Simich v Chief Commissioner of State Revenue

Legislation Cited: Civil and Administrative Tribunal Act 2013 No 2 (NSW), s 83
Land Tax Management Act 1956 (NSW), ss 7, 10(1)(r) and cll 2, 3 and 6 of Sch 1A

Cases Cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
B&L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187
Bronze Wing International Pty Ltd v Safework NSW [2017] NSWCA 41
Commissioner of Land Tax v Christie [1973] 2 NSWLR 526
Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493; [1957] HCA 15
Damberg v Damberg (2001) 52 NSWLR 492; [2001] NSWCA 87
De Marco v Chief Commissioner of State Revenue (2013) 83 NSWLR 445; [2013] NSWCA 86
DEJ v Council of the New South Wales Bar Association [2021] NSWCA 72
Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378
Fisher v Nonconformist Pty Ltd (2024) 114 NSWLR 1; [2024] NSWCA 32
FSX v Chief Commissioner of State Revenue [2023] NSWCATAD 219
FSX v Chief Commissioner of State Revenue [2024] NSWCATAP 169
Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92
Hope v Bathurst City Council (1980) 144 CLR 1; [1980] HCA 16
Kudrynski v Orange City Council [2024] NSWCA 33
Metricon Qld Limited v Chief Commissioner of State Revenue (No 2) [2016] NSWSC 332
Mourched v Chief Commissioner of State Revenue [2023] NSWSC 668
Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416
Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416
Vatner v Commissioner of State Revenue [2024] NSWSC 769
Zelden v Sewell [2011] NSWCA 56

Texts Cited: Nil

Category: Principal judgment

Parties: Sonia Ann Simich (Plaintiff)
Chief Commissioner of State Revenue (Defendant)

Representation: Counsel:
I Young/O Berkmann (Plaintiff)
J Mitchell/H Morgan (Defendant)
Solicitors:
Stratos Lawyers (Plaintiff)
Crown Solicitors’ Office (Defendant)

File Number(s): 2024/356910

Publication restriction: Nil

JUDGMENT

1. In December 2020, the plaintiff purchased a parcel of land subject to an existing development consent for ‘demolition of existing buildings and construction of a new three to four storey building shop top housing development’. In accordance with the development consent, she commenced the construction of a four-storey residence on the land, with spaces on the ground floor separately designated for commercial use, residential use and for mixed commercial/residential use. She intended that the commercial spaces, although required to be constructed by the relevant planning approval, would be left vacant.

2. For the 2021 and 2022 land tax years, during the period in which construction was underway but while the land was otherwise unoccupied, the plaintiff was assessed to land tax. The plaintiff objected on the basis that she was entitled to the principal place of residence exemption in Schedule 1A to the Land Tax Management Act 1956 (NSW) (LTMA). She specifically relied on the concession in clause 6(1) of the Schedule, which provided that:

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.

3. Her objection was disallowed because the defendant took the view that the plaintiff did not intend to use and occupy the land solely as her principal place of residence, as required by clause 6(1).

4. The plaintiff sought a review of the defendant’s decision by the Civil and Administrative Tribunal. In those proceedings, in addition to its contention about the clause 6(1) issue, the defendant also contended that the plaintiff had failed to demonstrate her compliance with clause 6(2)(c) of the Schedule. That clause relevantly provided:

(2) This clause does not apply unless—

…

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

5. The defendant relied in this regard on the fact that in the defendant’s view of the law the plaintiff was not permitted to use the land exclusively for residential purposes, either under the development consent or in accordance with the Local Environment Plan under which the land was zoned ‘B1 Neighbourhood Centre’, and that the plaintiff’s intention to live in the property involved an impermissible use of the commercial spaces even if she kept the commercial spaces vacant.

6. The plaintiff did not dispute the content of the development consent or the Local Environment Plan. She accepted that the building was required to have dedicated commercial spaces in order to comply with both of those instruments. She accepted that those spaces could not be used for residential purposes. Her case was that she intended to use the whole of the land for residential purposes, including by leaving the commercial spaces vacant. She contended that it was not unlawful to do so because, in her submission, as the law stood at the relevant time neither the Local Environment Plan nor the development consent required her to apply for an occupation certificate for the commercial spaces. Her point was that as the law stood at the relevant time, she was required to build those spaces but they were not required to be occupied.

7. On 18 August 2023, the Tribunal confirmed the defendant’s decision: FSX v Chief Commissioner of State Revenue [2023] NSWCATAD 219 (RT). In doing so, the Tribunal made the following finding about the plaintiff’s intention in relation to the clause 6(1) issue at RT[26]:

“Whatever might be said of applying for development consent on the basis that designated spaces be reserved for a use which neither spouse intended, none of these circumstances causes me to doubt the evidence of [the plaintiff] and her husband as to their true intention. I am satisfied that at all relevant times – including, as at the taxing dates for the 2021 and 2022 tax years – [the plaintiff] intended to use and occupy the land solely as her principal place of residence. The primary requirement of clause 6(1) is satisfied.”

8. However, by a process of reasoning to which I will return, the Tribunal reached the following conclusions in relation to the issue that arose under clause 6(2)(c) at RT[37]–[38]:

“Her intention to leave the designated commercial spaces vacant, while using and occupying the balance of the land as her principal place of residence, amounted to an intention to use the commercial spaces for the purposes of using and occupying the land as her principal place of residence. That is so, even if (as I accept) she intended them to remain vacant, and never to go there unless and until their use as residential spaces became permitted.

