Consideration and Conclusion
190The onus requires an applicant to establish all the facts on which it relies to claim the exemption. In the present context, the applicants have to establish that, in respect of each property, a primary production activity was being carried on as at midnight on thirty-first December in the preceding year of each of the land tax years in issue. But, as pointed out by Gzell J in Leda, the 'inquiry is not limited to the use to which land is put on the relevant date. It extends to a consideration of its use during a reasonable period preceding and following the relevant date (Longford Investments Pty Ltd v Commissioner of Land Tax (NSW) (1978) 8 ATR 656 at 660-661)'. In his Honour's view in Leda was that -
... six months before and after the relevant date is a reasonable period for inquiry in this case. It allows for consideration of financial records pertaining to the uses to which the land was put.
191Dr Trenchev, the principal applicant, gave evidence and was cross-examined. His evidence is crucial to any consideration as to whether the applicants were engaged in any primary production activity in the land tax years 2006, 2007, 2008, 2009 and 2010 on the relevant properties.
192Dr Trenchev, in the years in question, was in a full-time pathology business and his own evidence is that the nut growing activity was carried on by him on a part-time basis.
193He was not able to give a precise date as to when he commenced nut tree growing on the properties. Initially he said it was 'a gradual process' and that it was sometime between 1999 and 2004. But, with some help from Mr Foster, Dr Trenchev said that by 2005, other than the Chaseling Road property, he had 'more or less covered all the farms'. But, in the farmland rating applications and his personal tax returns, the start date indicated was '2008'.
194It is also important to note that Dr Trenchev provided the only evidence of tree planting in the years in question. He personally did not undertake any 'actual physical count' and relied entirely on itinerant contract workers used for planting trees. The figures, he said, were recorded on 'pieces of paper' when his workers came in the morning and informed him of the number they planted the previous day. He indicated that he had destroyed the primary documents and had the information 'on a clean copy' which he had provided the respondent.
195No figures have been provided for any plantings in 2005.
196All the experts engaged by the applicants relied entirely on the figures produced by Dr Trenchev. Both Dr Orel and Mr Curry agreed in cross-examination that they did not have any firsthand knowledge of the trees planted or alive in the years in question. Similarly, Ms Field and Mr Robb also had no knowledge of the trees planted or alive in the relevant years. There is, therefore, completely absent in this matter any independent or good documentary evidence of tree planting in the years before the Tribunal. Even Dr Trenchev's own evidence is hearsay because he merely relied on what the itinerant workers told him, which would have been some basis for their remuneration. His own evidence was that these workers 'were not reliable'. No explanation was provided by Dr Trenchev as to how he counted the dead trees in each year.
197The itinerant workers were engaged, according to Dr Trenchev's evidence, on his behalf by Mr El Sayed, a travel agent. Although aware of his BAS information, Mr El Sayed was not produced to give any independent evidence of the number of such workers engaged and the nature of their work on the properties in the relevant years. Mr El Sayed issued tax invoices to Dr Trenchev and he would have firsthand knowledge of the nature of work done on the properties. In the absence of any other independent evidence, his evidence was crucial. I think, the Tribunal is, in the circumstances, entitled to make an inference that his evidence would have been adverse to the applicants' claim of cultivating nut trees in the relevant years on all the 27 properties (see: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298).
198The applicants did not employ any manager or any fulltime employees in the years in question. Mr Durack's view was that, in the case of the native pecan groves in the United States, they are 'intensively managed' by their commercial managers to ensure proper yields. He was also of the view that, at the establishment stage, proper care was essential. There is no evidence of any proper management of the cultivation on the properties in the relevant land tax years.
199As indicated above, Dr Trenchev was only able to look after his 'farms' on a part-time basis.
200Dr Trenchev's evidence was that the applicants were growing nut trees in an 'agroforestry situation'. His experts, Dr Orel and Mr Curry both expressed the view that there were many agroforestry farms successfully growing pecan nuts overseas and in the Sydney basin. Dr Trenchev's evidence, supported by his experts was 'if it can be done elsewhere, pecan nut trees should also be successfully grown by such methods on his properties'.
201The fallacy of this argument was best pointed out by Mr Durack, in response to Mr Foster in cross-examination -
... because it depends on more than just the geographic location. It depends very much on the soil types on these particular areas whether the trees are growing well and know the soil types on the farms.
...
