Pambris v Chief Commissioner of State Revenue [2025] NSWCATAD 295;

1. Where tax has been assessed, s 86 of the Administration Act, allows rights of objection to a taxpayer dissatisfied with an assessment. This is an internal review process under which the Chief Commissioner of State Revenue, the Respondent in these proceedings, must consider and determine the objection (s 91 of the Administration Act).
2. A taxpayer who is dissatisfied with the Respondent's determination of an objection, may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 ("NSW") ("ADR Act") of the decision of the Chief Commissioner of State Revenue subject to the objection.
3. These circumstances have arisen in the present matter as set out in the background above, so bringing the matter within the jurisdiction of the Tribunal.
4. The onus of proving her case lies with the Applicant (s 100(3) of the Administration Act).
5. The Tribunal, dealing with the taxpayer's application, may do one or more of the following under s 101 of the Administration Act:

"(a) confirm or revoke the assessment or other decision to which the application relates,

(b) make an assessment or other decision in place of the assessment or other decision to which the application relates,

(c) make an order for payment to the Chief Commissioner of any amount of tax that is assessed as being payable but has not been paid,

(d) remit the matter to the Chief Commissioner for determination in accordance with its finding or decision,

(e) make any further order as to costs or otherwise as it thinks fit."

1. The hearing of these proceedings took place on 6 November 2025. The Applicant was represented by her husband who acted as her agent. He had formerly practiced as a solicitor but at the time of the hearing, did not hold a current practicing certificate.
2. The Respondent in his written submissions questioned whether the evidence was sufficient to show that the Applicant had commenced her use and occupation of the property in October 2022. Among other things, the Respondent relied on the absence of sworn evidence from the Applicant.
3. The Applicant gave oral evidence at the hearing. In that evidence, she said that she commenced living at the property in October 2022. The Respondent did not contest that evidence.
4. The Tribunal understood the Respondent's submission that the lack of sworn evidence resulted in a failure to prove the period of residence, was withdrawn once the Applicant gave sworn oral evidence at the hearing.

1. The Tribunal extends the period of time for the Applicant to apply for review of the Respondent's decision to 8 July 2025. The Tribunal accepts the Applicant's reasons for the delay in making her application. The Respondent neither opposed nor consented to the extension.

1. Land tax is to be levied and paid on the taxable value of all land situated in New South Wales which is owned by taxpayers, other than land which is exempt from taxation under the LTMA (s 7). The rates of land tax payable are set out in the Land Tax Act 1956 (NSW).
2. Exemption for certain land is allowed under s 10A(1) of the LTMA. It includes:

"(r) land that is exempt from taxation under the principal place of residence exemption, as provided for by Schedule 1A".

1. Section 3 of the LTMA defines a "principal place of residence" as follows:

"principal place of residence of a person means the one place of residence that is, among the one or more places of residence of the person within and outside Australia, the principal place of residence of the person".

1. Schedule 1A of the LTMA sets out the terms for exemption allowed under s 10(1)(r). Clause 2 says:

"2 Principal place of residence exemption

(1) Land used and occupied by the owner as the principal place of residence of the owner of the land, and for no other purpose, is exempt from taxation under this Act, in respect of the year commencing 1 January 2005 or any succeeding year, if the land is -

(a) a parcel of residential land, or

(b) a strata lot or, subject to this Schedule, land comprised of 2 or more strata lots.

(2) Land is not used and occupied as the principal place of residence of a person unless -

(a) the land, and no other land, has been continuously used and occupied by the person for residential purposes and for no other purposes since 1 July in the year preceding the tax year in which land tax is levied, or

(b) in any other case, the Chief Commissioner is satisfied that the land is used and occupied by the person as the person's principal place of residence.

(3) If the owner of land is entitled to the exemption conferred by this Schedule, no other person is liable to be assessed for taxation under this Act in respect of the land during the period of the owner's entitlement to the exemption.

(4) The exemption conferred by this Schedule is referred to as the principal place of residence exemption.

......".

1. Clause 6 of Schedule 1A allows exemption for certain unoccupied land if the owner intends to use and occupy the land solely as the owner's principal place of residence. It says:

"6 Concession for unoccupied land intended to be owner's principal place of residence

(1) An owner of unoccupied land is entitled to claim the land as the owner's principal place of residence if the owner intends to use and occupy the land solely as the owner's principal place of residence. In such a case, the owner is taken, for the purpose of the principal place of residence exemption, to use and occupy the unoccupied land as the owner's principal place of residence.

Note.

