Sheedy v Chief Commissioner of State Revenue

[2007] NSWADT 283

CITATION:	Sheedy and ors v Chief Commissioner of State Revenue [2007] NSWADT 283
DIVISION:	Revenue Division
PARTIES:	APPLICANTS Karyn June Sheedy Gemma Michelle Sheedy Adam Curtis RESPONDENT Chief Commissioner of State Revenue
FILE NUMBER:	076033
HEARING DATES:	22 October 2007
SUBMISSIONS CLOSED:	22 October 2007
DATE OF DECISION:	4 December 2007
BEFORE:	Verick A - Judicial Member
CATCHWORDS:	Land tax exemption - principal place of residence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Duties Act 1997 Land Tax Management Act 1956 Property (Relationships) Act 1984 State Revenue Legislation Further Amendment Bill 2003
CASES CITED:	Australian Boot Trade Employees’ Federation v Whybrow and Co (1910) 11 CLR 311 Gilmour v Chief Commissioner of State Revenue [2007] NSWADT145 Richards v Pryse [11927] 2 K.B. 76
REPRESENTATION:	In person H El-Hage, solicitor
ORDERS:	The objection decision under review is set aside and the matter remitted to the respondent to reconsider the objection in accordance with the findings and the reasons for decision.

REASONS FOR DECISION

1 The applicants, Karyn June Sheedy, Gemma Michelle Sheedy and Adam Curtis seek a review of a decision of the Chief Commissioner of State Revenue (“the Chief Commissioner”) under the Land Tax Management Act 1956 (NSW) (“LT Management Act”) requiring the applicants, as joint owners, to pay land tax for the 2004, 2005 and 2006 land tax years in respect of unoccupied land situated at Bignell Street, Illawong.

2 The essential issue in dispute is whether the applicants, as owners during the relevant land tax years are entitled to the “principal place of residence” exemption for unoccupied land intended to be used as their principal place of residence under Schedule 1A to the LT Management Act.

Factual Background

3 The general factual background is not in dispute and has been summarised by the Chief Commissioner in his written submissions as follows:

“4. The documents before the Tribunal indicate that the applicants purchased the vacant land at Bignell Street by way of contract for sale dated 30 September 2003. A copy of the contract is not before the Tribunal.

5. The purchase of the land settled on 14 November 2003.

6. The transfer was dated 14 November 2003. The mortgage to ANZ with respect to the Bignell Street property was lodged for stamping on 17 November 2003. However, it appears both dealings were registered on title on 14 February 2004.

7. At the time of the purchase, Gemma Sheedy and Adam Curtis were in a de-facto relationship.

8. On 15 December 2003, the applicants lodged a land tax return for the 2004 tax year, in which they declared that they purchased the land at Bignell Street with the intention of using it as their principal place of residence.

9. On 6 February 2004, the Chief Commissioner issued a land Tax Notice of Assessment, under which the applicants were assessed as having no land tax liability in respect of the land at Bignell Street for the 2004 land tax year.

10. The applicants state that the relationship between Gemma Sheedy and Adam Curtis ended in June 2004.

11. In early 2005, the solicitor acting for Gemma in respect of the resolution of her de-facto relationship with Adam discovered that the land at Bignell Street was incorrectly transferred to the applicants as joint tenants. The applicants had intended that the land be transferred to Gemma Sheedy and Adam Curtis as to one half share and Karyn Sheedy as to the other half share, as tenants in common. The error was eventually corrected by the solicitor who acted for the applicants with respect to the purchase of the Bignell Street property in October/November 2005.

12. On 26 April 2006, the Local Court made orders under the Property (Relationships) Act 1984 (NSW) for the division of property in accordance with the terms of settlement agreed between Gemma Sheedy and Adam Curtis.

13. The terms of settlement provided, inter alia, for Adam Curtis to transfer his share in the Bignell Street property to Gemma Sheedy in consideration of $17,000.00. This was affected by way of Transfer dated 30 July 2006.

14. On 31 October 2006, the Chief Commissioner issued a Land Tax Notice of Assessment (“2006 Assessment”) requiring the applicants to pay $4,656.00 in land tax for the 2006 tax year.

15. On 3 November 2006, Karyn and Gemma Sheedy wrote to the Chief Commissioner requesting a review of the 2006 Assessment.

