O'Neill v Commissioner of State Revenue - [2014] QCAT 482

CITATION:

O’Neill v Commissioner of State Revenue [2014] QCAT 482

PARTIES:	Penelope O’Neill (Applicant)
v
Commissioner of State Revenue (Respondent)

APPLICATION NUMBER:

GAR459-13

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Allen

DELIVERED ON:

26 September 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decisions of the Commissioner of State Revenue are confirmed.

CATCHWORDS:

APPLICATION FOR REVIEW – Whether applicant entitled to Building Boost Grant in respect of removal homes – what constitutes a new home

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 17 – 21
Building Boost Grant Act 2011 (Qld)

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

Ms O’Neill applied for the Building Boost Grant in respect of three properties Lot 1 Whites Road, Manly West; Lot 2 Kamerin Street, Manly West and Lot 3 Whites Road, Manly West. The Commissioner disallowed the applications and also disallowed Ms O’Neill’s objection against those decisions. She has now applied to the Tribunal for a review of the decision to disallow her objections.
The Tribunal must hear and decide the review of the objection decisions by way of a reconsideration of the evidence before the Commissioner when the decision was made, unless the Tribunal considers it in the interest of justice to allow new evidence[1]. The Tribunal stands in the shoes of the Commissioner and has all the functions of the Commissioner in applying the relevant law in this case the Building Boost Grant Act 2011[2]. The purpose of the review is to produce the correct and preferable decision[3]. The Tribunal must decide the review of the decision under the same law that applied to the making of the relevant original decision[4] and the grounds on which the application for review is made are limited to the grounds of the relevant objection unless the Tribunal otherwise orders[5]. The Commissioner is to assist the Tribunal in the making of its decision including by providing the Tribunal with a statement of reasons and any document or thing in the Commissioner’s possession or control that may be relevant to the review of the decision[6].
[1]Building Boost Grant Act 2011 (Qld) (BBG Act) s 97(2)(a).
[2]Queensland Civil and administrative Tribunal Act 2009 (Qld) (QCAT Act) ss 19(2).
[3]QCAT Act ss 20(1).
[4]BBG Act s 97(2)(b).
[5]Ibid s 97(3).
[6]QCAT Act s21(2).