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

(2) This clause does not apply unless -

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

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

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

(3) This clause applies in respect of the assessment of a person's ownership of land only in the period of -

(a) 4 tax years immediately following the year in which the person became owner of the land, or

(b) if, after the person became owner and before the building or other works physically commence, the land is used and occupied for residential purposes by another person - 4 tax years immediately following the tax year in which the other person ceases to use and occupy the land for those purposes.

(a) this clause does not apply in respect of the assessment of a person's ownership of land in a period referred to in subclause (3) (b) unless the Chief Commissioner is satisfied that, by the end of the first of the 4 tax years concerned -

(i) the building or other works will be, or have been, physically commenced, or

(ii) significant steps will be, or have been, taken to enable those works to physically commence, and

(b) if the building or other works are not physically commenced by the end of that tax year (or the Chief Commissioner is not satisfied that, by the end of that tax year, significant steps have been taken to enable those works to physically commence) -

(i) the principal place of residence exemption applying by operation of this clause to the land is taken not to have applied to the land in respect of that tax year (unless subclause (3) (a) applied to the assessment in that tax year), and

(ii) land tax liability is to be assessed or reassessed accordingly.

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

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

(6A) For the purposes of section 9 (3) (c) of the Taxation Administration Act 1996, any reassessment under this clause is authorised to be made more than 5 years after the initial assessment.

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

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

(b) the person owns land outside New South Wales that is the principal place of residence of the person or a member of the person's family (within the meaning of clause 12), or

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

(7A) The Chief Commissioner may extend the period of 4 tax years in subclause (3)(a) or (b) to a period of up to 6 tax years if the Chief Commissioner is satisfied -

(a) there has been a delay in the completion of the building or other works necessary to facilitate the owner's intended use and occupation of the land as a principal place of residence, and

(b) the delay is due primarily to exceptional circumstances beyond the control of the owner, and

(c) the delay could not reasonably have been avoided by the owner.

(7B) The Treasurer may, for the purposes of subclause (7A), approve guidelines by publishing the guidelines in the Gazette.

(7C) The Chief Commissioner must, when making a decision under subclause (7A), consider any guidelines approved under subclause (7B).

(8) For the purposes of this clause -

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

1. At the hearing of the matter, the Respondent accepted the Applicant's evidence that she had commenced occupation of the property in October 2022 and that consequently, for the land tax years commencing in land tax year 2023, exemption applied by reason of cl 2 of Schedule 1A of the LTMA.
2. The existence of a lease to the Applicant's husband at the time the Applicant says she commenced her use and occupation of the property does not, in my opinion, prevent a claim for exemption for the 2023 land tax year and thereafter. What cl 2 of Schedule 1A requires to allow exemption is actual use and occupation of the property by the Applicant. Even if the Applicant's use and occupation occurred, as a matter of fact, while the Applicant's husband held a lease over the property, her actual use and occupation is sufficient to allow for exemption to apply under cl 2 of Schedule 1A for the relevant land tax year.
3. I do not in these circumstances need to draw any inference as to whether the Applicant's use and occupation of the property infringed her husband's rights as lessee, or alternatively whether her husband permitted the Applicant to use and occupy the property. In any event, I find nothing in the evidence to show that he objected to her occupation.
4. What follows was that the assessment of land tax for the 2023 year and thereafter should be revoked, subject to the matters set out below relating to the 2023 land tax year.

1. There was no dispute by the Respondent that clause 2(1) of Schedule 1A of the LTMA had been satisfied for land tax year 2023. This was because the property was a parcel of residential land used and occupied by the Applicant as her principal place of residence and for no other purpose.
2. Clause 2(2) contains an additional requirement that the property, and no other land, had been continuously used and occupied by the Applicant for residential purposes and for no other purposes, since 1 July in the year preceding the tax year in which land tax is levied, that is, 2023. The Applicant had not satisfied this requirement because she had commenced her use and occupation later than 1 July 2022, namely in October 2022.
3. However, satisfaction of cl 2(2) can still occur in certain cases, even if use and occupation had commenced after 1 July of the particular year. For this to be allowed, the Chief Commissioner must be satisfied that the land is "used and occupied by the person as the person's principal place of residence" (cl 2(2)(b)).
4. The Respondent did not object to the application of cl 2(2)(b) to the Applicant to allow her exemption for the 2023 land tax year. I think that the Respondent's concession was correctly made. What cl 2(2)(b) does is to permit exemption for a land tax year if use and occupation commenced after 1 July but before 31 December of the previous year in appropriate cases. In circumstances where the property became the principal place of residence of the Applicant and the home of her family after use and occupation had begun and has remained in use and occupation for that purpose during the years following, I can see no reason why cl 2(2)(b) should not apply to the Applicant. It follows that the assessment of land tax for the 2023 land tax year should be revoked.

