McGrath v Chief Commissioner of State Revenue

[2007] NSWADTAP 67

Appeal Panel - Internal

CITATION:	McGrath & anor v Chief Commissioner of State Revenue [2007] NSWADTAP 67
PARTIES:	APPELLANT Adrian Robert McGrath and Lucille Gloria McGrath RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	079017
HEARING DATES:	7 June 2007
SUBMISSIONS CLOSED:	6 July 2007
DATE OF DECISION:	20 November 2007
BEFORE:	Needham J SC - Deputy President; Hole M - Judicial Member; Bennett C - Non Judicial Member
CATCHWORDS:	Land tax exemption - Principal place of residence - Parcel of land
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	066093
DATE OF DECISION UNDER APPEAL:	03/01/2007
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
CASES CITED:	Chief Commissioner of State Revenue v. Coleman [2007] NSWSC 625; 2007 ATC 4596 Coleman v. Chief Commissioner of State Revenue [2006] NSWADTAP 59; (2006) 64 ATR 686 Commissioner of State Revenue v. Applewood Residential Developments Pty Ltd [2006] VSCA 207 Kamper v. Chief Commissioner of State Revenue [2005] NSWADT 256 Kourtesis v. CCSR ([2007] NSWADT 64 Ryan v. Chief Commissioner of Land Tax [1982] 1 NSWLR 305
REPRESENTATION:	H R Sorensen, barrister I Mescher, barrister
ORDERS:	The decision under review is set aside in relation to the 2006 land tax year and in substitution therefore a decision that the land in question is exempt from land tax for that year.

The Appeal

1 Mr and Mrs McGrath (“the appellants”) appeal from a decision of Judicial Member Verick given on 1 March 2007 after a hearing on 1 February 2007. Judicial Member Verick found for the respondent, the Chief Commissioner of State Revenue (“the Commissioner” or “the respondent”) on the application by the appellants for exemption under what is known as the “principal place of residence” exemption pursuant to the Land Tax Management Act 1956 (“the Act”) in relation to a block of land owned by them and which was adjacent to their home in Hunters Hill. The facts in greater detail appear below.

2 The Notice of Appeal was filed on 29 March 2007 and sought both to appeal from the alleged errors of law in the decision and for leave to extend the appeal to the merits of the matter. The respondent filed a Notice of Reply to the Notice of Appeal on 19 April 2007.

3 Both parties were represented at the appeal by counsel and instructing solicitors, and written submissions were filed, along with a volume of case law. The Appeal Panel thanks the representatives for the helpful way in which the material was presented.

4 The matter was heard before Deputy President J. Needham SC, Judicial Member Ms Hole, and Non Judicial Member Mr Bennett on 7 June 2007. The decision was reserved with leave to each party to provide further submissions within 14 days of the decision of the Supreme Court in the appeal from the Appeal Panel decision of Coleman v Chief Commissioner of State Revenue [2006] NSWADTAP 59; (2006) 64 ATR 686. The Supreme Court decision sub nomChief Commissioner of State Revenue v Coleman [2007] NSWSC 625; 2007 ATC 4596 was delivered on 21 June 2006 and submissions on the impact of that decision on this case were duly received by 5 July.

Facts

5 The facts are substantially not in issue. Judicial Member Verick sets out the facts as extracted from the Respondent’s written submissions before him. In summary, they are:

a) The appellants purchased land known as 16A Crescent Street, Hunters Hill, NSW on 5 March 1996. That land became their principal place of residence and has remained their principal place of residence ever since. That land was known throughout the hearing as “16A” and will be referred to as such in these reasons.

b) In October 2004, the appellants exchanged contracts for the adjoining property, 14B Crescent Street, Hunters Hill (“14B”). 14B had a 2 storey free-standing house erected upon it. It is clear from the photographs that the properties are contiguous and adjacent, and that one may easily traverse from 14B to 16B and vice versa by foot, although there is a low fence along the boundary.