The parties have agreed that the areas marked red on the ground floor plan as being exclusively designated for commercial use may not lawfully be used for residential purposes. For the reasons given, in the circumstances of this development, [the plaintiff’s] intention to leave them vacant amounted to an intention to use them for residential purposes. As the parties agree, that use is unlawful.”

9. The plaintiff appealed from this decision to an Appeal Panel pursuant to s 80 of the Civil and Administrative Tribunal Act 2013 No 2 (NSW). Grounds 1, 2 and 3 of her grounds of appeal, which I will set out in due course, alleged that the Tribunal had in various ways failed to ask itself the correct question in relation to clause 6(2)(c). The Appeal Panel accepted that those grounds were on questions of law and that leave was not required: s 80(2)(b). However, it dismissed the appeal on 29 August 2024: FSX v Chief Commissioner of State Revenue [2024] NSWCATAP 169 (AP). The Appeal Panel also dismissed the other grounds that were on questions of law and refused leave to appeal on any grounds for which leave was required.

10. The plaintiff now seeks leave to appeal on numerous grounds against the Appeal Panel’s decision pursuant to s 83(1) of the Civil and Administrative Tribunal Act. For the reasons which follow, leave should be granted in relation to ground 4 but the appeal dismissed. Leave should be refused in relation to grounds 1 to 3 and 5.

The statutory setting

11. Land tax is levied on the taxable value of land in New South Wales unless it is exempt: s 7 of the LTMA.

12. Section 10(1)(r) of the LTMA provides that land is exempted from taxation where it is exempt under the principal place of residence exemption, as provided for by Schedule 1A.

13. Clauses 2, 3 and 6 of Schedule 1A relevantly provide as follows:

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.

(5) The principal place of residence exemption is subject to the restrictions set out in Part 4.

3 Residential land**—meaning**

(1) In this Schedule, residential land means land that is used and occupied for residential purposes and for no other purpose, that use and occupation being use and occupation of a building or buildings designed, constructed or adapted for residential purposes, other than a building or buildings—

(a) comprised of strata lots or residential units, or

(b) containing (out of the total of all rooms in the building or buildings) occupancies other than that of the owner, or

(c) from any part of which income is derived.

(2) Land does not cease to be used and occupied as provided by subclause (1) by reason of there being on that land any building or improvement that is used or occupied for a purpose ancillary to the purposes for which the building is, or the buildings are, designed, constructed or adapted.

…

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.

…

(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.

…

The Tribunal decision

14. The parties proceeded before the Tribunal (to which I shall sometimes refer as the original review Tribunal, to distinguish it from the later Appeal Panel) on the basis of certain agreed facts. There was also lay and expert evidence about which the Tribunal made findings.

15. The Tribunal framed the issues for itself at RT[3]-[6]. It referred to the correct provisions of Schedule 1A of the LTMA and, at RT[6], said the following:

“The issues for determination are:

(1) whether, at the relevant times, [the plaintiff] intended to use and occupy the land ‘solely’ as her principal place of residence, and

(2) if so, whether use and occupation of the land solely for that purpose is unlawful.”

16. The Tribunal then addressed factual issues, including the agreed facts which it set out in full at RT[8]. It is appropriate for me to do likewise.

“(1) Under the Local Environment Plan, the land is zoned B1 Neighbourhood Centre.

(2) It is prohibited under the Local Environment Plan for development consent to be granted for residential accommodation on the land without a commercial space on the ground floor.

(3) The Local Environment Plan provided:

shop top housing means one or more dwellings located above ground floor retail premises or business premises

Note – Shop top housing is a type of residential accommodation – see the definition of that term in this Dictionary.

(4) Condition 3 of the development consent required specific development applications to be lodged for approval in connection with the initial usage of any retail or commercial area within the development, prior to occupation of the premises.

(5) What was required was either a development consent to such use, or a complying development certificate allowing for ‘initial use’ of commercial premises after construction.

(6) Subject to fulfilment of condition 3, certain areas on the ground floor (marked in red on a plan appended to the Agreed Facts) are able to be lawfully used and occupied exclusively for non-residential (commercial) purposes. They may not lawfully be used for residential purposes.

(7) No consent to use of those areas has been sought by [the plaintiff] pursuant to condition 3.

(8) In the absence of an application for initial use, the areas marked red must remain vacant.

(9) It is not unlawful for [the plaintiff] to refrain from seeking approval for initial use of those areas, or to leave the commercial spaces vacant.

(10) Certain other areas on the ground floor (marked green in the plan) are able to be lawfully used and occupied exclusively for residential purposes. They may not lawfully be used for non-residential purposes.

(11) Other areas on the ground floor (marked white in the plan) may lawfully be used for either residential or commercial purposes.

(12) The remaining areas of the development may only be used and occupied exclusively for residential purposes.

(13) Condition 9 of the development consent requires that a glass shop front for window display purposes be retained.”