16. On 6 November 2006, the Office of State Revenue received from Karyn and Gemma Sheedy a Land Tax – Variation Return for the 2006 land tax year in respect of the land at Bignell Street, in which they sought an exemption from liability for land tax.

17. On 29 November 2006, Karyn and Gemma Sheedy wrote a further letter to the Chief Commissioner requesting that they be provided with an exemption from land tax.

18. On 20 December 2006, the Chief Commissioner issued a Land Tax – Final Notice, requiring the payment of the amount outstanding for the 2006 land tax year.

19. On 20 December 2006, Karyn and Gemma Sheedy lodged an objection to the 2006 Assessment.

20. On 8 January 2007, the Chief Commissioner issued a re-assessment for the 2004, 2005 and 2006 land tax years in respect of the land at Bignell Street.

21. By letter dated 12 January 2007, the Commissioner of State Revenue advised Karyn Sheedy that the concession for an intended principal place of residence did not apply in respect of the land at Bignell Street.

22. On 30 January 2007, Karyn Sheedy, on her own behalf and on behalf of Gemma Sheedy, lodged an objection to the assessment for the 2004, 2005 and 2006 land tax years. An objection to the valuation of the land was also submitted by Karyn Sheedy.

23. On 13 February 2007, the Chief Commissioner disallowed the objection to the assessment for the 2004, 2005 and 2006 land tax years.

24. An application for review of the Chief Commissioner’s decision was lodged with the Tribunal on 23 February 2007.”

4 At the hearing Karyn Sheedy on behalf of the applicants confirmed that to date no construction work had been undertaken at the Bignell Street property. There have been some preliminary discussions with their architect to build a duplex but no firm decision has been made as to what kind of residence will eventually be built. Adam Curtis also confirmed that after his de facto relationship with Gemma Sheedy was terminated, he was not prepared to sign any documents or be a party to any loan arrangement. This, Karyn Sheedy said, caused difficulties in proceeding with building their residence on the property.

Relevant Legislative Provisions

5 The legislation applicable in this matter is set out in clause 6 Schedule 1A to the LT Management Act. For the land tax years 2004 and 2005 clause 6 was in the following terms:

“ 6. Concession for unoccupied land intended to be owner’s principal place of residence

(1) If the Chief Commissioner is satisfied that the owner of unoccupied land intends to use and occupy the land solely as his or her principal place of residence, the owner is taken, for the purposes of the principal place of residence exemption, to use and occupy that land as his or her principal place of residence.

(2) This clause does not apply unless the Chief Commissioner is satisfied that:

(a) the land is unoccupied because the owner intends to carry out, or is carrying out, building or other works necessary to facilitate his or her intended use and occupation of the land as a principal place of residence, and

(b) if those building or other works have physically commenced on land, no income has been derived from the use and occupation of the land since that commencement, and

(c) the intended use and occupation of the land is not unlawful.

(3) This clause applies in respect of the assessment of a person’s ownership of land only in the period of:
(a) 2 tax years immediately following the year in which the person became owner of the land, or

(b) if the land is used and occupied for residential purposes by a person other than the owner at any time after the person became owner, 2 tax years immediately following the tax year in which the building or other works necessary to facilitate the owner’s intended use and occupation of the land are physically commenced on the land.

(4) The Chief Commissioner may extend the period in which the clause applies if satisfied that:
(a) there is a delay in the completion or, in a case referred to in subclause (3)(b), the commencement of the building or other works necessary to facilitate the owner’s intended use and occupation of the land, and

(b) the delay is due primarily to reasons beyond the control of the owner.

(5) If the principal place of residence exemption applies by operation of this clause to land not actually used and occupied by a person as his or her principal place of residence on a taxing date, that exemption is revoked if the person fails to actually use and occupy the land as his or her principal place of residence by the end of the period in which this clause applies in respect of the assessment of the person’s ownership of the land to continue to so use and occupy the land for at least 6 months.

(6) The effect of the revocation is that the principal place of residence exemption is taken not to have applied to the land in respect of any tax year to which, but for the revocation, it would have applied. Land tax liability is to be assessed or reassessed accordingly.

(7) This clause does not apply in respect of land owned by a person if:

(a) the person or any member of the person’s family (within the meaning of clause 12) is entitled to have his or her actual use and occupation of other land taken into account under section 9C or under this Schedule, or

(b) the person or any joint owner of the land owns land outside New South Wales that is the principal place of residence of the person or joint owner, or

(c) the land, or other land if combined with any adjoining land of which the person is an owner, is capable of having more than 2 residences or residential units lawfully built on it.

