Lifestyle Retirement Project No.2 Pty Limited v Chief Commissioner of State Revenue
[2008] NSWADT 256
•9 September 2008
CITATION: Lifestyle Retirement Project No.2 Pty Limited v Chief Commissioner of State Revenue [2008] NSWADT 256 DIVISION: Revenue Division PARTIES: APPLICANT
RESPONDENT
Lifestyle Retirement Projects No.2 Pty Limited
Chief Commissioner of State RevenueFILE NUMBER: 076061 HEARING DATES: 8 July 2008 SUBMISSIONS CLOSED: 8 July 2008
DATE OF DECISION:
9 September 2008BEFORE: Hole M - Judicial Member CATCHWORDS: Stamp Duties not to apply the exemption set out in section 10R(2)(b) Land Tax Management Act 1956 MATTER FOR DECISION: Principal matter LEGISLATION CITED: Land Tax Management Act 1956
Retirement Villages Act 1999
Victorian Retirement Villages Act 1986
Victorian Land Tax Act 2005
Land Tax Act 1958 (Victoria)CASES CITED: Applewood Residential Developments Pty Ltd v Commissioner of State Revenue (Vic) [2006] VSCA 207
Nathan Scott Pty Limited v Chief Commissioner of State Revenue (2004) NSWADT 122
Council of the City of Newcastle v Royal Newcastle Hospital [1959] 100 CLR 1
Commissioner of Land Tax v Christie [1973] 2 NSWLR 523 Applewood v Commissioner of State Revenue [2004] VCAT 1563
Commissioner of State Revenue (Vic) v Applewood Residential Developments Pty Ltd [2005] VSC 232REPRESENTATION: APPLICANT
RESPONDENT
K Davidson, director
I Young, barristerORDERS: The application is dismissed. The Commissioner’s decision is affirmed.
REASONS FOR DECISION
Introduction and factual background
1 This is an application for the review of a decision by the Chief Commissioner of State Revenue (“respondent”) made under the provisions of the Land Tax Management Act 1956 (“LTM Act”) for the tax years 2005 and 2006. Lifestyle Retirement Projects No 2 Pty Ltd (“applicant”) was represented by a director of the company.
2 The land (“the subject land”) subject of assessment for land tax was owned by the Epilepsy Association of New South Wales (“Association”) prior to 16 April 2003. The property was known as “Limona” and was used by that Association, prior to the acquisition by the applicant, as a nursing home with facilities and was exempt from assessment for land tax. The applicant acquired the subject land from that Association on 16 April 2003. At the time that the applicant acquired the subject land it was subject of a Development Approval pursuant to State Environmental Planning Policy No 5 which permitted the conversion of the then existing buildings on the subject land and redevelopment of the subject land into a 21 apartment retirement village.
3 The application for development of the subject land had been lodged by the Association with the Local Council and had subsequently been approved by the Land and Environment Court on 20 April 2002. The approval was subject to a condition that occupation of the building, or part, is prohibited until the issue of an Occupation Certificate. The 21 apartments were to consist of 15 new apartments together with 6 apartments located in the refurbished federation house on the site (previously called Limona). Other facilities were to include the conversion of the stables into a common room.
4 The applicant commenced physical work on the development in 2004. Barry Ian Johnson signed a Certificate on 15 December 2006 as Principal Certifying Authority indicating that the Construction Certificate was determined on 20 December 2004. Mr Johnson also indicated that a further Construction Certificate was determined on 28 March 2005.
5 On 4 June 2005 the respondent issued a Notice of Assessment to the applicant for the 2005 tax year.
6 On 6 July 2005 the respondent received a Land Tax Variation Return form dated 5/7/05 from the applicant. This form disclosed that the applicant was seeking exemption from land tax as a nursing home.
7 The applicant has provided affidavit evidence that the development was 60 percent completed as at 31 December 2005.
8 On 4 April 2006 the respondent issued a Notice of Assessment to the applicant for the 2006 tax year.
9 On 27 April 2006 the applicant forwarded a letter to the respondent which was accompanied by a Land Tax Variation Return form for the 2006 tax year. The form which was dated 27/4/06 disclosed that the applicant was seeking exemption from land tax as a nursing home.
10 On 15 December 2006 Mr Johnson issued the Occupation Certificate which satisfied the condition of the development approval and permitted the applicant to occupy the building and use it for the purposes permitted pursuant to the development application as a 21 apartment retirement village.
