This matter considered whether lands at Wollert in Melbourne and Bell Park in Geelong should be wholly exempt under section 77 of the Land Tax Act as land used as a registered caravan park. The lands were registered as caravan parks by the respective local councils, despite parts of the lands being still under development. The Commissioner contended this did not meet the requirements of the word “use” in section 77 of the Land Tax Act and determined that only certain portions of the lands should be exempted, based on the level of completion/substantial completion.
On 20 June 2019, the Tribunal found in favour of the Commissioner and accepted the Commissioner’s submission that only 47% of the Bell Park land and 51% of the Wollert land were exempt under section 77(1) of the Land Tax Act as being ‘used as a registered caravan park.’ The taxpayers appealed the decision to the Supreme Court.
On 14 July 2020, Nichols J allowed the taxpayers’ appeal and remitted the matter to the Tribunal for a re-hearing to make additional findings of fact necessary to dispense of the matter. The taxpayers filed an application for leave to appeal to the Court of Appeal broadly contending that if the council registration covered 100% of the land, the land should be 100% exempt under 77(1) of the Land Tax Act. The Commissioner filed a cross-application, also seeking leave to appeal to the Court of Appeal.
On 30 April 2021, a majority of the Court of Appeal (Ferguson CJ and Tate JA) delivered judgment in favour of the Commissioner, concluding that the taxpayers had not discharged their onus of proof that the land was used in a manner that attracted a full exemption under section 77(1) of the Land Tax Act. The Court of Appeal dismissed the taxpayers’ appeal and allowed the Commissioner’s cross appeal.
The majority affirmed the Commissioner’s proportionate exemptions for the lands and held that the exemption does not apply where, as at 31 December, an area of land had not been cleared or otherwise prepared for movable dwellings by the completion of necessary civil works relative to the type of caravan park in issue.