Lonepine Enterprises Pty Ltd and Commissioner Of State Revenue
[2008] WASAT 183
•19 AUGUST 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: LAND TAX ASSESSMENT ACT 2002 (WA)
CITATION: LONEPINE ENTERPRISES PTY LTD and COMMISSIONER OF STATE REVENUE [2008] WASAT 183
MEMBER: JUDGE J CHANEY (DEPUTY PRESIDENT)
HEARD: 12 JUNE 2008
DELIVERED : 19 AUGUST 2008
FILE NO/S: DR 58 of 2008
BETWEEN: LONEPINE ENTERPRISES PTY LTD
Applicant
AND
COMMISSIONER OF STATE REVENUE
Respondent
Catchwords:
Land tax Deposited plan of subdivision approved by Western Australian Planning Commission Plan lodged with Landgate but not certified as in order for dealings Whether lots had been created for purposes of Land Tax Assessment Act 2002 Proper construction of definition of "lots" under glossary to Land Tax Assessment Act 2002
Legislation:
Interpretation Act 1984 (WA), s 19(1)
Land Information Authority Act 2006 (WA), s 5
Land Tax Assessment Act 1907 (WA), s 8A
Land Tax Assessment Act 1968 (WA), s 4
Land Tax Assessment Act 2002 (WA), s 7(1), s 11(1), Glossary cl 2(1)
Revenue Laws Amendment Act 2008 (WA)
Town Planning and Development Act 1928 (WA), s 2
Transfer of Land Act 1893 (WA), s 166
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
Applicant: Mr R Sceales & Mr R Reynolds
Respondent: Ms L Eddie
Solicitors:
Applicant: Sceales & Co
Respondent: State Solicitor's Office
Case(s) referred to in decision(s):
Boans Ltd and Kwinana Hub Shopping Centre (1982) WAR 41
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297
McKinney and Commissioner of State Revenue [2006] WASAT 216
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Lonepine Enterprises Pty Ltd sought a review of an assessment for land tax by the Commissioner of State Revenue. The assessment had been based on ownership, as at 30 June 2007, certain "lots" of land. The "lots" were the subject of a deposited plan that had been approved by the Western Australian Planning Commission on 27 June 2007. However, no application had been made to the Western Australian Land Information Authority for the issue of new certificates of title until 16 July 2007. Lonepine contended that, as at 30 June 2007, no "lots" capable of assessment under the Land Tax Assessment Act 2002 (WA) had been created. Accordingly, it argued that land tax should have been assessed on the value of the pre-existing parent lot, rather than the subdivided lots.
The argument turned upon the meaning and proper construction of the definition of "lot" as it appeared at the relevant time in the glossary to the Land Tax Assessment Act 2002. The Tribunal examined that definition, and its legislative history, and identified its proper construction.
On the basis of that construction, the land the subject of the assessment was found to comprise lots capable of forming a basis of an assessment under the Act. The application for review was accordingly dismissed.
The issue for determination
On 4 October 2007, the Commissioner of State Revenue (Commissioner) issued an assessment for land tax in respect to 40 lots in the Lake Clifton area. The assessment was based upon ownership of those lots by Lonepine Enterprises Pty Ltd (Lonepine) as at 30 June 2007.
Land tax is payable on land by the person who is or was the owner of the land at midnight on 30 June in the previous financial year (s 7(1) of the Land Tax Assessment Act 2002 (WA) (LTA Act)).
If a person owns two or more lots of taxable land, land tax is payable on the amount equal to the sum of the unimproved values of each taxable lot owned by the person – s 11(1) of the LTA Act.
The issue in these proceedings are whether the "lots" which formed the subject of the assessment came within the definition of "lots" in the glossary to the LTA Act as at 30 June 2007.