11 By letter dated 12 October 2006 the respondent advised the applicant that on the evidence provided the respondent was not satisfied that the applicant was entitled to the exemptions claimed. The respondent advised that the exemption available to a retirement village applied only to a retirement village under the meaning of the “Retirement Villages Act 1999” (“RV Act”) and that the meaning as set out in that Act is “a complex containing residential premises that are predominantly occupied or intended to be predominantly or exclusively occupied, by retired persons who have entered into village contracts with an operator of the complex”.
12 The applicant forwarded an objection to the decision by the respondent dated 11/12/2006. This was supported by an attachment setting out the basis of the objection and advising that the construction was now complete.
13 By letter dated 21 February 2007 the respondent advised the applicant that its objection was disallowed. This letter included reasons for the disallowance including:
14 The applicant filed this application in the Tribunal on 20 April 2007.
“Because the subject land was not actually used and occupied as a retirement village there is no entitlement to an exemption from land tax.”
Relevant Legislation
15 Section 7(1) of the LTM Act provides for land tax to be assessed on the land value of land at a rate to be fixed by any Act.
16 Section 7(3) of the LTM Act provides that the relevant date as to when land is charged with land tax as that owned at midnight on 31st day of December immediately preceding the year for which land tax is levied.
17 Section 9 of the LTM Act provides a mechanism to establish the taxable value upon which land tax is payable.
18 Section 10R of the LTM Act provides certain exemptions and reductions. Section 10R(1), (2) and (3) are in the following form:
19 Section 5 of the RV Act provides:
“(1) In this section:
(2) Land is exempt from taxation under this Act if the land is used and occupied as any of the following, or any combination of the following, and for no other purpose:
aged care establishment means:
(a) any building or any part of a building used or intended to be used for the provision of residential care, within the meaning of the Aged Care Act 1997 of the Commonwealth, by an approved provider under that Act, or
(b) any building or any part of a building used or intended to be used for the provision of respite care, within the meaning of the Aged Care Act 1997 of the Commonwealth, by an approved provider under that Act.
retirement village has the same meaning as in the Retirement Villages Act 1999.
(3) If the Chief Commissioner is satisfied that part only of land is used and occupied as referred to in subsection (2), the land value of the land is to be reduced for the purposes of land tax by an amount calculated as follows:
(a) an aged care establishment;
(b) a retirement village.
(c) (Repealed)
… ”
Applicant’s submissions
“5 Meaning of “retirement village”
(1) For the purposes of this Act, a retirement village is a complex containing residential premises that are:
… ”
(a) predominantly or exclusively occupied, or intended to be predominantly or exclusively occupied, by retired persons who have entered into village contracts with an operator of the complex, or
(b) prescribed by the regulations for the purposes of this definition.
20 The applicant submitted comprehensive written submissions to the Tribunal and the representative of the applicant made further oral submissions. The submissions noted that the applicant sought exemptions on the basis that “once redevelopment of the site commenced under the Development Approval the Land could only be used and occupied as a Retirement Village”.
21 The background information supplied by the applicant noted that the subject land known as “Limona” was previously owned by the Association and was “used and occupied by residents/patients with epilepsy” and was therefore land tax exempt.
22 The applicant’s submissions drew attention to the development approval which allowed for the conversion and redevelopment of the subject land into a 21 apartment “retirement village”, only to be used as permanent residential accommodation for people aged 55 or over or certain other specifically described people. The development approval also prohibited occupation until an Occupation Certificate had been issued. Thus once conversion and redevelopment of the subject land commenced then the usage and occupation of the subject land was restricted to a retirement village under the RV Act.
23 There was a written submission that the applicant believed that the purpose of the exemption from land tax for retirement villages is to encourage the provision of occupation for retirees and people with a disability. It was further submitted that the applicant could not legally “actually” use and occupy the subject land as a retirement village until the conditions of the development approval had been satisfied. The applicant submitted that it could not generate any income during the period between the acquisition of the subject land and the ability to occupy the subject land pursuant to the Occupation Certificate, therefore it should not be penalised with the payment of land tax when that land tax would not be payable when income could be generated from the usage and occupancy of the completed retirement village.
