VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	
vcat reference NoS. Z282/2020 & Z283/2020	
CATCHWORDS	
Review and Regulation List – Land Tax Act 2005 (Vic), s 68 – Exemption from land tax for land being prepared for use primarily for primary production within 12 months – Whether Tribunal should exercise discretion to extend period in which primary production use to commence – Whether applicant has discharged onus of proving that land being prepared for use for primary production within 12 or 24 months.	

APPLICANT	Mintfield Pty Ltd as Trustee for Huynh Superannuation Fund	
RESPONDENT	Commissioner of State Revenue	
WHERE HELD	Melbourne	
BEFORE	R. Tang AM, Member	
HEARING TYPE	Videoconference Hearing	
DATE OF HEARING	24 May 2022	
DATE OF ORDER and reasons	16 June 2022	
CITATION	Mintfield Pty Ltd v Commissioner of State Revenue (Review and Regulation) [2022] VCAT 671	
Orders
1	The 2016 land tax assessment (reassessment notice no 17474741) issued to Mintfield Pty Ltd on 13 March 2020 is set aside and remitted to the Commissioner of State Revenue for reassessment to reflect the exemption of the property at Horseshoe Bend, Armstrong Creek from land tax under section 68 of the Land Tax Act 2005 (Vic).
2	The 2017 land tax assessment (reassessment notice no 17474733) issued to Mintfield Pty Ltd on 13 March 2020 is confirmed.

R. Tang, AM
Member		
	
APPEARANCES:		
For Applicant 	Mr N. Kotros of Counsel	
For Respondent	Mr D. Morgan of Counsel	

Reasons
1	The applicant, Mintfield Pty Ltd (MPL), is the trustee of the Huynh Superannuation Fund, a self-managed superannuation fund established for the benefit of Mr Ngoc Lam Huynh, Ms Thi Thanh Nga Nguyen and their children.
2	MPL owns three properties, one of which is a rural property of some 78 acres, located at Horseshoe Bend Road in Armstrong Creek (Relevant Property).
3	MPL acquired the property in late September 2015 and contends that, between the time of acquisition and early 2017 (Relevant Period), the Relevant Property was being prepared for use primarily for primary production by way of cattle farming.  While MPL suggests that preparatory activities to that end were carried on during the Relevant Period, as it transpired, in March 2017 MPL decided to abandon cattle farming and instead engage in a different type of primary production activity: crop cultivation under a share farming agreement with Mr Sandon Donald (Share Farming Agreement).   
4	By way of context, it is relevant to observe that:
(a)	Mr Kitson, the vendor of the Relevant Property, had carried on cattle farming at the property until he became sick and the property fell into disrepair some time before the transfer to MPL; 
(b)	through their family trust, Mr Huynh and Ms Nguyen owned and operated a cattle farm in McNabs Road, Keilor (McNab Rd Property) from 2009 until that property was compulsorily acquired in 2017; and
(c)	in 2010, MPL acquired a property in Groves Road, Connewarre (near Armstrong Creek) (Groves Rd Property) at which it carried on cattle farming activities until June 2017, when it was also converted to crop cultivation under a separate share farming agreement with Mr Donald.
5	Section 68 of the Land Tax Act 2005 (Vic) (LT Act) provides an exemption from land tax for land which is ‘being prepared for use primarily for primary production’ and where the land will become exempt under section 65 (or certain other provisions) ‘within 12 months after the day on which the preparation … commenced’.  Relevantly, there is a discretion, vested in the Commissioner, to extend the period of time by which the land must become exempt by a further 12 months (ie. a total period of up to 24 months).
6	It is not disputed that the Relevant Property began to be used primarily for primary production within 24 months of its acquisition (ie. by virtue of the Share Farming Agreement) and has been exempt from land tax under section 65 of the LT Act since the 2018 land tax year.  Of course, the nature of the primary production activities (ie. crop cultivation) differs from those to which MPL’s preparatory activities were directed (ie. cattle farming).  
7	Noting that the Commissioner of State Revenue (Commissioner) concedes that there is some evidence that MPL engaged in preparing the land for primary production, the key issues to be addressed are whether: 
•	the discretion to extend the time for the property to become exempt should be exercised; and
•	the Tribunal can be satisfied that, as at 31 December 2015 or 31 December 2016, the Relevant Property would become exempt from land tax within 12 or 24 months from the date the land preparation commenced.