The facts
The facts were not in dispute. On 1 August 2006, Lonepine became the registered proprietor of land which then comprised Lots 22, 23 and 25 on Plan 21705, with each lot being the subject of a separate certificate of title. On 19 January 2007, Lonepine lodged with the Western Australian Land Information Authority (Landgate) Deposited Plan 53347 which was a survey document showing the subdivision of former Lots 22, 23 and 25 into 40 proposed new lots together with subdivisional roads.
On 27 June 2007, the approval of Deposited Plan 53347 was endorsed on it by the Western Australian Planning Commission (WAPC).
On 11 July 2007, the deposited plan was certified as "in order for dealings" by the authorised officer for the Inspector of Plans and Surveys. Final approval was endorsed on the deposited plan on 16 July 2007. On the same day, the applicant lodged with Landgate an application for the creation and registration of new certificates of title for the lots depicted on the deposited plan.
All but four of the lots were transferred by Lonepine to third parties during the latter part of 2007.
On 4 October 2007, the Commissioner issued an assessment for land tax in respect to all of the lots depicted on the deposited plan for the assessment period 1 July 2007 to 30 June 2008.
The applicant objected to the assessment on 9 November 2007, but on 21 December 2007, the Commissioner disallowed the objection.
The definition of a lot
"Lot", for the purposes of the LTA Act, has the meaning given to it by cl 2 of the glossary to the Act. Although the definition has since been amended, as at 30 June 2007 it read as follows:
2. Lots and parcels of land
(1)A reference to a lot of land is a reference to a defined portion of land -
(a)that is depicted on a plan or diagram deposited with the Western Australian Land Information Authority established by the Land Information Authority Act 2006 section 5 and for which a separate Crown grant, certificate of Crown land title, qualified certificate of Crown land title, or certificate of title has been or can be issued, registered or depicted on a subdivisional plan or diagram, whether so exhibited or deposited or not; and
(b)that is approved by the Town Planning Board or the Western Australian Planning Commission, as the case requires, (whether the approval was given before or after the commencement of the Town Planning and Development Act Amendment Act 1956).
(2)A reference to a lot of land includes a reference to the whole of any land that is the subject of -
(a)a Crown grant issued under the Land Act 1933 5;
(b)a certificate of Crown land title, or qualified certificate of Crown land title, created and registered under the Transfer of Land Act 1893;
(c)a certificate of title registered under the Transfer of Land Act 1893;
(d)a survey into a location or lot under section 27(2) of the Land Administration Act 1997;
(e)a part‑lot shown on a plan of subdivision or diagram deposited with the Western Australian Land Information Authority established by the Land Information Authority Act 2006 section 5;
(f)a conveyance registered under the Registration of Deeds Act 1856;
(g)a lot depicted on a strata plan; or
(h)an entitlement to occupy a non‑strata home unit.
…
There is an obvious difficulty in construing that definition. The difficulty arises in determining the relationship between the words "issued, registered or depicted on a subdivisional plan or diagram, whether so exhibited or deposited or not", with the earlier words of subclause (1)(a) of the definition. The difficulty arises because none of the title documents referred to in the subclause are capable of being "depicted on a subdivisional plan or diagram".
The parties urge different constructions of the definition.
The Commissioner contends that the construction which gives most grammatical sense to subclause (1) of the definition is that a lot is:
(i)A defined portion of land depicted on a plan or diagram relevantly deposited for which separate title documents has been or can be issued or registered; or
(ii)A defined portion of land depicted on a subdivisional plan or diagram, whether so exhibited or deposited or not, and approved by the WAPC
The applicant contends that the requirements of subclause (1)(a) are that the defined portion of land must be a defined portion of the land -
(i)That it is depicted on a plan or diagram deposited with the authority; and
(ii)For which a separate certificate of title has been or can be issued, registered or depicted on a subdivisional plan or diagram, whether so exhibited, deposited or not; …
Lonepine acknowledges that a certificate of title is not "registered or depicted on a subdivisional plan or diagram". It contends that:
a lot is 'depicted' in the sense that it is drawn or shown, but a certificate of title is not. The additional words 'whether so exhibited or deposited or not' add nothing to the issue because the initial words are meaningless. The word 'exhibited' is not previously used in the definition.
