77(3) allows for the possibility that some part of the land that is registered as a caravan park will not be used as such, does not itself determine whether or not the land has been used in the requisite sense. Whether land is used in whole or in part in the requisite way requires that the expression, “used as a registered caravan park”, found within s 77(1) of the Land Tax Act, be construed. VCAT did not complete that task.

In the course of its reasons VCAT did not construe the criterion for exemption contained in s 77. It had regard to the word “use”, noting that it was a word of wide import whose meaning would depend to a great extent on the context in which it was employed.[80] It observed that the employment of that word was “curious” given a departure from it in a different section of the Act (s 78).[81] The implications for the adoption of the expression, “used as”, were not explored. It was observed that the word “use” may be broader than the expression “occupation”, and that “use” in the present context “might extend to completed caravans that are not yet occupied”.[82] But what was required by the statutory criterion, “used as a registered caravan park”, was not identified.
[80]Reasons, [27].
[81]Reasons, [39].
[82]Reasons, [44].

The Tribunal referred to general conceptions applicable to the use of land[83] and articulated the problem as, broadly, whether the “use” criterion in s 77 requires “current physical use” as a caravan park, or extends to the whole of the site that is acquired for and devoted to the purpose of a caravan park. Those concepts may inform the required statutory construction task, but reference to them is not a substitute for the necessary identification of the statutory test.
[83]Compare the analysis by Nettle JA of the error at first instance in Applewood at 298, [30].

What the Tribunal meant by “current physical use” is not clear. It is possible to read that expression as connoting land that is “not under construction”; or land that is occupied by residents or dwellings. However, because the statutory test was not construed it is not possible to adequately discern whether or not the Tribunal in fact equated “use as a registered caravan park” with occupation by dwellings or people, or with the physical footprint of the development.

It is possible to work backwards in effect from the matters mentioned by the Tribunal and posit that the Tribunal understood that whatever s 77 requires for use of land as a registered caravan park, is inconsistent with the state of land that is “under construction”. The conclusion that the land was “under construction” is unelaborated and does not assist in discerning in the Reasons a positive construction of s 77(1). Be that as it may, the task of identifying the statutory test was not undertaken in relation to s 77(1).

Reference to the reasoning in Applewood did not amount to identification of the correct legal test. As discussed above, the Court of Appeal did not, in Applewood, determine the proper construction of s 77 of the Land Tax Act. It was necessary to read the reasoning in Applewood as applicable to the particular facts in that case, since, as Lord Halsbury LC said in Quinn v Leathem, in “every judgment … the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found”.[84]
[84]Quinn v Leathem [1901] AC 495 at 506.

The analysis in Applewood that the presence of the partially completed retirement village on the land in issue “no more characterised the disputed land as used and occupied as a retirement village than would a partially completed office block on part of the land adjacent to a used and occupied office block characterise the construction site as land used and occupied as an office block”,[85] is an example of words in reasons for judgment that are illustrative or explanatory of a principle, without definitively limiting it.[86]
[85]Applewood at 296 [18], cited in Reasons, [43].
[86]See Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, 586–7 (McHugh J).

It must be acknowledged that when this matter came before VCAT, s 77 had not been the subject of prior judicial consideration. It must also be acknowledged that the Commissioner’s case before VCAT was that issues raised in this case were to be decided by the application of the decision of the Court of Appeal in Applewood and that nothing further was needed. In those circumstances no criticism is to be made of the Tribunal for considering in detail the reasons in Applewood, as it did, and in seeking guidance from the reasoning in that case.

That said, the Appellants’ submission that the correct statutory test was not identified is not one that merely attacks the felicity of the Tribunal’s reasons. It goes to the performance of the Tribunal’s essential task.

It is apparent from the discussion elsewhere in these reasons that the taxpayers’ primary case was bound to fail. Whether the Tribunal reached the right result is not the issue raised by Question 1 in the Notice of Appeal and the related grounds of appeal.