8	For the reasons which follow: 
(a)	I have determined that I should exercise the discretion to extend the time allowed under section 68(2) for the Relevant Property to become exempt from land tax to 30 September 2017; and 
(b)	I am satisfied that MPL has discharged its onus of proving that, as at 31 December 2015, the Relevant Property would become exempt by 30 September 2017; but
(c)	I am not satisfied that MPL has discharged its onus of proving that, as at 31 December 2016, the Relevant Property would become exempt by 30 September 2017.   
Overview of the LT Act and the exemption for land being prepared for primary production
9	The LT Act imposes land tax in respect of each year on all taxable land in Victoria, with the owner of taxable land being liable to pay land tax.  A taxpayer is to be assessed for land tax on the total taxable land of which it was the owner at midnight on 31 December immediately preceding that year.
10	Taxable land is defined in the Act to mean all land that is not exempt land.  Division 2 of Part 4 of the LT Act sets out the exemptions available for primary production land.  Relevantly, section 68 of the LT Act provides that:
(1)	Land is exempt land for a tax year if the Commissioner is satisfied that—
(a)	the land is being prepared for use primarily for primary production; and
(b)	the land will become exempt land under section 65, 66 or 67 within 12 months after the day on which the preparation referred to in paragraph (a) commenced.
(2)	The Commissioner may extend the period referred to in subsection (1)(b) by a further period of 12 months.
11	Primary production is defined in section 64 and includes both ‘cultivation for the purpose of selling the produce of cultivation’ and the ‘maintenance of animals or poultry for the purpose of selling them or their natural increase’.  
12	Under section 65, an exemption from land tax is available for land outside greater Melbourne that is used primarily for primary production.  It is this exemption that has been applied to the Relevant Property from the 2018 land tax year based upon the cropping activities carried on by Mr Donald under the Share Farming Agreement.
13	There has been limited consideration by the Tribunal as to the interpretation of the preparation exemption in section 68.  However, in Portbury Development Co Pty Ltd as trustee for Portbury Family Trust v Commissioner of State Revenue (Portbury), I: 
(a)	expressed a tentative view that the relevant state of satisfaction referred to in section 68(1) is to be determined at 31 December of the year preceding the relevant tax year, such that subsequent events are only relevant ‘to the extent that they bear on the question of what was happening at [that] date’; and
(b)	indicated that the discretion to extend the period of time in which the land becomes exempt after the commencement of the preparatory activities, ie. from 12 to 24 months:
must be intended to deal with situations where either:
•	the nature and extent of the preparatory work required is such that it is unreasonable, from the start, to require the work to be completed and primary production to commence within the ordinary 12 month period; or
•	events which become known at some point in that first 12 months make it apparent that that period is no longer reasonable.
14	In that proceeding, I was ‘not satisfied there [was] any proper basis for the exercise of any discretion to extend’ the time for the property to become exempt from land tax in circumstances where there was a lack of evidence as to any plan regarding the timing of the preparatory works or that something that occurred made it unreasonable for those works to be completed in 12 months.
15	The parties are in agreement on the first principle, but the applicant suggests that, having regard to the decision of Pagone J in Conder Tower Pty Ltd v Commissioner of State Revenue (Conder Towers), the discretion to extend time in section 68(2) is not limited to being exercised in the two situations posited in Portbury.
Evidence
Mr Huynh
16	Mr Huynh has made two witness statements in the proceeding being his witness statement dated 29 July 2021 (Huynh WS) and further witness statement dated 25 November 2021 (Huynh FWS).  The Tribunal Book also includes two statutory declarations made by Mr Huynh, which relate to previous land tax disputes with the Commissioner, dated 12 October 2018 (Huynh Stat Dec) and 22 February 2019 (Huynh Further Stat Dec).  Mr Huynh also gave evidence before the Tribunal, with the assistance of a Vietnamese interpreter, and was subject to extensive cross-examination.  
17	By way of background, Mr Huynh explains that:
•	He was born in Vietnam and came to Australia as a refugee in 1980 at the age of 24.  Prior to leaving Vietnam, he had worked on his father’s farm, raising animals (including cattle) and tending to the family’s rice fields. 