c) In November 2004 one of the appellants, Mr McGrath, commenced steps, including instructing professional advisers, for a plan of consolidation for both properties. The intention was, and remains, to construct one large house on the two blocks.

d) The purchase of 14B was completed on 24 January 2005. A development application was lodged with Hunters Hill Council on 10 October 2005 and sought consolidation of the two titles as well as construction of the new house.

e) The Commissioner issued a Notice of Assessment of Land Tax on 6 February 2006 for the 2006 tax year (which related to property owned by the Applicants as at 31 December 2005) which treated 16A as exempt by reason of the principal place of residence exemption and assessed 14B as liable for land tax in the sum of $46,816.00.

f) The appellants objected to this assessment on 1 March 2006 on the basis that 14B was not used and occupied for any other purpose other than their principal place of residence. That objection was disallowed on 19 June 2006.

g) On 13 June 2006 Hunters Hill Council approved the plan of consolidation and granted development consent which would be valid for two years.

h) The appellants filed an application for Review in this Tribunal on 18 August 2006.

6 Judicial Member Verick set out in the decision under review further factual matters which are not in dispute. In summary:

a) The property at 16A comprises a house which was about 25 years old, and a pool. Those structures take up most of the property. They were having some difficulties with noise generated by the neighbours at 14B and in any event wished to build a new home on a larger block without leaving the area. They approached their neighbours and made an offer to purchase the property, and agreed to purchase the property in 2004.

b) Since settlement of the purchase the family at 16A have used the 14B property (which consisted of a house and a garden, with a jetty and private beach) for recreation purposes - basketball, boating and swimming. It is also used for off-street parking for visitors and trades. The house has been “disused since January 2005 except as a storage area for equipment and bicycles”. It is “usually kept locked” (see statement of Mr McGrath cited in paragraphs [4] and [5] of the decision under review).

7 It was conceded by the respondent that three of the “four unities” required by the Ryan decision were met in this case; ie, physical unity, and unities of title and occupation. Accordingly, the factual question to be answered was as to the unity of use.

The Legislation

8 The parties accept that the legislation is as set out in paragraphs [8] to [15] of the decision under review. Those relevant provisions commence with s 3.

9 Section 3(1) defines “principal place of residence” as meaning:

“the one place of residence that is, among the one or more places of residence of the person within and outside Australia, the principal place of residence of the person.”

10 Section 10 provides the relevant exemption. It provides:

“ 10 Land exempted from tax
(1) Except where otherwise expressly provided in this Act the following lands shall, subject to sections 10B, 10D, 10E, 10G and 10P, be exempted from taxation under this Act:

…

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

11 Clause 2 of Schedule 1A provides:

“ 2 Principal place of residence exemption
(1) Land used and occupied by the owner as the principal place of residence of the owner of the land, and for no other purpose, is exempt from taxation under this Act, in respect of the year commencing 1 January 2005 or any succeeding year, if the land is:
(a) a parcel of residential land, or

(b) a lot under the Strata Schemes (Freehold Development) Act 1973 or a lot under the Strata Schemes (Leasehold Development) Act 1986.

(2) Land is not used and occupied as the principal place of residence of a person unless:
(a) the land, and no other land, has been continuously used and occupied by the person for residential purposes and for no other purposes since 1 July in the year preceding the tax year in which land tax is levied, or

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

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

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

(5) The principal place of residence exemption is subject to the restrictions set out in Part 4.”

12 Clause 3 of Schedule 1A provides a definition of “residential land” and provides as follows:

3. Residential land—meaning

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

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

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

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

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

13 Clause 4(1) of Schedule 1A provides a concession to owners where there is one other residential occupancy on the land other than that of the owner of the land provided that it falls within sub-clause 2. Clause 4 provides:

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

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

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

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

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

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

(c) one flat,

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

(e) one flat and one room,

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

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

Interestingly, the variation in the phrase “used and occupied” to “used or occupied” reflects the variation in clauses 3 and 4 of Schedule 1A. Nothing really turns, in this matter, on the distinction.

