Appellant v Respondent

The appeals

1 These five appeals all raise the question of the appellant's liability to pay land tax under the Land Tax Act 1958 ("the Act") between 1999 and 2003, in respect of land which it owned at Mt Martha.

2 Initially, the Commissioner of State Revenue assessed the land as exempt. On 7 March 2003, the Commissioner issued notices of amended assessment for 1999, 2000, 2001 and 2002 and a notice of assessment for 2003. An amended 2003 assessment was issued on 2 May 2003[1]. In each case, the assessment related to land of which the appellant was owner as at midnight on 31 December prior to the assessment year. The appellant lodged an objection, dated 9 May 2003, in respect of the assessments. On 14 November 2003, the Commissioner disallowed each of the objections.

3 At the appellant's request, the Commissioner referred each of the objections to this court as an appeal[2]:

4 As the same evidence and arguments were relied upon in each of the appeals, it is convenient to deliver one set of reasons for decision.

Ownership and use of the land

5 In 1968, the appellant bought approximately 224 acres of land at Mt Martha[3]. At the time of purchase, the land, whilst on one certificate of title, comprised two parts which were referred to as the "Hearn Road land"[4] and the "Hove Road land"[5]. There have been several substantial subdivisions of the Mt Martha land, including during the late 1990s, when the appellant subdivided and sold a substantial portion of the Hove Road land. After 2000, it remained the owner of the balance of that land[6], which is on Hull Road. For convenience, I use the term "the Hull Road land" to refer to the appellant's non-Hearn Road land, whether in its original or reduced form, and "the land" to refer to the whole of the appellant's land at Mt Martha.

6 When the appellant bought the land, it included two water courses which were designated as stream protection reserves. One of those reserves ran in a way such as to effectively separate the land into two parts.

7 In September 1989, the president, councillors and ratepayers of the Shire of Mornington took an easement for municipal purposes over the stream protection reserves and some surrounding land for public purposes. It was rezoned as public conservation and resource land ("the council land"). Since September 1994, the council has been the registered proprietor of the council land[7], thus at all relevant times providing a land barrier in separate and unrelated ownership between the Hull and Hearn Road lands.

8 In about 1989, a fence was erected along the boundary of the council land. There is a dispute in the appellant's evidence as to the extent to which that fence prevented movement across the land; this evidence will be discussed later.

9 Originally, the appellant used the Hearn Road land to cultivate native plants to sell to florists. At all times relevant to these appeals, the Hearn Road land has been used primarily for the agistment and grazing of cattle. For many years, the Hull Road land was used as a pine plantation. The pine trees, which were planted in the early 1970s, were harvested around 1996 or 1997. The stumps were then removed by controlled burning. Part of the Hull Road was subdivided; between 1996 and 2000, the lots created by the plans of subdivision were sold. The Hull Road land remaining after the subdivision was sown to crop and also used for cattle grazing.

10 Both the Hearn and Hull Road lands have been affected by the Victorian Government's extensions to the metropolitan areas of Melbourne. Their zoning as "urban" or otherwise has an impact on the land tax exemption which may be available to the appellant.

11 The Hearn Road land was included in an "urban zone" from 24 June 1993 until 6 May 1999. It has also been in an urban zone since 17 December 2002. However, from 7 May 1999 until 16 December 2002, the Hearn Road land was not gazetted as falling within an urban zone.

12 The Hull Road land was zoned urban from 24 June 1993 until 6 May 1999 and again since 14 November 2000. However, from 7 May 1999 until 13 November 2000, the Hull Road land was not gazetted as falling within an urban zone.

13 The Commissioner originally assessed the appellant for land tax, for each of the land tax years 1999 to 2002, on the basis that both the Hearn and Hull Road lands were exempt as being land used for primary production purposes. In July 2002, the Commissioner commenced an investigation to determine whether the land was entitled to such an exemption. Following that investigation, in early 2003, the amended land tax assessments and the 2003 assessment were issued.