•	In Australia, he initially worked in a factory during the week and on a farm in Adelaide on weekends (the latter being where he met Ms Nguyen, his wife).
•	From 1989 to 2001, the couple operated a clothing manufacturing business through a company they owned.
•	In March 2004, the trustee of his family trust entered a contract to acquire the McNab Rd Property (of some 164 acres) and became the registered proprietor in July 2005.
•	Between 2005 and 2008, Mr Huynh prepared the McNab Rd Property for cattle, spending:
considerable time removing rocks and filling in holes and divots in the land (so as not to trip the cattle), and fencing areas for the cattle to be moved across the Property so as to ensure that there was adequate feed for the stock and that the grass was not being trampled so as not to regenerate for the next year.
In addition, the Property had a significant number of weeds which needed to be removed before the cattle could run on the Property. 
…
I undertook these tasks mostly on my own, but also with the assistance of my wife [Ms Nguyen]. …
•	Cattle were put on the McNab Rd Property in 2009 and it was used primarily for primary production until it was compulsorily acquired in 2017.
•	In November 2006, MPL entered a contract to acquire the Groves Rd Property (of some 31 hectares), which settled in March 2010.  However, MPL ran cattle at the property from 2009 (under an arrangement with the vendor).
•	When both farms were operating, Mr Huynh and Ms Nguyen ‘spent about 30 hours per week at the farms’, travelling up from Melbourne for a few days each week. 
18	In relation to the Relevant Property, Mr Huynh explains:
•	MPL signed the contract to acquire the property in August 2010 and, at the time, the vendor (Mr Kitson) had cows and lambs and Mr Huynh thought ‘it would be a simple matter for [them] to take the farm over’.
•	However, by the time it came to settlement in September 2015, Mr Kitson had got cancer, his wife had died and the ‘farm had become run down, including the cattle yard which had collapsed’.
•	Nevertheless, Mr Huynh and his wife thought they could fix it, doing it themselves ‘to save money’, using a tractor that they already owned, working ‘full-time, on the land as well as at [their] other two farms’.
•	They started work on preparing the property in late 2015, after settlement, which ‘continued right up until [they] signed the share farming agreement’ in March 2017.  (In cross-examination, Mr Huynh clarified that work had commenced on the Relevant Property within a few days of settlement.)
•	They worked 40 hours per week at the property, taking little leave.  (In cross-examination, Mr Huynh indicated that they only took the ‘main days’ off between December to January, which I take to mean Christmas day, New Years’ Day and the like.)
19	In his witness statement, Mr Huynh describes the nature of the work that he and Ms Nguyen undertook to prepare the land for cattle, including:
•	cutting the grass, which was very long;
•	fencing works to replace, fix and maintain both electric and paling fences on the land;
•	filling of the land (‘from around October 2015’);
•	clearing fallen trees and branches;
•	removing rubbish;
•	killing weeds by hand spraying and chainsaw;
•	levelling the ground to prepare it for cattle;
•	preparing fire breaks; and
•	removing rocks of varying sizes.
20	In cross-examination, Mr Huynh accepted that there was some overlap in these activities.  For example:
•	fire breaks were created when cutting the grass;
•	as filling any holes made the ground level, there was no separate levelling work required; and
•	the rubbish which had to be removed was largely the fallen trees and branches and rocks.
21	In answer to questions from me, Mr Huynh also explained that:
•	the tractor they used for rock removal and for filling the land was a 90 horsepower tractor (large enough to remove rocks of up to half a metre in diameter) which was owned by the family trust and had previously been used at the McNab Rd Property; 
•	they used left over RoundUp from the McNab Rd Property to kill the weeds; and
•	unlike the larger McNab Rd Property, where they had to hire spraying equipment, they were able to hand spray the weeds at the Relevant Property with a bottle on their backs, paddock by paddock (each being 5-8 square metres). 
22	When Mr Morgan (counsel for the Commissioner) put to Mr Huynh that they could have arranged things such that cattle could be placed on at least some paddocks by the end of 2015, Mr Huynh explained it is ‘not as simple’ as the Commissioner suggests, saying that there were ‘many steps’ to be completed, including fixing things first (eg. removing rocks, weeds and rubbish), then wiring the fences and third establishing a cattle run for cows to come off transportation.
