Since moving into the property in 2003, I have performed extensive renovations to the property, including adding a bathroom, pulling out the decking, cutting down large European trees and cultivating an extensive native garden and removing asbestos from the property. I have done this work over a number of years including during the six years since I became the owner of the property.

1. It would appear that all the work referred to was done prior to 2006 except for adding an en-suite bathroom which was performed in 2012. Further, the applicant gave oral evidence that he built an extension to the property.
2. The applicant gave evidence as to where he spent his time during 2010 - 2014. In relation to those years he stated as follows:
   • (a) In 2010 he spent 177 days in Australia, 129 days in Canada and 53 days in other overseas destinations.
   • (b) In 2011 he spent 61 days in Australia, 190 days in Canada and 119 days in other overseas destinations.
   • (c) In 2012 he spent 90 days in Australia, 211 days in Canada and 58 days in other overseas destinations.
   • (d) In 2013 he spent 141 days in Australia, 135 days in Canada and 82 days in other overseas destinations.
   • (e) In 2014 he spent 156 days in Australia, 138 days in Canada and 71 days in other overseas destinations.
3. It is noted, that the applicant has a holiday home in Bendigo, Victoria. The applicant stated in his oral evidence that he spends about 25% of the time that he has in Australia at the Bendigo holiday house although there was some uncertainty about that time. He stated that he and his wife did not tend to travel around Australia much as they were involved in a lot of other travel.
4. It should also be noted that in 2011 and 2012 the applicant was anchored in Canada for a longer period that he would have been otherwise because of illness. In late 2011 the applicant's wife was in need of a hip operation and the applicant was required to stay in Canada to assist her up and down the stairs and with other chores until she was able to have that operation. He gave evidence that he was in Canada from 29 October 2011.
5. Unfortunately, in December 2011, the applicant fell off a ladder in Canada and fractured his pelvis. As a result he spent a number of days in hospital and approximately two weeks in an old people's home because his wife was unable to look after him. He was then unable to travel until April 2012 when he travelled to Poland. Also, in 2011, the applicant was hospitalised in Canada after catching H1N1 'flu virus while in China. As a result, he was required to cancel his plans to return to Australia at that time.
6. The applicant stated that he considers Shoreham his home; he keeps his records, his car and all his personal treasures at the property, including fabric from old railway buildings. I was shown photographs of the property and I observed from those photographs that the property looked "well lived-in" and that it contained a study lined with shelves containing books, documents and folders. It also contained filing cabinets which I was told had all the files of the applicant's previous jobs as an architect.
7. The applicant has significant and communal family ties in Shoreham in particular and Victoria in general. The applicant's three children live in Melbourne and he is a grandfather to eight grandchildren who also live in Melbourne. He has a close relationship with his children and grandchildren who often visit him and stay at the property from time-to-time. The applicant is also an active member of the Shoreham Community Association, Flinders District Historical Society (which encompasses Shoreham) and the Australian Historical Society.
8. In relation to the Shoreham Community Association, the applicant has provided pro bono assistance as an architect and architectural historian in order to help preserve properties. The applicant is a regular churchgoer and, when he is in Shoreham, he is an active member of St Mark's Anglican Church at Balnarring (near Shoreham) which he attends every Sunday. He has provided St Mark's with pro bono assistance as an architect for a number of years and continues to do so in relation to the extension of church facilities.
9. In relation to the applicant's financial ties to Australia he states in paragraph [29] of his witness statement:

I also have substantial financial ties to Australia. In addition to owning the property (which accommodates my car, furniture, family records, archives of my travels as well as other personal possessions which I have accumulated over my lifetime), I own another property in Bendigo and hold bank accounts in Australia, a superannuation account in Australia and shares in a private Australian company that is used as a passive investment vehicle...