14 The Commissioner has not issued a special land tax assessment under s 10 of the Act in respect of any part of the land.

Summary of issues

15 These appeals raise a number of factual and legal issues.

16 The primary legal issue is this: when land which has been exempt ceases to be exempt, can the Commissioner issue an ordinary land tax assessment pursuant to s 8, without having first issued a special land tax assessment pursuant to s 10, of the Act? The Commissioner contends that he can; the appellant disputes that.

17 In the notices of objection and written outline of argument, the appellant had also disputed the scope of the Commissioner's power to issue an amended assessment under s 19. However, that point was not pressed before me in oral argument. The only way in which s 19 remained relevant was in connection with s10. However, as the Commissioner did not dispute that s 19 would not enable him to do something which was inconsistent with his power under s 10, there seems to be no live issue relating to s 19 of the Act.

18 The final legal issue relates to the Commissioner's entitlement to amend an assessment that is more than 3 years old, having regard to the Commissioner's own guidelines on retrospectivity.

19 The factual issues are:

(a) At the relevant times, did the land comprise one or two "parcels", within the meaning of s 3(1) of the Act?

(b) For those periods of time when the land was not within an urban zone, was it exempt from land tax pursuant to s 9(1)(h), on the basis that it was land used for primary production?

The special land tax argument

20 The appellant argues that when land which has been exempt ceases to be exempt, it cannot be assessed for land tax pursuant to s 8 without a special land tax assessment first being issued pursuant to s 10 of the Act. In this case, the Commissioner has not issued a special land tax assessment. If the appellant is correct in relation to the s 10 argument, that is sufficient to find in its favour in each of the appeals. Accordingly, I will consider this argument first.

21 The Commissioner argued that the appellant's contention in relation to the proper construction and operation of s 10 did not form part of the grounds stated in any of the objections and the appellant ought not be permitted to rely upon it in these appeals[8]. During the course of hearing of the appeals, I granted leave to the appellant to raise its s 10 argument. I did so because the points raised involved only a matter of statutory construction, required no additional evidence to be led, raised matters of general principle[9] and were able to be dealt with by the Commissioner's counsel.

22 What I will refer to as "ordinary" land tax is imposed by s 8, the relevant part of which was in the following terms:

"(1) Subject to sub-section (2) tax on land shall in the case of each owner thereof be assessed charged levied and collected by the Commissioner for each year on the total unimproved value of all land of which he is the owner at midnight on the thirty-first day of December immediately preceding the year for which such tax is assessed charged levied and collected."

23 Section 9 of the Act then set out various exemptions from land tax, the only one of which is relevant here is the primary production exemption in s 9(1)(h).

24 Special land tax is dealt with in s 10 of the Act, which relevantly stated as follows:

"(1) Where any land which is exempt from land tax by the operation of section 9(1) (b), (g), (h), (ha) or (i) ceases to be exempt from land tax (otherwise than by reason of the coming into operation of section 9) a special land tax at the rate of five cents for each dollar of the unimproved value of the land or that portion of the land which has so ceased to be exempt, as the case may be, shall be payable to Her Majesty -

(a) in the case of land which ceases to be exempt immediately or within 60 days after the change of ownership, by the person who was the owner thereof immediately before such change of ownership; and

(b) in any other case, by the person who is the owner immediately after it ceases to be so exempt.

(1A) Special land tax payable in accordance with paragraph (a) of sub-section (1) shall be payable immediately after the land ceases to be exempt.

(2) The special land tax shall be charged levied and collected by the Commissioner in accordance with the provisions of this section.

(3) The special land tax shall be due and payable on a date stated in the notice of assessment to be the due date which date shall not be less than 14 days after the service of such notice.

(4) The provisions of sections 3, 3A, 9, 9A, 16, 19, 20, 21, 24A, 25, 38, 39, 58, 59, 60, 61, 62, 65, 66, 67, 91A, 91B, 91C and 97 apply to the special land tax as though it were land tax but save as aforesaid no other provisions of this Act shall apply.

