WATER CORPORATION and REGAN

[2009] WASAT 182

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: COUNTRY AREAS WATER SUPPLY ACT 1947 (WA)

CITATION:   WATER CORPORATION and REGAN [2009] WASAT 182

MEMBER:   JUDGE J PRITCHARD (DEPUTY PRESIDENT)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   18 SEPTEMBER 2009

FILE NO/S:   DR 80 of 2009

BETWEEN:   WATER CORPORATION

Applicant

AND

HILL REGAN
Respondent

Catchwords:

Rating ­ Classification of land ­ Whether land used wholly or primarily for the purpose of a residence ­ Words and phrases: 'wholly or primarily' 'used' 'purpose' 'residence'

Legislation:

County Areas Water Supply Act 1947 (WA), s 58, s 58(1), s 58(3)(b), s 58(5), s 58(6), s 59, s 59(1), s 59(2), s 59(3), s 60A(1)
Rights in Water and Irrigation Act 1914 (WA)
State Administrative Tribunal Act 2004 (WA), s 60(2)
Water Agencies (Powers) Act 1984 (WA), s 3, s 5(1), s 34(1), s 41(1), s 69A, s 69A(1), s 69B(1)
Water Agencies (Charges) By­laws 1987 (WA), by-law 2, by­law 13, by­law 13(1), by­law 13(1)(a), by­law 13(1)(a)(i), by­law 13(1)(a)(ii), by­law 13(1)(b), by­law 13(1)(c), by-law 17, by­law 23(2)(a), by­law 23(2)(a)(i), by­law 23(2)(b), Sch 2, Div 1 Pt 2
Water Corporation Act 1995 (WA), Div 1 Pt 3, s 4, s 27(1)(a)

Result:

The decision under review is affirmed

Category:    B

Representation:

Counsel:

Applicant:     Not applicable

Respondent:     Not applicable

Solicitors:

Applicant:     Ms C Old

Respondent:     Self-represented

Case(s) referred to in decision(s):

Abbey Beach Resort Management Ltd and Water Corporation [2006] WASAT 231

Blackdown Properties Ltd v Ministry of Housing and Local Government [1967] Ch 115

Collector of Customs v Agfa­Gevaert Ltd (1996) 186 CLR 389

Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493

Hope v Bathurst City Council (1986) 7 NSWLR 669

North Sydney Municipal Council v Lycenko & Associates Pty Ltd (1988) 67 LGRA 247

Ryde Municipal Council v Macquarie University (1978) 139 CLR 633

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The respondent objected to an entry in the records of the Water Corporation in which the respondent's property was classified as commercial residential rather than residential for the purposes of by­law 13 of the Water Agencies (Charges) By­laws 1987 (WA).  The Corporation referred the relevant entry in the records to the Tribunal for review.

2. Situated on the respondent's property was a building which contained a residence and a video hire shop.  The respondent submitted that the property should not have been classified as commercial residential because the shop did not access water supplies to the property, and was only open for business for four days of the year.  The Tribunal looked at the construction of by­law 13(1)(a) and (b), and in particular considered the meaning of the words 'wholly or primarily for the purpose of … a residence' in the context of by­law 13(1)(a).  The Tribunal found that the use of the water was irrelevant to the classification under by­law 13(1)(a) and (b).  Further, in determining whether land is used primarily for the purpose of providing a residence, the intensity of different uses of the land (in this case, the hours of trade of the video shop) was not relevant.

3. The Tribunal found that the correct and preferable decision was that the respondent's property should be classified as commercial residential, and affirmed the decision of the Corporation as reflected in the entry in the records of the Corporation.

The proceedings before the Tribunal

1. The Water Corporation (Corporation) has referred to the Tribunal an entry in the Corporation's records (Entry) for a review pursuant to s 59(2) of the Country Areas Water Supply Act 1947 (WA) (CAWS Act).The Entry is an entry in records kept by the Corporation under s 69A of the Water Agencies (Powers) Act 1984 (WA) (WAP Act). An entry in those records forms the basis for an assessment of liability to a water supply charge. The Entry pertains to a property owned by the respondent at 85 Morgans Street, Ravensthorpe (Property). What is in issue in the review is the decision of the Corporation to classify the Property as commercial residential, rather than residential, under cl 13(1) of the Water Agencies (Charges) By­laws 1987 (WA) (Charges By­laws).