Question 2

Question 2 asks whether, on a proper construction of s 77 of the Land Tax Act, it was open to the Tribunal to find on the evidence that the land at Lifestyle Lyndarum and Lifestyle Geelong was in each case used only in part as a registered caravan park, in circumstances where all of that land was a ‘caravan park’ within the meaning of s 77 that was registered with a fixed number of sites, in accordance with the RT Regulations.

The question in the Notice of Appeal is framed by reference to the percentages of the parts of the land found by the Tribunal to have been relevantly used. However, as noted earlier, the taxpayers did not, before VCAT, contest the particular percentages nominated by the Commissioner. Their case was that the whole of the land was relevantly used. The question on this appeal is therefore whether the Tribunal erred in rejecting that case.

Whether the facts found fall within a statute properly construed, is a question of law.[87]
[87]Cosmopolitan Hotel at 783–4 [48]–[49] (and the authorities there cited).

The Appellants’ primary case on this appeal was that on a proper construction of s 77, the legislature intended that the whole of the land is taken to be used as required by s 77 and is therefore exempt from land tax, once it is registered as a caravan park under the RT Regulations. Their submission was that properly approached, the only conclusion open to the Tribunal was that the whole of each land was relevantly used.

Were that construction correct, only one fact would be necessary to establish the case, namely the fact of registration. That fact was not in dispute in respect of either of the lands. For the reasons discussed above, I reject the Appellants’ construction of s 77 as eliciting that intention. On a proper construction of s 77, on the facts found, and on the Appellants’ primary case before the Tribunal, it was open to the Tribunal to find that each land was not, by reason of the fact that it was registered as a caravan park under the RT Regulations, wholly used as a registered caravan park.

Question 2 should be answered, “yes”.

Question 2, however, only deals with the Appellants’ primary case. The Appellants’ alternative case remains to be considered.

Question 3

Question 3 asks whether, on a proper construction of s 77 of the Land Tax Act, it was open to the Tribunal on the evidence to find that the land at Lifestyle Lyndarum and Lifestyle Geelong was in each case used only in part as a registered caravan park, in the circumstances set out in the Notice of Appeal. The circumstances include but extend beyond the fact of registration of the land as a caravan park.

It is necessary, given the failure of the Tribunal to fully construe and apply the statute, to consider whether, had VCAT undertaken the correct task and applied the correct test, its ultimate decision might have been different.[88] An appeal should not be allowed where the Tribunal would still have been obliged as a matter of law, to dismiss the claim.[89] A vitiating error is required, not just the theoretical possibility of error.[90]
[88]Jetstar Airways Pty Ltd v Free (2008) 30 VAR 295 at 340 [122]; RSSB Australia Pty Ltd v Ross (2017) 224 LGERA 224 at 232 [34].
[89]Thomas v Panourakis [2014] VSC 398, [99].
[90]Snowy Hydro Ltd v Metroll Victoria Pty Ltd (2007) 27 VAR 31 at 39 [33].

As set out earlier, VCAT correctly construed s 77(3) as contemplating that some part, but not all, of the land which forms part of a registered caravan park may be used as such. That proposition should also be drawn from s 77(1). It will be recalled that while the presence of s 77(3) within s 77 does not require the question of “use” of the land to be approached by adopting an assumption that the land in question cannot be used in whole for a single purpose, on the other hand, it follows from both s 77(1) and s 77(3) that land should not be assessed as relevantly used simply on the basis that another part of the same land is so used.[91] If the Appellants’ case were that the whole of each land was to be characterised as used as a registered caravan park because some part of it was so used, then the case would have been properly rejected.
[91]See the analysis in Applewood at 297–8 [26] concerning s 9(2AB) of the 1958 Act.

However, the Appellants’ case is that the whole of the land was in fact used, not just that part of it was used so the rest should be imputed with the character of that part. And their alternative case was that the whole of the land was relevantly used because of a number of activities that were undertaken on and in relation to it. Although not expressed exactly in these terms, the case was that if the land is divisible into parts, all of those parts were used as a registered caravan park.

Accordingly, the Tribunal’s application of s 77(3) did not resolve the Appellants’ alternative case.

It will be recalled that the proper application of the statutory test would require consideration of the present availability for occupation of land within each caravan park, the availability, for use by residents, of common areas and facilities, and use of the land for the purposes of an operating caravan park.