Now, my experience with the agro forestry pecan operations that I have seen in the States is that they are very intensively managed - that is, that they're mown - in fact, they get bulldozers in to - you know, If there's unevenness in the land level it; they plant particular species underneath the trees that's suitable to harvest off. You know, it's a pretty active process and they spray them, they fertilise them. They undertake many if not all the practices that I would undertake in a commercial situation.
202Mr Durack was the only expert at the hearing of this matter with firsthand knowledge of native pecan groves in the United States and with vast experience of successfully growing pecan nut trees in Australia.
203As to irrigation during the years in question, Dr Trenchev's evidence was that he had ceased to use a drip irrigation system in 2005 because it did not function properly. He commenced to use the eco-planter in the latter half of 2009. His evidence was also that the very high death rate of the nut trees over the 2006 to 2008 years was due to the serious drought that occurred in that period. There is no evidence from Dr Trenchev or any independent witness as what efforts were made by the applicants in that period to irrigate the seedlings that had been planted.
204The evidence in terms of figures suggests there was an improved survival rate of nut trees in 2010. But there is no conclusive evidence that this was due to the use of the eco-planter. Both Mr Scholefield and Mr Walker were of the view that this might have been as a result naturally occurring rainfall. Mr Durack's opinion was that he did not think there is 'enough water in the eco planter to be certain that it will do it'. But what occurred in years 2010 onwards is of little relevance to determine what occurred in the years in question.
205Dr Trenchev agreed in cross-examination that he would sign any document prepared by Mr Paul Barry, his accountant, 'without reading it' because he trusted him. Dr Trenchev was then shown a land tax variation form for the 2007 land tax year, prepared by Mr Barry and signed by him in which he had stated that he was growing walnuts on some of his properties and had a rose nursery on another. Dr Trenchev's response was that he did not know why these statements were made by Paul Barry because 'Paul Barry has no idea' of his farming activities as he has never been to any of his farms.
206Dr Trenchev was further taken to his tax returns in cross-examination but offered little assistance to explain both income items and deductions claimed. He was of the view that Mr Barry prepared the tax returns and he did not have any idea in respect of these items.
207This was contradicted by Mr Barry who, in his cross-examination said that, as a matter of practice, he always acted on instructions given to him by Dr Trenchev and generally he would explain to Dr Trenchev the contents of the returns or other documents prepared by him before they were lodged or sent to the authorities.
208Dr Trenchev spoke of setting up a medical research foundation with the properties as assets to produce the income to support the work of the foundation. There is no evidence that any foundation has been set up and the properties continue to be owned by the applicants.
209Dr Trenchev's evidence as a whole was vague, imprecise, and incorrect or contradictory on some occasions.
210His evidence was self-serving and merely consisted of self-created documents and data. In Warriewood Pty Ltd v FCT (1993) 26 ATR 270 Lockhart J cautioned against the unqualified acceptance of such evidence:
Statements by taxpayers, and, in the case of corporate taxpayers, those who control and manage their affairs, must be scrutinized with care, weighed against the objective facts and the inferences to be drawn from the taxpayer's activities generally. Statements of this kind must "be considered most closely and received with the greatest caution": Pascoe v Commissioner of Taxation (1956) 30 ALJ 402 at 403 per Fullagar J".
211It is important to note that the applicants have not produced any independent evidence to corroborate Dr Trenchev's evidence.
212The short statement from George Youkhana, a courier employed by Dr Trenchev's pathology business adds very little to assist the applicants to discharge the burden of proof that is on them under the law. In the statement he stated that he had 'constantly seen thousands of plants at Dr Trenchev's property in Kemps Creek' and that he 'would often see four or five people working in Dr Trenchev's nursery looking after his little plants'. These very general observations made by an employee do not help the applicants because there is no evidence that he witnessed any activity on any of the properties in the relevant years.
213The applicants' two main experts, Mr Curry and Dr Orel, produced four reports, two each. When cross-examined by Mr Young, both agreed that they did not have knowledge of any activity on the properties in the relevant years and relied entirely on figures and information provided by Dr Trenchev. They both also agreed that they did not have any firsthand knowledge of pecan nut growing in either an agro-forestry environment or the traditional farming methods. They also agreed that they did not have any firsthand knowledge of the agro-forestry pecan nut growing in the United States and statements in their reports were from other experts who had such experience.
214Mr Curry made a number of statements, in his reports, which were not supported by any hard evidence.
215For example, he states in his second report -
From visits, observations as well as information and data provided by the Applicant it was apparent that during the period 2006-2008 the owner, employees and contractors 'cultivated', planted out and maintained several thousand nut trees on the subject properties. However many trees died as a result of the dry spell/drought from 2006-2009. This extreme event necessitated replanting of many hundreds of 'saplings' and the propagation of many more thousands of seedlings by the Applicant and staff.
