1. The relevant legislation for these proceedings is contained in the First Home Owner Grant Act 2000 (Act) and, in particular, the eligibility criteria for being able to apply for a first home owner grant. In this case, it is criterion 5 that is important, which is contained in s.12 of the Act. Section 12(1) of the act reads as follows:

(1) An applicant for a first home owner grant must occupy the home to which the application relates as the applicant's principal place of residence for a continuous period of at least 6 months (or the lesser period approved by the Commissioner) commencing within the 12 month period immediately after completion of the eligible transaction or within a longer period approved by the Commissioner.

1. It is noted that the settlement date of this property was 25 February 2011. What s.12(1) in fact means is that the applicant must demonstrate that he occupied the property as his principal place of residence for a continuous period of 6 months between 25 February 2011 and when he, in this case, admits that he moved out on 24 February 2012. He moved into the property in July 2011. I also note that s.32 of the Act provides: "On a review, the objector has the onus of proving the objector's case." In this particular instance, the objector is the applicant and, as I pointed out to him during submissions, he has to satisfy me on the balance of probabilities that he has complied with s.12(1) of the Act.

1. The above section (s.12(1)), was discussed in the now well-known case of Chief Commissioner of State Revenue v Ferrington (GD) [2004] NSWADTAP 41; [2004] 57 ATR 170 at [183]. That case had a number of principles which included:
   • (a) The words "principal place of residence" should be given their ordinary meaning in the context in which they appear.
   • (b) Consideration of whether a person has been residing or occupying premises as their principal place of residence is to be assessed objectively, in the light of the circumstances relating to the actual occupation of the dwelling.
   • (c) The intention of the person concerned, gauged objectively, is relevant but not determinative of the issue.
   • (d) To occupy a home as his or her principal place of residence a person's occupation must have a degree of permanence to it: a connection to a place of residence of a transient, temporary, contingent or passing nature is not sufficient, nor is occupation for some other purpose.
   • (e) The short length of a person's residence, while relevant, is not determinative of the issue.
   • (f) The reasons for a person's departure from the home must be both reasonable and adequately explained when considered objectively in the light of their personal circumstances.
2. Vice President Judge Macnamara, in D'Amelio's case, stated that the first three sub-paragraphs to which I have referred were general commentaries as opposed to substantive factors and the substantive factors were set out in (d) to (f).
3. However, in my view, it is appropriate that I consider each of the factors separately.
4. Principle (a) is 'the words "principal place of residence" should be given their ordinary meaning in the context in which they appear.'

In this particular case, Ms Cameron has submitted that the applicant had no principal place of residence in the relevant period. She did not submit that the applicant had a principal place of residence anywhere else. I have stated in a number of cases it is not necessary to have a principal place of residence. The applicant said that this was where he returned to each time when he was finished with his work travels and that he was in a relationship with Ms Allder who he described as "a Melbourne girl" and, at the relevant time, would not move out of Melbourne with him.

1. Principle (b) is 'consideration of whether a person has been residing or occupying premises as their principal place of residence is to be assessed objectively, in the light of the circumstances relating to the actual occupation of the dwelling.'

As I have previously stated, the applicant was away from the premises for 150 days out of 248 days. Those times he was involved in his work. However, there must have been some period when he was not involved in the work in Melbourne because of the period, perhaps late November 2011 to late January 2012, it is unexplained what happened in that time. The non-use of electricity and the absolutely minimal use of water during that time would suggest that he was not residing in the property at all during that particular period. That, in my view, it is a real concern in this case because that would certainly break any continuity that the Act requires when it uses the words "continuous period", as used in s.12(1) of the Act.

1. Principle (c) is related to 'the intention of the person concerned, gauged objectively, is relevant but not determinative of the issue.'