1. What remains in dispute is the Respondent's assessment of land tax for the 2020, 2021 and 2022 land tax years. Whether exemption should be allowed or not depends on whether cl 6 of Schedule 1A applied to the Applicant for these years, to allow her the benefit of exemption from land tax.
2. Clause 6 allows an owner of unoccupied land to claim the land as the owner's principal place of residence if the owner "intends to use and occupy the land solely as the owner's principal place of residence". There was no dispute that the evidence established such an intention.
3. However, exemption cannot be claimed under cl 6 in certain circumstances set out in cl 6(2). First of all, the Applicant must satisfy the test set out in cl 6(2)(a). That test requires that the land remain "unoccupied" because the owner intends to carry out, or is carrying out, building or other works necessary to facilitate "the owner's intended use and occupation of the land as a principal place of residence".
4. There are two elements contained in the test. The first is that the land remain "unoccupied". The second is that the taxpayer show that the reason for non-occupation is the intention described in cl 6(2)(a).
5. There is evidence that the Applicant's children were permitted to play in the house on the property at certain times and that the Applicant or her husband had slept in the house during certain nights before October 2022. The Respondent says that these are matters preventing exemption from applying because they evidence "occupation" contrary to cl 6(2)(a).
6. Clause 6 defines "unoccupied land" to mean land that is "not being used or occupied for any purpose". Clause 6(2)(a) refers to land that "is unoccupied" not to "unoccupied land". However, the definition of "unoccupied land" will, in my opinion, inform the meaning of land that "is unoccupied" in cl 6(2)(a).
7. The amount of time during which a person's presence on land occurs is well accepted as being relevant to determining whether, generally, the land is "used and occupied" as the taxpayer's principal place of residence for the purposes of cl 2 (Black v Chief Commissioner of State Revenue [2011] NSWADT 66, at [31]).
8. Notions of what is "occupation" within the context of cl 6 do not, in my opinion, necessarily carry the same meaning as they do for the purposes of cl 2. A shorter period of occupation than that required for the purposes of cl 2 may result in the conclusion that land is being occupied and therefore not "unoccupied" land within the meaning of cl 6. Nevertheless, I think that the length of time during which people were present on land for purposes other than building or other works remains relevant to determining whether or not the land was "unoccupied" within the meaning of cl 6.
9. I do not think that occupation within the meaning of cl 6 extends to occasional attendances on land. Occupation within the context of cl 6, in my opinion, means something more than an occasional presence on land and refers to something that has at least some degree of regularity or a period of use going beyond occasional use for short durations. There is no evidence to show that there was any such regularity in use or sufficiently long periods of use of the property before October 2022.
10. Clause 6 requires an intention that certain activity occur on the land, namely the carrying out, building or other works necessary to facilitate the owner's intended use and occupation of the land as a principal place of residence. There is evidence that activity within this description occurred on the property before October 2022. The end result was a new building upon the property that the Applicant and her family moved into during that month. There is no evidence to show that occasional use of the land by the Applicant's family prevented the land from answering the description of land that was "unoccupied" because of the doing of the things required under cl 6(2)(a). If, on the other hand, there were uses of the land that were substantial enough to interfere with carrying out, building or other works, these uses may well have allowed for a conclusion that the land was not "unoccupied".
11. A second requirement of cl 6(2) is that if the building or other works had physically commenced on the land, no income must have been derived from the use and occupation of the land since that commencement (cl 6(2)(b)). There was no evidence to indicate that circumstances of these kinds had occurred, so as to disentitle a claim for exemption.
12. There was a third requirement set out in cl 6(2). This was a requirement set out in paragraph (c) that "the intended use and occupation of the land is not unlawful". What remained in dispute between the parties is whether or not the Applicant had satisfied this requirement. The matter in issue was whether the absence of an occupation certificate went to preventing the Applicant from satisfying cl 6(2)(c).
13. Section 6.9(1)(a) of the Environmental Planning and Assessment Act 1979 (NSW) ("EPA") relevantly provided that at all times an "occupation certificate is required for the commencement of the occupation or use of the whole or any part of a new building". The Respondent said that there were no exceptions that could apply to the Applicant. The Applicant did not contest that none of the exceptions in s 6.9 were applicable.
14. The delay in obtaining an occupation certificate on the evidence appears to have involved a dispute between the Applicant's husband and a certifier. The Applicant's husband said that obtaining an "Occupation Certificate is a practical, if not lawful impossibility". The Applicant, instead, relied on the purported occupation certificate her husband had issued as owner builder.
15. The Respondent did not think that the purported occupation certificate issued by the Applicant's husband in his capacity as owner builder was a valid occupation certificate. The Respondent said that a valid occupation certificate had to be issued by the "Principal Certifying Authority" and not by the Applicant's husband acting as owner builder.
16. The Applicant, for her part, asserts that what purported to be the occupation certificate issued by her husband was "not illegal nor improper". However, she provided no explanation as to how that "certificate" satisfied the requirements of the EPA and had been issued by the "Principal Certifying Authority".
17. That the purported occupation certificate was issued by the law firm then operated by her husband, does not make it compliant unless the Applicant can show how it satisfies the requirements of the EPA. I am unable to find that the Applicant's use and occupation of the property from October 2022 was lawful, in the absence of a valid occupation certificate. At best, the purported occupation certificate was an opinion of the Applicant's husband that occupation could be certified.
18. What the Applicant purported to be an occupation certificate was expressed to be retroactive in effect to October 2022. The Respondent did not think that such retroactive effect was permissible. I do not need to consider the matter further having found that the purported occupation certificate was not a valid occupation certificate in the first place.
19. The requirement set out in cl 6(2)(c) is that the "intended use and occupation of the land is not unlawful". The Respondent accepted that when the property was purchased and the Applicant decided to commence the process of construction, the intended use and occupation of the property was lawful. This was because the property was zoned residential and the Applicant would have expected lawful construction and occupation to occur. However, in the Respondent's submission "there was a substantial departure from that intention during the course of construction". That departure, in the Respondent's submission, occurred when an intention was formed to occupy the property without a valid occupation certificate.
20. Hmelnitsky J in Simich v Chief Commissioner of State Revenue (NSW) [2025] NSWSC 559 explained at [62], how the relevant intention was to be ascertained. He said:

" .... the question of whether a use of land is unlawful will often involve an inquiry that extends beyond an identification of the purpose for which it is used. In the context of clause 6(2)(c) it will often require the decision-maker to determine whether the actual manner of proposed use is permitted by relevant planning laws".

1. If the relevant intention is to be ascertained by looking beyond the purpose of actual use, the actual use of the property from October 2022 without a valid occupation certificate should not of itself determine the matter. What is called for is an enquiry into intended use and occupation before actual use and occupation began. What must be identified is the intention subsisting during the period when development occurred and before use and occupation. The question is whether or not that intended use and occupation was permitted or not permitted.
2. In other words, even if a taxpayer's actual use and occupation of land was not in accordance with a valid occupation certificate at a particular time, the taxpayer in my opinion, remains capable of establishing that they satisfy the requirements of cl 6(2)(c) by establishing that they intended lawful use and occupation before actual use and occupation began.
3. To do so, the Applicant in the present instance needs to show that despite any period of time when lawful use and occupation was not achieved, her intention had been and remained to achieve compliance at a later date, when the process of development was completed and an occupation certificate obtained.
4. If the Applicant was able to show that compliance remained capable of being achieved and that this remained her intention, I could be satisfied that she has met the requirement of cl 6(2)(c). However, the evidence does not show this.
5. The Applicant's husband said, on 14 November 2024, that an occupation certificate was "a practical, if not lawful impossibility" without legal action and "practically impossible". If, in other words, the evidence shows that the Applicant thought that compliance was not achievable and knowing this, the Applicant commenced use and occupation of the property, I do not see how the Applicant can establish the required intention of lawful use and occupation in satisfaction of cl 6(2)(c).
6. In her written submissions, on the other hand, the Applicant said that an outstanding issue about the safety of a balustrade had been "resolved". I understood the Applicant to say that the intention remained to achieve compliance and that this object was within reach. However, even if outstanding matters had been resolved, there was no evidence that an occupation certificate had been issued, more than three years having passed as at the date of the hearing, since occupation commenced. There was also no evidence that the relevant certifier was satisfied that there were no outstanding issues and that an occupation certificate could be issued. The last item of correspondence from Randwick Council in evidence was a letter dated 15 October 2024. It referred to the "ongoing matter regarding the non-compliant balustrade on the first-floor balcony".
7. Any intention that the Applicant claims must have some basis in the evidence. The evidence as to intention appears, at the very best, to be contradictory. There was on the one hand a statement made to the effect that compliance was "practically impossible". In the Applicant's submissions, however, there is some evidence of an intention to achieve compliance but no evidence from the certifier that matters preventing compliance had been resolved. These uncertainties result in the evidence being insufficient to show, on the balance of probabilities, that the Applicant's intention remained one of achieving lawful use and occupation of the property.
8. It is not, in any event, for the Tribunal to determine whether or not the legal requirements to obtain an occupation certificate were met. The question is whether or not the Applicant at the relevant times had an intention of lawful use and occupation. The obtaining of an occupation certificate necessary to allow for lawful use and occupation, even after use and occupation commenced, would have assisted her case. In the absence of such a certificate and insufficient evidence to determine whether or not such a certificate will be issued, there is no evidence that the requirements of s 6.9 of the EPA for lawful occupation have been satisfied or can be satisfied. These are not circumstances that assist the Applicant's case that she had at the relevant times an intention of lawful use and occupation.
9. The Applicant relied on the decision of the Court of Appeal in De Marco v Chief Commissioner of State Revenue [2013] NSWCA 86. In that case, the Court of Appeal (by majority) said that the legislative scheme did not call for, and therefore did not permit, the introduction of a requirement that use and occupation must be lawful into the clauses of Schedule 1A that did not expressly contain such a requirement.
10. However, clause 6(2), does contain such a requirement in express terms. Basten JA said:

"Clause 6(1) speaks of the intention of the owner to use and occupy the land solely as a principal place of residence. Why should this be read as the intention of the owner to lawfully use and occupy the land when a specific requirement of lawfulness is contained in cl 6(2) but not elsewhere in cl 6?" (emphasis added).

1. His Honour, in other words, did not say that there was no requirement in cl 6(2) for lawful use and occupation. He said to the contrary, that there was such a requirement.
2. If at a future time, the Applicant is able to show that a way to compliance as originally intended has been found, that this was always the intended goal (despite the contradictory evidence as to intention) and she obtains an occupation certificate, it will be open to her to seek a reassessment of the land tax liability for the years in dispute. She would need to do so within the time limits set out in s 9 of the Administration Act.
3. The Respondent submitted that if at any time during the period between 2020 and 2022, the original intention for lawful use and occupation had changed, the benefit of the exemption allowed by cl 6 would be lost for the entire period.
4. I am unable on the evidence to decide, on the balance of probabilities, when there was a change of intention. The onus is on the Applicant to prove all matters necessary to obtain exemption, including showing when the relevant intention changed. There is insufficient evidence to satisfy me that a change of intention occurred at a particular time, such that land tax should not be assessable for previous land tax years.
5. In these circumstances, I do not need to consider whether a change of intention results in the loss of the benefit of cl 6 in its entirety or only for the period after the change of intention occurs.

1. The decision under review in these proceedings was the assessment of land tax for the 2020-2024 as this was the assessment subject to objection and determination on 25 February 2025.
2. The assessment of land tax for the 2025 year occurred at a later date, namely 26 February 2025. That assessment, in the absence of an objection and its determination, remains outside the jurisdiction of the Tribunal.
3. I observe in passing that it is for the Respondent to consider whether a revocation of that assessment is warranted, taking note of the matters set out at [40] - [43] above and any further facts of relevance.

1. The Applicant alleged various breaches by the Respondent of their obligations in the making of the assessment and conduct of these proceedings. Some of these allegations went to what the Applicant said were wrong facts assumed by the Respondent.
2. I am unable to see how the alleged conduct of the Respondent, including any facts they have assumed, bears relevance to the determination of these proceedings. Making the findings of fact necessary for the determination of this matter is for the Tribunal to do, regardless of what facts were assumed by the Respondent (or the Applicant). The Tribunal has done so having heard both parties.
3. Having determined the matter in issue, namely whether or not, or the extent to which the Respondent's assessment should stand, I do not see how the Applicant's allegations engage any of the subject matters of the orders I can make under s 101 of the Administration Act.

1. The onus is on the Applicant to show, on the balance of probabilities, that the evidence establishes the findings of fact necessary to enable the Tribunal to revoke the assessment of land tax remaining in dispute. She has done so for the land tax years 2023 and thereafter. She has not done so for the years 2020-2022.
2. For the reasons set out above, the Respondent's assessment in dispute should stand for the land tax years 2020-2022 and be revoked for later years.

(1) The Tribunal extends the period of time for the making of the application in this matter to 8 July 2025.

(3) Land tax is assessed for 2020, 2021 and 2022 in the amounts assessed by the Respondent.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.