(5) In the application of the sections referred to in sub-section (4) for the purposes of this section any reference to land tax or to tax shall be read as a reference to special land tax."

25 Special land tax is a different creature from ordinary land tax, as recognised by s10(4) and (5).

26 There is a dispute between the parties as to when land "ceases to be exempt" for the purposes of s 10(1) and (1A). It is agreed that such a concept involves the land being exempt at one point in time and ceasing to be exempt at a later point in time. However there is a dispute as to when that later point in time should be.

27 On the one hand, the appellant contends that land "ceases to be exempt" only at midnight on 31 December when the owner would otherwise be assessed under s 8. If land has ceased to be exempt at that date, the Commissioner must issue a special land tax assessment that year before he can issue an ordinary assessment in any subsequent year.

28 On the other hand, the Commissioner says that one must look at the actual date upon which the exempting circumstances or characteristics described in the relevant part of s 9 cease to pertain. Special land tax is payable for the balance of the land tax year in which the exemption ceases and ordinary land tax commences in the following land tax year. I agree with the Commissioner, for the following reasons.

29 Land tax is an annual tax, determined by ownership of land as at midnight on 31 December of the preceding year[10]. Where land has been assessed as exempt from tax for an assessment year, the exemption applies for the period 1 January to 31 December of that year. The expression "exempt from land tax" in s 10(1) is a reference to the exemption enjoyed by the land for a particular year of assessment. The exemption which land enjoys for a particular year of assessment cannot extend to a date after 31 December of that year. However, depending on its location, use and ownership as at midnight of 31 December of that year, the land may enjoy an exemption in the subsequent year. I agree with the Commissioner that "ceases to be exempt" would be an odd expression for the legislature to have used, if it was intended to mean no more than that the exemption naturally expires.

30 The expression "ceases to be exempt" appears in the introductory words of s 10(1), in each of ss 10 (1) (a) and (b) , as well as in s 10(1A). The Commissioner's construction permits the expression to have the same meaning in each place that it appears in s 10. On the other hand, the appellant's argument requires a different meaning in the case of cessation due to change of ownership (s 10(1)(a) and (1A)) and cessation due to some other reason; there is no obvious reason why parliament should have intended the same expression to have such different meanings within the same section.

31 I find that the expression "ceases to be exempt", wherever it appears in s 10, refers to the cessation of an exemption from land tax for an assessment year but necessarily occurs on a date within that assessment year. That construction is consistent with the very nature of special land tax. It is a "one-off' tax, to be imposed upon cessation of the exempt status of the land until the following 31 December, after which time ordinary land tax will then be imposed (assuming no exemption is available as at 31 December). It is a tax at a considerably lower rate than ordinary land tax, which applies irrespective of how many or how few days remain until 31 December.

32 If the appellant's argument was correct, that would mean that, upon the cessation of an exempt use, a taxpayer would pay no land tax until after the next 1 January, would then pay special land tax for 12 months, before paying ordinary land tax in the year after that. There is no apparent legislative purpose behind the provision of such a reduced tax regime. In so far as parliament may have been concerned about possible financial hardship caused by the imposition of land tax due to rezoning of land, cessation of a business and the like, s 10(1B) allows a taxpayer to defer the actual payment of (but not the liability for) the special land tax for up to 3 years. Had parliament also wanted to provide some sort of financial "buffer", in the form of an entire year of reduced land tax at special land tax rates, it could easily have done so by different drafting.

33 The Commissioner relies upon the decision of Pagone J in Allan v Commissioner of State Revenue[11] in which his Honour considered the meaning and effect of s 10(1). In that case, certain land was exempt under s 9(1)(ha) until 18 August 1999, at which time the owners sold it to the Minister for Education. The Commissioner contended that the land became subject to special land tax under s 10(1) upon it ceasing to qualify for the s 9(1)(ha) exemption. The taxpayer argued that the requirements for assessment under s 10 had not arisen, because the land continued to be exempt, albeit under a different sub-section, namely, s 9(a).