1. In relation to the applicant's wife's ties to Canada, at paragraph [31] of the applicant's witness statement he states as follows:

Enid has substantial ties to Canada. In this regard, she owns the Canada House, which she has lived in since the 1970s and to which she has a strong emotional attachment; her son, Robert (who is in his late 30s and has a severe mental disability), lives in a nanny flat at the back of the Canada House and Enid likes to stay close to and check in on Robert from time to time because of his condition; and she has a circle of friends (including her best friend) who live in Canada.

1. The applicant also stays at his wife's Canadian house, and he is a member of an orchestra in Canada where he plays clarinet. He stated that he is rarely able to play in this orchestra because of the limited time he has in Canada.
2. At paragraph [33] the applicant describes his emotional commitment to Australia:

While I have some ties with Canada, my ties to Australia are deeper and stronger and I have a sense of belonging to Australia and my home in Shoreham. Enid respects my ties and sense of belonging to Australia. We have therefore chosen to continue to live at our respective homes in Australia and Canada rather than relocating to the other's country. It is my hope that at some time in the future, Enid will relocate to Australia.

1. The Act imposes land tax in respect of each year on all taxable land in Victoria (see S7). The owner of that land is liable to pay tax (see S8). By definition of 'year' in S.3, land tax is assessed based on calendar years, not financial years.
2. 'Taxable land' means all land that is not exempt land (see S3). A number of classes of exempt land are created by the Act. Relevantly to this proceeding Division 1 Part 4 deals with 'principal place of residence'. Section 53(2), while not exhaustibly defining principal place of residence, however gives a guiding to the meaning of those words. It states:
   1. What is a principal place of residence?

(2) In determining whether land is used or occupied, as the principal place of residence of a person, account must be taken of every place of residence of the person, whether in Victoria or elsewhere.

(1) Subject to this Division, the following land is exempt land -

(a) land owned by a natural person that is used and occupied as the principal place of residence of that person;...

(1) For the purposes of this Division, land is taken to be used and occupied as the principal place of residence of a person despite the person's absence from the land if the Commissioner is satisfied -

(b) that the person intends to resume use or occupation of the land as his or her principal place of residence after the absence; ...

1. Pursuant to s.110 of the Taxation Administration Act 1997, the applicant has the onus of proving his case.
2. Pursuant to s.36(1), land for the purposes of the Act is to be assessed at Midnight on 31 December immediately preceding the tax year.
3. It should be noted, that in order to assess the use of the land for the tax year, it is appropriate that I should look at a number of months prior to 31 December of the preceding year in order to make that assessment.
4. Mr Morgan, Counsel for the respondent, has correctly stated, that in deciding the use of the land, I must decide the use of the land for each particular year in question rather than aggregating the use. At paragraphs [14] and [15] of his submissions, Mr Morgan correctly stated as follows:

[14] Because a land tax assessment relates to a single calendar year, it is critical to analyse the usage of the relevant land on a year-by-year basis, and in particular, the usage from 1 July to 31 December in the preceding tax year. Although not this case, it is possible that the same parcel of land could qualify for the principal place of residence exemption in one year but not in the next, because of different evidence about the use to which the land was put in those two years.

[15] It is, therefore, impermissible to aggregate the activities conducted on land over a five year period and conclude that overall a person used a property sufficiently to render it his or her principal place of residence. Instead what must be done is that the activities of each calendar year must be considered in isolation to determine the land tax consequences in that year.