Statutory framework

1. The Corporation is established as a body corporate under s 4 of the Water Corporation Act 1995 (WA). Its functions and powers are set out in Div 1 Pt 3 of that Act, and include 'to acquire, store, treat, distribute, market and otherwise supply water for any purpose' (s 27(1)(a) of the Water Corporation Act 1995 ).

2. Under s 34(1) of the WAP Act, the responsible Minister may make by­laws prescribing all matters that are required or permitted by the WAP Act or any relevant Act to be prescribed, or are necessary or convenient to be prescribed, for the purposes of the performance by the Minister or the Corporation of their functions under the Act or any relevant Act. The CAWS Act is a 'relevant Act' for the purposes of this subsection (s 5(1) of the WAP Act). Subsection 41(1) of the WAP Act permits by­laws made under s 34(1) of the WAP Act to provide for the payment to the Corporation of charges relating to the provision by the Corporation of water services. Amongst other things, s 41(1) permits those by­laws to:

   (e)provide for differential rates and charges to apply and may, for the purposes of applying provisions for differential rates or charges, prescribe -

   (i)classes of land according to the use to which land is put, the purpose for which water is used on the land, or such other factor as the Corporation considers appropriate;

   (ii)…

   and provide for the classification of land or water services according to any such class.

3. By-law 13(1) of the Charges By­laws permits land to be classified by the Corporation in a variety of ways, for the purposes of Div 1 of Pt 2 of the Charges By­laws (which Division deals with the supply of water other than under the Rights in Water and Irrigation Act 1914 (WA)). The various classifications relevantly include:

   (a)residential, if the land -

   (i)is used wholly or primarily for the purpose of providing the owner or occupier of the land with a residence for himself, his family or servants, or any of them; and

   (ii)in the opinion of the Corporation, is not used in whole or in part for the purpose of providing holiday accommodation;

   (b)commercial residential, if the land, although not used wholly or primarily for the purpose mentioned in paragraph (a), is used for the purpose while also being used for the purpose of a shop, workshop, office, bakery, surgery or another business purpose;

4. 'Land' is defined in s 3 of the WAP Act as including 'any building or other structure on, over or under the land, and any tenement or hereditament of any tenure related to the land'. 'Residence' is defined in by­law 2 of the Charges By­laws to mean 'a private dwelling house, home unit, or flat, and includes any yard, garden, outhouse, or appurtenance belonging thereto or usually enjoyed therewith'.

5. The charges for the supply of water by the Corporation which are set out in Sch 1 to the Charges By­laws vary depending upon the classification given to land by the Corporation.  Generally speaking, the charges imposed for the supply of water to land classified as residential are lower than those for land classified as commercial residential or non­residential:  see for example by­law 17 and Sch 1 Div 2 of the Charges By­laws.

6. Section 69A of the WAP Act imposes an obligation on the Corporation to maintain rating records. Those records are to contain the information set out in s 69A(1), including, amongst other things, the description and situation of the land, the name and address of the owner of the land, and the classification, if any, of the land for the purpose of the application of any charge in respect of the land. The records maintained by the Corporation under s 69A are to be the basis on which charges are assessed for the period to which the records pertain (s 69B(1) of the WAP Act).

7. Any person who is dissatisfied with any entry in records kept under s 69A of the WAP Act, and who is liable to a water supply charge assessed on the basis of that entry, may serve upon the Corporation a written objection to that entry (s 58(1) of the CAWS Act). The grounds upon which an objection may be made include that the relevant land is incorrectly classified for the purposes of applying the charge (s 58(3)(b) of the CAWS Act). The Corporation is required to disallow or allow an objection, in whole or in part, and to serve on the objector its decision and a brief statement of its reasons for that decision (s 58(5) and s 58(6) of the CAWS Act).

8. A person who is dissatisfied with the decision of the Corporation on an objection may serve on the Corporation a notice requiring that the Corporation refer the relevant entry in the records to the Tribunal for a review (s 59(1) of the CAWS Act).  That reference is effected by forwarding to the Tribunal the notice of the Corporation's decision, the objection, and a copy of the relevant entry in the records and the reasons, if any, for the entry (s 59(3) of the CAWS Act).  Subsection 60A(1) of the CAWS Act provides that on a review under s 59, the Tribunal may consider grounds in addition to those stated in the notice of objection and reasons in addition to any reasons previously given for the Corporation's decision that is under review.  If, on a review, the Tribunal allows the objection wholly or in part, the Corporation is required to make an amendment to the entry in the records which was the subject of the review, and to issue a notice of an amended assessment of any water supply charges (s 62A of the CAWS Act).