The Legislation

The purpose of the BBG Act is to stimulate the housing market in Queensland in the following ways assisting the affordability of housing, increasing the supply of housing and supporting employment in the housing industry[7]. The purpose is achieved mainly be establishing a scheme for the payment of a building boost grant[8].
[7]BBG Act s3(1).
[8]Ibid s3(2).
An applicant for a building boost grant is entitled to be paid a building boost grant only if the transaction for which the grant is sought is an eligible transaction[9] which has been completed and the applicant complies with the eligibility criteria under division 3 and the application is properly made[10]. There are three types of eligible transaction each with different requirements as set out below.
[9]Ibid s 6.
[10]Ibid s12.
Each of the eligible transactions requires that they be for a “new home” which is defined as a home that has not been previously occupied or transferred as a place of residence or is a substantially renovated home[11]. A home is a substantially renovated home if the home is the subject of a home purchase contract and the sale of the home under the contract is a taxable supply of new residential premises for GST purposes[12].
[11]Ibid s 8.
[12]Ibid s 8(2);A New Tax System (Goods and Services Tax) Act 1999 s 40-75(1)(b).
The BBG Act further defines a building as a “home” if it is designed, or approved by a local government, for human habitation by a single family unit; and it is suitable for use, and lawfully able to be used, as a place of residence; and it is used mainly for residential purposes and it is fixed to land and relevantly the land on which it is fixed is used or intended to be mainly for residential purposes[13].
[13] ibid s 7.
The term “completed” is defined in the BBG Act dictionary to mean for a contract for the purchase of a home when the purchaser becomes entitled to possession of the home under the contract and relevantly the purchaser’s title is registered or for a contract to have a home built or an owner-builder arrangement when the building is ready for occupation as a home and if there are any other requirements for completion of the contract or arrangements prescribed under a regulation the requirements are complied with.
An “eligible home purchase contract”[14] is relevantly one for the purchase of a new home that is, or is to be, built on land in the State and the day the contract is made[15] is on or after 1 August 2011 and before 1 May 2012. Either it is for the acquisition of an estate in fee simple[16] in the land on which the home has been built; or it is for the acquisition of an estate in fee simple in the land on which the home is to be built, before completion of the contract, by or for the seller of the home at the expense of the seller. And it has been entered by each person who upon completion of the contract will have an estate in fee simple in the land and the total of the unencumbered value of the home and the fee simple in the residential land as at the day the contract is made is less than $600,000.00.
[14]Ibid s 14.
[15]Ibid s 13- transaction commencement day.
[16]Ibid s 9 - relevant interest.
An “eligible home building contract”[17] is relevantly a comprehensive home building contract to have a new home built on land in the state and the day the contract is made is on or after 1 August 2011 and before 1 May 2012. It has been entered by each person who will, on completion of the contract, have an estate in fee simple in the land and the laying of the foundations for the home starts within 26 weeks after the date of the contract or any longer period allowed by the Commissioner. Either the contract provides for the home being ready for occupation as a place of residence within 18 months of the day on which the laying of the foundations starts[18] or the home is ready for occupation as a place of residence within that period or the longer period allowed by the Commissioner. The consideration for the transaction and the unencumbered value of the estate in fee simple in the residential land on the day the contract is made is less than $600,000.00.
[17]Ibid s 16.
[18]Ibid s 15- prescribed building period.
A “comprehensive home building contract” is defined in the dictionary of the BBG Act 2011 as a contract under which a builder undertakes to build a home from the start of building work to the point where the home is ready for occupation and, if for any reason, the work to be carried out under the contract is not completed, includes any further contract under which the work is to be completed.
An “eligible owner-builder arrangement”[19] is one for the building of a new home on land in the state and the day the laying of the foundations for the home starts is on or after 1 August 2011 and before 1 May 2012 and the home is ready for occupation as a place of residence within the period starting on the day the laying of the foundations for the home starts and ending 18 after that day or the longer period allowed by the Commissioner. The total of the consideration for the transaction and the unencumbered value of the estate in fee simple in the residential land is less than $600,000.00.
[19]Ibid s 17.
An “owner builder arrangement” is defined in the dictionary to the BBG Act 2011 as an arrangement under which a person who relevantly owns an interest in fee simple in land builds a home on the land by carrying out the building work personally or arranging for the building work to be carried out by another person, other than by a entering a comprehensive building contract with the other person or a combination of the two.
An application for the building boost grant must be made to the Commissioner in the approved form supported by the information required by the Commissioner and may only be made within the period starting on the transaction commencement day of the eligible transaction to which the application relates and ending 1 year after the completion of the eligible transaction to which the application relates, unless the Commissioner allows otherwise[20].
[20]Ibid s 27.
The Commissioner may by notice ask an applicant to give the Commissioner further reasonable information or documents about the application in the period of 5 business days stated in the notice or any longer period agreed the Commissioner and the applicant[21]. The Commissioner may refuse the application if the applicant does not give the Commissioner the information or documents in the information period without reasonable excuse[22].
[21]Ibid ss 30(1).
[22]Ibid ss 30(2).
The Commissioner must consider each application for a building boost grant and either if satisfied a building boost grant is payable decide to authorise payment of the grant or otherwise refuse the application[23]. If the Commissioner decides to authorise payment of the grant, the Commissioner may impose a reasonable condition on the grant[24]. The Commissioner must give the applicant notice of the decision and if a condition is imposed the condition[25].
[23]Ibid ss 31(1).
[24]Ibid ss 31(2).
[25]Ibid ss 31(3).
The amount of the building boost grant for a home is the lesser of the following the consideration for the transaction and $10,000[26]. A building boost grant for a transaction for a home is payable if the transaction is completed before the application for the grant is decided when payment of the grant is authorised or otherwise after the transaction is completed[27]. However the Commissioner may pay the grant before the transaction is completed if the Commissioner is satisfied it is appropriate to pay the grant in the circumstances[28].
[26]Ibid ss 32.
[27]Ibid ss 33(1).
[28]Ibid ss 33(2).