24 Submissions made on behalf of the applicant distinguishing the subject situation from that existing in Applewood Residential Developments Pty Ltd v Commissioner of State Revenue (Vic) [2006] VSCA 207 (“Applewood (VSCA)”) included:
25 The applicant referred to Nathan Scott Pty Limited v Chief Commissioner of State Revenue (2004) NSWADT 122 (“Nathan Scott”) and to paragraphs 14 and 15 therein and submitted that the subject land in this case had been acquired with the intention of building a retirement village. The applicant sought to distinguish between Nathan Scott and this case as there were established buildings remaining on the subject land as at 31 December 2004, being the original Association nursing home facilities which have now been converted into apartments in accordance with the Development Approval, that significant excavation works had been completed on the site and that the development was 60 percent complete.
(a) the subject land is not being developed as a retirement village in discrete phases;
(b) there is a variation between the definition of “retirement village” in the Victorian Retirement Villages Act 1986 and the Victorian Land Tax Act 2005 to the definition in the RV Act and the LTM Act;
(c) the definition of a retirement village in Victoria being “a community the majority of which is retired persons who are provided with accommodation and services and at least one of whom, before or upon becoming a member of the community, pays or is required to pay an ingoing contribution” that is at least one resident in the phase or stage is in actual use or occupation by a resident;
(d) the land in this case does qualify for exemption because it falls within the definition of a retirement village in New South Wales that is a complex containing residential premises that are predominantly or exclusively occupied, or intended to be predominantly or exclusively occupied, by retired persons who have entered into village contracts with an operator of the complex.
26 The applicant supplied written submissions concerning the useful test to determine “occupation” set out in Council of the City of Newcastle v Royal Newcastle Hospital [1959] 100 CLR 1 (“City of Newcastle”) as referred to in Nathan Scott as:
27 The applicant also referred to Commissioner of Land Tax v Christie [1973] 2 NSWLR 523 (“Christie”) and the comment by Bowen JA at 533 concerning use as follows:
““Occupation” is not synonymous with legal possession. It includes possession, but it also includes something more: see Newcastle City Council v Royal Newcastle Hospital. It involves an element of control, or preventing or being in a position to prevent the intrusion of strangers (Newcastle City Council v Royal Newcastle Hospital). It is for this reason that physical presence on the land and fencing are evidence of occupation. But continuous physical presence or physical presence on every part of the land does not have to be shown in order to establish occupation.”
28 That as the applicant had established buildings on the subject land and that the applicant occupied the subject land in that it was surrounded by security fencing preventing the intrusion of strangers and where possible all doors and gates were locked then there was a continuous physical presence on the subject land. The development approval only allowed the subject land to be used as permanent residential accommodation for certain persons as defined and as such the usage and occupation of the subject land was restricted to a retirement village. That the subject land fell within the definition of a retirement village under the Retirement Villages Act 1999 and were intended to be predominantly or exclusively occupied by retired persons who would have entered in village contracts with the operator of the complex. That accordingly the subject land should be exempt pursuant to Section 10R(2)(b) of Land Tax Management Act 1956.
“”Use” has regard to the purpose to which the land is put. Under s9 (3)(e) it must be shown to have been devoted to the purpose of constituting the site of the dwelling house. Provided there is unity in the land in question in a physical sense and a unity in what is done in devoting it to the purpose of providing or constituting the site, and provided there is a sufficiently proximate and not too remote connection between the dwelling house and its requirement or the requirements of its users or occupants on the one hand and the whole of the land in question on the other hand, then this element will be sufficiently established to demonstrate “use” as the site of the dwelling house.”
Respondent’s submissions
29 The respondent provided written submissions to the Tribunal and made oral submissions on hearing. The oral submissions were based on a chronological sequence of 18 events. The events were as follows:
30 The respondent submitted that the exemption provided in Section 10R(2) LandTax Management Act 1956 was in respect of a retirement village as defined in the Retirement Villages Act 1999 where the land is used and occupied as a retirement village and for no other purpose.