17. The plan attached to the agreed facts was of the ground floor of the building. It showed a street-front commercial space, a commercial storage space at the rear of the building, two parking spaces and some other small areas. These were all shaded in red and were the designated commercial use areas. The plan also showed a separate entrance, staircase, lift-well and some other small adjacent areas shaded in green. Two other parking spaces and a nearby staircase were also shaded green. These green-shaded areas were designated residential use areas. The balance of the ground floor area was not shaded. This area was all mixed-use space. It could be used for either residential or commercial purposes, or both.

18. From RT[9], the Tribunal addressed the question of whether the plaintiff intended to use the land solely as a principal place of residence. This was the first of the two issues identified by the Tribunal, being the clause 6(1) issue.

19. The Tribunal’s key finding on the clause 6(1) issue was at RT[25] and is set out at paragraph [7] above. In so finding, the Tribunal accepted evidence which it described at RT[19] as follows:

“The evidence of [the plaintiff] and her husband is unequivocal. Both say that at all relevant times their intention was to use and occupy the land solely as their home. They say they had no intention to use and occupy the site for any other purpose, notwithstanding the designation of areas on the ground floor exclusively for commercial purposes, and other areas on the ground floor for commercial and residential purposes. The sole purpose for identifying these areas on the plans was, they say, to satisfy the requirement of the Local Environment Plan for ‘shop top housing’, which in turn would empower the Council to grant the development consent, which it did. They accept that the development would otherwise have been prohibited.”

20. At RT[27] the Tribunal turned to the clause 6(2) question, being the second of the two issues which it had framed for itself at RT[6]. The principal dispute on this issue concerned a matter about which there was expert evidence, the substance of which had already been set out at RT[10]-[17].

21. The Tribunal took the view that the resolution of the cl 6(2) question required it to determine one issue on which the experts were not agreed. This issue concerned the effect of a change which had been made to the definition of ‘shop top housing’ in the Local Environment Plan with effect from 21 December 2021. It seems that both parties approached this legal question on the basis that the Tribunal should resolve it by reference to the expert evidence.

22. Generally speaking, the experts agreed that the definition of ‘shop top housing’ in place at the time development consent was granted did not require actual use of the commercial area. They also agreed that post-2021 development could only be lawful if the commercial area was actually used and occupied. The difference between them was as to whether the 2021 amendment applied to the plaintiff’s development. The Tribunal characterised the position of the defendant’s expert on this issue in this way at RT[13(7)]:

“Prior to the amendment which came into effect on 1 December 2021, ‘technically the ground floor approved commercial space could be left vacant as there was no requirement for use. The effect of the amendment is that “use” of the ground floor ‘for commercial premises or health services facilities’ is required.”

23. The defendant’s expert expressed the opinion that the 2021 amendment applied to the plaintiff’s development. The Tribunal rejected this opinion. At RT[30], the Tribunal said:

“I am satisfied that the development consent for the development described on the plans as submitted, with approved modifications, remained current in respect of both tax years. Development in accordance with those plans is and was lawful.”

24. It was at this point that the Tribunal turned to the matter that still divides the parties, namely whether the plaintiff’s ‘intended use and occupation’ of the property was ‘not unlawful’. In so doing, it said at RT[31]:

“Whether the intended use of the land solely for residential purposes is lawful is, however, a different issue. As indicated, I am satisfied that the intention of [the plaintiff] was to leave the commercially designated areas vacant until such time, if ever, that its use for residential purposes became lawful.”

25. This paragraph, especially the first sentence, was the subject of grounds 1, 2 and 3 of the plaintiff’s appeal to the Appeal Panel. It is centrally relevant to grounds 1, 2, 3 and 4 in the appeal to this Court.

26. It is important to identify the Tribunal’s reasoning on this issue. At RT[32], it said that land that is left vacant is not necessarily either unused or unoccupied. It referred to Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493; [1957] HCA 15, where a majority of the High Court found that 291 acres of bushland was used and occupied (per Taylor and Williams JJ with Webb J in agreement with both sets of reasons) for the purposes of a public hospital, whose buildings stood on an adjacent thirty-six acres divided from the bushland by a fence. These conclusions were reached notwithstanding that the hospital had left the bushland vacant. The Tribunal also referred at RT[33] to the reasons of Bowen JA in Commissioner of Land Tax v Christie [1973] 2 NSWLR 526 at 533-534.

27. The Tribunal then accepted a submission made by the plaintiff that the question of how she intended to ‘use’ the land should be determined in the light of what had been said by White J at paragraph [70] of his Honour’s reasons in Metricon Qld Limited v Chief Commissioner of State Revenue (No 2) [2016] NSWSC 332. Thus, at RT[36] the Tribunal said:

“…I accept the [plaintiff’s] submission that the ‘advantage to which the commercial space [on the ground floor] is put is to facilitate [her] intended and subsequent actual use of the [land] as her principal place of residence’. In other words, the facilitation of her use of the land as a principal place of residence was always the ‘use’ to which the commercial areas were put, and the use which she at all material times intended.”

28. At RT[37]-[38] the Tribunal stated the conclusions which I have already set out at paragraph [8] above. At RT[39] the Tribunal said that the ‘[r]equirement (c) of clause 6(2) is not satisfied’ and confirmed the decision under review. The gravamen of the Tribunal’s decision at RT[37]-[38] was that the use and occupation of the land solely for residential purposes was not lawful and, because leaving the commercial spaces vacant nonetheless involved a use and occupation of those spaces for residential purposes, the plaintiff’s intended use and occupation was unlawful.