34 The particular issue which Pagone J considered was whether s 10(1) can apply where the contemplated basis for exemption has ceased, but the land remains exempt from land tax for some other reason. His Honour expressed the opinion that the enactment of s 10(1) reflects an intention to enliven a liability for land tax upon the cessation of a use. In the case before him, that meant the liability to pay special land tax arose upon the cessation of the primary production use under s 9(1)(ha). Although Pagone J was concerned with cessation due to change of ownership (s10(1)(a)), his comments appear to be of general application. Certainly, he did not suggest (as the appellant does here), that the concept of cessation of exemption has a different meaning in s 10(1)(a) and (b).

35 In the Allan decision, his Honour found support in the second reading speech for what became the Land Tax Act 1970. That legislation introduced s 10 into the Act. On that occasion, the then Premier and Treasurer stated:

"Secondly, the owners of land which is exempt will become liable for a special land tax when that land ceases to be used for the exempt purpose. ... So long as the exempt use continues, there will be no liability for land tax, but when the exempt use ceases, a special land tax will become payable in the year of cessation."[12]

36 In my opinion, the reference to special land tax becoming payable "in the year of cessation" strengthens the Commissioner's construction argument.

37 The appellant rightly points out that land use may change over the course of a year. It may be difficult to determine at any particular point in time whether land is being used for a relevant purpose. For example, land used for primary production may only be used on a seasonal basis or may be left to lie fallow for some period of time. But that is a problem which arises whichever construction is adopted. In such a case, one would have to look at the activities carried out over a period of time to determine whether or not the land had ceased to be used for an exempt purpose. If there is some doubt as to whether in fact a particular usage has ceased at any particular point in time, that may lead the Commissioner to be more cautious about issuing a special land tax assessment during the course of the land tax year.

38 Finally, the Commissioner does not contend that both special and ordinary land tax can be imposed in the same year. Accordingly, the Commissioner's construction does not involve the possibility of double taxation, as the appellant contends.

39 For these reasons, the Commissioner was entitled to issue an ordinary land tax assessment in respect of the land, without first issuing a special land tax assessment.

The retrospectivity argument

40 The appellant raises a separate legal argument which applies only to the 1999 assessment. It arises out of the Commissioner's own guidelines in relation to retrospectivity.

41 In October 2002, the Commissioner issued Revenue Ruling GEN.012, which applied to State taxes generally. Under the heading "Reference Date for Period of Retrospectivity", it stated:

"As a general rule, the SRO will limit the period of retrospectivity for an assessment (or a series of assessments) to a 3 year period. The period of retrospectivity is determined by reference to the date of a voluntary disclosure, the date on which an investigation commenced or the date on which a taxpayer is advised of a tax liability, whichever occurs first. A voluntary disclosure is made when the SRO receives the written voluntary disclosure."

42 That general rule was varied in respect of pay-roll tax and land tax. In respect of land tax, the ruling stated that:

"... the period of retrospectivity will be the three calendar years preceding the event which identified a taxpayer's liability to pay land tax. A calendar year runs from 1 January to 31 December."

43 The appellant argues that ruling GEN.012 precludes the Commissioner from issuing the 1999 amended assessment. I disagree, for the following reason.

44 In the present case, the Commissioner commenced his investigation in July 2002 and made the 1999 amended assessment in March 2003. There was no voluntary disclosure. However, it is not necessary for me to resolve a dispute which arose between the parties as to whether "the event which identified a taxpayer's liability" is the same for land tax as for other types of tax.

45 The fundamental problem which the appellant faces is that the revenue ruling has no binding legal effect. It represents no more than a statement of the Commissioner's policy. It expressly informs its readers that it does not have the force of law and ought not be relied upon. It cannot operate as an estoppel against the operation of the provisions of the Act[13]. The appellant did not refer me to any authority in support of an argument that the revenue ruling is legally binding.

