The Tribunal set aside the decisions of the Treasurer and the Commissioner of State Taxation and allowed the Seniors Housing Grant for the following reasons:
Right of occupation is not defined under the First Home and Housing Construction Grants Regulations 2015 (the “Regulations”). The First Home and Housing Construction Grants Act 2000 contemplates that a right under the Regulations can fall short of what would be a legal interest. Whilst the creation of a legal interest in land usually requires writing, a right of occupation must be a right which allows the Commissioner of State Taxation to form the view that there is a “reasonable security of tenure” but need not necessarily be in writing.
The applicants had an informal right of occupation over the relevant land given to them by a relative (i.e. Dr Wells to Mrs Wells and vice-versa) at the relevant time (i.e. on completion of the contract in March 2017). That the applicants are also trustees of a trust does not mean that they are not relatives for the purposes of the Regulations.
On the basis of the applicants’ affidavit of 8 February 2019, the applicants gave themselves an informal right of occupation that existed at the relevant time (i.e. on completion of the contract in March 2017) and that gave them reasonable security of tenure, as the land was acquired, and the building contract entered into, for the mutual purpose of the house being constructed as their place of residence for their retirement on completion of the building works.
The following factors were relevant to establishing the applicants’ informal right of occupation and reasonable security of tenure over the relevant land at the relevant time (i.e. on completion of the contract in March 2017):
- From 2005, the relevant land has been used under the same terms and conditions as the Licence Agreements of 4 May 2017.
- The purpose of buying the relevant land was to construct a home for the applicants to retire on.
- The applicants personally borrowed to contribute to the purchase of the relevant land, and have been solely responsible for repayment of the loan.
- The applicants have used the relevant land as if it were their own “in all but name and have occupied and used it over the years to the fullest extent possible as if it were our own, and with full leave and licence of the Trustees (ourselves) and of all living adult beneficiaries (our children).”
- The applicants personally paid all rates, taxes and outgoings for the relevant land.
- The applicants moved into the house that was built on the relevant land from March 2017, although there were still some building works going on around them.
- “The terms of the personal use and occupation of the [relevant land] since 2005 and the purpose of that use and occupation (to prepare for the building of our retirement house there), were reduced to writing and recorded in the licence agreements of 4 May 2017 to mark the imminent conclusion of the house project.”