The Appellants raise the question whether it was open on the evidence for the Tribunal to find that part only of the land was used as a registered caravan park, in circumstances in which the land had, in each case, been developed as a caravan park comprising common areas and facilities and a fixed number of sites “available for occupation by movable dwellings”.[92] The Commissioner submitted that to describe land in the early stages of construction as being “available for occupation” is to “stretch the language”.
[92]Notice of Appeal, Questions of Law, [3(c)].

The factual findings made by the Tribunal that would inform this question were scant.

It was not in dispute that the whole of each land was registered as a caravan park.

It was observed that the communities operated by the Appellants, including those at Lifestyle Lyndarum and Lifestyle Geelong, were operated according to a structure, namely that:[93]

[a] resident buys a home and a share of the community infrastructure and then rents a particular site in the community for it. The home is bought under a ‘Home Purchase Agreement’. … The lease of a particular site occurs under a ‘Residential Site Agreement’. Each lease is for 90 years. The residents obviously also get the use of common areas of the community.”

[93]Reasons, [13].

It was found that both communities were developed on a “staged basis”.[94] How the progression of the stages related to the making of sites within the land available for occupation, was not examined. By reference to a site plan for each of the lands, it was found that each community was to be developed in three stages and that (to summarise) some stages were “still under development.[95]
[94]Reasons, [16].
[95]Reasons, [17].

There is no explanation in the Tribunal’s Reasons of what was entailed in the land being “under development”. It may be inferred that land under development, insofar as it comprised sites nominated on the site plan and registration for each land, was not occupied by completed homes or homes that were themselves occupied by residents. The Tribunal fastened on a dichotomy between land that was in current physical use as a caravan park and land that had been acquired for and was devoted to the purpose of a caravan park, but there was no exploration or explanation of what amounted to “current physical use” of the land.

As will be recalled, in a Part 4A park such as Lifestyle Lyndarum or Lifestyle Geelong, sites of land are available for occupation under site agreements. Template forms of the contracts that the Appellants were said to have used for its communities generally were before the Tribunal. The Tribunal observed that the resident “buys a home and a share of community infrastructure”, rents a particular site and “gets the use of the common areas of the community”. However, the terms of the site agreements were not considered. There was no analysis of the rights of occupancy conferred under those agreements.

It was noted that the homes to which reference is made were unregistrable movable dwellings which included carports and garden areas. Although it be might inferred from the findings that it was the Appellants (or third parties, on their behalf) who were developing the land, there was no consideration as to whether, as at the assessment date, any of the land was made available to residents to occupy it for the purposes of installing dwellings on their leased sites themselves. There was no consideration of whether, as at the assessment date, future residents had any rights of occupancy over sites on which homes owned by them were being constructed or were to be constructed. It may have been that the Appellants’ business model did not accommodate the site owner making the land available in that way, or residents occupying it in that way. But it is not possible to tell what the arrangements were, from the Tribunal’s findings.

The Appellants raise the question whether on the evidence it was open to find that only parts of each land were used in circumstances where each community had opened and commenced operation as a caravan park with a significant number of sites occupied by movable dwellings, residents using common areas and facilities , further sites being taken up progressively in accordance with demand, and residents using other areas of the land for recreational purposes.[96]
[96]Notice of Appeal, Questions of Law, [3(f)].

There were no factual findings as to how, if at all, existing residents used the land that was not occupied by existing dwellings or common facilities, for recreation. The Commissioner submitted that informal use of the land for activities such as dog walking was irrelevant unless those activities occurred on land that was intended to be set aside for recreational purposes.[97] However, there were no findings about which parts of the land, if any, were intended to be used in that fashion, and the rights of use accruing to residents under the relevant site agreements in respect of common areas (or otherwise) were not examined. The Commissioner accepted in argument that contractual entitlements accruing to residents in respect of the land were “not irrelevant”.
[97]The Commissioner relied on the analysis in Applewood at 299 [32].

