La Vie Developments Pty Limited v Shellharbour City Council - [2010] NSWLEC 1277

Land and Environment Court

of New South Wales

CITATION: La Vie Developments Pty Limited v Shellharbour City Council [2010] NSWLEC 1277

PARTIES:
APPLICANT
La Vie Developments Pty Limited
RESPONDENT
Shellharbour City Council

FILE NUMBER(S): 30920 of 2009

CORAM: Moore SC

KEY ISSUES: CONSTRUCTION AND INTERPRETATION :- Classification of land

LEGISLATION CITED: Local Government Act 1993, s 515

CASES CITED: Page v Council of the Shire of Parkes (1991) NSWLEC 4
Cousins v Council of the City of Lake Macquarie (unreported – Matter No: 30252 of 1992)
Taylor v Lismore City Council [2005] NSWLEC 146

DATES OF HEARING: 25 June 2010

EX TEMPORE JUDGMENT DATE: 25 June 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr T Sattler, solicitor
Sattler & Associates
RESPONDENT
Mr G Gleeson, solicitor
RMB Lawyers with Morton + Harris

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

25 June 2010

09/30920 La Vie Developments Pty Limited v Shellharbour City Council

JUDGMENT

1 SENIOR COMMISSIONER: The particular case that I am now hearing involves an appeal against refusal by Shellharbour City Council (the council) to categorise a parcel of land owned by La Vie Developments Pty Limited (the company) which is Lot 81 in Deposited Plan 634605 and located 7 Tullimbar Lane, Tullimbar. The land has an area of a little over 16.5 ha, of which the very largest part is used by a Mr Swan for the purposes of agisting his cattle and a smaller part is used for the purposes of a residence by somebody who is a tenant of the company.

2 S 515 of the Local Government Act 1993 (the Act) sets the context within which I am required to assess whether the land should be categorised as farm land. There are a number of tests, each of which has to be satisfied, but some of which provide two paths for such satisfaction before the land can so be categorised.

3 The first relates to what is the dominant use. The word that is used in the section is “its” dominant use. The “its” clearly relates to the land. In my view, as a consequence, the dominant use therefore relates to the dominant use of the land, not the dominant use by the ratepayer of the land. There is, in this instance, in my view, a significant distinction between the two. The second step needing to be satisfied is that if the dominant use is for farming, that must be a use - that is, the dominant use of this land - must have a significant and substantial commercial purpose or character and further, that the dominant use of the land must have the commercial use or character of being engaged in for the purposes of profit on a continuous or repetitive basis. That is, the use of the land must be carried through to an engagement for the purposes of profit on a continuous or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWLEC 1277
Decision Date: 25 June 2010

CaseChat Overview and Summary

The applicant, La Vie Developments Pty Limited, sought to appeal a decision by Shellharbour City Council to refuse to categorise a parcel of land as farm land. The parcel of land, Lot 81 in Deposited Plan 634605 and located at 7 Tullimbar Lane, Tullimbar, is owned by the applicant and is used predominantly for cattle agistment and residential purposes. The primary issue before the court was whether the land should be categorised as farm land under s 515 of the Local Government Act 1993. This required determining if the dominant use of the land satisfied the criteria of having a significant and substantial commercial purpose or character and being engaged in for the purposes of profit on a continuous or repetitive basis.

Moore SC considered the applicant's case at its highest, accepting that the dominant use of the land was for farming and that this use generated a modest profit on a continuous or repetitive basis. However, the court was not satisfied that the nature of the farming activity on the land met the criteria of having a significant and substantial commercial purpose or character. The court found that the raising of a maximum of thirteen calves per annum for sale from the land, with a gross profit of $6,500 per annum, did not satisfy the test of being a significant and substantial commercial purpose or character. This conclusion was supported by previous cases which indicated that similar activities did not meet the required commercial purpose or character.

In light of the court's findings, the appeal was dismissed, and the exhibits were returned. The decision underscores the importance of demonstrating a significant and substantial commercial purpose or character in activities to qualify as farm land under the relevant legislation.

Orders