Buchanan trading as Killarney Station v Local Land Services North West

[2018] NSWCATAD 200

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Buchanan trading as Killarney Station v Local Land Services North West [2018] NSWCATAD 200
Hearing dates:	10 April 2018,2 July 2018
Date of orders:	29 August 2018
Decision date:	29 August 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	P Boyce,Senior Member
Decision:	1. The appeal is dismissed.  2. The assessment of notional carrying capacity made by Local Land Services North West for land with Local Land Services file reference10968012 is confirmed.
Catchwords:	LAND LAW-Local Land Services Act 2013 -assessment of notional carrying capacity-material available at time of assessment
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Local Land Services Act 2013 Local Land Services Regulation 2014 Privacy and Personal Information Protection Act 1998
Category:	Principal judgment
Parties:	William F Buchanan trading as Killarney Station (Appellant) Local Land Services North West (Respondent)
Representation:	Solicitors: Webb and Boland by their agent Puleo Lawyers (Appellant) NSW Department of Industry, Legal Branch (Respondent)
File Number(s):	2017/00354811

REASONS FOR DECISION

Appeal

1. The appellant is the owner of agricultural land near Narrabri in the North West region of New South Wales (the Land).

2. The respondent is a local board for the North West region of NSW instituted pursuant to s27(1) the Local Land Services Act 2013 (LLSA).

3. The appellant is appealing against the assessment by the respondent of the notional carrying capacity for the Land.

Legislation and Jurisdiction

4. Local Land Services is a statutory corporation pursuant to s8 of the LLSA and by s9 it is a NSW Government Agency.

5. Section 27 of LLSA provides that there is to be a local board for each region in New South Wales.

6. Section 29(1)(c) of the LLSA provides that a function of a local board is to make recommendations to the Board in relation to the making of rates, levies and contributions on rateable and other land in the region

7. Section 57 of the LLSA allows the Local Land Service Board of New South Wales (“Board”) to make and levy such types of rates, levies and contributions as are prescribed by or determined in accordance with the Local Land Services Regulations 2014 (LLSR).

8. Reg 6(1) of the LLSR provides that the Local Land Services is to make and levy rates for each year for a general rate on all rateable land and an animal health rate.

9. Reg 17 of the LLSR provides that Local Land Services must assess the notional carrying capacity of each holding of land (NCC) by reference to the stock units that could be maintained in an average season under management practices that, in the opinion of Local Land Services, are usual for the district.

10. Reg 3(2) of the LLSR defines “stock units” as being a sheep, goat, deer, alpaca, llama, ostrich or emu at least 6 months old or a pig of any age represents 1 stock unit. A bull, cow, ox, heifer, calf, buffalo, horse or camel represents 10 stock units.

11. Reg 18 of the LLSR provides that an owner or occupier of land who is dissatisfied with Local land Service’s assessment of NCC for their holding may apply in writing to Local land Services for a review of the assessment.

12. Reg 20 of the LLSR provides that an owner or occupier of land dissatisfied with the decision of Local Land Services on review of an assessment for the NCC may appeal to the Civil and Administrative Tribunal (“Tribunal”). Reg 20(3) provides that before hearing an appeal against an assessment of the NCC the Tribunal must be satisfied that the appellant has paid all rates that the appellant is liable to pay under the LLSA except for the rates based on the assessment of the NCC the subject of appeal.

13. By submission of the appellant and the admission of the respondent, the Tribunal is satisfied that the appellant has paid all rates levied by the Local Land Services except for the rates based on the assessment of the NCC the subject of this appeal.

14. Reg 20(1) of the LLSR provides that an appeal against the assessment of the NCC must be lodged within 30 days of the occupier of land being given 30 days’ notice of the decision of the review of the assessment. The appellant was notified of the respondent’s decision in respect of the Further Review by letter dated 20 October 2017. In the absence of evidence to the contrary, the letter was deemed to have been posted on 20 October 2017. S 76(1) of the Interpretation Act 1987 provides that where a regulation provides that if the instrument requires a notice to be given it may be done by post and it will be deemed to have been effected on the fourth working day after the date it was posted. The fourth working day after posting was 26 October 2017.The appellant filed his appeal on 23 November 2017. That is 28 days after notice of the Further Review was deemed to have been given to him and in time. The Tribunal is satisfied that the appeal has been filed in time.

15. Section 31 of the Civil and Administrative Tribunal Act 2013 (CATA) grants to the Tribunal external appeal jurisdiction if legislation provides that an appeal may be made to the Tribunal against an assessment by the respondent of the NCC of land.

16. The Tribunal is satisfied that it has jurisdiction to hear and determine the appeal.

Facts

17. The appellant is the owner of the property known as Killarney located near Narrabri.

18. The appellant has owned the Land since 1997. The appellant’s evidence is:

1. That he is 57 years old;

2. That his family have owned the Land since 1887;

3. He has lived and worked on the Land his whole life;

4. He has been a farmer since finishing his secondary education;

5. He has bred Poll Hereford beef cattle throughout his working life.

19. Between 1996 and 2005 the total area of Killarney was 2,206.61 hectares (ha). By contract dated 21 April 2006 the appellant sold 888.4 ha.