23	Mr Huynh accepted that they did not get around to building a cattle yard and run, which was necessary in order to have cattle on the property, because it was quite expensive and they only planned to do it after they completed everything else.  However, he rejected the Commissioner’s suggestion that they failed to do so because ‘they were never serious about it [ie. cattle farming]’, explaining that ‘at [their] level, they could only do what they could’, given they also had to look after two other farms with cattle on them, and suggesting they are ‘not as smart’ as the Commissioner implied.
24	In his further witness statement, Mr Huynh explains that, by early 2017, he and Ms Nguyen ‘were exhausted’.  Equipment was breaking down and needing repair, and Ms Nguyen was suffering from arthritis in her knees (which was getting worse) and has also developed a sore back from the labour.  They did not have enough money for the further materials required, and also needed income.  It was for this reason that they took up the suggestion of an adviser to engage in cropping instead of cattle farming.
25	Mr Huynh confirmed, in cross-examination, that a housing estate has now been developed at the south-east corner of the Relevant Property, but rejected any suggestion that, at the time of purchasing the Relevant Property, they knew it was in a ‘growth area’, saying they only found out two or three years later (in around 2017 or 2018) when they were approached to sell the property.
26	At the end of giving his evidence, Mr Huynh reflected on this proceeding, as well as the other land tax disputes he has had with the Commissioner, stating that he:
came to Australia in 1980 and [has] tried [his] best to work to [his] maximum capacity, paying [his] taxes to show [his] gratitude to Australia, but has found [his] treatment by the [Commissioner], as if [he is] a criminal, very upsetting and [he] does not know what [he] has done wrong. 
Ms Nguyen
27	The Tribunal Book includes a statutory declaration made by Ms Nguyen in relation to another land tax dispute with the Commissioner, but she did not file any witness statement or give evidence in this proceeding.
28	When asked about this in cross-examination, Mr Huynh indicated that he thought his wife had made a statement.
29	The Commissioner submits that the Tribunal should draw a Jones v Dunkel inference that any evidence which Ms Nguyen could give would not be favourable.
30	In closing, Mr Kotros (counsel for MPL) relied on the decision of Steward J in Commissioner of Taxation v Cassaniti for the proposition that ‘a taxpayer does not need to call every witness’ and a tribunal ‘can accept the evidence of the taxpayer alone if he is accepted as truthful’.  Further, he contends there is ‘no basis to infer [Ms Nguyen] would say something different’ to Mr Huynh.
31	In all the circumstances, I decline to draw any adverse inference. 
Documentary material
32	There is no evidence that MPL (or Mr Huynh and Ms Nguyen) ever documented any plan regarding the preparation of the land for cattle farming.  It is fair to say that there is a limited amount of documentary material to support the exemption claim, being limited to evidence of ‘farm insurance’ taken out from the time MPL acquired the property and  receipts for diesel fuel.
Submissions
Commissioner’s submissions
33	In closing, while the Commissioner criticised the absence of much in the way of documentary material, he conceded the evidence before the Tribunal establishes that Mr Huynh and Ms Nguyen undertook a range of activities on the Relevant Property over the Relevant Period which could satisfy the Tribunal that it was being prepared for use primarily for primary production as required by section 68(1)(a) of the LT Act.
34	However, the Commissioner contends that Mr Huynh’s evidence that he was unaware of the land’s growth potential should not be accepted and, instead, it is open to the Tribunal to find that MPL was not preparing the property for primary production, but rather only intended to hold it for future development. 
35	In any event, the Commissioner contends that the Tribunal ought not exercise the discretion in section 68(2) and cannot be satisfied that the requirements of 68(1)(b) are met in circumstances where Mr Huynh and Ms Nguyen were either:
•	‘never serious’ about establishing a cattle farm at the Relevant Property; or
•	‘stretched too thin’ in trying to undertake the preparatory works while also managing two other cattle farms, and unable or unwilling to engage contractors to assist.