216Mr Curry does not refer to any particular evidence in making this statement, which also contained serious factual errors. Dr Trenchev's own evidence was that he did not have any employees. No statement has been provided by the applicants from any contractors other than some tax invoices from Mourad El Sayed. If Mr Curry was privy to any evidence, it has not been produced. It is a reckless observation made without any foundation.
217There is no basis advanced by him as to what evidence supported the claim that there was 'cultivation of nut trees' on the properties in the period 2006-2008.
218He refers to 'visits and observations'. In preparing his first report he only visited five properties and in preparing his second report he visited all the properties, which on his own evidence was over 13-15 August 2012. The parties and the Tribunal were only able to visit nine properties in two days. These disparate properties, as indicated above, are spread over a vast area and any inspection of all the 27 properties within three working days would only afford some few minutes for inspection of each property. His evidence was that he was 'a couple of hours at each property'. Against that background, his conclusion in respect of each property is based on a very brief visit, which would not have been sufficient for him to properly reach the conclusions he has made in his reports. In any case they were made after viewing the properties in 2012 and are not relevant to the present matter.
219When cross-examined he agreed that there were several errors in his reports. He agreed that he had no firsthand knowledge of native pecan operations in the United States and the operations in the United States described by Mr Durack differed from those used by Dr Trenchev.
220His evidence was essentially based on data provided by Dr Trenchev and without any experience of firsthand knowledge of what was being done by the applicants in the years in issue.
221Dr Orel, who described himself as a scientist, claimed his expertise in pecan nut growing from the 'four and half years growing them from seed and from cuttings and all the observations' made during the period he was doing his Ph.D.
222Dr Orel, in cross-examination agreed that he has no direct commercial experience in pecan nut growing and also no firsthand knowledge of native pecan operations in the United States.
223What is important is that he also did not have any direct firsthand knowledge of the actual activities carried out on the properties during the period 2005 to 2010.
224Dr Orel in his second report states -
It is well-known and well-documented that actively growing nut trees are seen on Dr Trenchev's farms. Adult nut trees produce viable flowers and fruit for many years.
225No evidence was produced to support this claim. Dr Orel, however, in cross-examination corrected this statement by stating that he only saw two to five such trees but was not able state where they were located. Mr Scholefield, who with Mr Walker had inspected all the properties over a number of days but did not see any nut trees that had fruited or produced nuts, contradicted this evidence.
226Dr Orel has been in touch with Dr Trenchev since 2005, providing advice on at least one occasion as to the successful use of the eco planter. Against that background, he cannot be regarded as being entirely an independent expert witness.
227But, in any case, the applicants' two experts' evidence and reports dealt with a number of matters but provide very little information or any hard evidence to assist in determining the issues that under s 10AA(2) are relevant in respect of the years in issue. Their opinions as to the potential for nut farming in an agroforestry context on the properties is of little assistance to determine these issues. Their reports make interesting reading for any budding nut grower and may contain some good guidance for Dr Trenchev in the future but add very little to discharge the burden the applicants were required to discharge in this matter.
228Ms Rebecca Field was described by Mr Foster as 'more or less a tree counter'. She had, however, to recount the trees in respect some of the properties on Dr Trenchev's instructions because he was not satisfied that her figures were correct. She was asked to give her opinion as to whether any part of a property was not suitable for any agricultural use. In cross-examination she agreed that when she in her report speaks of 'unusable land' she was merely concluding that any such part of property was not suitable for nut tree growing and had not considered any alternative use the unused land could be put to.
229It should also be noted that Ms Field did not have any firsthand knowledge of growing pecan nuts either in an agroforestry context or in any commercial traditional manner.
230Her evidence on tree counting in 2013 was not relevant for purposes of this review. Ms Field in cross-examination also conceded that her counting included both live and dead trees because she was not able to distinguish one from the other. She was also not sure of the exact age of the trees, merely making a judgment on the basis of the type of ecoplanter found in respect of each tree.
231In her written report, Ms Field concluded in respect of each of the properties she inspected that 'the 'dominant use of useable land is agroforestry nut farming'. Although this reflects the use in 2013, she has not provided any reasoning for the conclusion in her report or oral evidence. In any case, the conclusion is clearly faulty because she only considered whether the land was suitable land for nut farming and not for any other kind of agricultural or non-agricultural use or pursuit, although the applicants' solicitors had instructed her to do so. In reaching the dominant use conclusion, she conceded in cross-examination that she compared the total area of land planted with nut trees with total area of land suitable for nut tree planting. And if a majority of the total area of the land suitable for nut growing was planted with nut trees, her conclusion was that the dominant use of the land of that particular property was for nut trees.