The Appeal Panel decision

29. The plaintiff brought an internal appeal pursuant to s 80 of the Civil and Administrative Tribunal Act. Grounds 1, 2 and 3 of the plaintiff’s appeal were as follows:

“(1) Did the Tribunal err at [31] of the Decision by identifying the wrong issue or asking the wrong question, namely: ‘Whether the intended use of the land solely for residential purposes is lawful’?

(2) Did the Tribunal err at [31] of the Decision by construing the words or phrase, ‘the intended use and occupation of the land is not unlawful’, in Clause 6(2)(c) of Schedule 1A of the LTMA, as if it read instead, ‘Whether the intended use of the land solely for residential purposes is lawful’?

(3) Did the Tribunal err at [38] and [39] of the Decision in applying a wrong principle of law by substituting the words or phrase, ‘the intended use and occupation of the land is not unlawful’, in Clause 6(2)(c) of Schedule 1A of the LTMA, with the question set out at [31] of the Decision, namely: ‘Whether the intended use of the land solely for residential purposes is lawful’?”

30. The references in ground 3 to RT[38] and [39] should have been to RT[37] and [38], but nothing turns on this. It is apparent from what the Appeal Panel said at AP[118] that it understood the ground correctly.

31. The Appeal Panel accepted that grounds 1, 2 and 3, as well as some others, raised questions of law and that leave under s 80(2)(b) was not required: AP[31(1)].

32. The plaintiff’s argument before the Appeal Panel was wide-ranging. She challenged the original review Tribunal’s decision on many fronts, although the question of whether the Tribunal had asked itself the right question was at the forefront of her case. It is not necessary to comment on the way the Appeal Panel dealt with all of the arguments. So far as concerns the issues now before me, it is relevant first to note what the Appeal Panel said in relation to grounds 1 and 2 at AP[80]-[89]. In those paragraphs, the Appeal Panel specifically rejected the argument that the original review Tribunal had posed and answered the wrong question at RT[31]. At AP[80]-[82] the Appeal Panel said:

“[80] Thirdly, we are not persuaded that the Tribunal’s reference at [31] to ‘[w]hether the intended use of the land […] is lawful’ was anything more than a paraphrasing of the correct statutory test in cl 6(2)(c) that was acceptable, and which did not add an impermissible gloss, where the correct test had been identified and stated earlier in the Decision. The phrase ‘intended use’ fairly encompasses ‘use and occupation’ and ‘not unlawful’ is indistinguishable from ‘lawful’ in this context: in a like manner see, West Australian Newspapers Ltd v Bridge (1979) 141 CLR 535; [1979] HCA 10 at 542 per Gibbs J; De Marco at [72] per McColl JA (dissenting but not on this point).

[81] However, whether that paraphrasing, and the respondent’s submissions at first instance led the Tribunal to pose for itself and answer the wrong question remains to be considered, as does the issue of whether the words we have excised from the quote, being ‘solely for residential purposes’ is indicative of the Tribunal conflating the tests to be applied or is simply reflective of it inserting a factual finding as to what the appellant’s intent was.

[82] The resolution of that issue requires an assessment of whether the proper interpretation and application of cl 6 of Sch 1A of the LTMA requires the whole of the land to be used as a [principal place of residence] or, to put it another way, whether the land must be used ‘solely’ as a [principal place of residence] in a lawful manner in the context of the dispute between these parties.”

33. At AP[84] and following, the Appeal Panel said:

"[84] Consequently, we disagree with the appellant’s contention (see [35], [73] and [74] above) that, having found that the appellant met the terms of cl 6(1), on the agreed facts, and that the development consent was ‘lawful’ (Decision at [30]), that the Tribunal’s enquiry was concluded.

[85] Clause 6(2)(c) directs an enquiry as to whether the ‘intended use and occupation of the land is not unlawful’ and not solely whether development of the land was lawful, which is why the Tribunal posed for itself the separate question at [31] of the Decision to that which it had answered at [26] and [30] of the Decision. The fact that the development is permitted in accordance with the relevant planning laws of local and state government authorities, as acknowledged in the respondent’s ruling, forms part but not all of that assessment.

[86] The determination of whether the appellant’s intended physical use and occupation of only the upper levels of the development (and the areas on the ground floor not marked in red), given the nature of how the appellant intended to utilise the sections of the ground floor marked in red to facilitate that use (unless and until the relevant laws changed), is relevant. To give a simple example, had the appellant intended to use and occupy the area marked in red as part of the residence, that use and occupation would be unlawful despite the development itself being lawful.

[87] Such a conclusion does not offend the principle in Tamas. It is the appellant’s objectively ascertained actual intended use and occupation of the land that must be carried through to the assessment in cl 6(2)(c), not the deemed outcome in cl 6(1). To read the statute otherwise would deny cl 6(2)(c) of any operative effect and be contrary to the clear intent of the clause read in context.

[88] It is also important to note that the Tribunal’s consideration of that issue followed immediately after [31] of the Decision, given that decision makers commonly set out their reasoning process sequentially: New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [77] per Bell P (as the Chief Justice then was).

[89] As a result, we are not satisfied that grounds 1 and 2 are made out. More particularly, we would answer each question of law with the answer ‘no’. The answer to question 3 requires prior consideration of grounds 4 and 6.”

