Prior v Blue Mountains City Council - [2009] NSWLEC 1351

Land and Environment Court

of New South Wales

CITATION: Prior v Blue Mountains City Council [2009] NSWLEC 1351

PARTIES:
APPLICANT
T Prior
RESPONDENT
Blue Mountains City Council

FILE NUMBER(S): 30249 of 2009

CORAM: Moore SC

KEY ISSUES: CONSTRUCTION AND INTERPRETATION - RATING - LOCAL GOVERNMENT :-

LEGISLATION CITED: Local Government Act 1993

CASES CITED: McKenzie v Randwick City Council [1996] NSWLEC 42
Taylor v Lismore City Council [2005] NSWLEC 146
Jakd Pty Limited v Randwick City Council (unreported)(Bignold J - !996)

DATES OF HEARING: 9 September 2009

EX TEMPORE JUDGMENT DATE: 9 September 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr J Doyle, barrister
INSTRUCTED BY
Thomson Playford Cutlers
RESPONDENT
Mr T Cork, solicitor
McPhee Kelshaw

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

09/30249 - PRIOR v BLUE MOUNTAINS CITY COUNCIL

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

JUDGMENT

1 SENIOR COMMISSIONER: At the top of the hill as one approaches Wentworth Falls from the east, on one’s right is located a commercial nursery that forms part of a property owned by Mr Prior - the applicant in these proceedings. The property, which is three separate allotments, totals in area nearly 22,000 sq m. It is agreed by the parties that I should treat the three parcels as having been valued as a single parcel of land pursuant to the Valuation of Land Act 1916 and therefore to consider that land as a single parcel of land for the purposes of rating characterisation pursuant to Part 3 of the Local Government Act 1993 (the Act).

2 The history of the matter is that the land has been rated, in the past (for some time), as farmland pursuant to s 515 of the Act and, in 2007, Mr Prior was written to by Blue Mountains City Council (the council) indicating that the council was reviewing the rating of his land and requiring him to fill in a form if he wished to retain the farmland rating from the end of that rating year onward.

3 In 2008, the council wrote a further letter to Mr Prior, a letter which Mr Prior denies receiving, indicating that the farmland rated land was in the process of having its review finalised and inviting him to complete a further form for his continuation to be rated as farmland if he wished to retain it – the default position from the earlier letter being that if he did not complete such a form he would be rated as residential.

4 On 6 January 2009, the council wrote to Mr Prior and informed him that, from 1 July 2008, that is more than six months earlier than the date of the letter, the designation of his land, that is its categorisation for the purposes of Part 3 of the Act, had been changed from farmland to business. That change resulted in a significant increase in rates for the 2008-2009 financial year. Mr Prior…

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: [2009] NSWLEC 1351
Decision Date: 9 September 2009

CaseChat Overview and Summary

In the case of Prior v Blue Mountains City Council, the applicant, Mr Prior, sought a review of the council's decision to categorise his property as business land rather than farmland. The dispute centered on the interpretation and application of the Local Government Act 1993 in determining the appropriate land category for rating purposes. The primary legal issue was whether the land should be categorised as residential or business, given the dual use of the property as a commercial nursery and a private residence. The court had to determine the dominant use of the land to decide its appropriate category.

The Land and Environment Court, presided over by Senior Commissioner Moore, examined the specific uses of the land and the circumstances surrounding its operation. The court considered the proportion of the land used for residential purposes versus the commercial nursery, the layout and visibility of the property, and the time spent in occupation by Mr Prior. The court found that the significant portion of the land used for residential purposes, including the private gardens and the residence, constituted the dominant use. The court also noted that the commercial nursery, while significant, did not overshadow the residential use. Based on these findings, the court concluded that the land should be categorised as residential under the Act.

The court further determined the effective date for the categorisation, deciding to maintain the farmland categorisation until the end of December 2008, and then to categorise the land as residential from 1 January 2009. This decision was made to reflect the council's delay in communicating the change and to avoid a significant tax increase for Mr Prior without proper notice.

The final orders of the court were that the appeal was upheld, the land was declared to be categorised as farmland until 31 December 2008, and from 1 January 2009, it was categorised as residential until further declaration by the council. The exhibits, except for specified ones, were returned to the parties.

Orders