(8) For the purpose of this clause:

unoccupied land means land that is not being used or occupied for any purpose.”

6 Clause 6 was amended in 2005 to remove the discretion given to the Chief Commissioner in subclauses (1) and (2) and an objective test was inserted in subclauses (1) and (2). As at 31 December 2005, the relevant date to determine land tax liability for the 2006 land tax year, the new subclauses (1) and (2) were in the following terms:
“(1) An owner of unoccupied land is entitled to claim the land as his or her principal place of residence, if the owner intends to use and occupy the land solely as his or her principal place of residence. In such a case, the owner is taken, for the purposes of the principal place of residence exemption, to use and occupy the unoccupied land as his or her principal place of residence.

Note. It is an offence under section 55 of the Taxation Administration Act 1996 to make a statement to a tax officer, or giving information to a tax officer, orally or in writing, knowingly that it is false or misleading in a material particular.

(2) This clause does not apply unless:

(a) the land is unoccupied because the owner intends to carry out, or is carrying out, building or other works necessary to facilitate his or her intended use and occupation of the land as a principal place of residence, and

(b) if those building or other works have physically commenced on the land, no income has been derived from the use and occupation of the land since that commencement, and

(c) the intended use and occupation of the land is not unlawful.”

7 All the other subclauses of clause 6 were in the same terms as those applicable to the 2004 and 2005 land tax years.

Submissions

8 The applicants’ principal submission in this matter relates to the break down of the de facto relationship between Gemma Sheedy and Adam Curtis. The break down, it is submitted, led to delays in proceeding with the construction of the dwelling on the property. It is asserted by them that until the property settlement under the Property (Relationships) Act, 1984 was finalised, the applicants were clearly prevented from obtaining finance under loan arrangements with their bank, proceeding to prepare building plans and to obtain the necessary development approval to proceed with the building of their principal place of residence.

9 In addition it was submitted by them that there was delay in correcting the ownership on the title. The applicants’ case in relation to this submission is that when the property was purchased the solicitor acting for them had made an error in preparing the transfer of title in respect of the subject property by transferring the property to Karyn Sheedy, Gemma Sheedy and Adam Curtis as joint tenants. This did not reflect the contract of sale and the transfer should have been prepared on the basis that the title was held by Gemma Sheedy and Adam Curtis as joint tenants as to one half share with Karyn Sheedy as to the other half share and together as tenants in common. This error was the subject of a complaint to the Office of the Legal Services Commissioner and the correct transfer was not finally registered until about October 2005.

10 It was also submitted that until the title was issued to the parties in the correct names the de facto property settlement could not be finalised.

11 It was further submitted that the break down in the relationship also meant that their plans as to the kind of dwelling on the property had to be reconsidered.

12 The Chief Commissioner’s case is that an owner of unoccupied land to be used as his or her principal place of residence is only entitled to the concession provided by Clause 6 in circumstances where the dwelling is built within the two years allowed.

13 As to his power to extend the two years period, the Chief Commissioner has in his written submissions submitted as follows:

“42. The power in clause 6(4) to extend the two-year period stipulated in clause 6(3)(a) is available only to allow an owner additional time to complete “the building or other works” necessary to facilitate use and occupation of the land. Thus, the commencement of the “building or other works” for the intended use and occupation of the land before the end of the two-year period is a pre-condition to the exercise of the discretionary power. Where an owner has not commenced the building or other works within the two-year period, the power in clause 6(4) is not available.

43. The Chief Commissioner is not aware of any relevant case law where this question as to the construction of clause 6(4) has been determined (in Gilmour v Chief Commissioner of State Revenue [2007] NSWADT 145 (“Gilmour”), the issue arose but not decided: see at paragraphs. [30] and [34]ff). However, the terms of the clause are clear. The legislature has specifically used the word “completion” in reference to the circumstance where, as in this case, an owner intends to build on vacant land, that is, clause 6(3)(a), in contrast to the word “commencement” in reference to the circumstance where an owner of an existing residence carries out building works, that is, within clause 6(3)(b). The terms of the legislation must be given their ordinary and natural meaning: see Australian Boot Trade Employees’ Federation v Whybrow & Co (1910) 11 CLR 311, at 341-342.