1. Mr Balasubramaniam, solicitor for the applicant, referred me to a number of authorities from other jurisdictions. (See Chief Commissioner of State Revenue v McIlroy [2009] NSWADTAP 21; Commissioner of State Revenue v Burdinat (2012) 90 ATR 689; (2012) WASC 359; and Levene v Commissioner of Inland Revenue [1928] UKHL 1; [1928] AC 217). I found those cases of little assistance because they dealt with different statutory provisions. Other states of Australia do not have the same statutory provision relating to PPR. Different words are used which required a choice between one of two places of residence. In Victoria, s.53(2) requires account to be taken of other residences. Levene's case was a taxation case concerning residence in the jurisdiction of the United Kingdom.
2. I also note, that in Unkovich v Commissioner for State Taxation (1994) 11 SR(WA) 107, the Land Tribunal for Western Australia, relying on Koitaki Para Rubber Estates Ltd v Commissioner of Taxation (Cth) [1941] HCA 13; (1941) 64 CLR 241, made it clear that the place of residence of an individual is determined by reference to where he eats and sleeps and has his settled or usual abode.
3. To determine whether the applicant comes within the statutory exemption for PPR for each of the relevant years, one must look carefully at the words of the statute itself.
4. The applicant's solicitor submitted, that s.54(1)(a) and s.56(1)(a) and (b) were different grounds of exemption. I do not agree with this submission, the ground of exemption is stated in s.54. What s.56 does is to explain, amplify and extend the ground of exemption in s. 54.
5. Section 56(1) allows the PPR exemption to apply, even though the person seeking the exemption is absent from the premises, provided that person can show that the absence comes within the words (for the purpose of this proceeding) of 56(1)(a) and (b).
6. Thus the first question to be asked is whether the applicant's absence from the property was in fact temporary.
7. Mr Morgan submitted that the word 'temporary' did not apply to the applicant's absence from the property in the present situation. At [41] of his submissions Mr Morgan stated:

Section 56(1)(a) was a requirement that the absence of the Applicant from the Property must be "temporary in nature". That in itself imports a requirement that the use of the Property changed over time, from a period in which the Applicant was absent to a period (after the temporary absence) when the Applicant was no longer absent. But this did not happen. The Applicant's use of the Property has not changed. In each of the tax years in question, the Applicant followed a similar course, spending only a few months at the Property and dividing the balance of the year between Canada and holidays overseas. If the Applicant was absent from the Property... then he was absent in each year and there was nothing temporary about that absence.

1. My own researches into the meaning of the word 'temporary', would suggest in the context of the relevant legislation to mean 'leaving a particular place with the intention of returning'. In Hafza v Director-General of Social Security (1985) 68 ALR 674 at [682-683] Wilcox J in the Federal Court of Australia, when dealing with the word 'temporary' as used in the Social Security legislation dealing with child endowment stated as follows:

I think that the adjective 'temporary' was used to denote an absence that was, both in intention and in fact, limited to the fulfilment of a passing purpose. That purpose might be of a business or a professional nature or might be for a holiday or for compassionate or family reasons. But, whatever the purpose, it seems to me to be implied in the concept of 'temporary' absence that the absence will be relatively short and that the duration will be either defined in advance or be related to the fulfilment of a specific passing purpose. If, for example, a businessman travels overseas for a period of three months to engage in sales discussions intending always to return to his usual home in Australia and in fact returning of the end of that period there is no difficulty about describing his absence as 'temporary'. If the same person moves himself and his family to an overseas location intending to remain there indefinitely in pursuit of business orders, his absence would not be properly described as 'temporary'.