(1) the subject land was owned prior to April 2003 by the Association, it was owned and used as a nursing home and was exempt from assessment for land tax;
(2) a development approval was lodged by the Association;
(3) the development approval was subsequently approved by the Land and Environment Court on 30 April 2002 for 21 units in a SEPP 5 residential development subject to conditions. The conditions included a provision that prohibited occupation until an Occupation Certificate was issued;
(4) the applicant acquired the subject land on 16 April 2003;
(5) construction commenced on the subject land on 20 December 2004 as referred to in the Occupation Certificate by Mr Johnson;
(6) the taxing point for the 2005 tax year was midnight on 31 December 2004. The applicant has submitted that construction commenced on site in January 2005;
(7) the Occupation Certificate issued by Mr Johnson on 15 December 2006 disclosed that the Construction Certificate was determined on 28 March 2005;
(8) the land tax assessment for the 2005 tax year was issued by the respondent to the applicant on 4 June 2005 in the sum of $11,440.00;
(9) a Land Tax – Variation Return was received by the respondent on 6 July 2005 from the applicant. The respondent submitted that the material supplied by the applicant to the Tribunal dated 26 June 2007 acknowledged that the subject land could not be used and occupied in accordance with Section 10R of Land Tax Management Act 1956 until the terms and conditions of the development approval had been satisfied;
(10) the taxing point for the 2006 tax year was midnight on 31 December 2005. The applicant indicated that the development was still under construction in the letter accompanying the Land Tax - Variation Return referred to in (9) above. The Occupation Certificate by Mr Johnson disclosed the date of determination as 15 December 2006;
(11) the land tax assessment for the 2006 tax year was issued by the respondent to the applicant on 4 April 2006 in the sum of $12,816.00;
(12) a Land Tax – Variation Return dated 27/4/06 was forwarded to the respondent by the applicant under cover of a letter dated 27 April 2006. This Variation relies on Section 10R Land Tax Management Act 1956 as the basis to claim land tax exemption for the subject land for the 2005 and 2006 tax years on the basis that the subject land could only be used and occupied as either a nursing home or retirement village;
(13) the respondent advised the applicant by letter dated 12 October 2006 that it was not entitled to the exemption on the evidence that had been provided, further that the applicant had acknowledged that the site was not currently occupied as a retirement village;
(14) the applicant forwarded an Objection to an Assessment or Decision form to the respondent on 11 December 2006, this was accompanied by a letter of the same date claiming exemption pursuant to clause (4) Section 10R of Land Tax Management Act 1956. The applicant relied on the use and occupancy of the subject site as a retirement village representing an ancillary use of the site in accordance with clause(4);
(15) on 15 December 2006 the Occupation Certificate by Mr Johnson was issued, this was the final certificate satisfying the conditions of approval and thenceforth the subject land could be used and occupied as a retirement village;
(16) the taxing point for the 2007 tax year was midnight on 31 December 2006, the 2007 tax year is not in issue;
(17) by letter dated 21 February 2007 the respondent advised the applicant that the objection dated 11 December 2007 (sic) was disallowed on the basis that “Because the subject land was not actually used and occupied as a retirement village there is no entitlement to an exemption from land tax.” Further that “The exemption for retirement villages is available if the land is actually used and occupied as a retirement village. If, while the land is being actually used and occupied as a retirement village, there is also a use ancillary to the actual use, then such ancillary use would not preclude the exemption for the actual use and occupation as a retirement village.”; and
(18) on 27 February 2007 the respondent received a Land Tax – Variation Return from the applicant for the 2007 tax year. The 2007 tax year is not in issue.
31 The issue to be considered was whether Section 10R(2) Land Tax ManagementAct 1956 was satisfied during the period when construction was occurring in accordance with the development approval dated 30 April 2002. The period during which construction was occurring being from 20 December 2004 to 15 December 2006.
32 Attention was drawn to Nathan Scott on the basis that the sequence of events in that case was directly on point as in that case the applicant intended to use the building once completed as a complying aged care facility, that there was no dispute that as at the taxing point the building works had commenced and that the Tribunal found in that case that at the taxing point no part of the relevant land was being used or occupied as an aged care establishment. The respondent submitted that as the facts in Nathan Scott were similar to this case in that the construction on the subject land had commenced on or before the two taxing points of 31 December 2004 and 31 December 2005, that the applicant intended the subject land to be used and occupied as a retirement village although at the two taxing dates no part of the subject land was being used or occupied as a retirement village.
33 The respondent submitted that occupation is a matter of fact and the reference in Christie to occupation, set out at paragraph 26 above, is relevant and further that the reference made in Nathan Scott at paragraph 22 to the City of Newcastle is also relevant being:
34 The respondent referred to the OSR Revenue Ruling No LT31 – Exemption for Retirement Villages and Nursing Home which was referred to in Nathan Scott. This ruling described when a partial exemption would be available if part of the land “is used and occupied” as a retirement village or a nursing home. The partial exemption was only available if there was use and occupation. It was not available where the land or the part of the land for which the exemption was claimed was not used and occupied as a retirement village or a nursing home.