The Appellants raise the question whether on the evidence it was open to find that only parts of each land were used in circumstances where the land had in each case met the prescribed standards for operation as a caravan park, including as to fire prevention, emergency management, water supply, sewerage, lighting and the like.[98] It was not in dispute that the certificates of registration of the two caravan parks certified that they had complied with the RT Regulations. On the other hand, it was mentioned in submissions without any real elaboration, that some civil works on the land were probably incomplete. There were no factual findings about these matters, or about the completion of civil works on the land.
[98]Notice of Appeal, Questions of Law, [3(d)].

There were no findings of fact in relation to the use of the land by the site owner as at the assessment date, if any, to service the operation of a functioning caravan park.

There was no finding as to whether any uses of the land, in the ways described above, did or did not amount to use of the whole of the land as a registered caravan park as at the assessment date; noting that the Appellants’ case concerned the whole of the land.

It appears that there was evidence before the Tribunal concerning (among other things) the state of the works on the land including the extent of the completion of civil works, and the recreational use of the land by existing residents. The Appellants’ standard form contracts said to have been applicable to the Lifestyle Geelong and Lifestyle Lyndarum communities were before the Tribunal. There was also evidence about the Appellants’ business model.

The parties’ positions in relation to the state of the evidence and what was open to be decided was somewhat unsatisfactory.

Despite the fact that the case before VCAT was conducted without the taxpayers’ contesting the Commissioner’s analysis of the proportion of the land that should be considered as being used as a registered caravan park in the event that the whole was not used, the parties’ positions were not as clear as that fact might suggest. As the Commissioner put it, on that issue it would be going too far to say there was agreement.

The Commissioner submitted that there was “limited need for factual findings before the Tribunal”, because, as the Commissioner put it, the matter before VCAT was conducted on what was essentially a question of principle. That submission was contested, and the scope of the limitation was unexplained. The Commissioner summarised the question as whether an area which is “not presently available for residents [and] not occupied by residents and … where houses are under construction or yet to be constructed” can be seen to be in use as a caravan park. However, as has been seen, the present availability of the land for occupation is a central question arising on the proper construction of the statute, and is one which must be informed by a proper factual inquiry.

On that issue evidence was adduced before VCAT but there were insufficient factual findings. The Tribunal’s approach to the facts in this case was evidently influenced by its approach to the construction of s 77.

Before me, both parties made submissions that went to matters not the subject of findings by the Tribunal – including on the recreational use of land by existing residents.

Where the statutory construction task was not completed and factual findings that would have been relevant on the proper construction of the statute were not made, it is not possible for this Court to decide, on undisputed evidence, that there was only one right answer open to the Tribunal. Had VCAT completed its true task, it might have evaluated the evidence differently. It did not complete that task, and that was a vitiating error in relation to the Appellants’ alternative case that in the circumstances set out under Question 3 in the Notice of Appeal, the whole of the land was in fact used as a registered caravan park.

Disposition

Having particular regard to the fact that I have rejected the Appellants’ primary case, I have considered whether it would be appropriate to dispose of the appeal by making an order that the Tribunal could have made, under s 148(7)(b) of the VCAT Act, including by construing the template site agreements.

However, it is not generally appropriate to substitute a new decision for VCAT’s decision unless, on unchallenged evidence, it were the only decision available to VCAT as a matter of law.[99] It is not this Court’s role, in an appeal limited to questions of law, to embark upon the exercise of resolving disputed questions of fact.[100] Without doing so I am not in a position to dispose of the appeal.
[99]XYZ v State Trustees (2006) 25 VAR 402 at 425 [64]; Osland v Secretary of the Department of Justice (No 2) (2010) 241 CLR 320 at 333 [20].
[100]m3 (Property) (Vic) Pty Ltd v Whitehorse Towers Pty Ltd [2012] VSC 109, [30].

It follows that leave to appeal is granted.

Subject to hearing the parties on the appropriate form of order, I will order that:

(a)Leave to appeal be granted.
(b)The appeal be allowed.
(c)The Tribunal’s orders of 20 June 2019 as varied on 10 July 2019 be set aside and the matter be remitted for rehearing in accordance with law.

[2020] VSC 397

30 June 2020