46 Although the appellant also referred me to GEN.013, which replaced GEN.012, as that ruling did not come into effect until September 2005, it is not relevant to the Commissioner's power to issue the amended assessments in March 2003.

47 It follows that the Commissioner was not precluded from issuing the 1999 amended assessment by reason of his own revenue ruling.

The primary production exemption

48 The only exemption provision now relied upon by the appellant is s 9(1)(h) of the Act. The appellant's earlier objection, based on s 9(1)(ha)[14], has been abandoned.

49 Section 9(1)(h) provided for an exemption from land tax for:

"Land comprising one parcel which is wholly or partly within the metropolitan area (within the meaning of section 201 of the Melbourne and Metropolitan Board of Works Act 1958) none of which is within an urban zone and which is land used for primary production."

50 In s 3(1) of the Act, "parcel" was defined to mean:

"lands which are contiguous or which are separated only by a road or railway or other similar area across or around which movement is reasonably possible and which are owned by the same person."

51 "Land or lands used for primary production" was relevantly defined in s 3(1) in the following terms:

(a) the cultivation thereof for the purpose of selling the produce of such cultivation; or

(b) the maintenance of animals or poultry thereon for the purpose of selling them or their natural increase or bodily produce; ..."

52 It is not necessary for me to consider the definition of "urban zone" for the purposes of s 9 of the Act, because the parties agree that:

(a) At the relevant time for the 1999 assessment, both the Hearn Road land and the Hull Road land (in its original, undivided state) were wholly within an urban zone;

(b) At the relevant time for the 2000 assessment year, no part of the Hearn Road land or the Hull Road land (in its then state) was within an urban zone;

(c) At the relevant times for the 2001 and 2002 assessments respectively, the Hull Road land (insofar as it remained under the ownership of the appellant) was wholly within an urban zone, while no part of the Hearn Road land was within an urban zone;

(d) At the relevant time for the 2003 assessment, both the Hearn Road land and the Hull Road land were wholly within an urban zone.

53 The Commissioner has correctly identified the remaining factual issues to be addressed by the court as follows:

(a) Did the land "comprise one parcel"? If so, the presence of the Hull Road land within an urban zone at the relevant times for the 2001 and 2002 assessments would deny the land an exemption under s 9(1)(h) for those years.

(b) If the land comprised one parcel, was the land used primarily for primary production purposes at the relevant time for the 2000 assessment?

(c) Alternatively, if the land did not comprise one parcel:

(i) Was either the Hearn Road land or the Hull Road land "used for primary production" at the relevant time for the 2000 assessment?

(ii) Was the Hearn Road land "used for primary production" at the relevant times for the 2001 and 2002 assessments?

54 The Commissioner says that at all relevant times the Hull and Hearn Road lands comprised one parcel for the purposes of s 9(1)(h)[15], the appellant says they comprised two. Were the Hull and Hearn Road lands "contiguous or ... separated only by a road or railway or other similar area across or around which movement is reasonably possible?"

55 I was referred to the decision in North v South East Qld Water Corp Ltd[16], where Muir J considered the meaning of "contiguous" in the context of a lease. The judge noted that it is not a word of precise meaning and the Oxford English Dictionary defines it variously as "touching, in actual contact, next in space, meeting at a common boundary, bordering" as well as "neighbouring, situated in close proximity (though not in contact)". Given those different usages, the judge concluded, correctly in my opinion, that "contiguous" has to be construed in the context in which it arises. In the case of the lease in question, the term "contiguous" could accommodate "parcels of land bordering or touching save for a public road which forms a common boundary".

56 Here, the statute is concerned with land which is "contiguous or ... separated only by a road or railway or other similar area across or around which movement is reasonably possible." In my opinion, that suggests that "contiguous" is used in the stricter sense of "touching or being in contact with". If it only meant "neighbouring or in close proximity to", there would be little need for the additional words. On that construction, the Hearn and Hull Road lands were not contiguous, as they were separated by the council land.