“22 There is also support for the view that “legal possession” and “occupation” have different meanings, in the following observations made by Lord Denning in the Privy Council in Council of the City of Newcastle v Royal Newcastle Hospital [1959] 100 CLR 1 at p.4:
‘But legal possession is not the same as occupation, Occupation is a matter of fact and only exists where there is sufficient measure of control to prevent strangers from interfering … There must be something actually done on the land, not necessarily on the whole land, but on part in respect of the whole. No one would describe a bombed site or an empty unlocked house as “occupied” by anyone …’”
35 The respondent drew particular attention to the sequence of cases being Applewood v Commissioner of State Revenue [2004] VCAT 1563 (“Applewood (VCAT)”), Commissioner of State Revenue (Vic) v Applewood Residential Developments Pty Ltd [2005] VSC 232 (“Applewood (VSC)”) and Applewood (VSCA). The sequence of cases commenced in the Victorian Civil and Administrative Tribunal (VCAT) and concerned an exemption from land tax pursuant to the equivalent provision to Section 10R Land Tax Management Act 1956 being Section 9(1)(j) of the Land Tax Act 1958 (Victoria). The facts are set out in Applewood (VCAT). The decision in Applewood (VCAT) focused on the purpose that the land could be used for and at paragraph 27 Robert Davis, Senior Member, found that:
36 The decision in Applewood (VCAT) was overturned on appeal to the Supreme Court of Victoria, Applewood (VSC), Hanson J held that:
“Under these circumstances, I find that the whole of the land is used and occupied as a retirement village and for no other purpose.”
37 The decision in Applewood (VSC) was confirmed in Applewood (VSCA) wherein the leave to appeal was dismissed. The retirement village under construction in the Applewood cases was to be completed in several stages, the first category of stages (being 3 stages) had been completed and they were occupied by retired persons and it was agreed that this category was exempt from tax; the second category (being 2 further stages) comprised buildings that were under construction and further stages awaiting future development. There was some development on the second category, it had been fenced off and the residents of the first category could access some of the other stages although not as of right. Nettle JA at paragraph 13 commented that:
“1. VCAT failed to properly construe and apply the exemption provision. It jumped from a general conclusion as to the disputed land having “no other purpose” to a specific conclusion that, at the relevant time, the disputed land was used and occupied as a retirement village. The correct approach was to ask whether, at the relevant time, the disputed land was used and occupied as a retirement village and for no other purpose.
2. On the facts, it was not open to VCAT to conclude that the disputed land was used and occupied as a retirement village.”
38 Nettle JA further commented at paragraph 17 that:
“Most importantly, however, the judge said, the Tribunal had missed the critical issue raised by s 9(1)(j), of whether at the relevant time the disputed land was used and occupied as a retirement village and for no other purpose, as opposed to whether the land was haled for the purposes of a retirement village. As the judge put it, that question had a temporal aspect to it, which was the consequence of land tax being an annual tax, and so it was to be answered by reference to the state of the land at the relevant time. The Tribunal, however, had in effect ascribed a permanent quality to the disputed land and thereby jumped from a general conclusion as to the disputed land having “no other purpose” than use as a retirement village to a specific conclusion that, at the relevant time, the disputed land was used and occupied as a retirement village.”
39 Nettle JA further commented at paragraphs 26 and 27:
“The applicant put great store on the fact that the whole of the land was held for the purpose of a retirement village and no other purpose at the relevant time. That may be so. But plainly the judge was right that the point is not simply whether it was held for the purpose of a retirement village. It is whether it was used and occupied as such. I agree with the judge that it was only the part of the land which had been completed which was used and occupied as a retirement village at the relevant time.”
40 There is mention at paragraph 33 in Applewood (VSCA) that:
“26. Comparison of ss 9(1)(j) and 9(2AB) with other exemptions provided for in s 9(1) suggests that 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. As counsel for the Commissioner submitted, the specificity of the language of s 9(1)(j) strongly implies that the draftsman was conscious of the differing views expressed by members of the High Court in cases like Newcastle City Council v. Royal Newcastle Hospital and Eaton & Sons Pty Ltd v. The Council of the Shire of Warringah, as to whether land was used for a designated purpose. 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. Similarly, the terms of s 9(2AB) appear as plainly directed to ensuring, that land which is not fully used and occupied is not characterised according to the principal part of it which is used and occupied.