In my view, the construction suggested by the Commissioner is clearly to be preferred. The construction suggested by Lonepine requires that the words "whether so exhibited or deposited or not" be ignored and given no meaning. In fact, on Lonepine's construction, the words "or depicted on a subdivisional plan or diagram" also would need to be ignored. That is because the first requirement identified by Lonepine is that the parcel of land "is depicted on a plan or diagram deposited with the authority". It makes no sense to suggest that, in addition to that requirement, there is a second requirement that the parcel be "depicted on a subdivisional plan or diagram, whether so exhibited, deposited or not".
On the other hand, to treat the verb "depicted", in each case where it appears in para (1)(a), as having the subject "a defined portion of land" gives sense to para (1)(a) and enables all words used in the definition, other than "so exhibited or" to have meaning. The shortcomings of the definition are then found entirely in its punctuation, and perhaps an absence of the word "or" between "issued" and "registered", and in the use of superfluous words "so exhibited or".
That position is borne out by an examination of the legislative predecessors of the definition of "lot" in the LTA Act. I accept the Commissioner's submission that it is open to the Tribunal to have regard to the history of the legislative scheme in order to interpret a current statute. That is an approach which has been taken by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 per Brennan J at 366 368, and Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxationof the Commonwealth of Australia (1981) 147 CLR 297 per Gibbs CJ at 306 - 307 and per Stevens J at 310 312. In my view, where legislative provisions which provide a background to a provision assist in understanding that provision, then the earlier enactments constitute material capable of assisting the ascertainment of the meaning of the provision, and thus maybe taking into account under s 19(1) of the Interpretation Act 1984 (WA) where the provision is ambiguous or obscure. In my view, on its ordinary grammatical reading, as at 30 June 2007, the definition of "lot" in the glossary to the LTA Act was ambiguous or obscure.
The concept of "lot" was first introduced into the land tax regime by the Land Tax Assessment Act Amendment Act 1968 (WA) (1968 Act). Section 4 of the 1968 Act introduced a new s 8A into the Land Tax Assessment Act 1907 (WA). The new section made reference to a lot, and provided that "lot" has the same meaning as is given to that term by s 2 of the Town Planning and Development Act 1928 (WA) (TPD Act).
At the time, the relevant definition of "lot" under the TPD Act read as follows:
depicted on a plan or diagram publicly exhibited in the public office of the Department of Lands and Surveys, or deposited in the Office of Titles or Registry of Deeds and for which a separate Crown Grant or Certificate of Title has been or can be issued; or depicted on a subdivisional plan or diagram, whether so exhibited or deposited or not, but which is, whether before or after the coming into operation of the Town Planning and Development Act Amendment Act, 1956, approved by the Board and includes the whole of the land the subject …
The presence of the semicolon between "can be issued" and "or depicted on a subdivisional plan …" makes it clear that, as Smith J found in Boans Ltd and Kwinana Hub Shopping Centre (1982) WAR 41 at 50, "lot" under the TPD Act as it was then defined:
means a defined portion of land; first of a kind depicted on a subdivisional plan approved by the Board and publicly displayed or deposited in the places nominated; secondly of a kind on a subdivisional plan approved by the Board whether or not the plan has been so exhibited or deposited; and lot in addition to both of these forms of defined portions of land depicted on plans includes the whole of the lands the subject of the various matters expressly mentioned in the 1958 amendment.