9. An objection referred to the Tribunal under s 59 of the CAWS Act clearly involves an exercise of the Tribunal's review jurisdiction under the State Administrative Tribunal Act 2004 (WA) (SAT Act).

Grounds for the review

1. The Tribunal was provided with a copy of the decision of the Corporation dated 17 December 2008 (Corporation's decision).  Read together with the Entry, the Corporation's decision was to classify the Property as 'commercial residential'.  The Corporation's decision indicates that the reasons for its classification of the Property as 'commercial residential' were:

   An inspection of the property on 18 July 2008 showed that the property was being used as a video hire store.  This is evidenced by signs in the name of 'Box Entertainment' as well as shelves stocked with videos.  Further, by your own admission the property is used for a retail purpose.

   As the inspection also indicated some residential use, we have classified the property as 'commercial residential'.  That classification covers property that is not wholly or primarily used as a residence, but is used for that purpose and a shop or other business purpose.

2. The Tribunal was also provided with a copy of a letter dated 20 January 2009 from the respondent to the Corporation which appeared to constitute the respondent's objection to the Entry.  That document did not disclose the respondent's grounds for the objection.  However, the respondent filed submissions in the Tribunal which set out the bases upon which he objected to the Corporation's classification of the Property:

   The property at 85 Morgan Street in Ravensthorpe has significantly changed in its nature and function due to renovation works.

   The building now has two distinct sections a front section and a rear section.

   Whilst building renovations were being conducted during 2006 the front section operated as Box Entertainment and the rear was upgraded to living quarters.

   At the end of 2006 box entertainment [sic] ceased to trade on normal terms as I have been working in Perth since this time and now only opens for a four day period prior to Christmas.

   The rear of the building now operates as a rental property.

   Reasons for rating the property as non commercial:

   1)The front of the building has no access to taps water or sewerage therefore even when the shop is open it does not need any services from the water authority.

   2)As stated in your letter dated 17/12/09 [sic] 'that for a property to be rated residentially it must be used primarily for providing the occupier of the land with a residence'.  From the lease agreements it can be seen that this is the case (please note that the front section of the building does not form part of the lease agreement and has therefore been left vacant).  Furthermore if we were to work out the percentage time comparison of usage it would be calculated as 100% residential 1% commercial [sic].  In all fairness and to any reasonable person this should constitute a primarily residential use.'

3. Having regard to s 60A(1) of the CAWS Act, I have treated these submissions as constituting the grounds for the respondent's objection to the classification of the Property.

The evidence relied on by the parties

1. In addition to his submission outlining why the Property should be classified as residential, the respondent filed a copy of two residential tenancy agreements, which indicate that the Property was let to a tenant for the period spanning 22 April 2007 to 31 October 2008. 

2. The Corporation filed submissions in support of the classification in the Entry, and also filed the following documents:  a certified copy of the Entry, a copy of the Corporation's Ravensthorpe Operating Area, a copy of the Corporation's internal standard 'S323 Classification and Rating Guide', two photographs showing the front of the Property and two photographs showing the rear of the Property.

The respondent's first ground of objection

1. The first ground on which the respondent disputes the Corporation's decision is that 'the front of the building has no access to taps, water or sewerage, therefore, even when the shop is open, it does not need any services from the water authority'.  The Corporation says that it provides one water supply service to the Property, which is connected at the boundary of the Property, and is available to supply water to the front and rear sections of the Property.

2. In the case of one of the classifications of land under by­law 13(1) of the Charges By­laws, namely by­law 13(1)(c), the use of the water supplied to the land is a criterion for the application of the classification.  However, the terms of by­law 13(1)(a) and by­law 13(1)(b) do not require any consideration of how water supplied to the land is used.  Accordingly, for the purpose of classifying the Property under either by­law 13(1)(a) or by­law 13(1)(b), it is irrelevant whether all or only part of the Property actually accesses the water supply.