44. The Chief Commissioner’s construction of clause. 6(4) is consistent with the comments in the Minister’s Second Reading Speech to the State Revenue Legislation Further Amendment Bill 2003 (NSW) which introduced Schedule 1A:

“The Bill will also remove restrictions on the current exemption on land where a new family residence is being built or an existing one is being refurbished, provided the owner takes up residence in the completed house within two years and remains in residence for at least six months.” (emphasis added)
45. The Chief Commissioner submits that the discretionary power in clause 6(4) to extend the two-year period is not available in this case because the applicants did not commence any building works necessary to facilitate their intended use and occupation of the land before the end of the 2005 land tax year.’
14 Further, the Chief Commissioner submitted that if the Tribunal finds that the discretionary power in subclause 6(4) is applicable in this matter, “the delay in completion of the residence beyond the end of the 2005 land tax year is not due primarily to reasons beyond the control of the applicants”.

Findings and reasons for the decision

15 There are two issues that the Tribunal is required to consider and decide in this matter.

16 The first concerns the correct interpretation of the provisions found in subclause 6(4)(a). The Chief Commissioner has submitted that the expression “there is a delay in the completion” found in subclause 6(4)(a) restricts the operation of the discretion to extend the two-year period only to owners who have commenced actual work to build the residence and that the additional time that the discretion allows the respondent to give an owner is to allow the owner to “complete” the building of the residence.

17 The second issue only arises if the Tribunal does not agree with the interpretation suggested by the respondent in relation to the operation of the discretion to grant an extended period under subclause 6(4). If the discretion operates in circumstances where no construction work has commenced within the initial two-year period, the additional and second issue arises as to whether the extension should be granted because “the delay is due primarily to reasons beyond the control of the owner”. The Chief Commissioner has submitted that “the delay in the completion of the building or other works beyond the end of the 2005 land tax year is not due primarily to reasons beyond the control of the applicants”.

18 Clause 6 was introduced to allow an owner the benefit of the “principal place of residence” concession who was either building a new residence on vacant land or was refurbishing an existing residence to use the residence as the owner’s principal place of residence. The concession given by clause 6 is only available to an owner if the all the requirements, in particular those set out in subclauses 6(2) and 6(7) are satisfied. It is not necessary in the present matter to deal with the operation of those requirements in any detail as the Chief Commissioner accepts that the applicants had satisfied these requirements when the property was purchased.

19 The concession is available under subclause 6(3) “in respect of the assessment of a person’s ownership of land only in the period of: (a) 2 years immediately following the year in which the person became owner of the land, or (b) if the land is used and occupied for residential purposes by a person other than the owner at any time after the person became owner, 2 tax years immediately following the tax year in which the building or other works necessary to facilitate the owner’s intended use and occupation of the land are physically commenced on the land”. In this matter, the applicants became entitled to the concession from 14 November 2003.

20 Under subclause 6(4) the Chief Commissioner is given a discretion to extend the 2 tax year period if the Chief Commissioner is satisfied that:

“(a) there is a delay in the completion or, in a case referred to in subclause 3(b), the commencement of the building or other works necessary to facilitate the owner’s intended use and occupation of the land, and

(b) the delay is due primarily to reasons beyond the control of the owner.”

21 Subclause 6(5) deals with the Chief Commissioner’s powers to revoke the concession if an owner fails to use and occupy the residence by the end of the two-year period or fails to use and occupy for at least six months after the end of the two-year period. Subclause 6(6) provides that the effect of the revocation is that the principal place of residence exemption is taken not to have applied to the land in respect of any tax year to which, but for the revocation, it would have applied. The Chief Commissioner is given power to assess or reassess accordingly.

22 The Chief Commissioner’s principal contention before the Tribunal and the basis of his objection decision is that upon a proper construction of subclause 6(4) the expression “delay in completion” is confined to cases where the owner has commenced construction but has not completed the construction of the new residence. It follows in the Chief Commissioner’s contention that although the applicants have satisfied the requirements to be entitled to the concession at the time they purchased the property, they are, nevertheless, not entitled to the concession or any extension to the two-year period because they have not commenced the building or other works within the two-year period.

23 The Tribunal does not accept that contention. Such an approach places an unduly restrictive interpretation upon the provisions found in subclause 6(4). The Tribunal has not been persuaded by the respondent’s submissions to construe the expression “delay in completion” in subclause 6(4) otherwise than according to the plain, ordinary and natural meaning of the words of the expression, in particular the term “completion”.