232Mr Robb clearly has very little expertise in pecan nut growing and his report in respect of some of the properties is of very limited assistance to the applicants. He merely made some very general observations of the properties he inspected.
233Mr Colaguri, the applicants' real estate agent's evidence is also of very limited assistance. In cross-examination he conceded that expenditure was incurred in respect of the rental properties to maintain them as habitable accommodation in accordance with rules and conditions for rental properties of the relevant councils and tenancy laws. This was somewhat in contradiction to his written statement that very little is done to maintain the rental properties.
234The applicants, in order to succeed, had to establish that on the 31 December in each preceding year in respect of each year in question, the activity conducted on the relevant land was the cultivation of nut trees and that use was the dominant use of the land. The inquiry to be made on the 31 December of the preceding year for any land tax year, 'is not limited to the use to which land is put on the relevant date' and a period of 'six months before and after the relevant date is a reasonable period for inquiry' (per Gzell J in Leda).
235In this matter there was an important threshold question as to whether the activities carried on each property was the cultivation of nuts for the purpose of selling the produce of the cultivation.
236The relevant provision found in s 10AA merely speaks of 'cultivation, for purpose of selling the produce of cultivation'. But is best understood when the cultivation is considered in the context of a primary production business. The use of the words 'selling the produce' clearly requires the activity to be a commercial undertaking. The various criteria that are used to determine whether an operation is a commercial undertaking would equally apply to determine whether an activity satisfies the requirement set out in s 10AA (3)(a).
237In this matter, the only evidence as to the cultivation of nut trees, besides Dr Trenchev's self created document setting out the number of trees planted and number alive before the Tribunal, was some tax invoices issued by Mourad El Sayed. These invoices are mainly for 'planting trees' and do not support any history of expenditure incurred for regular care in the cultivation of the 'trees planted'. Also these invoices do not state on which properties the planting occurred.
238No evidence has been produced as to any systematic after-planting care, for example, regular inspections, irrigation and fertilisation of these plants in the relevant years.
239Dr Trenchev's own evidence is that he did not use the eco-planter until sometime in 2009. His own evidence was that he had ceased using the drip irrigation in 2005 and hence between 2005 and until 2009 there is no evidence of any irrigation activity on the properties.
240Mr Durack with firsthand knowledge of native pecan groves in the United States explained in some detail the cultural practices used in the United States. In his opinion, the cause of death for many saplings planted by the applicants was 'almost certainly have been lack of water during critical early establishment period'. There is no evidence that any of the practices used by native pecan growers in the United States were used by the applicants during the years in question.
241No figures have been provided for 2005 but in years 2006 to 2009, ranging from 84% to 100% of the planted trees were recorded dead. But these figures are entirely those given to the respondent by Dr Trenchev. The experts, Mr Curry and Orel in their reports speak of the tree plantings in years 2011, 2012 and 2013 and their views on inspection of the properties more recently. Both in cross-examination agreed that they did not have any direct firsthand knowledge of the number of trees planted or alive in the relevant years. In fact, they agreed that they merely relied on figures provided by Dr Trenchev and did not see what activity was being conducted on the farms in any of the years in issue.
242Even when the parties and the Tribunal made the recent inspection of some of the properties, what was absent was any workers at any of the properties inspected. On the other hand, there was visual evidence that, although saplings had been planted more recently, the plants had not been maintained in any proper commercial manner. There was evidence of many dead trees and of neglect and damage to the applicants' ecoplanter system and to several plantings. Photographs, which highlight such neglect and damage, are attached to Mr Walker's affidavit sworn on 9 August 2013 (Exhibit R 20 and 21).
243What then motivates the applicants to continue what is described as 'planting of trees' in an agroforestry context on the 27 properties? In particular, when after all these years, with the exception of one or two trees, no evidence has been produced of any large scale mature nut trees on any of the properties that could be seen as a nut farm with prospects of 'selling its produce' in the future. My view is that, at stake in each land tax year, including those under review is the very substantial reduction of income tax payable by Dr Trenchev. In each year under review, a very large amount was distributed from his family trust, which receives income from his pathology business and it is effectively reduced by the expenditure that is claimed to be in relation to the alleged primary production activity on the properties. If the mere planting of nut trees is not accepted as a primary production activity by revenue authorities, Dr Trenchev would be liable to a very substantial income tax and land tax bill in each year.