The respondent's second ground of objection

1. The respondent's second ground is that the Property should have been classified as 'residential' because it is used primarily for providing a residence for the occupier of the Property (in this case, the tenant).  The Corporation submitted that the Property was not used primarily for providing the occupier of the land with a residence 'because the front section of the Property is used for a commercial purpose being video hire shop named 'Box Entertainment''.

2. The photographs of the Property provided by the Corporation reveal that there is a building situated on the Property.  Two of the photographs depict the front of the building, which bears a large sign that says 'Box Entertainment'.  There appear to be posters hanging on the windows of the building, although it is not clear what these depict.  Two of the photographs depict the rear of the building and in those photographs can be seen, amongst other things, a pergola, an outdoor table and chairs and a barbeque.

3. It was not in dispute that the rear of the building is used as a residence.  That was confirmed by the rental agreements filed by the respondent.  Those agreements indicated that the Property which was rented to the tenant 'exclud[ed] those parts of the residential premises which the owner reserves being video shop'. 

4. The respondent accepts that the front of the building is used as a video shop.  However, in his submission, he contends that since the end of 2006, the video shop has opened only for a four day period prior to Christmas each year.  The Corporation neither agrees nor disagrees with that contention.  Instead, the essence of the Corporation's submissions is that the extent to which the front of the building is actually used as a video shop is irrelevant.  The Corporation submits that:

   a significant portion of the Property is used for the purpose of a shop being the video hire shop 'Box Entertainment' as well as a portion being used as a residence.  Inspections carried out by the Applicant indicate that the front section is at all times set up as a video hire shop with a large sign on the front building saying 'Box Entertainment'.  Whether or not the shop is open all year is not relevant to the determination of a property's classification.

5. The Corporation's approach to the classification of the Property appears to have been consistent with an internal standard (entitled 'S323 Classification and Rating Guide') which the Corporation has adopted to provide guidelines to the classification under the Charges By­laws.  The Corporation provided the Tribunal with a copy of that standard which provides:

   A property is classified residential when it is used wholly or primarily for the purpose of providing the owner or occupier of the land with a residence for himself and his family.  However, there is difficulty in defining how much business use is required to detract sufficiently from the residential nature of the property so that it may not enjoy the advantages of residential rating.  Each case must be reviewed on its merits.  Business activity can usually be confirmed by:

   •Advertising (eg Yellow pages, internet)

   •Inspection.

   Classification is residential if:

   •The property is primarily used as a residence but with minimal business use (eg outbuilding used for storage of occupier's tools and equipment for use off site or a house in which a single room is used by the occupier as an office); or

   •The local government has issued a Home Occupation permit for the business activity.  The permit limits, among other things, the extent of the activity, number of employees and access from the street.

   Classification is commercial/residential if business use is significant to the extent that the property is obviously something more than a residence alone.  Indicators are:

   •The business will usually be accessible from the street without the need to enter from the residential part of the building.

   •On site advertising, greater than the 0.5sq m allowed under a home occupation permit, may be present.

Construction of by-law 13(1)(a)

1. In order to be classified as 'residential' under by-law 13(1)(a), the criteria in by-law 13(1)(a)(i) and by-law 13(1)(a)(ii) must be satisfied.  There is no suggestion in the present case that the Property is being used in whole or in part for the purpose of providing holiday accommodation and it is therefore not in dispute that the criterion in by-law 13(1)(a)(ii) is satisfied.

2. It is not contended that the Property is used wholly for the purposes of providing a residence.  There is no dispute that the Property is used both to provide a residence for a tenant, and to operate a video hire shop.  The point of dispute in the present case concerns whether the Property is being 'used … primarily for the purpose of providing the owner or occupier of the Property with a residence for himself, his family or servants, or any of them'.  If that is the case, the classification in by­law 13(1)(a) will apply.  If that is not the case, the classification in by­law 13(1)(b) (which was adopted by the Corporation in the Entry) will be applicable because the Property is also clearly used for the purpose of a shop, namely the video hire shop.

1. In order to determine whether the Property is 'used … primarily for the purpose of providing … a residence', it is necessary to discern what those words mean and how the by­law contemplates that the use of land will be ascertained. 