24 The Shorter Oxford Dictionary defines “completion” as “accomplishment, fulfilment”. The word “completion” when used in subclause 6(4)(a) should have a similar meaning. In the context of the provisions found in clause 6, it is used to refer to the “building of the residence” and what the provision merely states is that if the building of the residence has not been accomplished within the 2-year period allowed and the delay was primarily due to reasons beyond the owner’s control the respondent may extend the period. There is no requirement that some work has to be carried out to build the residence within the initial 2-year period to entitle the owner to fall within the provisions of subclause 6(4). If no work has begun, it would simply mean that the owner has not accomplished building the residence and would be entitled to an extended period if he or she can demonstrate that the delay was due primarily to reasons beyond his or her control.

25 The draftsman in drafting subclause 6(4) may have been influenced by the use of the term “completion” in building contracts. When used in a building contract the term means actual completion (Richards v Pryse [1927] 2 K.B. 76). Where a builder is to be paid on the “completion” of a building, such completion is generally a question of fact. The term is used in subclause 6(4)(a) in that sense and refers to the actual construction of the residence to a stage when it can be used and occupied by the owner as his or her residence.

26 The Chief Commissioner’s suggested approach would also create an inequitable outcome for an owner purchasing vacant land as against an owner acquiring an existing residence that requires refurbishment. In the latter case the provisions in subclause 6(4) in relation to subclause 6(3)(b) merely states that the respondent may extend the period if there is delay in commencement of the building or other works necessary to carry out the refurbishment. It is difficult to accept that the legislature was intending to place some special restriction on an owner acquiring vacant land. The interpretation suggested by the Tribunal would be in harmony with the position of an owner carrying out refurbishment work.

27 The approach suggested by the respondent, if adopted, could also lead to some fairly absurd outcomes. For example, would just digging some part of the vacant land to install underground drainage system be taken as the commencement of the building of the residence to entitle the owner to the extension under subclause 6(4) if he or she can demonstrate the required reasons for the delay in completing building the residence.

28 The Chief Commissioner can easily reverse the granting of an extension under subclause 6(4) if the residence is not built within the extended time. Under subclause 6(5) the Chief Commissioner can revoke the concession if the person fails to actually use and occupy the land as his or her principal place of residence by the end of the period allowed. The effect of a revocation is that the principal place of residence exemption is taken not to have applied to the land to all tax years that fall within the period allowed. There is ample protection in these provisions to ensure that there is no loss to the revenue where there is failure on the part of an owner to build a residence on vacant land within any extended period.

29 Having decided that owner of vacant land is entitled to an extension of the initial 2-year period notwithstanding that no construction work to build the residence has commenced, it is necessary to consider whether the delay in building of the residence was “due primarily to reasons beyond the control” of the applicants, as owners of the property.

30 In the Chief Commissioner’s letter dated 13 February 2007 to Karyn Sheedy, the Chief Commissioner in disallowing the objection set out the following short reasons:

“As … Bignell Street, Illawong was acquired by you, Gemma Sheedy and Adam Curtis in November 2003, the concession was given commencing November 2003 to November 2005 on the condition that the legislative requirements are met.

The two-year period may be extended where there is delay in completion of building work for reasons beyond your control. This does not include financial or relationships problems.

The legislation also provides for revocation of the 2-year concession if the owner does not actually take up residence on the land as your principal place of residence.

You have advised that no construction of the residence commenced prior to the transfer of Adam Curtis’ interest to Gemma. Consequently, the 2-year concession was revoked. The effect of the revocation is that the concession is taken not to have applied to the Illawong property and the land tax liability is to be assessed, that is, the Illawong property then became liable for the 2004, 2005 and 2006 tax years. This is the reason for the issue of the reassessment of 2004, 2005 and 2006 assessments.”

31 The Chief Commissioner, in making his objection decision clearly took the view that “financial or relationship problems” did not fall within “the reasons beyond the control of the owner”. In his submissions before the Tribunal the Chief Commissioner also argued that “the breakdown of the relationship, in so far as it can be taken to have been the ‘delaying event’, was not a delaying event which was in the control of another person or authority”. The Chief Commissioner in particular in his submissions argued that the difficulties the applicants had in obtaining finance, in making development applications and the delay in the transfer of title of the property due to the breakdown of the relationship between Gemma Sheedy and Adam Curtis were not beyond the control of the applicants.