The 1907 Act was replaced by the Land Tax Assessment Act 1976 (WA) (1976 LTA Act). The definition of "lot" under the 1976 LTA Act reads as follows:
'lot' means a defined portion of land depicted on a plan or diagram publicly exhibited in the public office of the Department of Lands and Surveys, or deposited in the Office of Titles or Registry of Deeds and for which a separate Crown grant or certificate of title has been or can be issued or depicted on a subdivisional plan or diagram, whether so exhibited or deposited or not, but which is, whether before or after the coming into operation of the Town Planning and Development Act Amendment Act, 1956, approved by the Board, and includes the whole of any land the subject -
(a)of a Crown grant issued under the Land Act, 1933;
(b)of a certificate of title issued under the Transfer of Land Act, 1893;
(c)of a survey into a lot pursuant to a direction given under section 17 of the Land Act, 1933;
(d)of a part-lot shown on a plan of subdivision or diagram deposited in the Department of Lands and Surveys, Office of Titles or Registry of Deeds;
(e)of a conveyance registered under the Registration of Deeds Act, 1856; or
(f)of a lot depicted on a strata plan, or of a home unit entitlement as provided in section 19;
It can be seen that the definition in the 1976 LTA Act is the same as the definition in the TPD Act save for the addition of subparagraph (f), and some variations in punctuation, including the removal of the semicolon after the words "can be issued". The sense of the section remains, however, that the word "depicted" in each case where it is used in the definition, relates back to the "defined portion of land".
In 1996, there were amendments of the Transfer of Land Act contained in the Transfer of Land Amendment Act 1996 (WA). That Act introduced the concept of registration of title documents and made consequential amendments to a number of other pieces of legislation, including the 1976 LTA Act. The definition of "lot" in the 1976 Act was amended by inserting ", registered" after "issued" where it first appears in the definition. It is quite clear that it was in the context of the drafting of those consequential amendments that the ambiguity of the definition in the 1976 LTA Act arose. There is no reason to conclude that that amendment had the effect of altering the separate categories of plans upon which a portion of land might be depicted so as to constitute a lot within the meaning of the definition.
When the LTA Act was enacted, further tinkering with the definition occurred. Subparagraphs (a) and (b) were introduced. The words "but which is" were replaced with "and". As Smith J had observed in Boans v Kwinana Hub, the reference to plans approved by the Board related to lots depicted on subdivisional plans not exhibited or deposited. There is no need for a separate specification that plans be approved by the Town Planning Board of the WAPC in relation to portions of land depicted on plans in respect of which separate title documents have issued or could be issued, because approval by the Board or the WAPC is a necessary prerequisite to the issue, or potential issue, of title documents.
When the LTA Act commenced, the definition of lot in cl 2 of the glossary read as follows:
Lots and parcels of land
(1)A reference to a lot of land is a reference to a defined portion of land ‑
(a)that is depicted on a plan or diagram publicly exhibited in the public office of the Department of Land Administration, or deposited in the Department within the meaning of the Transfer of Land Act 1893 or Registry of Deeds and for which a separate Crown grant, certificate of Crown land title, qualified certificate of Crown land title, or certificate of title has been or can be issued, registered or depicted on a subdivisional plan or diagram, whether so exhibited or deposited or not; and
(b)that is approved by the Town Planning Board or the Western Australian Planning Commission, as the case requires, (whether the approval was given before or after the commencement of the Town Planning and Development Act Amendment Act 1956).
Clause 2 of the glossary to the LTA Act was amended to its form as at 30 June 2007 by the Land Information Authority Act 2006 (WA). The words "publicly exhibited in the public office of the Department of Land Administration, or deposited in the Department within the meaning of the Transfer of Land Act 1893 (WA) or Registry of Deeds" were replaced with the words "deposited with the Western Australian Land Information Authority established by the Land Information Authority Act section 5". Subclause 2(c) was also amended to change the reference from the Department to the Authority.
The deletion of the reference to documents "publicly exhibited" should have been accompanied by deletion of the words "so exhibited or" where they later appear in the subclause 1(a). The failure to delete those words was obviously an oversight, since they are meaningless in the subclause as it now reads.