27. Reference to the extrinsic materials confirms those impressions. The exemption for which s 9(1)(j) provides was modelled on the amendments made to the Land Tax Management Act 1956 (NSW) by the Land Tax Management (Further Amendment) Act 1990 (NSW) and, because the exemption and the qualifying provisions comparable to s 9(2AB) appear in the New South Wales legislation in one section close together, it appears even clearer that what was intended was to limit the exemption to land actually used and occupied as a retirement village at the relevant time.”
41 Robert Davis, Senior Member in Applewood (VCAT) had concluded at paragraph 25 that:
“… I do not consider that it can be said of land on which a phase is being constructed that it qualifies for exemption until and unless the residences which comprise that phase have been completed to the point that they are available for use and occupation and at least one of them in that phase is in actual use and occupation by a resident. Until then it seems to me that it is simply a case of the phase being developed and therefore not being used and occupied as the thing for which it will be used and occupied once it has been developed.”
Discussion
At paragraph 48 in Applewood (VSC) Hansen J concluded that:
“In this particular instance, the land in question in fact has no other purpose other than a retirement village. …”
The conclusion of Hansen J was upheld in Applewood (VSCA).
“ The correct approach was to ask whether, at the relevant time, the disputed land was used and occupied as a retirement village and for no other purpose. If it was not so used and occupied, the matter was at an end as the exemption could never apply.”
42 The circumstances in this case are almost identical to those which existed and which were considered in Applewood (VSCA). The decision in Applewood (VSCA) was based on the equivalent section in the Land Tax Act (Vic) 1958 being section 9. This section has the same effect as section 10(r)(2) and the decision in the Supreme Court of Victoria Court of Appeal is one which this Tribunal must take into consideration. The exemption which existed in favour of the Association existed until the subject land was no longer used for the purposes of that Association. The applicant acquired the subject land on 16 April 2003. Following acquisition the applicant proceeded to develop the subject land in accordance with the development approval set out in the order of the Land and Environment Court dated 30 April 2002 and subject to the condition that prohibited occupation until an occupation certificate was issued.
43 The applicant has sought to rely on the intention that the subject land be used in a manner which would satisfy the requirements of the exception set out in section 10(2)(b) of the Land Tax Management Act 1956. This section provides that “… if the land is used and occupied as … (b) a retirement village” and “ … and for no other purpose” then the subject land would be exempt from land tax. This section also provides that retirement village has the same meaning as in the Retirement Villages Act 1999.
44 The definition of retirement village in the Retirement Villages Act 1999 provides that it is a complex containing residential premises that are:
“(a) predominantly or exclusively occupied, or intended to be predominantly or exclusively occupied, by retired persons who have entered into village contracts with an operator of the complex, or …”
The applicant has sought to rely on this definition as supporting the application for exemption. However the definition is imported into the Land TaxManagement Act 1956 on the basis that “the land is used and occupied as … (b) a retirement village”.
45 The applicant relied on the submission that once the redevelopment of the site had commenced then the only use or occupation of the subject land could be as a retirement village. Section 10(2)(b) of the Land Tax Management Act 1956 refers to the land being used and occupied as a retirement village. This section does not permit recognition of a future use, the section clearly refers to the land being used (and occupied) at the time of consideration of land tax liability. The land tax liability was as at 31 December 2004 and 31 December 2005 when the subject land was being used (and occupied) for the purposes of construction of the proposed retirement village. It was not being used and occupied as a retirement village.
46 The applicant sought to rely on the commencement of the construction of the retirement village and that some buildings remained on the subject land which were to be converted as part of the construction and development of the retirement village. The approval given on 30 April 2002 was subject to a condition that prohibited occupation of the subject land until an occupation certificate was issued. The occupation certificate was issued on 15 December 2006 and thus the subject land could not be occupied (or used) as a retirement village until after that date.
47 During the period between 20 December 2004 and 15 December 2006 the subject land was being used for the purposes of constructing the development approved on 30 April 2002. The development could not be used as a retirement village until the occupation certificate had issued on 15 December 2006.
48 As at the relevant date for each of the land tax years 2005 and 2006 being 31 December 2004 and 31 December 2005 the subject land was not within the provisions of the exemptions provided under section 10(r) of the Land TaxManagement Act 1956.
Order
- The application is dismissed. The Commissioner’s decision is affirmed.
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