Aubrey Robert Mills v Local Land Services

Land and Environment Court

New South Wales

Medium Neutral Citation:	Aubrey Robert Mills v Local Land Services [2017] NSWLEC 25
Hearing dates:	16, 17, 18 August and 19 September 2016
Date of orders:	10 March 2017
Decision date:	10 March 2017
Jurisdiction:	Class 3
Before:	Robson J
Decision:	See orders at [118]
Catchwords:	APPEAL – appeal against decision from the Civil and Administrative Tribunal not to issue a stock permit – hearing de novo – whether the policy fetters the discretion of the decision-maker – whether weight should be given to certain clauses of the policy – whether the stock permit should be issued subject to conditions
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) ss 18(1) 31, Sch 3 Environmental Planning and Assessment Act 1979 (NSW) s 80A Land and Environment Court Act 1979 (NSW) ss 19(h), 39 Local Land Services Act 2013 (NSW) ss 4, 8, 16, 29, 72, 78, 79, 80, 81,83, 84, 86, Sch 6 Rural Lands Protection Act 1998 (NSW) (repealed)
Cases Cited:	Neat Domestic Trading Pty Limited v AWB Limited and Another (2003) 216 CLR 277; [2003] HCA 35
Category:	Principal judgment
Parties:	Aubrey Robert Mills (Applicant) Local Land Services (Respondent)
Representation:	Counsel: Ms H Irish (Applicant) Mr P Russell (Respondent)   Solicitors: Sylvester Joseph, Cole & Butler (Applicant) Russell Booby, Bell & Johnson (Respondent)
File Number(s):	2016/00187189
Publication restriction:	No

Judgment

Introduction

1. The applicant, Aubrey Robert Mills, appeals from a decision of the Civil and Administrative Tribunal (New South Wales) (‘Tribunal’) confirming the decision of the respondent, Local Land Services (‘LLS’), to refuse to issue him with a Long Term Grazing Permit (‘LGP’), a stock permit pursuant to section 78(1) of the Local Land Services Act 2013 (NSW) (‘LLS Act’), over an area of land of approximately 220 hectares (‘relevant land’) that is part of travelling stock route no. 7800 (‘TSR 7800’).

The circumstances leading to this appeal

2. In summary, the applicant and his wife have been the owners of a property known as ‘Yooloobil’ since 1979, which is located approximately 85 kilometres north of Moree. ‘Aralu’ is a neighbouring property, and is owned and operated by ‘Aralu Farming’.

3. In November 2014, LLS invited the applicant to submit an expression of interest (‘EOI’) for a LGP. Later that month, the local board of the LLS adopted the ‘Long Term Grazing Permit Policy and Procedures’ (‘LGP Policy’). The applicant submitted an EOI in respect of various areas, including the relevant land. Aralu Farming also submitted an EOI in respect of the relevant land. While the applicant was initially notified that he had “won” the areas the subject of his EOI, including the relevant land, the respondent then notified the applicant that Aralu Farming had indicated that the relevant land was unfenced from the Aralu holding, and that this information affected the way that the applicant’s application was to be assessed. After conducting relevant investigations and considering the LGP Policy, the respondent notified the applicant that the LGP for the relevant land…