1. It is clear, on the evidence that was put before me, that in each of the relevant tax years, the applicant always had the intention of returning to his home in Shoreham.
2. While the applicant's absences cannot be described as 'short', to use Wilcox J's term, in my view, the absences should be looked at in terms of the relevant legislation. Justice Wilcox was dealing with legislation concerning child endowment. In this particular instance, I am concerned with the applicant returning to his long-established home. In my view, that is a proper distinction. One must look at the entire circumstances surrounding the applicant. In this particular case, while the applicant clearly has ties in Canada, an objective bystander would always reply, that the applicant's principal place of residence is in fact at the property at Shoreham not Canada. That is where all his important items are kept, and what he would call his home. In this day and age, people are far more mobile than they have been previously and it is not unreasonable, that someone should have a base at a particular place where they spent two or three months per year. It is clear that if a person has such a base as the applicant does in this case and he is away from that base but always intending to return as I find the applicant did, then it can be described that the applicant's absence from the property was 'temporary' within the meaning of the legislation.
3. Section 56(1)(b) refers to intention. I have already largely dealt with the applicant's intention after an absence. It is clear, that the applicant always intends to return to the Shoreham property (refer to above). That intention is to resume 'use or occupation' (underlining supplied). It is clear that the applicant continually uses the property for the purpose of keeping his most valuable possessions, being his records and his own personal 'treasures'. Further it is clear, that when the applicant returns to the property, he sleeps and eats his meals at the property, uses his motor vehicle, and does everything at the property that one would normally call 'occupation'. While it cannot be said that the applicant resumes 'use' of the premises because the property are continually used by him to store his valuables, to the extent that he also resumes occupation of the property, in my view, s.56(1)(b) of the section is fulfilled.
4. I now turn to the consideration of the principles in Commissioner of State Revenue v Ferrington [2004] NSWADTAP 41; (2004) 57 ATR 170 at [42]. I note, that Ferrington's case is usually applied in First Home Owner Grants cases and the principles there set out, are not all relevant in a situation such as the present where I am dealing with land tax. However I think it is worthwhile examining some of the principles in that case as they apply to the present.
5. The first principle in Ferrington's case is that the words 'principal place of residence' should be given their ordinary meaning in the context in which they appear. In this particular instance, it is clear, that the Shoreham residence is the applicant's place of residence. Mr Morgan submitted, that in many of the years in question, the applicant spent more time at his wife's residence in Canada. While this may be so, in at least two of those years, there were health reasons why the applicant was required to remain in Canada, namely, because he fell off a ladder and broke his pelvis and he was helping his wife who was incapacitated while waiting for a hip operation and he suffered with H1N1 'Flu virus.
6. The second Ferrington principle requires that the situation be looked at from an objective point-of-view. In my view, an objective person looking into the situation of the applicant and the circumstances of the Shoreham property, would take the view that Shoreham was the applicant's principal place of residence. Mr Morgan submitted, that the applicant does not have a principal place of residence or, at the very least, it was more likely to be Canada than Shoreham. In my view, this is not correct. The Shoreham property was the place that housed the possessions of the applicant that were valuable to him and was the place to which he always returned and to which an outsider would consider that he would be living. It is also noted that the applicant was very involved in the Shoreham community in particular the church and other organisations which I have mentioned. Further, Mr Renkin, a friend of the applicant who lives in the Shoreham area, in his witness statement which was admitted without cross-examination made it clear, that the applicant entertains from his house in Shoreham and the applicant was entertained by Mr Renkin and his wife when the applicant was at Shoreham. Also Mr Renkin refers to the applicant's membership of the Shoreham Community Association and the Flinders District Historical Society of which the applicant is involved. I thus take the view, that looking at the applicant's position objectively, Shoreham is his principal place of residence.
7. The third Ferrington principle refers to the applicant's intention which is to be gauged objectively. Mr Morgan stated that it was the applicant's intention to spend most of his life in Canada or on world holidays. In my view, it is clear that the applicant's intention, gauged objectively, that although approximately only two months of the year were spent in Shoreham, has always been and is that the property is his PPR. As I have previously said this is where he keeps all the things that he values. It is close to his family, it is close to his friends, and it is close to the associations of which he is involved.
8. The fourth Ferrington principle concerns the degree of permanence in the applicant's occupation. The applicant has been occupying the Shoreham residence since 2003. His intention is to continue to keep occupying that residence and to keep using the residence as his main place of abode. He clearly has shown that connection with the property in each of the relevant tax years. It cannot be said that the applicant's connection to the property lacks any degree of permanence. His connection to the residence, is not transitory, temporary or contingent or passing of nature.
9. I do not believe the fifth and sixth Ferrington principles are relevant to the situation in this proceeding.

1. Taking all the matters into account which I have referred to above I have come to the conclusion, that the applicant has made out the PPR exemption pursuant to s.54 of the Act with the aid of s.56(1)(a) and (b). Further it is clear, that applying the relevant Ferrington principles to the applicant's situation, he fulfils the requirement of the Act. Thus I will order that the determination of the respondent be set aside and the Assessments relevant to each proceeding also be set aside.