34. Grounds 4 and 6 were essentially as follows:

“(4) Did the Tribunal err at [38] and [39] of the Decision in finding Clause 6(1) read in conjunction with Clause 6(2)(c) of Schedule 1A of the LTMA was not satisfied in circumstances where:

a. there was no dispute as to the facts;

b. the Tribunal accepted, at [8] of the Decision, the expert evidence set out in the parties' Agreed Statement of Facts in relation to Planning Issues;

c. the Tribunal accepted, at [8(9)] of the Decision that ‘it is not unlawful for [the plaintiff] to refrain from seeking approval for initial use of those areas, or to leave the commercial spaces vacant’;

d. the Tribunal made the findings of fact set out in [26] and [30] of the Decision including that ‘Development in accordance with those plans is and was lawful’,

with the consequence that the facts having been fully found, resolution of the Proceedings necessarily fell within the description of the words or phrases in Clause 6(1) and 6(2)(c) in Schedule 1A of the LTMA?

…

(6) Did the Tribunal err at [38] of the Decision by concluding ‘[the plaintiff’s] intention to leave them [the areas of the designated commercial space] vacant amounted to an intention to use them for residential purposes’ which ‘use is unlawful’ in circumstances where, on the facts as found, there was no evidence or other material to justify the making of the decision?”

35. These grounds were rejected, although it appears ground 6 was one of the grounds which had not been pressed at final hearing. Because they are specifically relied on as disclosing error, it is relevant to set out AP[115] and [116] in full.

“[115] At this point, we are able to answer the question posed by ground 4 as to whether the facts established by the agreed facts, coupled with the Tribunal’s findings at [26] and [30], meant that the appellant necessarily fell within the description in cl 6(1) of Sch 1A of the LTMA. The answer to that question is ‘yes’. However, that answer is not material in terms of identifying error, because the initial satisfaction of cl 6(1) was not the end of the Tribunal’s necessary enquiry under cl 6(2)(c), as we found earlier at [85].

[116] Similarly, we can answer the question posed by ground 6, as to whether the Tribunal’s conclusion that ‘FSX's intention to leave [the areas of the designated commercial space] vacant amounted to an intention to use them for residential purposes’ which ‘use is unlawful’ was reached without evidence or other material to justify the making of the decision? The answer to that question is ‘no’. The accepted evidence of the appellant that she intended ‘to leave [the areas of the designated commercial space] vacant’ was sufficient evidence upon which the Tribunal could reach its conclusion, having regard to its interpretation of the statute. Whether that conclusion was correct is a different question.”

36. Having reached these conclusions, the Appeal Panel then returned to the plaintiff’s ground 3 at AP[117]-[118]. It said:

“[117] It is convenient now to return to ground 3 and the question it poses, which is whether the Tribunal erred at [38] and [39] of the Decision in applying a wrong principle of law by substituting the words or phrase, ’the intended use and occupation of the land is not unlawful’, in cl 6(2)(c) of Sch 1A of the LTMA, with the question set out at [31] of the Decision, namely: ‘[w]hether the intended use of the land solely for residential purposes is lawful?’

[118] Again, the answer to this question is ‘no’. As we found at [80] the question the Tribunal posed at [31] of the Decision, excluding the words ‘solely for residential purposes’ was an acceptable paraphrasing of the statutory test. The reason for the Tribunal’s use of the words ‘solely for residential purposes’ in the Decision at [31] becomes apparent in the Decision at [37] and [38] because it relates to the consideration and application of the principles contained in Royal Newcastle Hospital and Christie to the facts as found, which the Tribunal engaged in between [32] and [36] of the Decision.”

37. The orders made by the Appeal Panel included orders that ‘leave to appeal is refused’ and that ‘the appeal is dismissed’. In context, the order dismissing the appeal related to grounds 1 to 7, being the grounds in respect of which the Appeal Panel had said raised questions of law and as to which no leave was required.

The application to this Court

38. The plaintiff now brings an application by way of summons pursuant to s 83 of the Civil and Administrative Tribunal Act. That section provides that a party may, with the leave of this Court, appeal on a question of law from an appealable decision. The decision of the Appeal Panel is an appealable decision.

General principles

39. There was no dispute as to the general principles to be applied. The questions of law identified by the plaintiff prescribe the subject matter and ambit of the appeal: Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378 at [3], [22]. The appeal is not by way of rehearing. The proceeding does not provide an occasion to engage in fact-finding or to review the merits of the case: B&L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187 at [77]-[78] (Allsop P).

40. The appeal is confined to the appeal decision from which the appeal is brought and not the original Tribunal decision which was the subject of the appeal panel’s consideration: Bronze Wing International Pty Ltd v Safework NSW [2017] NSWCA 41 at [10]. This does not mean that it is never appropriate to form a view as to whether the original Tribunal made a legal error. In Fisher v Nonconformist Pty Ltd (2024) 114 NSWLR 1; [2024] NSWCA 32, the Court of Appeal considered an appeal under s 353 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). Such appeals are available where the party appealing is ‘aggrieved by a decision…in point of law’. Kirk JA said (Meagher JA and Simpson AJA agreeing) said at 14:

“…the relevant focus on an appeal under s 353(1) is on the decision of the presidential member. That being said, if a non-presidential member made an error of law, and complaint about that error is made but erroneously dismissed by the presidential member on the appeal under s 352, then in general the presidential member will also have made an error of law by failing to recognise the member’s error of law. The presidential member may be seen to have affirmed or remade the error of law, or simply erred in law by misdirecting themselves as to the law on the point…”

41. The same may be said in relation to the identification of a question of law in the context of s 83 of the Civil and Administrative Tribunal Act although, as Kirk JA also pointed out, the situation is different where the question for the Appeal Panel was one of fact.