32 In some taxation legislative provisions, the legislature has recognised that a relationship breakdown is a serious factor that needs to be taken into account in dealing with a concession that may be otherwise denied, as the parties are no longer together. For example, section 220 of the Duties Act 1997 (NSW) which exempts, in certain circumstances, from duty a refinancing mortgage, notwithstanding that at the time of the refinancing, the original parties to the loan arrangements are separated due to the breakdown of a marriage or a de facto relationship. Unfortunately, subclause 6(4) does not incorporate any such provision to allow the Chief Commissioner to extend the 2-year period, taking into account a breakdown in a marriage or de facto relationship.

33 In the present matter, after July 2004 when the de facto relationship came to an end, the parties were quite “dysfunctional” in relation to this property. At the hearing Adam Curtis confirmed that he was not prepared to sign and be a party to any financial or development application. This left the other two quite helpless to do anything to further their original intention of building their principal place of residence.

34 But it does not follow that all delays due to a breakdown of a marriage or a de facto relationship are within the control of the parties. Clearly, where property settlements are necessary under the Property (Relationships) Act, 1984 the parties are subject to court schedules and efficiency of their legal advisers. In this matter, the property settlement was delayed due to an error made by their solicitor in preparing the transfer of title in relation to the purchase of the property. The error was the subject of a complaint by the applicants to the Office of the Legal Services Commissioner due to the failure on the part of their solicitor to correct the original transfer. The correct transfer was not registered until about October 2005. Until the correct title was issued the de facto property settlement could not be finalised and this also prevented Gemma Sheedy from obtaining the financing to purchase the interest Adam Curtis had in the property.

35 Similarly, delays due to financial reasons may, in some circumstances, be outside the control of an owner seeking to build a residence. This situation could arise, for example, if the funds for the development are deposited with a fund, which ends in receivership before the builder is paid progress payments. In this matter, until the final ownership of the property was settled, Karyn and Gemma Sheedy were in no position to obtain finance to build the residence because Adam Curtis refused to sign any application for a banking loan or for development approval. Without the necessary development approval Karyn and Gemma could not use the property to obtain the necessary finance. These were in a sense matters not within the control of Karyn and Gemma Sheedy.

36 This is an unusual and special case and warranted a fuller inquiry of all the relevant facts by the Chief Commissioner to determine if the applicants were entitled to an extension. The Chief Commissioner seems to have taken the fairly short approach to refuse the applicants any extension because he considered that “financial or relationship problems” were all within the control of the applicants and that they had not commenced any construction work on the property.

37 It is clear that until October 2005, the title of the property had not been issued correctly and that property settlement as a consequence did not occur until March 2006. The delay in correcting the title was due to the failure of their solicitor to act promptly. The property settlement also required solicitors making the necessary application to the courts under the Property (Relationships) Act 1984. These were matters that were beyond the control of the applicants and matters that the Chief Commissioner ought to have taken into account in considering the applicants’ application for an extension of the 2-year period.

38 Although the Tribunal considers that the Chief Commissioner erred in not properly considering all the facts fully at the relevant time when an extension could have been granted to the parties, it is not clear if ultimately the delay by the parties is due rather to current personal reasons than to the reasons that were present during the 2-year period which were beyond their control. At the hearing, Karyn Sheedy informed the Tribunal that the current plans in relation to this property were being reconsidered and no firm decision had been made as to the development of the property. The delay subsequent to July 2006 may be due entirely to the indecision on the part of the applicants. The Chief Commissioner may be in a position now to revoke the concession on granting further time from the end of the original 2-year period.

39 In making his decision on the objection, the Chief Commissioner was largely influenced by the fact that no construction work had commenced on the property. The Chief Commissioner erred in taking the view that an owner was only entitled to an extension of the two year period allowed under clause 6 in circumstances where the owner had already commenced construction work.

40 In all circumstances of this matter, it would be more appropriate for the Tribunal to remit this matter to the Chief Commissioner for a fuller consideration of the application for an extension having regard to all relevant facts including the developments since the end of the original 2-year period and make a fresh decision, if necessary, revoke the concession.

Order

The objection decision under review is, accordingly, set aside and the matter remitted to the Chief Commissioner to reconsider the applicants’ objection in accordance with the findings and reasons for decision.