I have referred to this matter in a similar circumstance, in fact dealing with the same building as where this property is situated. I was referred to it in two cases, one being Rocca v Commissioner of State Revenue [2016] VCAT 993 and Bishop v Commissioner of State Revenue [2016] VCAT 239 at paragraph [26]. At paragraph [27] of Rocca, I stated this:

[27] I now turn to the third Ferrington principle. That is, the intention of the applicant gauged objectively which is relevant but not determinative. As I have previously stated it was the applicant's intention only to stay in the property until September 2011 or, at the latest December 2011, when he completed his course. The fact that the student accommodation makes it very difficult in my view for an applicant to obtain a First Home owner Grant. That is, with the planning condition that a person must be a student in order to occupy the premises. That is because people are only students for finite times. I also note that teachers are permitted to occupy the property which could be an exception because a teacher could occupy the property for an indefinite time. I do not attempt to define all the other circumstances where a First Home owner Grant could be extended to student accommodation. I agree with what I have said in Bishop v Commissioner of State Revenue [2016] VCAT 239 [26]; there I said:

[26] The third Ferrington principle relates to intention. As I have mentioned it is clear that the Applicant only intended to occupy the premises until the middle 2012. That is putting it at the highest. Or put a different way, he could only occupy the premises while he was a student. Therefore, it necessarily follows that there was lacking a degree of permanence in his intention. His intention was to occupy these premises for a short and finite period. Whether that period be for 6 or 12 or 18 months in my view it does not matter it was always his intention to leave these premises and as such that cannot be his principal place of residence.

1. The applicant in this case has sought to distinguish those cases on the basis that the applicants in both Bishop and Rocca were in fact students. He is saying that he is not a student and therefore his intention was to occupy the property indefinitely. The difficulty with that submission in my view is that he well knew at the time he commenced to occupy the property, or very soon thereafter, that he was required to be a student. Thus it necessarily follows that it would only be a matter of time before someone found out that he was in breach of the planning permit and he would then have to leave the property. Given those circumstances, it cannot be said that he had the intention to permanently occupy the property as his principal place of residence. He could not and was not allowed to legally occupy the property.
2. Principle (d) is "to occupy a home as his or her principal place of residence a person's occupation must have a degree of permanence to it: a connection to a place of residence of a transient, temporary, contingent or passing nature is not sufficient, nor is occupation for some other purpose."

In this particular instance, I note that the applicant's stay at the property was far less than what would be normal. The applicant has explained that, to some extent; however, as I have previously mentioned, he has not explained why there does not appear to be any electricity use for the period of late November and December 2011 and most of January 2012.

1. Principle (e) is "the short length of a person's residence, while relevant, is not determinative of the issue."
2. The applicant stated that he only left the property in February because, at that stage, he was going to be transferred to Perth with the same Company. This was an unexpected job offer and by the time he had accepted the job his 6-months period had expired anyway. I accept that explanation however, in any event, in my view, the period of stay was relatively short. Therefore that is something that I consider.
3. Principle (f) deals with "the reasons for a person's departure from the home must be both reasonable and adequately explained when considered objectively in the light of their personal circumstances."

1. Looking at these matters as a whole, I have formed the view, that the applicant's intention in this case could not have been to occupy the premises as his principal place of residence. While intention is not determinative I think, in my view, in this particular instance, it is. He knew at the time he moved into the premises that this was student accommodation. It would be quite wrong to find that objectively not subjectively the applicant could have formed an intention to occupy this property when he was not allowed to occupy the property as he did because he was not a student. I also find that the property was not occupied continuously. At best it was occupied from July until some time in November 2011 and then from some time in January 2012 to February 2012. That is not a continuous period as required by s.12(1). Given these circumstances, the applicant will not succeed in his application.

1. The penalty that was put on the applicant by the respondent was $2,600. However, Ms Cameron, in her submissions, concedes that in other cases similar to this, I reduced the penalty to $1,500 and she says that is what should happen in this particular case. I did consider not imposing a penalty at all but, bearing in mind that there was not a continuous use of the property and bearing in mind that the applicant knew at least at the time he moved into the property, even if not before, that it could not be occupied other than by student accommodation. I think $1,500 is an appropriate penalty. Therefore I will make an order confirming the decision of the respondent, save and except that I will vary the penalty to $1,500.