42. It is also important to approach the identification of a question of law as a matter of substance and not of form: Kudrynski v Orange City Council [2024] NSWCA 33 at [50] (Griffiths AJA, Meagher and Kirk JJA agreeing); Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at [107].

43. So far as the question of leave is concerned, a plaintiff must ordinarily show that the proceeding involves an issue of principle, a question of general public importance, or an injustice that is reasonably clear: Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 at [38] (Griffiths JA). The applicant for leave must do more than merely demonstrate that the impugned decision is arguably wrong: Zelden v Sewell [2011] NSWCA 56 at [22] (Campbell JA, with Young JA agreeing); Mourched v Chief Commissioner of State Revenue [2023] NSWSC 668 at [14]-[17].

The grounds of appeal

44. The plaintiff identified 12 grounds of appeal, however only grounds 1 to 5 were pressed at the final hearing. Those grounds were as follows:

“1. Whether the Appeal Panel erred in identifying the correct legal test in subclause 6(2)(c) of the LMTA (sic) at [80] in reference to the Tribunal’s findings at [31] as to ‘[w]hether the intended use of the land […] is lawful’ was ‘a paraphrasing of the correct statutory test in cl 6(2)(c) that was acceptable, and which did not add an impermissible gloss, where the correct test had been identified and stated earlier in the Decision’.

2. Whether the Appeal Panel erred at [118] in determining ‘the question the Tribunal posed at [31] of the Tribunal’s decision, excluding the words ‘solely for residential purposes’ was an acceptable paraphrasing of the statutory test’.

3. Whether the Appeal Panel erred in determining at [89] that there was no error at [31] of the Tribunal’s decision by way of:

a. identifying the wrong issue or asking the wrong question; or

b. construing the words or phrase ‘the intended use and occupation of the land is not unlawful’ in clause 6(2)(c) as if it read instead ‘whether the intended use of the land solely for residential purposes is lawful’ (Residential Purposes Test).

4. Whether the Appeal Panel erred in determining at [118] that the Tribunal did not err at [38] and [39] of the Tribunal’s decision in applying a wrong principle of law by substituting the words or phrase, ‘the intended use and occupation of the land is not unlawful’ in cl 6(2)(c) of Sch 1A of the LTMA with the Residential Purposes Test it set out at [31] of the Tribunal’s decision.

5. Whether the Appeal Panel erred in determining at [115] that the Tribunal did not err in finding clause 6(1) read with conjunction with clause 6(2)(c) of Sch 1A of the LTMA was not satisfied in circumstances where:

a. there was no dispute as to the facts;

b. the Tribunal accepted, at [8] of the decision, the expert evidence set out in the parties’ Agreed Statement of Facts in relation to Planning Issues;

c. the Tribunal accepted, at [8(9)] that ‘it is not unlawful for FSX to refrain from seeking approval for initial use of those areas, or to leave the commercial spaces vacant’;

d. The Tribunal made the findings of fact set out in [26] and [30] of the decision including that ‘Development in accordance with those plans is and was lawful’,

with the consequence that the facts having been fully found, resolution of the proceedings necessarily fell within the description of the words or phrases in clause 6(1) and 6(2)(c).”

Should leave be granted?

45. I do not propose to grant leave in relation to grounds 1, 2, 3 or 5.

46. Grounds 1, 2 and 3 are chiefly concerned with the way the original review Tribunal identified the question that arises under clause 6(2)(c) in particular paragraphs of its reasoning and the way the Appeal Panel addressed those grounds. There is no utility in exploring those questions independently of the question identified in ground 4, which far more directly concerns the substance of the internal appeal and the way in which the Appeal Panel identified and addressed the real dispute between the parties, namely the correct application of clause 6(2)(c).

47. I also note that ground 3 involves an argument about the meaning of the expression ‘not unlawful’ in cl 6(2) of Schedule 1A that is difficult to grasp. The argument includes elements that are repetitive of the arguments put in support of other grounds, such as the submission that the Appeal Panel’s reasoning is inconsistent with what was said by Richmond J in Vatner v Commissioner of State Revenue [2024] NSWSC 769 (Vatner) at [75] and by Basten JA in De Marco v Chief Commissioner of State Revenue (2013) 83 NSWLR 445; [2013] NSWCA 86 (De Marco) at [79(b)]. There is no particular utility in considering these arguments under a separate ground. To the extent that these arguments relate to ground 4, I deal with this later in these reasons.

48. Ground 5 involves the contention that the Appeal Panel was bound to allow ground 4 of the internal appeal. In substance, the argument is that the agreed facts together with the facts as found by the original review Tribunal should have caused the original review Tribunal to conclude the case in the plaintiff’s favour and that the Appeal Panel erred in not accepting this argument. As the final sentence of ground 5 says, the plaintiff contends that on the basis of the primary facts, ‘resolution of the proceedings necessarily fell within the description of the words or phrases in clause 6(1) and 6(2)(c)’. In other words, ground 5 asserts that no other outcome was reasonably open on the basis of the facts as agreed or found.