36	In relation to the discretion, the Commissioner contends there is ‘no basis for extending time’ given neither of the two requirements in Portbury is met.  Rather, the Commissioner suggests that, while it may be accepted that the grass had got longer, weeds had grown and fences had fallen into disrepair since the property had last been used by Mr Kitson for cattle farming, the failure to prepare the land within the 12 month period was: 
•	‘due to a decision by the applicant’ to take a ‘Rolls-Royce approach’; or 
•	because MPL ‘did not have the resources and so was never able to prepare the land within 12 months’, and
in either case, involved MPL undertaking ‘activities that were not necessary’, such as removing rocks and filling holes and fixing the farmhouse. 
37	In relation to section 68(1)(b), the Commissioner contends that the evidence of what was done by 31 December 2015 is ‘imprecise’ and ‘entirely consistent with general maintenance’, such that any person looking at the land at that date would see that the applicant was working at an ‘extremely slow place’, insufficient to have cattle on the Relevant Property by 30 September 2016 (ie. within 12 months of commencing the preparatory works).
38	In this regard, the Commissioner refers to what he considers the ratio of my decision in Portbury to be, namely that I was not satisfied the evidence in that case of ‘some work of a remedial or rehabilitative nature being undertaken … around December 2014’ was ‘of sufficient intensity’ to allow me to conclude that the land would qualify for exemption under section 65 within 12 months of the work commencing.
39	The Commissioner submits that, while it ‘might be right’ that Mr Huynh and Ms Nguyen were working as hard as they could, it ‘does not get you over the line on intensity’.  In this regard, the Commissioner says the fact that the land did not become exempt within 12 months (ie. by 30 September 2016) is relevant, although not fatal, to forming the necessary state of satisfaction.  In this regard, if they were working 40 hours a week over the 18 month period and still were nowhere near having the Relevant Property ready for cattle farming, it ‘could not reasonably be concluded that [they] would meet the test’.
40	The Commissioner submits the same issue arises for the 2017 land tax year.  Although the land was exempt from land tax by 30 September 2017 (ie. by reason of entry into the Share Farming Agreement and the commencement of the cropping activity), at 31 December 2016, there was ‘still no cattle run and no expectation that [the Relevant Property] would be ready for cattle by 30 September 2017’.  The only reason that the Relevant Property was able to be used as a farm was because of a ‘complete change of business plan’.   
Mintfield’s submissions
41	In closing, Mr Kotros framed the key issue in dispute as being whether Mr Huynh and Ms Nguyen are ‘genuine farmers’ or they acquired the Relevant Property for investment.  In this regard, he noted that the Commissioner had previously tested and probed their genuineness and reasonableness in relation to:
•	the preparatory activities at the McNabs Rd Property between 2005 and 2008;
•	the conduct of the cattle farming business at the McNabs Rd Property from 2009;
•	the cropping activities conducted at the Groves Rd Property from June 2017; and
•	the cropping activities conducted at the Relevant Property from March 2017, 
and, in each case, had ultimately come to accept the genuineness and reasonableness of their actions and the availability of the relevant land tax exemptions.
42	Mr Kotros said that Mr Huynh is not a ‘Collins Street farmer’ and, whether it was wishful thinking or not, he and his wife had tried to operate three cattle farms.  He went on to observe that revenue statutes leave it to taxpayers themselves to determine how they conduct their own business and the fact that Mr Huynh and Ms Nguyen could have undertaken the preparatory work faster does not make their actions unreasonable.  
43	In relation to the discretion issue, MPL contends that it is necessary to read the primary production provisions in the LT Act as a whole, which reveals a policy that landowners should engage in primary production themselves, noting the express requirements in this regard in the exemption for urban land.  Further, Mr Kotros suggested there was a more general policy applicable in rural areas to encourage the fixing up of run-down farms.
44	While Mr Kotros said he does not know if he would have confined the exercise of the section 68(2) discretion to the two situations identified in Portbury, he was comfortable with ‘reasonableness as the touchstone’ for its exercise.
45	In any event, MPL suggests that their situation fits within the second situation envisaged in Portbury as there ‘were surprises along the way, the extent of which was not apparent until they went along’.  Mr Kotros asked rhetorically, if the discretion is not exercised in this case, when would an extension be granted?
46	Ultimately, MPL submits that the discretion ought to be exercised such that the land needed to become exempt primary production land by 30 September 2017.  That the Relevant Property never came to be used by MPL for cattle farming is ‘not decisive or fatal’.  Noting that there was a need for income, and the absence of cows meant there was no income being generated, ‘the switch’ to cropping under the Share Farm Agreement was ‘not surprising’.
