Frontlink Pty Ltd v CSR [2016] VSC 25
A developer owned land in Clyde North and was in the process of undertaking successive subdivisions, with the ultimate aim of residential development. The relevant subdivision for the litigation concerned the Arterial Road Widening (Plan J). Later subdivisions were planned for a gas easement and residential development. The Commissioner assessed on the basis that when regard was had to all of the subdivisions that were to take place, Plan J was not solely for the purposes of providing land for transport infrastructure. As a consequence, it was not exempt under s201RF(b) of the Planning and Environment Act 1987 (the Act).
Section 201RF(b) of the Act (“excluded subdivisions of land”) provides:
For the purposes of this Part, a subdivision of land is an excluded subdivision of land if –
(b) the purpose of the subdivision is solely to provide land for transport infrastructure or any other public purpose;
The taxpayer disputed the Commissioner’s construction of the provision. The Commissioner was successful at VCAT. The taxpayer appealed that decision to the Supreme Court.
On 11 February 2016, Justice Croft of the Victorian Supreme Court held in favour of the taxpayer. Croft J held that Senior Member Davis of VCAT had erred in his interpretation of the word “purpose” in s201RF(b) of the Act. Croft J held that, properly construed, “purpose” referred to the “most immediate and proximate purpose” of the subdivision and that the purpose of this subdivision was to provide land for transport infrastructure. This was therefore an excluded subdivision and did not trigger the taxpayer’s liability to pay the GAIC levy.