Ms O’Neill’s applications

Ms O’Neill purchased a house at 43 Whites Road, Manly West described as lot 21 on SP1358265 county of Stanley parish of Tingalpa Title reference 50362310 for the amount of $525,000. The title for this land was registered in Ms O’Neill’s name on 30 March 2012. The land was then subdivided by survey plan SP258498 into 3 lots. Development approval for the subdivision had issued by the Brisbane City Council on 2 August 2012. The plan of subdivision registered on 14 March 2013 and new titles issued for Lot 1 on SP258498 county of Stanley parish of Tingalpa title reference 50908270; Lot 2 on SP258498 county of Stanley parish of Tingalpa title reference 50908271 and Lot 3 on SP258498 county of Stanley parish of Tingalpa title reference 50908272.
The subdivisional proposal plan which had been granted development approval was lodged with the applications on 30 August 2012. This plan showed a highset timber and render dwelling straddling the three proposed lots It was noted on the plan that this house was to be removed or relocated.
The first application was in respect of Lot 1 Whites Road, Manly West title reference lot 1 on SP M0053-P2 (surveyors plan number). The application states that the total value of the home is $69,500.00. That there is no First Home Owners Grant and the intended use of the property is for investment. The type of transaction is said to be a home building contract. The date of the contract to build a new home was 27 April 2012 with construction to commence on 10 October 2012 and construction completion date of 10 April 2013. The name of the builder was Mackay & Sons House removal licence 1172387.
A copy of the contract was provided with the following relevant details:-
a)    Contract date 27 April 2012
b)    Re: supply, delivery and restumping to High-set of house known as house 4
c)    From: 9 Cerium St, Narangba
To: proposed reconfigured lot 1 on current SP 135826, 43 Whites Road.
d)    Total price including GST $69,500.00
e)    Mackay & Sons had the authority to sell the house for removal and guaranteed it was free and unencumbered. Owner had inspected the house and purchased it with all if any faults. The owner was to be responsible for obtaining approved plans, engineers report, soil test and fees to allow house to be relocated on owner’s property.
f)     The owner was responsible for various things including the marking out of the exact location of the house, disconnection and reconnection of services at the new site, cyclone proofing of house, rewiring, stairs repair, new plumbing including repairs to guttering, new roof if required, and all other trades to complete the house to council requirements.
The second application was in respect of Lot 2 Kamarin Street, Manly West title reference Lot 2 on SP M0053-P2 (surveyors plan number). The application states that the total value of the home is $26,280.00. That there is no First Home Owners Grant and the intended use of the property is for investment. The type of transaction is said to be a home building contract. The application stated in regard to the contract to build a new home that the contract date was 27 April 2012 with construction to commence on 10 October 2012 and construction completion date of 10 April 2013. The name of the builder was Mackay & Sons House Removal licence 1172387.
A copy of the contract was provided with the following relevant details:-
a)    Contract date 27 April 2012
b)    Re: Removal of house
c)    From: 43 Whites Road, Narangba
To: proposed reconfigured lot 2 on current SP 135826, 43 Whites Road.
d)    Total price including GST $26,280.00
e)    House to be re-stumped on 75 x75 Gal SHS columns only, 2.7 m above ground.
f)     Mackay not responsible for repairs to plumbing, electrical and all underground services.
g)    Owner responsible to engage a surveyor to mark out exact required location of the house with four pegs indicating the four corners of the house,
h)   Owner is responsible for disconnection and reconnection of all services, rewiring and stair repairs, new plumbing including repairs to guttering, painting, new roof if required and all other trades to complete the house to council requirements.
The third application was in respect of Lot 3 Whites Road, Manly West title reference Lot 3 on SP M0053-P2 (surveyors plan number). The application states that the total value of the home is $55,000.00. That there is no First Home Owners Grant and the intended use of the property is for investment. The type of transaction is said to be a home building contract. The application stated in regard to the contract to build a new home that the contract date was 27 April 2012 with construction to commence on 10 October 2012 and construction completion date of 10 April 2013. The name of the builder was Mackay & Sons House Removal licence 1172387. A copy of the contract was provided with the following relevant details:-
a)    Contract date 27 April 2012
b)    Re: Supply, delivery and restumping to high-set of house known as house 20
c)    From: 9 Cerium Street, Narangba
To: proposed reconfigured lot 3 on current SP 135826, 43 Whites Road.
d)    Total price including GST $55,000.00
e)    Mackay & Sons had the authority to sell the house for removal and guaranteed it was free and unencumbered, Owner had inspected the house and purchased it with all if any faults. The owner was to be responsible for obtaining approved plans, engineers report, soil test and fees to allow house to be relocated on owner’s property.
f)     The owner was responsible for various things including the marking out of the exact location of the house, disconnection and reconnection of services at the new site, cyclone proofing of house, rewiring, stairs repair, new plumbing including repairs to guttering, new roof if required, and all other trades to complete the house to council requirements.