47	In reply to the Commissioner’s submissions, Mr Kotros accepted there is ‘no doubt that [the preparatory work] could have been done within 12 months’ or that some work undertaken by Mr Huynh and Ms Nguyen was unnecessary, but suggested the question is whether they were ‘unreasonable in doing it the way they did it’, noting the evidence of Mr Huynh that they wanted to do it ‘properly’.
48	With regard to the concerns raised by the Commissioner regarding the lack of particularity as to when the various activities were undertaken, Mr Kotros noted that the hearing was being conducted in 2022 about events in 2016 and, in any event, Mr Huynh’s evidence was that the activity was ‘constant, paddock by paddock’.  
49	Further, Mr Kotros contended it was not right to infer that, as at 31 December 2016, the applicant was ‘nowhere near’ having the property ready for cattle farming.  He suggested that Mr Huynh and Ms Nguyen had done a lot of work, but had ‘miscalculated’ and did not have the money to build the cattle yard.
Analysis
Were preparatory activities for cattle farming being undertaken?
50	While there is a surprising lack of documentary evidence to corroborate Mr Huynh’s evidence as to the work that he and Ms Nguyen undertook on the land, I consider that he provided a cogent explanation as to the manner in which they did so, and was able to address all of the questions that were put to him in cross-examination and by the Tribunal.
51	As such, I accept Mr Huynh’s evidence and am satisfied that the activities described in his witness statement (see [19]) were undertaken.  
52	In relation to the purpose of undertaking that work, I accept that Mr Huynh and Ms Nguyen intended to establish a cattle farm.  This is consistent with their modus operandi in terms of the McNabs Rd Property and Groves Rd Property and Mr Huynh’s uncontested evidence about his exposure to animal farming in his early adulthood in Vietnam.
53	By contrast, Mr Huynh flatly rejected the suggestion, put in cross-examination, that MPL acquired the Relevant Property because it was in a growth area and that they were seeking to make a profit from reselling it.  It is noted that the Commissioner did not point to any evidence of such an intention, apart from the fact that a housing estate had since been developed on the south-east boundary of the property.  
54	It is relevant to observe, in this regard, that the McNab Property was not sold (rather, it was subject to compulsory acquisition), while the Groves Rd Property (which presumably is in the same growth area as the Relevant Property) has been held and continuously used for primary production activities for over a decade.
55	I accept there is a lack of particularity about the exact activities which were undertaken at each relevant point in time; however, I also accept Mr Huynh’s explanation of how they undertook the tasks, such as weed spraying, on a paddock by paddock basis, which is consistent with them doing the work themselves to keep the cost down.  On this basis, I am prepared to infer that the work was constant, albeit somewhat slow.    
Should the section 68(2) discretion be exercised?
56	I agree with MPL’s submission that, consistent with the decision of Pagone J in Conder Towers, where the Commissioner (and, on review, the Tribunal) is vested with an open discretion, it is not appropriate to condition the exercise of that discretion on the existence of ‘exceptional circumstances’.  
57	Rather, as explained in Portbury, the Tribunal should be guided by the purpose and policy of the Act.  I went on, in Portbury, to identify two situations which I felt the discretion in section 68(2) was intended to address.  However, this should not be taken to suggest that the discretion cannot be exercised in any other situation.
58	Mr Huynh’s evidence is that, at the time he and his wife commenced the preparatory work (ie. in September 2015), they believed that they would be able to fix up the Relevant Property, to the standard they considered proper, and operate it as a cattle farm in a reasonable period of time.  Of course, it is easy – in hindsight – to suggest that their view was somewhat fanciful given they:
•	had chosen to undertake the work themselves (while also operating two cattle farms), rather than engage contractors; and 
•	presumably did not have money set aside to pay for the construction of the cattle yard and run, which was necessary to commence cattle farming.  
59	However, there was some basis for them to be optimistic given they had already succeeded in fixing the larger McNab Rd Property and been undertaking cattle farming at that property for some 7 years.