244The relevant assessments the subject of the review can be affirmed on the basis that the applicants have failed to discharge the necessary onus to establish that, in the relevant years, the applicants were cultivating nut trees for sale of the produce, a prerequisite to the entitlement for the exemption under s 10AA. However, I will proceed to also consider whether the applicants have, on the assumption that they were involved in the cultivation of nut trees in the relevant years, satisfied the 'dominant use' test in respect of each property in each year under review.
245Having regard to the various factors, usefully summarised by his Honour Gzell J in Leda and other legal principles set out above, the question for determination in relation to the rental properties is whether the nut growing activity on each rental property, was the 'ruling, prevailing or most influential' use of the property as on 31 December of the preceding year for each year in issue.
246The essential short question is whether, in the relevant years, the primary production use of the properties predominated over the use of the land in each case for income-producing purposes through the derivation of residential income to stamp the land with the character of primary production land.
247No figures of any nut trees planted were before the Tribunal nor was there any evidence that there was any activity on 31 December 2005 or any evidence within the next six months. The assessments for land tax year 2006 must accordingly be affirmed.
248 In respect of the land tax years 2007, 2008, 2009 and 2010, including of course the 2006 land tax year, the rental income from the land in respect of each property clearly outweighs the extent and intensity of use of part of the land for any nut growing. The rent received in each year was substantial and each property was a residential property prior to any attempt by the applicants to plant nut trees on part of each property. The use did not change simply because some nut seedlings were planted. Until these seedlings had the potential of becoming the subject of any produce, the rental use would clearly predominate the planting use.
249In the case of the unoccupied properties, the percentage of land used for planting nut trees has to be contrasted with the percentage of land not used on 31 December of the preceding year in respect of each year under review to determine the dominant use. Unfortunately, no evidence has been produced to show what percentage of land was used in the relevant years. The only evidence but not tested, is the evidence of Dr Trenchev as to the number of seedlings planted and the number dead. No other evidence is before the Tribunal.
250The relevant unoccupied properties have not generated any income in the years in issue and in any subsequent year. It is necessary in each case to weigh the evidence relating to the use with respect to the degree, extent and intensity of the use. The inquiry in each case is essentially one of fact and degree.
251In the case of properties 1 - 3 (Lots 61, 62, and 63 Springwood Road Yarramundi), Ms Field, the applicants' tree counter was, in 2013, of the opinion that only 9.13% of the land is suitable for nut tree planting. Dr Trenchev's figures indicate that at the end of 2006 and 2007 all the trees planted were dead. And at the end of 2008 and 2009, 97.3% and 95% respectively of the trees planted were dead. These figures clearly highlight that it is difficult to conclude that the dominant use of the land in the relevant years was nut tree growing. Against the background that only a very small percentage of the land is suitable for nut tree planting, these three properties must be taken to be predominantly unused properties. The evidence establishes that the predominant use of the land in each case was not for cultivating nut trees for sale of their produce.
252In the case of property 4 (540 - 608 Halcrows Road, Cattai), according to Ms Field, 87.32% of the property was unsuitable for nut tree growing. The figures provided by Dr Trenchev indicate that, in 2006, all trees planted were dead by the year-end. At the end of 2007 and 2008, 99.4% percentage of trees planted were dead. At the end of 2009, 92.8% of the trees planted were dead. Against this background evidence, this property was not and not likely to produce any yield of produce for sale in the future. The property was dominantly unused in the relevant years.
253In the case of properties 5, 12, 14 (St Albans Road, Lower Macdonald and Webbs Creek Road, Webbs Creek) according to Ms Field, 97.86% of the land in respect of these properties was 'unplanted and unusable' for nut tree growing. Dr Trenchev's figures indicate that at the end of 2006 and 2007, there was not a single alive nut tree growing on these properties. At the end of 2008, there were only two trees alive and, at the end of 2009, there were 58 trees alive. Inspections by experts in 2012 and 2013 could not find any evidence of mature trees on these properties. Again, taking into account that only 2.14% of land is suitable for nut tree planting and the rate of trees dying in each relevant year, it is difficult to conclude that the land in respect of these properties was dominantly used for nut tree growing. The land was essentially unoccupied land in the years under review.