Discussion

The first transaction that Ms O’Neill entered was the purchase of a house and land at 43 Whites Road, Manly West the transfer of title for which was registered in the Titles Office on 11 April 2012. There was no application for the Building Boost Grant in respect of this transaction. It is significant though because it is through this transaction that Ms O’Neill became owner of the land the subject of the subsequent applications as well the house which was the subject of application number 2.
The original decision turned on whether the transactions were in respect of new homes and the applications were disallowed on the basis that the homes had been previously occupied in other locations. Ms O’Neill submitted that they were treated under other relevant legislation such as the Building Act 1975 and the Sustainable Planning Act 2009 as new homes and even if they weren’t new homes they would be considered a substantially renovated home.
Before looking at the question of whether the homes are new homes it is appropriate to consider what type of eligible transaction the contracts entered by Ms O’Neill comply with. The three applications made by Ms O’Neill describe the type of transaction as a home building contract. An eligible home building contract requires that a comprehensive home building contract be entered as defined above. In this case the contract Ms O’Neill entered with Mackay & Sons House Removals was in the case of applications 1 and 3 for the supply, delivery and restumping to high-set of a house. The contract in regard to application 2 was for the removal of the house from 43 Whites Road, Manly West to reconfigured lot 2. Ms O’Neill was to be responsible for all other aspects of the work to complete the houses to council requirements. Clearly the contracts do not comply with the requirements of a comprehensive home building contract and the transactions are therefore not eligible home building contracts.
The Commissioner came to this conclusion in the objection decision and then went to look at whether the contracts entered by Ms O’Neill could be characterised as any of the other types of eligible transactions. For the transaction to be an eligible home purchase contract it would require that the house and land be purchased under the one contract or that the land be purchased with a house to be built on it by or for the seller under the one contract.
In this case Ms O’Neill purchased the house the subject of application 2 and the land under the one contract but no application was made as the house at that stage would not have been a new home as it was a home that must have existed and been occupied on the land for some time. The houses in respect of application 1 and 3 have been purchased under the contracts with Mackay and Sons Removals. The transactions are therefore not eligible home purchase contracts as the land and houses in respect of applications 1 and 3 were purchased from different parties and the contract for the purchase of the original house and land was not in respect of a new home and no application was made.
There is one more type of eligible transaction that is, the eligible owner-builder arrangement. In this case Mrs O’Neill owns an interest in fee simple in the land and has entered contracts with Mackay and Sons Removals for the supply and re-stumping of two houses in applications 1 and 3 and the removal of a house owned by Ms O’Neill from land owned by her and the re-stumping of the house on another part of the land in application 2. Ms O’Neill was responsible under each of the contracts for the completion of all the other work necessary to complete the houses to council requirements. She supplied invoices to the Commissioner during the course of the objection which show that she contracted with plumbers and electricians to complete the plumbing and electrical works in respect of the houses.