49. The question of whether a decision-maker’s failure to reach a particular conclusion based on facts as found may involve a question of law: Hope v Bathurst City Council (1980) 144 CLR 1; [1980] HCA 16 at 10. However where the decision-maker has identified the correct legal question and where the task is to determine whether the particular facts meet some statutory definition or test, it is generally only in marginal cases that the failure to reach a particular conclusion involves legal error: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 157 (Glass JA, with Samuels JA agreeing); Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 at [33] (Griffiths AJ).

50. None of the grounds other than ground 4 identifies an issue of importance to the public at large. The amount in issue in the proceedings is trivial when compared to the scale of the development. The assessments relate only to the two years in which the land was unoccupied and the building was under construction. The development has now been completed and the plaintiff is in occupation. The correctness of the assessments for the 2021 and 2022 years has no ongoing consequences for the plaintiff. I was informed that the defendant accepts that the plaintiff is entitled to the principal place of residence exception now that she is in occupation, despite the building being specifically adapted for commercial use: cf clause 3 of Schedule 1A of the LTMA.

51. Although the observations I have just made about the relative triviality of the dispute apply equally to ground 4, the question of whether the Appeal Panel correctly understood and applied cl 6(2)(c) of Schedule 1A of the LTMA in dealing with the appeal to it is sufficiently novel and of sufficient general application (at least potentially) that leave to appeal is warranted.

Was the Appeal Panel in error?

Clause 6(2)(c) generally

52. The question of whether a landowner has satisfied the requirement of clause 6(2)(c) involves both factual and legal questions. So far as the facts are concerned, it is necessary to identify what the ‘intended use and occupation’ of the premises will entail. The decision-maker must reach a conclusion as to how, precisely, the plaintiff intends to both use and occupy the land. For example, in the present case, it was necessary to reach a conclusion about which parts of the land would be physically used, how and by whom they would be used, and the purpose for which they would be used.

53. Having reached a conclusion about those matters, clause 6(2)(c) requires the decision-maker to determine whether that intended use and occupation ‘is not unlawful’. This question typically requires the decision-maker to determine whether the actual intended use – which the decision-maker will have identified in the process of fact-finding to which I have just referred – is not unlawful in the light of any applicable development consent and planning laws. The precise framing of the question will vary from case to case, depending on the particular intended use and on the way in which planning (or other) laws may apply to it.

The original review Tribunal reasoning in relation to clause 6(2)(c)

54. In the present case, the original review Tribunal reached a firm conclusion about the factual question. It concluded that the plaintiff’s use and occupation of the land would entail the day-to-day physical occupation, by her and her family, of the residential and mixed-use areas of the proposed development, as their home. So far as the commercial spaces were concerned, the Tribunal found that, as a matter of fact, they would be left vacant and that the plaintiff would not seek an occupation certificate in relation to them. These conclusions appear from RT[19]-[26].

55. The Tribunal was then required to consider whether that intended use and occupation was not unlawful, which the Tribunal approached in two stages. It first observed – correctly – that by leaving the commercial spaces vacant, the plaintiff would nonetheless be both using and occupying those spaces in a legal sense and that her use and occupation would be for residential purposes. This much, as the Tribunal noted, is clear from Council of the City of Newcastle v Royal Newcastle Hospital, as was applied in Commissioner of Land Tax v Christie*.*

56. As to the second stage, the Tribunal reasoned that because use and occupation of the commercial spaces in the proposed development ‘for residential purposes’ was not lawful, the plaintiff’s proposed intended use of those spaces was not lawful, even though she proposed to leave them vacant.

57. Were it not for the agreement recorded in RT[8(6)], namely that the commercially zoned areas on the property could not be lawfully used for residential purposes, I would have concluded that this reasoning was erroneous. The problem with framing the clause 6(2)(c) question in the terms stated in RT[31] (namely, is the use of the premises solely for residential purposes lawful?) is that land may be used ‘for residential purposes’ in any number of ways. In the case of the commercial spaces in the plaintiff’s proposed development, and leaving aside the agreement in RT[8(6)], it may or may not have been unlawful for those spaces to be occupied by leaving them vacant regardless of whether this was done ‘for residential purposes’. One might have thought, for example, that such a use would be lawful if, as the Tribunal had already concluded, the 2021 amendments did not apply to the development.

58. However, the presence of the agreement in RT[8(6)] meant that it was appropriate for the Tribunal to approach the clause 6(2)(c) issue in the way it did. The proceedings were conducted on the express basis that the lawfulness of the plaintiff’s intended use and occupation of the commercial spaces could be determined by reference to whether or not any such use and occupation was ‘for residential purposes’. The Tribunal was entitled to proceed on the basis that any use of the commercial spaces, including a use that involved leaving them vacant, would be unlawful if that use was for residential purposes. It would have been open to the plaintiff to seek to resile from this agreed ‘fact’ in the light of the argument it was advancing about the 2021 amendments, but it did not seek to do so: cf Damberg v Damberg (2001) 52 NSWLR 492 at 522; [2001] NSWCA 87.