In my view, having regard to the legislative history of the definition of "lot" for the purposes of the LTA Act, and in order to make sense of the definition, the proper construction of the definition is as follows:
A reference to a lot of land is a reference to a defined portion of land -
(a)that is depicted on a plan or diagram deposited with the Western Australian Land Information Authority established by the Land Information Authority Act 2006 (WA) s 5 and for which a separate Crown grant, certificate of Crown land title, qualified certificate of Crown land title, or certificate of title has been or can be issued or registered; or
(b)depicted on a subdivisional plan or diagram approved by the Town Planning Board or Western Australian Planning Commission, as the case requires (whether the approval was given before or after the commencement of the Town Planning and Development Act Amendment Act 1956) whether so deposited or not.
On that construction, the lots the subject of the assessment clearly fall within the second category of parcels of land, and were "lots" for the purposes of the LTA Act as at 30 June 2007.
I note in passing that the definition in its current form (as a result of amendment by the Revenue Laws Amendment Act 2008 (WA) which came into force after the hearing of this matter) now substantially reflects what I have concluded is the proper construction of the repealed definition.
Lonepine's contentions
The applicant contends that the intention of the legislation is that the liability to land tax arises only where a certificate of title has been issued in respect of a separate lot, or can be issued without any pre-requisite action by the landowner. In particular, the applicant contends that a certificate of title "can be issued" only where the proprietor has made an application for new certificates of title on subdivision of the land under s 166 of the Transfer of Land Act 1893 (WA) (TLA Act). The applicant observes that there is no obligation on the landowner to apply for new certificates of title, and if no application is made, new certificates of title may never be issued. Lonepine argues that the reference to a situation where a certificate of title "can be issued" in the definition of "lot":
envisages only a case where such an application is or has been made, the Registrar approves it, a separate lot is created, and a certificate is issued. It does not contemplate a mere possibility which may or may not occur at some future indeterminate date.
That submission is based on the construction of the definition of "lot" for which the applicant contended, and which I have earlier rejected. I do not accept the submission for that reason.
The applicant relied on the decision of the Tribunal in McKinney and Commissioner of State Revenue [2006] WASAT 216 (McKinney). In that case, the proprietors of certain land on which two dwellings were constructed entered into contracts for the sale of proposed strata lots comprising separate portions of the land on which each of the residential buildings was constructed. Those contracts were entered in May and June 2005. The issue was whether or not there were lots within the meaning of the LTA Act as of 30 June 2005. The Tribunal noted that at the time of the contracts, the applicants held an expectation that a strata plan would be registered in respect of the land the subject of the contracts, and separate certificates of title would issue for the two separate lots. A strata plan in respect of the subject land was not, however, lodged until 15 July 2005, and on 28 July 2005, the applicants applied to register the strata plan. On the same date, the strata plan was registered. The Tribunal found that, as of 30 June 2005, no strata plan had been lodged, approved or registered. The Tribunal (at [40]) concluded that "as at 30 June 2005, whether or not the lots depicted on the strata plan document held by the applications [sic] (if they held it) would come into existence was entirely speculative."
It does not appear from the reasons that the submissions made in the McKinney decision focused upon the words "or depicted on a subdivisional plan or diagram, whether so exhibited or deposited or not". The Tribunal touched on the point at [37] where it said:
Even if it were possible to argue that there was only a requirement that there be a 'defined portion of land' that is 'depicted on a plan', then it is still difficult to see how the unlodged, unapproved and unregistered strata plan of the applicants, as at 30 June 2005, was one in respect of which a 'certificate of title has been or can be issued'.
That passage illustrates the important distinction between McKinney and this case. In this case, a plan had been deposited and had been approved by the WAPC. It had, necessarily, been lodged with Landgate. While it is true that the timing of the issue of certificates of title for the new lots was in the hands of the owner in the sense that the owner could choose when to lodge an application for new titles under s 166 of the TLA. The owner was at liberty to deal with the new lots without any further requirement for approval. That was not the case in McKinney.
Conclusion
For the above reasons, the application for review should be dismissed.
Orders
1.The Commissioner of State Revenue's assessment dated 4 October 2007 is affirmed.
2.The application for review is dismissed.
I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE J CHANEY, DEPUTY PRESIDENT