2. The meaning of the words in by­law 13(1)(a)(i) has not been the subject of any previous judicial consideration.  The application of similar words in by­law 23(2)(a) was considered in Abbey Beach Resort Management Ltd and Water Corporation [2006] WASAT 231 (Abbey Beach Resort).  That case concerned a decision by the Corporation to classify land as 'country commercial industrial property' under by­law 23(2)(b) of the Charges By­laws (as it then stood).  The Abbey Beach Resort was run for profit as a managed investment involving a syndicate of individual investors who could reside in their investment units for up to three months per year.  At other times, their investment property formed part of the tourist resort accommodation market in the Busselton area.  The question arose as to whether the land should have been classified as 'residential' under by­law 23(2)(a)(i) which was in identical terms to by­law 13(1)(a)(i) of the Charges By­laws.  The basis for that argument was the submission that the Resort could be regarded as the residence of a short­term stayer at the Resort, whether an individual owner in the syndicate or a paying guest, during the period of their stay.  That argument was rejected.  While the Abbey Beach Resort case is of some assistance in determining the meaning of the term 'residence' in by­law 13(1)(a)(i), no detailed consideration was given in that case to the meaning of the words 'used … primarily for the purpose of'.

3. It is, therefore, necessary to construe the words in by­law 13(1)(a)(i) using ordinary principles of statutory construction.  The general principles relating to the interpretation of Acts of Parliament are applicable to the interpretation of by­laws, as a form of delegated legislation:  Collector of Customs v Agfa­Gevaert Ltd (1996) 186 CLR 389 at 398.

4. I start by considering the ordinary and natural meaning of the words in by­law 13(1)(a)(i).  According to the Australian Oxford Dictionary (2nd ed, 2004), the word 'use' has a variety of meanings, including, as a verb, 'cause to act or serve for a purpose; bring into service; avail oneself of'.  The word 'primarily' is defined in the Australian Oxford Dictionary as an adverb which is derivative of 'primary' which means 'of the first importance; chief; fundamental'.  The word 'primarily' appears to be synonymous with 'mainly' which is defined in the Australian Oxford Dictionary as 'for the most part, chiefly'.  As for the word 'residence', its definition in by-law 2 of the Charges By-laws is set out above.  In Abbey Beach Resort, the Tribunal held at [28] that the land was not 'being used wholly or primarily for the purpose of providing the owner or occupier of the land with a residence for himself, his family or servants, or any of them' because although syndicate members might have an occasional physical presence on the land, their investment properties could not be regarded as their settled or usual place of abode.

5. The dictionary meanings of the words 'used' and 'primarily' in by­law 13(1)(a)(i) disclose little in relation to the means for determining how land is 'used', and whether or not land is used primarily for one purpose as opposed to another, for the purposes of that by-law.  It has been observed that the word 'used' is 'a word of wide import and its meaning in any particular case will depend to a great extent upon the context in which it is employed':  Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493 at 515 (Taylor J); Ryde Municipal Council v Macquarie University (1978) 139 CLR 633 at 637 (Gibbs ACJ), at 651 (Stephen J) and at 663 (Aickin J); North Sydney Municipal Council v Lycenko & Associates Pty Ltd (1988) 67 LGRA 247 at 248 (Kirby P); see also Blackdown Properties Ltd v Ministry of Housing and Local Government [1967] Ch 115 at 122 ­ 123 (Stamp J).

6. A difficulty which often arises in determining the use of land is that land may have more than one use at any given time.  Phrases such as 'wholly or mainly' are commonly used in relation to the use of land in the context of taxing or rating legislation, in order to distinguish between uses of land which attract a preferential rate of, or exemption from, taxes or rates and uses which do not attract preferential rates or exemptions:  see, for example Hope v Bathurst City Council (1986) 7 NSWLR 669 (Hope) at 673 ­ 674 (Mahoney JA, Priestley JA agreeing).

7. The same rationale appears to underpin the use of the phrase 'wholly or primarily' in by-law 13(1)(a) of the Charges By-laws.  That is, the drafter appears to have used that phrase in order to confine the residential classification (and the application of the water charges which result from that classification) to those cases where land is used wholly for the purpose of providing a residence, or to those cases where the purpose of providing a residence can be said to be the chief or fundamental purpose of the use of the land. 

8. The question in the present case is whether that determination should take into account the intensity of the different uses of the land.  It is implicit in the respondent's submissions that in determining the purpose for which land is used, the intensity of the use (in this case measured in hours of use) should be taken into account.  In contrast, implicit in the Corporation's submissions is the view that determining the purpose for which land is used involves a focus on the physical use of the land and the functions served by the land. 

