1. At and prior to the 31 December 2011, the applicant was the registered proprietor of both the O'Herns Road property and the Cooper Street property. For many years, going back to 1929, the applicant and his family before him used the O'Herns Road property for cattle grazing which property was entitled to the exemption pursuant to s.67 of the Act (that section is set out below later in this decision), or its predecessor.
2. In May 2011, the Commonwealth Bank of Australia (CBA), as Mortgagee, entered into possession of the O'Herns Road property. Subsequent to the CBA entering into possession of the property, the CBA granted the applicant an agistment licence so that he could graze cattle on the O'Herns Road property. That agistment licence was terminated by notice on 12 September 2011 which notice, required the applicant by 12 October 2011 to remove all his cattle from the O'Herns Road property.
3. The O'Herns Road property was sold by the CBA on 24 August 2011 to a developer. Pursuant to a special condition in the terms contract of sale the purchaser was given access to the O'Herns Road property prior to settlement, for the purpose of environmental testing. It was because of the environmental testing, that the applicant was required to remove his cattle from the O'Herns Road property by 12 October 2011. It should be noted, that in fact the cattle were removed from the property many days later but prior to the end of October of that year.
4. After the applicant removed his cattle from the O'Herns Road property, his removable cattle yard remained on the property. Further, the applicant gave evidence that after the cattle were removed from the O'Herns Road property, on occasions after the 31 December 2011 he attended the property in order to spray so that weeds would be removed. He said also that there were occasions where he attended the property for the purpose of maintaining the fence around the property.
5. The applicant said he did the work which has been described in the preceding paragraph on the O'Herns Road property because he was hopeful and perhaps expected that the purchaser of the property MAB Corporation Pty Ltd (MAB) would give him permission to recommence grazing his cattle on the O'Herns Road property.
6. By a letter dated 3 October 2011, from Gadens Lawyers, solicitors for the Bank, to the applicant, it is inter alia stated:

"Whilst our client (CBA) acknowledges that settlement of the contract is not scheduled until February 2012, the Bank intends to grant the purchaser access to the Property prior to settlement to allow it to carry out certain testing. The purchaser has indicated that it may be prepared to enter into discussions with you regarding the grazing of your cattle on the Property".

1. As a result of that letter the applicant enquired from MAB whether it would be willing to allow him to graze his cattle on the property. There was apparently no objection to the applicant grazing his cattle on a small quadrant of the property but from the applicant's point-of-view that was not practical. The applicant enquired as to whether he would be able to graze his cattle on the rest of the property once the testing was complete. The person he enquired from said that he needed to make enquiries from his superiors. It is unclear whether the person who made those enquiries came back with a negative answer or no answer came back at all. In any event MAB did not give the applicant permission to graze his cattle on the O'Herns Road property and no cattle were grazed on the O'Herns Road property after October 2011. The applicant puts his argument on an alternative basis. First he states that as he was tending the weeds, looking after the property and had his chattels on the property in the form of the cattle yard, the O'Herns Road property as at 31 December 2011 was being used for primary production within the meaning of ss.64 and 67 of the Act. Alternatively, Mr Love said that the wording of s.45 of the Act should be read in such a way that the property was being used for the purpose for which the registered proprietor would have used the property (cattle grazing) had it not been for the mortgagee taking possession of the O'Herns Road property.

1. S.7 of the Act provides that Land Tax is imposed in respect of each year on all taxable land in Victoria.
2. S.8 of the Act provides that the owner of the land is liable to pay land tax on the land. The term 'owner' relevantly includes 'a person entitled to land for a freehold estate in possession' (s.10(1)(a)) and 'a person deemed by the Act to be the owner of land' (s.10(1)(e)).
3. Land Tax is assessed on an aggregate basis - s.36 of the Act provides that a taxpayer is to be assessed for land tax on the total taxable value of all taxable land in which the taxpayer was the owner at midnight on 31 December immediately preceding the tax year. The rate of land tax is set out in Schedule 1:s.35.
4. One category of persons deemed to be the owner of land is mortgagees in possession, who are dealt with in s.17 of the Act.

(1) A mortgagee in possession of land is deemed to be the owner of the land for the purposes of this Act, but not to the exclusion of the mortgagor or other owner of the land.

Section 43 sets out how land tax is to be assessed in the case of mortgagees in possession.

(2) There is to be deducted from any land tax payable on land by the mortgagee in possession any land tax paid on the land by the mortgagor or other owner.