The definition of owner builder arrangement says in part “arranging for the building work to be carried out by another person” this is to be interpreted as other persons[29]. So the arrangement here where the builder supplied or moved a house and restumped them and other trades were engaged by Ms O’Neill fulfils the requirement in regard to how the building work was carried out for an owner-builder arrangement.
[29]Acts Interpretation Act 1954 (Qld) s 32C.
There are other requirements before the transaction could be considered an eligible owner-builder arrangement. Did the work which was done constitute the “building of a new home”. A new home is one which relevantly has not been previously occupied or transferred as a home. Ms O’Neill submitted that the homes in her application would be new homes as substantially renovated homes if they did not otherwise comply with the definition of new home. For a home to be a substantially renovated home it must be subject to a home purchase contract. The transactions here do not comply with the requirements of a home purchase contract as set out above and therefore they cannot be considered as a substantially renovated home they must be a new home on the basis that they have not previously been occupied or transferred as a place of residence.
Ms O’Neill submitted that the homes are new for the purpose of all relevant state legislation and requirements. In all other Queensland legislation, a removal home that has been removed from a previous location is treated as a new home including the Building Act 1975 and the Sustainable Planning Act 2009. All of the provisions applicable to the building of a new home apply to removal homes. Removal homes, once removed from their original location, lose their identity as an “existing” or “used” residence, and become subject to all of the provisions of state legislation mentioned above. In relation to consistency of legislation removal homes are regarded as newly constructed homes under the First Home Owners Grant Act 2000. That the purpose of the Act is to assist housing affordability, increase housing supply and support employment in the housing and construction industry. Ms O’Neill states she entered the contracts during the eligible period in order to qualify for the boost payment. In doing so she has met both the policy and intent of the scheme, as she is investing in a local building company to support employment, as well as increasing housing supply.
The Commissioner in the objection decision noted that the only definition of new home which was relevant was the one in this legislation to ensure that the policy outcome of the Act is achieved. The Tribunal considered the Building Act 1975 and notes that it defines Building work as “building, repairing, altering, underpinning (whether by vertical or lateral support), moving or demolishing a building or other structure”[30]. All building work is assessable development unless it is exempt development or it is self-assessable development[31]. That is not to say that the moving of a house creates new home simply that it is building work which requires development approval.
[30]Building Act 1975 (Qld) s 5.
[31]Ibid s 20.
The Commissioner in the objection decision noted that the only definition of new home which was relevant was the one in this legislation to ensure that the policy outcome of the Act is achieved. The Tribunal considered the Building Act 1975 and notes that it defines Building work as “building, repairing, altering, underpinning (whether by vertical or lateral support), moving or demolishing a building or other structure”[32]. All building work is assessable development unless it is exempt development or it is self-assessable development[33]. That is not to say that the moving of a house creates new home simply that it is building work which requires development approval.
[32]Ibid s 5.
[33]Ibid s 20.
The Commissioner submitted that a removal home is no longer included in the FHOG Act. Tribunal notes that the definition of eligible transaction in the FHOG Act included where “a person purchases a building and intends to use it as place of residence on land in which the person has a relevant interest but on which it is not situated at the time of purchase, the contract for the purchase of the building is taken to be a contract to have a home built”[34]. That definition was removed with effect from 11 October 2012. Up until that time the definition would have covered the contracts Ms O’Neill had for the purchase of the houses in applications 1 and 3 but not in application 2 as she purchased that house with the land at 43 White Road.
[34]First Home Owners Grant Act 2000 s 5(3), as in force before 11 October 2012.
The Commissioner considered that the buildings that were removed and relocated to land the subject of each application was a “home” previously. Each building had been previously fixed to land, albeit land other than the subject of the grant application and, while fixed to that land, was occupied as a place of residence at some point in time. Therefore the buildings were previously a “home” as defined in s7 of the BBG Act, and the removal and relocation of the homes from one site to another did not negate the fact that the buildings had been previously been occupied as a place of residence at some point in time. When considering whether a home has been previously occupied for the purposes of the Act, it is not necessary that the building be previously occupied on the land to which the application relates.
In Ms O’Neill’s case the Commissioner considered that the buildings were moved from other locations to the land the subject of the applications. As such, the question of whether the buildings were previously occupied as a place of residence must be considered in relation to all land to which the buildings are, or were previously, fixed. Therefore, the buildings are not a “new home”, as they were previously occupied as a place of residence on the land to which they were then fixed. Further, that this interpretation of the “new home” definition is consistent with the purpose of the Act.