14 Clause 12 of Schedule 1A provides that for “the purposes of the principal place of residence exemption, only one place of residence may be treated as the principal place of residence of all members of the same family”.

The following is an analysis, in tabular form, of the structure of the decision and the issues raised by the learned Tribunal member in his decision, using the paragraph numbers of the decision and of the Notice of Appeal in the relevant columns.

Paragraphs	Issue	In Dispute? [para of Applicant’s Notice of Appeal]
1-7	Factual analysis	No
8-15	Relevant legislation	No
16-22	Summary of submissions	No
23-27, 29	Analysis of Ryan’s Case	No
28-30, 37, 38, 44	“Threshold issue” of whether land (in both 16A and 14B) was “residential land” within the meaning of the term in clause 3(1) of Schedule A in the relevant year; in paragraph [37] issue identified as relating to 14B in particular	Yes – alleged that error of law in proceeding with this as being the relevant question [NA 1]
31-36	Issue of two dwelling houses – analysis of Kamper v Chief Commissioner of State Revenue [2005] NSWADT 256 and Coleman (in AP) – distinguished on facts	No (note: Coleman analysis now not relevant given decision of Supreme Court)
39-43	Analysis of Commissioner of State Revenue v Applewood Residential Developments Pty Ltd [2006] VSCA 207	No – but dealt with in Written Submissions paras [13]-[17]
45-46	Analysis of facts showing whether 14B “used and occupied for residential purposes and for no other purpose” or “used and occupied for a purpose ancillary to the purposes for which 16A was designed, constructed or adapted” and finding that activities “may have been sufficient if there was no dwelling and 14B was acquired for these activities”.	[NA2] – error in finding as to activities without dwelling
47	Finding that 14B not “used and occupied for residential purposes” and thus not “residential land”.	[NA3] – error in construing clause 3 of Schedule 1A
47-55	Analysis of whether existence of building or improvement that is not used or occupied for any purpose, or not used or occupied for a purpose ancillary to residential purposes can be residential land	[NA4] – whether clause 4(3) of Schedule 1A as applying to 14B [NA6] incorrect finding re 4(2) of Schedule 1A [NA7] – incorrect finding re 3(2) of Schedule 1A [NA8] – error in concluding that 3(2) of Schedule 1A excludes some buildings but not others [NA9] – error in exemption not applying to both dwellings
56	Finding that exemption will not apply to both dwellings if there are two independent dwellings on a parcel of residential land of adjoining blocks	[NA5] error in restriction to one residence
57-58	Whether the applicants have discharged the onus to show that there was unity of use between 16A and 14B to satisfy Ryan	[NA10] – wrong test for unity of use [NA11] – “not in habitable condition” does not mean “disuse”
59-60	Result	[NA12] – should have found that 16A and 14B together constituted a “parcel of residential land”

15 It can be seen from the above table that the learned Tribunal member came to two separate conclusions, either of which, in his view, would have been sufficient to affirm the decision of the Commissioner. They are:

a) (in paragraph [47]): “there is merit in the respondent’s submission that the applicants have failed, as a threshold issue, to establish that 14B was used and occupied for residential purposes in the relevant year. I agree with the submission made by counsel for the respondent that the effect of clause 3 of Schedule 1A of the Act “is that if there exists on the land a building or improvement that is (a) not used or occupied for any purpose or (b) used or occupied for a purpose not ancillary to residential purposes (which the purpose for which the “other building” is designed, constructed or adapted), then the land ceases to be used and occupied as provided for by clause 3(1) – ie, the land ceases to be “residential land”.” (“the “residential land” finding”); and

b) (in paragraph [55]) “The cumulative effect of clauses 3, 4 and 12 is that the exemption for a principal place of residence will not apply to both dwellings if there are two independent dwellings on a parcel of residential land of adjoining blocks.” (“the “two dwellings” finding”).

16 The appellants identify the issue in contest as being:

“whether, as at midnight on 31 December 2005 (the “relevant time”), No. 16A and No. 14B together comprise land which is, under the “principal place of residence exemption” (see clause 2(4) of Schedule 1A of the Act) (“the Exemption”), exempted from land tax: see s 10(1)(r) and Schedule 1A of the Act.