1. S.43(1) of the Act provides:

(1) If there is a mortgagee in possession of land, land tax on the land is to be assessed at the rate that would have applied if the mortgagee had not been in possession of the land.

1. Pursuant to s.64 of the Act:

(a) cultivation for the purpose of selling the produce of cultivation (whether in a natural, processed or converted state); or

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

1. S.67 relevantly provides:

67 Exemption of primary production land in an urban zone in greater Melbourne

(1) Land is exempt land if the Commissioner determines that -

(iii) used solely or primarily for the business of primary production; and

(b) the owner of the land is a person specified in subsection (2).

1. Ss.109 and 110 of the Tax Administration Act 1997 (TAA) deal with relevant matters as to a review or appeal. Those sections state as follows:

(a) the taxpayer's case is limited to the grounds of the objection; and

(b) the Commissioner's case is limited to the grounds on which the objection was disallowed -

On a review or an appeal, the taxpayer has the onus of proving the taxpayer's case.

Whether O'Herns Road property was used solely or primarily for the business of primary production as at Midnight 31 December 2011

1. Mr Love said at the relevant time it was his intention to again use the O'Herns Road land for grazing. As a result of that intention, he left his removable cattle yards on the property, and made sure the grass on the property was growing so that there would be feed for his cattle and that fencing on the property did not become damaged. He also said that he still owned a grazing licence for the property. He said he believed because of the letter from Gadens 3 October 2011 which has been partially extracted above (see paragraph [9]), that he would again be given permission to graze his cattle on the property. He stated from his point of view the cattle were only removed from the property on a temporary basis. At paragraph 16 of Mr Love's reply submissions he stated:

"The factual reality is that for animals (in this case cattle) to be maintained for the purpose of selling then they require grass for that maintenance. Without grass they cannot survive. The land was being enhanced and preserved for the primary production purpose for which it had been used since 1929."

He therefore concluded that growing of pasture on the O'Herns Road land was in fact an act of continuing primary production.

1. Mr Love tried to draw an analogy between the land at O'Herns Road as it was in 31 December 2011 and a farmer using a property with paddocks in rotation and consequently leaving one paddock fallow. As I pointed out to Mr Love during argument that analogy is not appropriate. It is not appropriate because a farmer rotating his paddocks has an entitlement to use the fallow paddock at a later date. Mr Love had no entitlement to use the O'Herns Road property after the 12 October 2011.
2. The test of whether the O'Herns Road property is used for "the business of primary production" is a question of fact to be determined objectively, rather than by reference to the subjective attitude of Mr Love. See Abbott v Commissioner of Land Tax (1979) VR 279; Abbott v Commissioner of Land Tax [1985] VicRp 15; (1985) VR 164 at [7].
3. While Mr Love may have thought he was going to be able, at Midnight on 31 December 2011, to graze his cattle on the property at some later time, in my view, on the objective facts surrounding the matter, no reasonable person could have held that view. CBA had taken possession of the land from Mr Love. In my view it matters not that he still maintained his cattle yards on the property and still maintained the grass and fence on the property as the CBA were not aware of him doing so. I find that he maintained his cattle yards on the property and maintained the grass and fence on the property unlawfully and without the permission of the mortgagee in possession.
4. Further, neither the mortgagee (CBA) nor MAB said or did anything that would suggest to Mr Love that he was entitled to graze his cattle on the land or would be entitled to graze his cattle on the land in the future. The suggestion by the CBA in a letter, that MAB "may be prepared to enter into discussions" about grazing on the land, falls far short of any reasonable person thinking that they would be given permission to graze on the land. It is unreasonable, for Mr Love to have thought that he needed to tend the land and leave his possessions on the land so that he would be able to graze there in the future. In my view, any hope that Mr Love may have had after the cattle left the property on 20 October 2011, of returning those cattle to the property, was at best wishful thinking. No reasonable person could have thought or should have thought that they would be entitled to bring those cattle back to the property.
5. Having made the finding above, it necessarily follows that Mr Love could not objectively have been tending the property or leaving his chattels on the property for the purposes of primary production - that is, grazing cattle. Neither could it be thought that he was growing the grass for the purposes of cultivation in relation to paragraph (a) of the definition of primary production. He never intended to sell the grass that he was nurturing on the property. He stated his purpose was to use that to feed the cattle when they returned. In any event, the grass was in the possession of the mortgagee prior to it giving possession to MAB in February of 2012.
6. Further, the use of the word 'business' in s.67(1)(3) further limits the exemption pursuant to s.67. As Mr Horan of counsel for the respondent pointed out the insertion of the word 'business' in s.67 is unique to that section. It is different to other sections (ss.65 and 66) where exemptions for primary production are given. In those sections the word 'business' is not used. Therefore the legislature have in mind that there should be a continuing use of the land for primary production. In this particular instance it is clear that there was no cattle grazing on the land at Midnight on 31 December 2011. It was not a continuing business.
7. The fact that the land had been used and exempt as primary production land since 1929, in my view does not take the matter any further. The time that I am concerned with in this proceeding is Midnight 31 December 2011.
8. I agree with the submission of Mr Horan that at the relevant time the O'Herns Road property had ceased to be used solely or primarily for the business of primary production. After the termination of the agistment licence with effect from 12 October 2011, the applicant had no right to enter the land or to carry out any activities on the land without the consent of the CBA and/or the purchaser. The purchaser was conducting surveys and tests on the land from October 2011 with a view to obtaining the necessary approvals for the development of the land for the purposes of other than primary production.