20. The evidence adduced by the appellant for the hearing is that the Land is:

1. Located about 10 kilometres from the town of Narrabri;

2. Since 2006 comprised of 1028 ha;

3. Used entirely as a beef cattle grazing enterprise;

4. Comprises, thick cypress woodland of about 344 ha which has not been used for grazing during the time of the appellant working and conducting his own enterprise on the Land and the balance of 684 ha is used for grazing;

5. The soil is predominantly light sandy loam with a shallow section of top soil which does not have a propensity to hold or store moisture as heavier clay or loam soils do. To manage his pasture he engages in rotational grazing to maximise retention of moisture in the soil profile and limits his stocking rates appropriate to the season and the condition of the soils.

6. Located in a locality where the appellants records for the last ten years show an annual rainfall :

Year	Rainfall (mm)
2010	771.5
2011	717
2012	737.5
2013	483
2014	511
2015	562.5
2016	709.5
2017	486.5

7. Is in a locality where the applicant has anecdotally observed that summer temperatures have increased in intensity regularly reaching 40 degrees or more.

8. Is at the date of the applicant’s affidavit of 26 February 2018 carrying 97 head of cattle which the appellant equates to 1DSE per ha and the average stock carried since 2006 has been 97 head.

21. The evidence of Dale Kirby, a Team Leader of Land Services-Advisory Services of North West Local Land Services is:

1. On 14 April 2017 the appellant was issued with a rate notice by Local Land Services stating that the NCC for Killarney was 2.5002 DSE/Ha. That notice was based on the respondent’s historical assessment for the Land;

2. On 24 April 2017 the respondent received from the appellant a Notional Carrying Capacity Owner/Occupier Assessment Form (“Application for Reassessment”) seeking a review of the NCC assessment made by the respondent;

3. Mr Kirby undertook the review of the assessment of the NCC on the Land. In conducting that review he referenced:

1. A partially completed “Notional Carrying Capacity Internal Reassessment Form” partially completed by another officer of the respondent;

2. The appellants Application for Reassessment;

3. An aerial satellite image of the Land created on 5 June 2017;

4. Copies of information collected from previous annual returns and stock returns lodged in relation to the Land from 1996 to 2016;

5. A report from the National Livestock Identification System dated 5 June 2017 (“NLIS”) providing a summary of cattle transferred on and off the Land during the period starting 5 June 2007 and 5 June 2017 and the total number of cattle on the Land at that date;

6. A copy of a letter from the respondent to the applicant confirming receipt of the Application for Reassessment.

4. It is Mr Kirby’s evidence that he undertook a “desk top” Review of Assessment (“First Review”) and considered:

1. The density of vegetation visible from the satellite image in the state it was at the time of the image being taken;

2. The NCC for five properties in the immediate vicinity of the Land;

3. The NLIS report for the cattle transferred on and off the Land in the period 5 June 2007 to 5 June 2017;

4. The number of cattle recorded in the annual land and stock returns for the Land;

5. That in 2005 there was a report of 233 beef cattle being run on the Land.

22. As a result of Mr Kirby’s First Review he determined that the NCC for the Land should be reduced from 2.5002 DSE/Ha to 2.4 DSE/Ha and the appellant was notified by the respondent of the reassessment.

23. As a result of further submissions by the appellant on 25 July 2017 seeking a further review, Mr Kirby undertook a further desktop review of the assessment of the NCC for the Land (“Further Review”).

24. In conducting the Further Review, Mr Kirby considered:

1. The material he considered in conducting his First Review;

2. A NLIS report regarding cattle transferred onto and off seven properties in the immediate vicinity of the Land during the period 17 August 2007 to August 2017;

3. The information recorded in the annual and stock returns lodged in relation to the seven properties for previous years; and,

4. The appellants letter of 25 July 2017.

25. As a result of the Further Review the NCC assessment for the Land was reduced by the respondent from 2.4DSE/Ha to 2.2 DSE/Ha. Mr Kirby attributes that reduction to adjust the NCC in line with the reductions in carrying capacities of adjoining properties in the immediate vicinity of the Land.

26. Mr Kirby caused the appellant to be notified of the result of the Further Review by letter dated 20 October 2017.

27. Mr Kirby contends in response to the appellant’s evidence:

1. That he made his assessment of the NCC relying on the aerial satellite images of the extent of the woodland on the Land;

2. He did not have the appellant’s observations and photographs as to the amount of woodland and timber on the Land when he made the assessment, nor is that information contained in any previous annual land and stock report lodged by the appellant;

3. Details of the appellant’s grazing management practices were not provided to the respondent prior to the service of the appellants statement in this appeal;

4. He disagrees with the appellant’s assertion about moisture in the top soil only and based on his experience, farmers in the region are able to access moisture in the lower soil profile;

5. No photographs had been provided by the appellant before the service of his statement in the appeal;

6. The respondent relies on climate modelling based on long term averages including rainfall for a period of 100 years, and challenges the veracity of the appellants rainfall records over a period of 10 years to reflect any long term climatic change;

7. The NCC is a theoretical carrying capacity and not intended to be a reflection of a landholder’s actual carrying capacity and is not referenced to a landholder’s particular management practices. Understocking does not affect the assessment of the NCC. The NCC is indicative of the number of stock the land is capable of supporting in an average season.