57 The question then is whether they were separated only by a "similar area", namely the council land, across or around which movement was reasonably possible. The appellant conceded that the concept of "other similar area" would be broad enough to include a river or public walking track. However, it submitted that the concept required the area to be publicly owned and the access across the land to be thereby permitted. I see no reason to import such a requirement into the provision. Roads and railways may be publicly or privately owned, and the definition seeks to draw no distinction between the two. Whether a road, railway or "other similar area", the critical question is whether it is an area across or around which movement is "reasonably possible".

58 In so far as it ever contained water, the stream that ran over the council land was seasonal and not of a size or depth to constitute an impediment to crossing the council land. As well as this natural drainage area, the council land also contained a public recreation reserve. Although part of the council land seems to have had steep banks near the water course, other parts were clearly more easily crossed.

59 It may be recalled that the council land was fenced off in or about 1989. The evidence of Ian Raymond Veall, a director of the appellant, was to the effect that there was double fencing which continued the whole way across the land, so that it was not possible to access the Hull Road land from the Hearn Road land without leaving the land and travelling along neighbouring public roads. He said it was not reasonably possible to move across the council land between the Hearn and Hull Road lands. Mr Veall's evidence was acquired principally as a director, and he appeared to have little personal knowledge about the land and its use at the relevant times.

60 The appellant also called Walter Wedgwood, the farmer who had agisted cattle on the land over a number of years. His evidence was that at all relevant times there was an opening in the fence, through which cattle and a tractor could and did readily pass between the Hull and Hearn Road lands and over the council land. At the point of the opening in the fence, the council land was apparently no more than some 10 to 15 metres wide. I prefer Mr Wedgewood's evidence to that of Mr Veall, as it was based on greater personal knowledge and experience of the fence.

61 Accordingly, I find that the council land was an area across which movement was reasonably possible at all relevant times. The Hull and Hearn Road lands were one parcel, for the purposes of s 9(1)(h) of the Act.

Use of the land

62 The appellant claims that all of the land was used primarily for primary production purposes in the relevant years. In considering the evidence, I accept that the use of only a portion of the land for primary production purposes would not satisfy the requirement of the exemption that the parcel itself be used "primarily" for such purposes[17].

63 The supporting evidence is clearest in the case of the Hearn Road land. There was no dispute that the Hearn Road land was at all relevant times used for the purpose of the agistment and grazing of cattle by Mr Wedgewood, a neighbouring farmer. A written agistment agreement, dated 1 February 1997, permitted Mr Wedgewood to agist stock on the Hearn Road land for a total sum of $2 for the term of the agreement, which was until terminated by either party. A later agreement, dated 1 July 2000, permitted him to agist cattle and horses on the Hearn Road land for a period of 3 years with an option of a further 2 years, at a fee of $500 per quarter. The cows were owned by him for commercial purposes and were sold in due course. I am satisfied that this is sufficient to establish that the Hearn Road land was used primarily for "the maintenance of animals ... for the purpose of selling them or their natural increase or bodily produce", within the meaning of s 3(1).

64 Although there was evidence that the appellant also ran some of its own cattle and horses on the Hearn Road land, there was no evidence as to precisely when that was done or that it was done for a commercial purpose which would satisfy s 3(1).

65 In relation to the Hull Road land, the appellant sought to establish primary production usage through both cattle grazing and crop cultivation.

66 Although the agistment agreements only referred to the Hearn Road land, the uncontradicted evidence of Mr Wedgewood was that throughout the period from 1997 to 2004, he also agisted cattle on the Hull Road land. He said he started agisting cattle there after the pine plantation was harvested in about 1997. He typically had between 12 and 30 cows agisted on the Hull and Hearn Road lands.

