Taylor v Lismore City Council - [2005] NSWLEC 146

Land and Environment Court

of New South Wales

CITATION:
Taylor v Lismore City Council [2005] NSWLEC 146

PARTIES:
APPLICANTS
Ross Kenneth Taylor and Maree Lee Taylor
RESPONDENT
Lismore City Council

FILE NUMBER(S):
31537 of 2004

CORAM:
Nott C

KEY ISSUES:
Appeal - Valuation of Land :- whether a 13.11 ha property should be categorised as farmland - whether business of grazing has a significant and substantial commercial purpose or character

LEGISLATION CITED:
Local Government Act 1993, s 526

CASES CITED:
Colby v Lismore City Council 30248 of1991;
Costa v Lismore City Council 30181 of 1989;
Hope v Bathhurst City Council [1980] 144 CLR 1;
Lismore City Council v Durheim 30182 of 1989;
Meriton Apartments Pty Ltd v Parramatta City Council [2003] NSWLEC 309;
Page v Parkes Shire Council 30090 of 1990

DATES OF HEARING: 14 March 2005

EX TEMPORE JUDGMENT DATE:
03/14/2005

LEGAL REPRESENTATIVES:
APPLICANTS
Mr and Mrs Taylor themselves
RESPONDENT
Mr J Beacroft, council officer

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Nott C

14 March 2004

31537 of 2004: Ross Kenneth Taylor and Maree Lee Taylor v Lismore City Council

JUDGMENT

1 This is an appeal under s 526 of the Local Government Act 1993 in respect of the applicants’ property at Howards Grass Road, Goonellabah. The property comprises lot 3, DP 212498, having an area of approximately 4.5 acres or 1.8 ha and lot 14, DP 551625 having an area of approximately 28 acres or 11.2 ha, together with an area covered by enclosure permit 40242. According a valuation notice relating to the subject land the total area of the land is 13.11 ha. The council rated the land as residential land but the applicants claim that the land should be rated as farmland.

2 I incorporate in my judgment the relevant portions of ss 516 and 526 of the Local Government Act 1993:

516 Categorisation as residential

(1) Land is to be categorised as residential if it is a parcel of rateable land valued as one assessment and:

(a) its dominant use is for residential accommodation (otherwise than as a hotel, motel, guest-house, backpacker hostel or nursing home or any other form of residential accommodation (not being a boarding house or a lodging house) prescribed by the regulations), or

(b) in the case of vacant land, it is zoned or otherwise designated for use under an environmental planning instrument (with or without development consent) for residential purposes, or

(c) it is rural residential land.

526

Appeal against declaration of category

(1) A rateable person who is dissatisfied with:

(a) the date on which a declaration is specified, under section 521, to take effect, or

(b) a declaration of a council under section 525,
may appeal to the Land and Environment Court.

(2) An appeal must be made within 30 days after the declaration is made.

(3) The Court, on an appeal, may declare the date on which a declaration is to take effect or the category for the land, 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.

Keep reading for free

Create a free CaseChat account to read Taylor v Lismore City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] NSWLEC 146
Decision Date: 03/14/2005

CaseChat Overview and Summary

In this appeal, the applicants, Ross Kenneth Taylor and Maree Lee Taylor, challenged the decision of the Lismore City Council to classify their property as residential rather than farmland. The property, located at Howards Grass Road, Goonellabah, comprises lot 3, DP 212498, with an area of approximately 1.8 hectares, and lot 14, DP 551625, with an area of approximately 11.2 hectares, along with an area covered by enclosure permit 40242. The total area of the land is 13.11 hectares. The central legal issue before the court was whether the property should be categorised as farmland or residential land. The applicants argued that the land should be categorised as farmland due to the business of grazing carried out on the property.

The court considered the statutory provisions under the Local Government Act 1993 and previous case law to determine whether the business of grazing conducted by the applicants had a significant and substantial commercial purpose. The court examined the evidence provided by the applicants, including their affidavits, oral testimony, and financial records. The court also took into account the quality of the land, which was suitable for grazing, and the efforts made by the applicants to maintain the property for this purpose. The court found that the applicants had been carrying on the business of grazing as a commercial enterprise on a continuous and repetitive basis. Furthermore, the court concluded that the business of grazing had a significant and substantial commercial purpose or character relating to the subject land.

Based on the evidence, the court declared that the property should be categorised as farmland from 1 January 2004. The court emphasised the importance of maintaining clear business records to distinguish between expenses and incomes attributable to the subject land and any other properties managed by the applicants. The court also noted that the council would need to consider future years to determine whether the significant and substantial commercial purpose or character of the business relating to the subject land continues. The court ordered that the appeal be upheld, and the property should be categorised as farmland from 1 January 2004.

Orders