9. Three contextual considerations lead me to the view that the intensity of the different uses of land is not relevant to determining whether the land is used primarily for the purpose of providing a residence.  The first is that by­law 13(1)(a)(i) requires that the land be used wholly or primarily 'for the purpose' set out.  The word 'purpose' is defined in the Australian Oxford Dictionary to mean 'an object to be attained; a thing intended'.  The fact that by­law 13(1)(a)(i) refers to 'land used ... for the purpose of providing a residence ...' rather than to 'land used … for providing a residence' suggests that it is the purpose which the use of the land is intended to serve, rather than the extent to which that purpose is actually achieved, which is determinative of whether the classification applies.  On that view, the intensity of a particular use of the land is irrelevant to determining whether the land is used wholly or primarily for one purpose, as opposed to another purpose.

10. Secondly, it seems very unlikely that the drafter of the by-laws would have intended that a classification could be rendered inapplicable depending on the intensity of the use of the land.  By way of example, it is difficult to envisage that the drafter could have intended that land on which stands a house which is clearly designed to serve the function of providing a residence for an owner or occupier should no longer be classified as 'residential' if a tenant was unable to be found and the house lay vacant during the rating period.  By­law 13(1) of the Charges By­laws does not contain an alternative classification which would be capable of application in those circumstances.

11. Thirdly, by­law 13(1) of the Charges By­laws is found in a rating statute and the classification of land which is required under by­law 13 will necessarily be required to be undertaken in respect of thousands of pieces of land the owners of which may be liable to pay charges for the supply of water.  In Hope, McHugh JA (who was in dissent in that case) observed at [677] that:

    [t]he meaning which I have given to the expression 'wholly or mainly used' provides a practical and reasonably simple test.  It is not likely that, in an enactment dealing with rating, the legislature intended the Council to be engaged in a detailed analysis of the nature and intensity of the businesses or industries for which the land is used, the revenue and expenses of the enterprise, the time spent in conducting them, and a nice weighing up of the quality and quantity of the various uses.

12. In my view, similar considerations are applicable here.  It is very unlikely that the drafter of the by-laws would have intended that decisions as to classification of land under by-law 13 of the Charges By­laws would require the Corporation to make inquiries concerning the intensity of the use of land and to engage in a detailed analysis of the intensity of such use.  Factual information concerning the intensity of the use of land may be difficult and time consuming to ascertain, particularly for a third party such as the Corporation, and particularly where the intensity of the various uses may change over time.

13. If land is used for the purpose of providing a residence and for one or more other purposes, then by-law 13(1)(a)(i) of the Charges By­laws requires a judgment to be made as to whether the land is used wholly or primarily, in the sense of chiefly or fundamentally or mainly, for the former purpose.  That judgment may involve a consideration of a variety of factors such as whether those other uses involve the residence itself, a discrete part of the residence, or a building separate from the residence and the overall impression which is discernible from an inspection of the exterior of the land.  However, in my view, the intensity of the different uses of the land, whether measured in hours of use or in some other way, are not relevant to that judgment.

The purposes for which the Property is used

1. It is apparent from the photographs and from the respondent's submission that the video hire shop occupies a part of the building on the Property which is quite discrete from that part used for the residence.  The video shop is entered by an entrance separate from the entry to the residence.  Further, the rental agreements provided by the respondent expressly exclude that part of the building occupied by the shop from the part of the building which is subject to the residential tenancy.  A large sign on the front of the building clearly advertises the presence of the video shop.  Although the respondent submitted that the shop is open for only four days per year, the Corporation submitted that the 'front section [of the building] is at all times set up as a video hire shop'.  The signage and posters depicted in the photographs support the inference that the front of the building is occupied by the video shop even when it is not open for trade.

2. Having regard to the matters set out above, I have concluded that it is not possible to say that the Property is used 'primarily' in the sense of chiefly or fundamentally or mainly for the purpose of providing a residence.

3. In those circumstances, the correct and preferable decision is that the Property should be classified as 'commercial residential' under by­law 13(1)(b) of the Charges By­laws, rather than as 'residential' under by-law 13(1)(a).  I therefore affirm the Corporation's decision, as reflected in the Entry.

Order

The decision under review is affirmed.

I certify that this and the preceding [43] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUDGE J PRITCHARD, DEPUTY PRESIDENT