60	In Portbury, it was unnecessary to resolve whether the discretion under section 68(2) was to be exercised at the same time as the Commissioner forms his view as to whether the land will become exempt, or was to be assessed at any time before the expiry of the first 12 months after commencement of the property activities.  In the absence of any clarity in the legislation, perhaps it could be considered at any time in that continuum depending on the particular facts and circumstances.  In the present case, it seems to me that the appropriate time to assess whether the discretion ought to be exercised as at 31 December 2015.
61	At that time, only a few months had passed after the commencement of the preparatory activities, and there was no reason for Mr Huynh and Ms Nguyen to revisit their belief that they could fix the property and commence their cattle farming within a reasonable time.
62	In all the circumstances, I consider that it is appropriate to exercise the discretion in this proceeding, such that the question of whether the property would become exempt is to be assessed by reference to the 24 month period ending 30 September 2017. 
Assessed as at 31 December 2015, can the Tribunal be satisfied that property would become exempt by 30 September 2017?
63	As noted in the Commissioner’s submissions (see [38]), in Portbury I was not satisfied that the activity which was being carried on at the relevant year end was ‘of sufficient intensity’ to reach the necessary state of satisfaction required under section 68(1)(b).  That is, of course, a factual finding having regard to the evidence that was before the Tribunal in that case.
64	I have already observed that, in this case, Mr Huynh and Ms Nguyen had a track record in relation to cattle farming, including the preparation of land for that purpose.  While the fact that the existing cattle yard had collapsed by the time they settled the acquisition of the Relevant Property would, to many, have been a trigger to reassess plans, it seems clear that Mr Huynh and Ms Nguyen did not appreciate the difficulties they would come to confront and continued down the path they believed was feasible.
65	Further, I have accepted that the preparatory activities were being carried on.  While Mr Huynh and Ms Nguyen were also managing two other cattle farms at the time, I accept their evidence that they were devoting considerable time to the preparatory activities at the Relevant Property, such that it can be accepted to have been undertaken with a reasonable degree of intensity.  Further, the activity was not spasmodic, but rather planned and constant.
66	In those circumstances, when assessed at 31 December 2015 (for the 2016 land tax year), it was reasonable to believe, and I am satisfied that, the land would become exempt land by 30 September 2017.         
Assessed as at 31 December 2016, can the Tribunal be satisfied that property would become exempt by 30 September 2017?
67	The evidence given by Mr Huynh is that the preparatory activities on the Relevant Property continued right up to March 2017, when the decision was made to switch course and move to crop farming under the Share Farming Agreement with Mr Donald.  
68	By 31 December 2016, Mr Huynh and Ms Nguyen had been undertaking preparatory work for some 15 months.  There is no suggestion or evidence that they had completed everything necessary.  Further, despite it being a critical element before cattle farming could commence, there is no evidence that they had even started planning the cattle yard or run (such as getting quotes for the work or seeking to raise the funding required).
69	While there is no medical evidence regarding exactly when Ms Nguyen’s knee arthritis became worse or her back problems emerged, it is reasonable to infer that those conditions became evident over a period of time.  (Conversely, it would not be reasonable to infer – in the absence of medical evidence – that the conditions only became evident sometime between January and March 2017.)
70	Likewise, the Share Farming Agreement did not materialise overnight.  On his own evidence, Mr Huynh was introduced to Mr Donald through his advisor who had recommended changing course in early 2017.  There would have been a period of time required for Mr Donald to satisfy himself that the Relevant Property could be used for cropping activities, and to negotiate the terms of the arrangements between them (noting that there are differences in the profit split between the Share Farming Agreement relating to the Relevant Property and the similar arrangement relating to the Groves Rd Property).  
71	In my view, this all rather suggests that the commitment to the preparatory work for cattle farming had well and truly diminished (if not ceased) by 31 December 2016.  In those circumstances, it was not reasonable to believe (and I am not satisfied) that, when assessed as at 31 December 2016 (for the 2017 land tax year), the Relevant Property would become exempt by 30 September 2017 (ie. within 24 months of commencing the preparation of the land).
Orders to be made
72	Having regard to the conclusions at [62], [66] and [71], the appropriate orders are to:
•	set aside the land tax assessment issued to MPL for the 2016 land tax year and remit that to the Commissioner for reassessment on the basis that the Relevant Property was exempt land for that year under section 68 of the LT Act; and
•	confirm the land tax assessment issued to MPL for the 2017 land tax year.

R. Tang, AM
Member