17 The appellants submit that the question of whether the learned Judicial Member applied the exemption correctly is a question of law, in that they submit that “in applying Schedule 1A as if the relevant parcel of land was 14B alone” the learned Judicial Member misconceived the scheme of the Act. They submit that on the basis of the decision in Ryan v Commissioner of Land Tax [1982] 1 NSWLR 305, the use of 16A and 14B satisfy the relevant tests and thus may be regarded as a parcel of residential land for the purposes of the legislative exemption. It was pressed upon the Appeal Panel that the unity of purpose meant that the two blocks should not have inconsistent purposes, not that the use of 14B should exactly mirror the use of 16A. They further submit that the learned Judicial Member erred in taking the view (in paragraph [55]) that the exemption applied to buildings, rather than to land, and that the learned Judicial Member erred in particular in his application of clause 12 by treating the words “one place of residence” as referring to a building.

18 The appellants further submit that they should be granted leave to extend the appeal to the merits, given that the “Tribunal made critical findings informed by misconceptions as to the law”. No further details of any basis for the extension to the merits is given, but it is clear that the appellants rely on the “two dwellings” finding as having a bearing on the “residential land” finding.

19 Supplementary submissions were filed by the appellants on 5 July 2007 in accordance with directions. Those written submissions dealt with the impact of the Supreme Court decision in Coleman v Commissioner of State Revenue (supra). The appellants sought to distinguish the factual circumstances in Coleman from those in this case by reference to the nature of the significant use by the Coleman’s of the adjoining block as a building site, and the fact that in this case leave was sought, as it was not in Coleman, to extend the appeal to the merits of the decision.

20 Given those submissions, it is appropriate first to ascertain whether any errors of law were made, prior to dealing with the question of whether leave to extend to the merits should be granted, once the import of the submissions by the respondent is summarised. While it is not necessary to identify an error of law in order for the Appeal Panel to give leave to extend the appeal to the merits (see Lloyd v Veterinary Surgeons investigating Committee [2005] NSWCA 456), given the way the matter was argued it is an apposite way to proceed.

The Respondent’s Submissions

21 The Commissioner submits that the appellants have a right to an appeal only on a question of law (s 113(2) Administrative Decisions Tribunal Act 1997) and that the learned Judicial Member’s decision did not turn on questions of law. It is further submitted that, given that the findings were factual findings made generally on the uncontested evidence of the first appellant, there is no basis to grant leave to extend the appeal to the merits. The lack of an error of law was characterised as the “ultimate submission” on behalf of the Commissioner.

22 The respondent urges upon the Appeal Panel the interpretation that the principal finding, upon which the decision is based, is that in paragraph [57] as follows:

“… on the evidence before the Tribunal, the Applicants have also failed to discharge the necessary onus to show that there was unity of use between 16A and 14B as at the relevant taxing date to satisfy the Ryan test”.

23 While the respondent does not adopt the view that there errors of law in the learned Judicial Member’s approach, it is submitted that even if the analysis based on clause 3 of Schedule 1A of the Act is in error, the appeal must still be dismissed due to the making of the “residential land” finding, which was a finding on a question of fact. In any event, the Commissioner submits that the principal place of residence exemption does not extend to two separate free standing residences, and asks that the Appeal Panel decline to follow Kourtesis v CCSR ([2007] NSWADT 64 and Kamper v Chief Commissioner of State Revenue [2005] NSWADT 256 in so far as they decide that two separate buildings may constitute a “parcel” of residential land.

24 In his further submissions, filed on 6 July 2007, the Commissioner submitted that the decision in Coleman requires that questions of fact may not be contradicted without leave to extend the hearing to the merits. He reiterates the factual findings that the house on 14B was used only for storage and not for the common activities of everyday living. He points also to the Court’s upholding of the strictness of the application of the “four unities” in the Ryan case.