8. Having considered the reduction in area of the Land in 2006 Mr Kirby stands by his assessment of the NCC at 2.2DSE/ha.

Determination

28. Reg 20(2) of the LLSR provides that an appeal by an owner or occupier under Reg 20(1):

…is to be determined on the information provided or available to Local Land Services in making the assessment and any additional information provided under clause 18. However, the Tribunal may also take into account any relevant information contained in an annual return under s58 of the [LLSA] that has been duly lodged by the applicant”.

29. In making this appeal, the appellant submits that in determining the NCC for the Land, the respondent should have had regard to the appellant’s land and stock management practices and the climatic changes over the last 10 year period as set out in his evidence (Exhibit A1 and A2).

30. The respondent is directed by reg 17 of the LLSR to assess the NCC of land by reference to the number of stock units that could be maintained on the land in an average season under management practices that, in the opinion of Local Land Services, are usual for the district. In assessing the NCC the respondent (reg 20(5)):

1. Must disregard the presence of noxious weeds or pest animals on the land;

2. Must not take into consideration the use of irrigation if the land is irrigated land for the permanent plantings of trees and vines;

3. Must make its assessment as if the raising of stock were the only use of the land; and

4. In the case of land that remains in or is reverting to its original undeveloped state-must base its assessment on the condition of the land as at the date of assessment.

31. The appellant has provided a substantial amount of material in his statement. However, the material does not establish that evidence of his management practices were before the respondent when it made its assessment. The applicant’s application for Re-Assessment made on 23 April 2017 does not seek a review based on his or his family’s land management practices. It states that the reason for Re-Assessment is “Stock numbers on Killarney averaged over past decade Cattle 97, Horses 1. Stock numbers reduced to prevent erosion of top soil. Current “general Rates” regime encourages overstocking”. The applicant provided no other material to the respondent in support of his assertion.

32. However, in his email of 25 July 2017 seeking the Further Review he lists the grounds for his seeking the review as:

1. NCC rating encourages overstocking of grazing land;

2. This practice exacerbates soil erosion by exposing bare soil to natural elements, namely wind and water erosion;

3. The soil types on “Killarney” are predominantly sandy loam. This is equivalent to 900ha. 128ha of the total area is self-mulching grey clay, which equates to 87.5% sandy loam soil. Current NCC does not reflect carrying capacity of lower fertility soil;

4. The practice of understocking has been carried out for four (4) generations in the Buchanan family. The reason for that is to pass on to future generations of farmers, land that retains it (sic) fertility by conserving top soil. Once top soil is lost, it can take hundreds of years to recover.

33. The appellant provided no other evidence to the respondent in support of his application for Further Review. The appellant provided a significant amount of material in support of his contention that his farm management practices, soil type and rainfall pattern for the ten year period 2010-2017 justified a reduction in the NCC to actual carrying capacity of 1 DSE/ha. This is contained in his Statement of 26 February 2018 filed in these proceedings. It was not material that was before the respondent when it made its First Review or its Further Review of the assessment of the NCC for the Land.

34. Reg 20(1) of the LLSR requires the Tribunal to make a determination on the information provided or available to Local Land Services in making the assessment and any relevant information contained in the appellants annual return.

35. The appellant has not demonstrated to the Tribunal that the material on which he now relies in this appeal was provided or available to the respondent at the time of making the assessment or with the appellant’s annual return.

36. The respondent has made its assessment of the NCC for the Land. The Tribunal is not satisfied that the appellant has established that the respondent has erred in its determination of the assessment of the NCC for the Land on the material that it had available to it at the time it made the assessment.

37. The appeal is dismissed and the assessment of notional carrying capacity is confirmed.

38. In the course of hearing the appeal, the appellant raised objections to the material adduced by the respondent which had been redacted by the respondent. Both the appellant and the respondent made submissions about the redacted material. The respondent submitted that the reason for the material being redacted was that it identified adjoining properties, adjoining land owners names and NILS reports for adjoining land owners and that the respondent sought to anonymise that material to retain the confidentiality of the material and to comply with its obligations under the Privacy and PersonalInformation Protection Act 1998. The appellant submitted that the redacted information was not privileged and that the Tribunal was denied the opportunity to make a ruling on the documents because the respondent failed to produce the original unredacted documents. Although redacted, the respondent’s officers’ evidence given under oath is that the material relates to adjoining lands. That material was available to the respondent at the time of making the assessment of the NCC of the Land. The relevant material was available for the appellant in the evidence in reply to see the relevant information relied upon by the respondent. The Tribunal makes no determination in regard to the content of that material that has been redacted as the Tribunal has found that there was no error in the respondent’s assessment based on the substantive material available to it at the time of making the assessment.

Orders

39. The Tribunal orders:

1. The appeal is dismissed.

2. The assessment of notional carrying capacity made by Local Land Services North West for land with Local Land Services file reference10968012 is confirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 29 August 2018