The way the BBG Act is structured does not lend weight to the Commissioner’s argument. A building is a home if it complies with the requirements of s 7 of the BBG Act, including that it be suitable for use, and lawfully able to be used, as a place of residence and it is fixed to land. It is significant here that the buildings in applications 1 and 3 were not moved from land on which they had been used as a residence but were moved from land owned by the removal company.
At the time they were moved they were not homes they were only buildings. It would only be after all of the work that was to be done by the removal company and Ms O’Neill’s other contractors that it could be said that they were homes. It is not that removal homes lose their identity as “existing” or “used” residences per se but a building must be a home before the test in s 8 can be applied to it and while in the removalist’s yard they are not homes only buildings. The Tribunal is satisfied that this interpretation is consistent with the purpose of the BBG Act as the supply of housing is increased by converting a building shell into a home and there is considerable employment involved in the process of relocating a building onto new land to be used as a residence.
The situation in respect of application 2 is different as that building was a home at the time it was purchased by Ms O’Neill as it was fixed to the land which Ms O’Neill purchased at 43 White Road, Manly West.
The test of whether a home is a new home can only be applied when the building is a home that means that all of the building work in respect of the building must be complete. In regard to application 2 the test can be applied as at the date of the application as Ms O’Neill was the owner of the home at that time and it was to be later moved to another part of the land she owned after it was subdivided. Ms O’Neill application was only made in respect of the removal contract and not the original purchase of the house and land the Tribunal therefore assumes that the house did not qualify as a new home at the time of purchase. The application for the building boost grant in regard to application 2 must be refused as the home was not a new home at the time of the application and the Commissioner’s decision confirmed.
For the Tribunal to be satisfied that a building boost grant is payable it must be satisfied that the building in question is a home. The Commissioner’s practice is to require final inspection certificates to determine whether the buildings the subject of the application satisfy the requirement that the building is designed or approved for human habitation by a single family and it is suitable for use and lawfully able to be used as a place of residence. The Commissioner requested these certificates during the objection decision process but Ms O’Neill advised they had not at that stage issued. She subsequently supplied them to the Commissioner in respect of application 2 and 3 during the Tribunal review process and the Commissioner provided them to the Tribunal in compliance with her obligations.
The Commissioner made submissions noting that the final inspection certificates constituted new evidence and there would need to be an order by the Tribunal before the evidence could be considered and Ms O’Neill had not made any application in that regard. The Commissioner submitted that the final inspection certificates would satisfy the requirements of the Act in regard to the buildings being homes. The Commissioner also submitted though that the new evidence would not change her decision as it showed that the applications were made outside of the time limits for the transactions to be eligible transactions. Ms O’Neill submitted in reply that she had supplied the certificate upon request by the Commissioner and did not intend to apply to introduce them as new evidence and that she wishes to appeal the original decision based on the original reasons and the information available to the Respondent at the time.
The Tribunal is required to make the correct and preferable decision. The information in the final inspection certificates goes to whether or not the applications are eligible transactions and therefore will assist the Tribunal to make the correct and preferable decision. The Tribunal is satisfied it is in the interests of justice to allow the new evidence.
An eligible owner-builder arrangement is required to be in respect of a new home where the laying of the foundations starts on or after 1 August 2011 and before 1 May 2012. The final inspection certificate in respect of lot three shows that the slab stage inspection was 22 April 2013 which is outside of the period and therefore the transaction is not an eligible transaction. The application for the building boost grant in regard to application 3 must be refused and the Commissioner’s decision confirmed.
Ms O’Neill advised the Commissioner that the final inspection certificate in respect of application 1 had not yet been obtained as the house required corrective work though it had been occupied since June 2013. A request had been made to Ms O’Neill to provide the final inspection certificates in respect of the building work and it has not been provided in respect of application 1. Having regard to the type of eligible transaction which the application made by Ms O’Neill represents that is an owner-builder arrangement it is a requirement that before the Tribunal can be satisfied she is entitled to the building boost grant that that the final inspection certificate be provided in respect of application. This is so the Tribunal can be satisfied that the building is a home and then a new home and that the requirements in regard to time periods are met. Ms O’Neill has indicated that she does not intend to rely on the final inspection certificates and as she has not provided all of the information necessary for the Tribunal to be satisfied that a building boost grant is payable the application is refused and the Commissioner’s decision is confirmed.