A minor building encroachment across a lot boundary does not prevent cl 13(2)(b) of Schedule 1A to the Land Tax Management Act 1956 (NSW) from being engaged; the phrase 'erected on separate lots' does not require a building to be wholly within its lot. However, a dwelling that requires substantial remediation works for health and safety defects (mould, damp, water ingress, unsafe structural elements) before it could be occupied is not 'capable of being used for separate occupation' at the taxing date, even where the respondent's own expert estimates the minimum remediation at approximately $82,000 and 12-24 working days. The onus of proving that the disentitling provision does not apply rests on the taxpayer.
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