1. Mr Love said the wording of s.43(1) of the Act means that 'the rate that would have applied if the mortgagee had not been in possession' that the applicant's exemption must survive any taking of possession by the CBA. He said therefore that if CBA had not taken possession of the land, he would have continued to use the land for cattle grazing which would have been as a primary purpose for primary production and the exemption that had previously applied would have continued to apply. He said therefore, that the O'Herns Road land should not be aggregated with the Cooper Street property.
2. I do not agree with Mr Love's interpretation of s.43.
3. S.33 of the Act deals with the rate of land tax that a mortgagee in possession of the land may have to pay. In this particular instance, if it was not for s.43 the CBA could conceivably be liable for not only the land tax on the O'Herns Road property but having that tax aggregated with all the other properties it owns in Victoria. The Act is seeking to avoid that anomaly. However, it is clearly intended by s.43 that land in possession of the mortgagee should be aggregated with other land owned by the mortgagor at the relevant time.
4. If Mr Love's submission in relation to s.43 were to be accepted, it would mean that the Tribunal would have to enter into conjecture as to what use the mortgagor might have put the land to if it had not have been in the possession of the mortgagee. It would be quite wrong to require a hypothetical or counter-factual evaluation of the circumstances to which the land might be put. In this particular instance, in my view it is clear that the land at the relevant time was not being used for primary production. The Tribunal is not and should not be required to examine for what purpose a mortgagor out of possession of the land may hve used the land if the mortgagee had not entered into possession. That would lead to a very unsatisfactory state of affairs.
5. It is the use of the land as at 31 December 2011 that is important. The Act makes that clear. It was not the fact of the mortgagee taking possession of the land that resulted in the exemption being unavailable, it was the use to which the land was put.

1. When Mr Horan was making his final submission, he informed me that the respondent was not seeking land tax for the period of the year 2012 in respect of the O'Herns Road land itself but only the aggregation with the Cooper Street property. He stated the reason that no land tax was sought in respect of the O'Herns Road property was that a land tax clearance certificate had been given to the CBA and MAB around the time that they conveyance took place between those two entities.
2. As the result of me being informed of that information, in reply Mr Love stated that if a clearance certificate had been given in relation to the O'Herns Road property then the respondent should not have been able to use that property to aggregate the land tax with the Cooper Street property.
3. The issue of estoppel does not apply in administrative law. Clearly the applicant in no way changed his position as a result of the clearance certificate being given. In fact he probably never saw the clearance certificate at all. The clearance certificate was given for the purpose of CBA and the purchaser of the O'Herns Road property. The giving of the clearance certificate does not move the property from being taxable to non-taxable or tax exempt. In my view, the giving of the clearance certificate does not bear upon the question of aggregation. As Mr Horan said, 'no estoppel arises to which Mr Love can claim the benefit'.
4. In any event, s.109 of the TAA limits the taxpayer's case to his ground of objection. In this particular instance there was no issue about the clearance certificate in the taxpayer's ground of objection. In any event, even if Mr Love had requested leave to argue such ground, bearing in mind that Mr Love only raised it in his reply, in a hearing where evidence had been called and submissions were basically finished, I do not believe it would have been appropriate to grant leave in those circumstances, even for a self-represented person.
5. Therefore I conclude that the clearance certificate issued by the respondent in respect of the O'Herns Road land is not relevant to this proceeding.

1. In my view, for the reasons I have stated above, the respondent was correct in aggregating the O'Herns Road land with the Cooper Street land owned by the applicant for the purposes of land tax in the year 2012. Thus I will affirm the decision of the respondent.