25 Finally, the Commissioner notes that “the appellants have never articulated, in writing or orally, any adequate reasons to why leave should be granted to extend the appeal to the merits of the decision below”. The onus remains on the appellants even where leave is granted, and the respondent submits that no such onus was discharged.

An error of law?

26 In essence, the appellants take issue with the finding that there was no unity of use in accordance with Ryan. It is submitted by the respondent, and this Appeal Panel agrees, that other decisions at first instance on unity of use are of limited use in determining other cases, since each one is determined on its own facts. While statements of principle may be extracted, the factual basis for each decision must always differ in some degree.

27 The learned Judicial Member adopted the statement of the Court of Appeal of Victoria in Commissioner of State Revenue v Applewood Residential Developments Pty Ltd [2006] VSCA 207 at [33] per Nettle JA in which his Honour observed that a staged development of a retirement village did not qualify for the retirement village exemption because it was:

“… land which is presently being used in that fashion and not land which simply may or even will be used in that fashion at some time in the future”

to which the learned Judicial Member added a qualification of his own “or land that has ceased to be used or is disused in that fashion”.

28 In paragraph [44] of the decision under appeal, it is made clear that the exercise the Judicial Member is undertaking is a factual enquiry; that is, whether the appellants had discharged their evidentiary onus to show that 14B was “used and occupied for residential purposes and for no other purposes’ or that it was “used or occupied for a purpose ancillary to the purposes for which 16A was designed, constructed or adapted”. The learned Judicial Member reached the “residential land” finding by taking into account the uncontested evidence that “the house on 14B has become disused since January 2005 except as a storage area for equipment and bicycles” and that the “14B house is usually kept locked”. He noted (in paragraph [36]) that the house on 14B takes up over half of the land on the relevant lot.

29 The appellants argue that by proceeding on the basis of determining whether the relevant land was “residential land”, the Tribunal fell into error. It is difficult to see how this is so given that the term “residential land” is both a defined term in the Act and part of the term “parcel of residential land” which appears in the Act as the basis of the exemption. If land is not residential land, can it be part of a parcel of residential land? The analysis of whether land is part of a parcel of “residential land” within the meaning of the Act must commence with an analysis of whether the elements of the parcel are indeed “residential land”.

30 Did the learned Judicial Member commit an error of law in determining that 14B was not “residential land”? The appellants say that in misinterpreting Ryan, and in misapplying the exemption in Sch 1A, the Judicial Member fell into error.

31 It seems to the Appeal Panel that the Judicial Member did not misinterpret Ryan. In considering whether the land formed “residential land”, he considered the “four unities” which are that the land is undivided “not only by physical separation but also use, occupation and title” (paragraph [23]). Such a consideration is necessary for a finding that the land falls within clause 2(1)(a) of Schedule 1A.

32 In doing so he considered whether 14B could be “residential land”. Clause 3(1) requires that the land be used for “residential purposes and for no other purpose”. The Judicial Member makes that clear in paragraph [48] where he says, “On the evidence before the Tribunal 14B was not used as a place of residence. The dwelling on the land, which occupied a substantial area of the relevant land of the lot in question, was on the evidence not used for residential purposes. The relevant property was, at the relevant taxing date, land awaiting development … on the taxing date 14B was not being used for residential purposes”.

33 Even though the Judicial Member says that “These activities may have been sufficient if there as no dwelling and 14B was acquired for these activities”, the Judicial Member considered the import of the existence of the dwelling on 14B and held that the activities, being conducted around and about the disused dwelling, were insufficient to render it “residential land”.

34 Was this finding an error of law? It seems to us that the “residential land” finding, bound up as it is in the “two dwellings” finding, is correct only if the “two dwellings” finding discloses no error of law.

35 The appellants point to the words “building or buildings” in clause 3(1) which point to a number of buildings being able to be constructed on land which may also be residential land. The learned Judicial Member referred to “a building or improvement”, rather than “a building or buildings” and, in saying that the existence of the second building on 14B removes the two blocks of land from the definition of a “parcel” of land. In paragraph [53] the learned Tribunal Member says:

“But an independent single dwelling or residence could not be said to be used or occupied for a purpose ancillary to the purposes of another independent single dwelling or residence within the concession allowed by clause 3(2)”.