67 After the pine trees were cleared from the Hull Road land, the tree stumps were burned. Thereafter, there was an outbreak of bone seed, a noxious weed, which required eradication before another crop could be planted successfully. The appellant sought advice from the Department of Natural Resources & Environment as to how to rid the land of bone seed. An oaten hay crop was planted in mid 1998, but it failed and had to be ploughed back into the ground in early 1999. The appellant then left the land fallow and took steps to eradicate the bone seed as it germinated each year. A lucerne crop was sown around 2002 or 2003 to improve the quality of the regenerating pastures. That crop was not grown for sale purposes and was ultimately given to Mr Wedgewood as feed for his stock. There has been no subsequent use of the Hull Road land for crop production purposes.

68 Even making allowance for fallow years and land regeneration, I strongly doubt whether, at the relevant times, the Hull Road land would have satisfied the requirement that it be used for cultivation "for the purpose of selling the produce of such cultivation." However, it is not necessary for me to decide that matter, as I am satisfied that the agistment and grazing of Mr Wedgewood's cattle was sufficient to establish the relevant primary production usage on the Hull Road land.

69 The grazing of Mr Wedgewood's cattle occurred over the majority of the land. There is no evidence of any other non-primary production usage of the land. It follows that the appellant has persuaded me that the Hull and Hearn Road lands were both used primarily for primary production purposes at all times relevant to these appeals.

Conclusions

70 The failure of the Commissioner to issue a special land tax assessment did not prevent him from issuing any of the 1999 to 2002 amended assessments or the 2003 assessment.

The 1999 land tax year

71 The Commissioner is not precluded by the revenue ruling from issuing an amended assessment for this year.

72 It being agreed that all of the land was wholly within an urban zone at the relevant time, no primary production exemption was available.

73 Accordingly, the appeal in No 4878 of 2004 should be dismissed.

The 2000 land tax year

74 No part of the land was within an urban zone. The Hull and Hearn Road lands comprised one parcel. Both were used primarily for primary production purposes. Therefore the primary production exemption applied in this year.

75 Accordingly, the appeal in No 4879 of 2004 should succeed.

The 2001 and 2002 land tax years

76 The lands comprised one parcel. The Hull Road land was wholly within an urban zone. Therefore the appellant did not satisfy the requirement in s 9(1)(h) that none of the land be within an urban zone. Therefore no exemption applied in these years.

77 Accordingly, the appeals in No 4880 and 4881 of 2004 should be dismissed.

The 2003 land tax year

78 It being agreed that all of the land was wholly within an urban zone at the relevant time, no primary production exemption was available.

79 Accordingly, the appeal in No 4882 of 2004 should be dismissed.

Orders

80 I will hear from the parties as to the precise form of orders and as to costs.

[1] The amendment to the 2003 assessment was made for reasons unrelated to these appeals.

[2] Pursuant to s 25(1)(b) of the Act.

[3] Being the land then comprised in certificate of title volume 8820 folio 598.

[4] Being 121 Hearn Road and lots 3, 4 and 5 Hearn Road, Mt Martha.

[5] Being lot B 24 Hove Road, Mt Martha.

[6] Being lot C 1A Hull Road, Mt Martha.

[7] Being the land contained in certificate of title volume 9900 folio 656.

[8] Section 26(1)(a) of the Act limits a taxpayer to the grounds stated in its objection unless the court otherwise orders.

[9] The equivalent provision in the recently amended Act retains the same basic scheme. Accordingly, the question of interpretation of the special land tax provisions remains of general interest.

[10] See sections 6 and 8 of the Act.

[11] [2002] VSC 67.

[12] Hansard, Legislative Assembly, 19 November 1970 at p 2203.

[13] Federal Commissioner of Taxation v Wade [1951] HCA 66; (1951) 84 CLR 105 at 117; Bellinz v Commissioner of Taxation [1998] FCA 615; (1998) 84 FCR 154 at 164.

[14] The exemption which applies to land which is used solely or primarily for the business of primary production, and where certain other criteria are met.

[15] The word "parcel" appears to have a different meaning when used elsewhere in the Act, for example in s 8(3).

[16] [2003] QSC 407.

[17] Abbott v Commissioner of Land Tax [1985] VicRp 15; [1985] VR 164.