254Ms Field was of the opinion that, in the case of property 6 (66 Mountain Lagoon Road, Bilpin), 77.74% of the land was not suitable for nut tree growing and was unoccupied. At the end of the relevant years, ranging from 93% to 99% of the trees planted were dead. These figures by themselves suggest that the land could only be regarded as unused land in the years under review.
255In the case of property 7 (Chiefly Road, Lithgow), Ms Field was of the opinion that 93.8% of the land was not planted and was not suitable for nut trees. On the 6.2% useable land, no trees were planted or alive at the end of the 2009 year. In respect of the years 2006 - 2008, ranging from 99% to 100% of the trees planted were dead in each year. The land can only be said to be unused land, against the evidence provided by the applicants.
256In the case of properties 8, 15, and 17 (Irwins Road, Blaxlands Ridge/East Kurrajong), Ms Field was of the opinion that 88.2% of the land was not planted and was unusable for nut trees. A substantial number of trees ranging from 100% in 2006, 99.7% in 2007, 99.1% in 2008 and 76.3% in 2009 were dead at the end of the relevant year. Against this evidence, the only conclusion that can be reached is that the use of the land in respect of any activity of nut tree growing in the relevant years was not the dominant use of the land. It was essentially unused land in the years in question.
257In the case of property 9 (432 Webbs Creek Road, Webbs Creek), Ms Field noted that the total area planted was only 5.38% and that 94.62% was unplanted and unusable land for nut trees. At the end of 2006 and 2007, 100% of the trees planted in each year were dead. For 2008, the figure provided by Dr Trenchev was 96.6% and in 2009, 88.9%. In the years in question the land was essentially unused land as at 31 December of each preceding year.
258In the case of property 10 (132 Webbs Creek Road, Webbs Creek), only 8.1% of the land was, in Ms Field's opinion, suitable and planted with nut trees in 2013 when she inspected the property. Dr Trenchev's figures of trees planted and alive were, in 2006, 32 trees planted and 100% dead, in 2007, 27 trees planted and 100% dead, in 2008, 39 trees planted and only two alive and in 2009, 35 trees planted with 11 alive. These figures do not support the applicants' contention that the dominant use of the land in the relevant years was for primary production. It was unused land in these years.
259In the case of property 13 (100-102 Rickards Road, Agnes Banks), Ms Field was of the opinion that 30.47% percentage was planted and suitable for nut tree growing when she inspected the property. Mr Walker's view was that it was not suitable land for nut growing and Mr Durack was of the opinion that the land was 'suitable soil for killing a pecan'. Dr Trenchev's figures indicate that, in 2006, 310 trees were planted and only one was alive at the end of the year. In 2007, 287 trees were planted and none was alive at the end of the year. In 2008, 303 trees were planted with four alive at the end of the year. In 2009, 352 trees were planted and 36 were alive at the end of the year. In these years, from these figures, it is difficult to see that Dr Trenchev would get any produce for sale and, in any case, the land was dominantly unused land.
260In the case of property 16 (1427 River Road, Lower Portland), Ms Field was of the opinion, in 2013, that only 2.91% of the land was suitable for nut tree growing and was planted with nut trees. Mr Walker was of the opinion that the whole land was not suitable for nut tree growing. Dr Trenchev's figures indicate that he planted ranging from 11 to 14 plants with 100% dead at the end of 2006, 2007 and 2008. At the end of 2009, there was one tree alive. This was clearly not a property where one could say that the dominant use of the land in the relevant years was primary production. The land was predominantly unused land in the relevant years.
261In the case of property 27 (66 Chaseling Road, Webbs Creek) the claim for exemption was only for the 2008 - 2010 land tax years. Ms Field was of the opinion that only 2.46% of the land was planted and usable for nut trees. There is no evidence as to the number of trees planted or alive on the property as at 31 December 2007. In the case of 2008, 94 trees were planted with 92.6% dead at the end of the year. In 2009, 88.8% of the trees planted were dead at the end of the year. The area used and the intensity of the activity in 2007, 2008, and 2009 would also not assist the applicants. The land was, in those years, essentially unused land.
262In the case of property 20 (106 Golden Valley Road, Glossodia), a non-rural property and a rental property, the applicants were also required to establish other elements set out in s 10AA(2). The applicants had to establish that, in the years in issue, the land was used for primary production and that use of the land in each year had a significant and substantial commercial purpose or character and the applicants were engaged in the primary production activity for purpose of a profit on a continuous or repetitive basis. The only evidence provided by Dr Trenchev was that trees alive in the relevant years were as follows:
Date Trees Alive
2006 3
2007 4
2008 5
2009 12