36 Clause 3 of the exemption provisions is as follows:

3(1) In this Schedule, residential land means land which is used and occupied for residential purposes and for no other purpose, that use and occupation being use and occupation of a building or buildings designed, constructed or adapted for residential purposes.

…

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

37 The Appeal Panel is of the view that the expression of the learned Tribunal Member in paragraph [53] is indeed an error of law. There is no reason why an “independent dwelling”, previously used for residential purposes, should be in any different position from, say, a greenhouse or a pool house (see paragraph [52] of the decision). The words “the building” in clause 3(2) where they appear after the words “any building or improvement” refer back to the words “any building”. It is the building on 14B which must be used for a purpose ancillary to the purpose for which that building is “designed, constructed or adapted”. To say, as the learned Judicial Member did, that a residential house on adjoining land could not, of itself, be used for that ancillary purpose appears to be a misconstruction of Clause 3.

38 The learned Judicial Member should have found that 14B was not excluded from consideration as to whether it could, having an independent dwelling house erected upon it, constitute with 16A a “parcel of residential land” for the purposes of the principal place of residence exemption.

Extension to the merits

39 The appellant argues that if, as we have found, there is an error of law in the construction of clause 3 informing the factual decision as to whether the use of 14B falls within the exemption, it is an appropriate case to grant leave to the appellant to extend the appeal to the merits of the case and to examine whether the property at 14B should be granted the exemption. We have noted the respondent’s submissions set out in paragraph [26] above and, having considered them, agree with the appellant on this point. Accordingly, leave is granted to extend the decision to the merits and we will consider the evidence in the light of the proper interpretation of Clause 3.

Merits of the Case

40 At paragraph [44] of the decision, the learned Judicial Member says:

“… to succeed, the [appellants] had to show that 14B was “used and occupied for residential purposes and for no other purpose” or that it was “used or occupied for a purpose ancillary to the purposes for which 16A was designed, constructed or adapted”.

41 The facts are as set out above. As the Appeal Panel may now, having granted leave, consider the factual findings again, it appears to us that the principles to be applied to the relevant facts are these:

a) despite the learned Judicial Member’s finding that 14B was “land awaiting redevelopment” (paragraph [48]) and the evidence that the house was “disused”, the facts show that that the disuse was disuse as an independent dwelling, and the land and the buildings on it were used for storage and the balance of the land for recreation;

b) despite the learned Judicial Member’s finding that the use of 14B was “temporary” (paragraph [46]), the use was, at the taxing date, current; and

c) the question is not whether the use was of the house as a dwelling house, but whether the actual use was for purposes “ancillary” to the original purpose of 16A which was, it will be recalled, being used as a dwelling house.

d) Taking into account those principles, it appears to the Appeal Panel that the uses to which 14B were put were both for “residential purposes and for no other purpose” and “ancillary to the uses to which 16A was put”. The recreational and household use of 14B was, indeed, acknowledged by the Judicial Member as being, in some circumstances, probably sufficient for the exemption to apply were it not for the incorrect “two dwellings” finding. Unlike the property in Coleman’s Case, there was no other actual use (such as a property development) being undertaken on the site. The fact that the land was “awaiting development” was irrelevant if that use had not yet commenced, and there was actual use of the property for appropriate residential purposes.

42 It is the Appeal Panels’ view that 14B is not a “place of residence” for the purposes of clause 12 of schedule 1A, as that clause is directed towards two houses being separately occupied as places of residence, and not towards a house being used, not as a house, but for purposes ancillary to another dwelling.

43 Accordingly, the land at 14B is part of a “parcel of residential land” and used and occupied by the appellants for residential purposes.

Orders

The decision under review is set aside in relation to the 2006 land tax year and in substitution therefore a decision that the land in question is exempt from land tax for that year.