59. In my view, the presence of the agreement in RT[8(6)] means that the Tribunal’s conclusion in RT[37] and RT[38] was correct. Unless and until the Tribunal (whether directly, or on appeal to the Appeal Panel) was asked to depart from the agreed state of affairs in RT[8(6)], it would not be possible to say that the Tribunal’s conclusion on the clause 6(2)(c) question was erroneous.

Grounds 1, 2, 3 and 4 of the internal appeal

60. Grounds 5 to 8 of the internal appeal were withdrawn during the course of the hearing before the Appeal Panel, although the Appeal Panel considered these grounds in any case. In circumstances where the plaintiff no longer presses current appeal grounds 6 to 12 on the basis that grounds 5 to 8 of the internal appeal were, or should have been, ‘abandoned’, only grounds 1 to 4 of the internal appeal are presently relevant here.

61. Grounds 1, 2, 3 and 4 of the internal appeal (reproduced above at [29] and [34]) specifically took issue with the way the Tribunal framed the clause 6(2)(c) question, although grounds 1, 2 and 4 really just involved particular matters that were otherwise raised by grounds 1, 2, 3 and 5 of the current appeal grounds. I refused leave to appeal on these grounds: see [45]-[50] above. The only issue that therefore now arises is whether the Appeal Panel erred on a question of law in dismissing ground 3 of the internal appeal (which involved the same question as ground 4 of the current appeal, for which I allowed leave: [51]). In my view, it did not.

62. As I have sought to explain, 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. Speaking generally, a use of commercial spaces ‘for residential purposes’ may or may not be lawful if the use in question involves nothing more than leaving the spaces vacant.

63. Here, however, it was agreed that any use of exclusively designated commercial areas of the development ‘…for residential purposes is unlawful’. So far as I can discern, the plaintiff did not submit to the Appeal Panel that the original review Tribunal should have departed from that agreement. The Appeal Panel, like the original review Tribunal, approached the issues in the appeal on the footing that the agreed ‘fact’ was true.

64. It is therefore very difficult to see how there can have been any error in the Appeal Panel’s conclusion on this issue.

65. As the defendant submitted in the proceedings before me:

“Plainly on the admitted facts and facts found in the Review Decision the Plaintiff could not satisfy cl 6(2)(c). The Plaintiff cannot demonstrate, pursuant to cl 6(2)(c), how it is not unlawful for the Plaintiff to use and occupy the land as her principal place of residence when she has admitted that certain areas of the land may not lawfully be used for residential purposes (Review Decision [8(6)]) and she admits that she intends to use the land for residential purposes (Review Decision at [9(7)] and [35]).”

66. Given the way the proceedings were conducted both before the original review Tribunal and the Appeal Panel, I agree with this submission.

67. These same considerations mean that there was no error in failing to approach the clause 6(2)(c) question by reference to anything said in either De Marco or Vatner. I would not in any event accept that those decisions have anything to say about how the original review Tribunal or the Appeal Panel should have approached the question of whether the plaintiff’s particular intended use of the land was unlawful. To the contrary, both the original review Tribunal and the Appeal Tribunal approached the question of lawfulness in the context of clause 6(2)(c) in a way that was appropriate, given the agreed boundaries of the dispute with which each of them was dealing.

68. It follows that the Appeal Panel did not err in rejecting ground 3 of the internal appeal. In my view, ground 4 of the appeal grounds as set out in the summons should be dismissed.

Non-publication and suppression orders

69. Both the original review Tribunal and the Appeal Panel made orders pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act in relation to the non-disclosure of certain names.

70. The plaintiff seeks orders that she be identified by a pseudonym in this Court and that certain names not be disclosed. In circumstances where the proceedings have been conducted in open Court without such an order having been made and where the proceedings were listed with the names of the parties, I am not satisfied that there is a basis to make the anonymising orders now sought.

71. As to any concerns regarding any inconsistency between the s 64(1)(a) orders made by the original review Tribunal and the Appeal Panel and this judgment, I note the comments of Meagher JA (Macfarlan and White JJA agreeing) at paragraph [197] of DEJ v Council of the New South Wales Bar Association [2021] NSWCA 72 and the authority to which his Honour referred:

“With respect to the proceedings before it, the Tribunal ordered pursuant to Civil and Administrative Tribunal Act, s 64 that the appellant and his wife be referred to by the pseudonyms DEJ and DEK respectively and prohibited, subject to exceptions similar to those proposed in this Court, the disclosure of their names, without any temporal limitation (Decision [6]-[14]). It follows that the context in which the present application is made includes that the Tribunal’s reasons for its decision are available electronically and accordingly able to be freely searched and read. It does not however follow that the circumstances which justified the making of such orders in the Tribunal will justify the making of orders to the same effect by this Court pursuant to s 8 of the Court Suppression Act: see Misrachi v Public Guardian [2019] NSWCA 67 at [17].”

ORDERS

72. The orders of the Court will therefore be as follows:

73. In relation to ground 4 of the appeal grounds as set out in the summons, leave to appeal is granted but the appeal is dismissed.

74. In relation to grounds 1, 2, 3 and 5 of the appeal grounds as set out in the summons, leave to appeal is refused.

75. The summons is otherwise dismissed.

76. The plaintiff is to pay the defendant’s costs.

**********