Yallah Farm Pty Ltd v Wollongong City Council

[2024] NSWLEC 1445

Land and Environment Court

New South Wales

Medium Neutral Citation:

Yallah Farm Pty Ltd v Wollongong City Council [2024] NSWLEC 1445

Hearing dates:

30 May 2024

Date of orders:

30 July 2024

Decision date:

30 July 2024

Jurisdiction:

Class 3

Before:

Peatman AC

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) The rateable category of 164 Yallah Road Yallah NSW 2530, being the whole of the land in Lot 1 Deposited Plan 234771, from 24 November 2019, is ‘business’ in accordance with s 514 of the Local Government Act 1993.

Catchwords:

CATEGORISATION OF PROPERTY – defining use – business or residential – rating purpose

Legislation Cited:

Land and Environment Court Act 1979, ss 19, 39

Local Government Act 1919, ss 191, 193, 514, 515, 516, 518, 525, 526

Cases Cited:

BCI Finances Pty Limited (in Liq) v Binetter (No. 4) (2016) 348 ALR 227; [2016] FCA 1351

McKenzie v Randwick City Council [1996] NSWLEC 42

SH Camden Valley v Camden Council [2015] NSWLEC 104

Category:

Principal judgment

Parties:

Yallah Farm Pty Ltd ACN 637515916 (Applicant)
Wollongong City Council ABN 63139525939 (Respondent)

Representation:

Counsel:
M Astill (Applicant)
M Bennett (Respondent)

Solicitors:
Russoniello Lawyers(Applicant)
Kells The Lawyers (Respondent)

File Number(s):

2023/252849

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against Wollongong City Council’s (Council) deemed refusal under s 525(6) of the Local Government Act 1993 (LG Act) of an application by Yallah Farm Pty Ltd for a change of rating category pursuant to s 525(1) of the LG Act in relation to Lot 1 Deposited Plan 234771, known as 164 Yallah Road Yallah 2530 and having a rating identification of Property ID 349093 (the Site).

2. The proceedings fall within Class 3 of the court’s jurisdiction pursuant to s 19(d) of the Land and Environment Court Act 1979 (LEC Act).

3. The Applicant filed the appeal in accordance with ss 525(6) and 526(1) of the LG Act, and in accordance with the time provisions in ss 525(6) and 526(2).

4. The Applicant sought in its Class 3 application to have the category of the Site changed from ‘Business’ to ‘Residential’ from 24 November 2019 (Ex 1, tab 1, p 2).

5. The Applicant’s case for the land to be categorised as ‘Residential’ is as follows:

1. The Site has been used for a variety of purposes in the past including:

1. An abattoir which ceased use in about 1988; and

2. A pallet repair business which ceased use in about 2019.

2. At all material times there has been a dwelling house on the Site, and in or about May 2005, the caretaker’s cottage at the entrance to the Site was leased to Mr Craig Meharg. Since that time Mr Meharg has resided in the caretaker’s cottage as his family’s sole place of residence.

3. Since 2019, when the pallet repair business ceased, the residential use by Mr Meharg has been the dominant use of the Site.

4. At all material times Council has provided waste collection services to the Site.

5. (Ex 1, tab 2, Applicant’s Statement of Facts and Contentions (SOFAC) filed 15 September 2023, pp 7-8 and Ex A)

6. Craig Meharg is the caretaker of the property, and he and his family live in the caretaker’s cottage on a fulltime basis. Mr Meharg lives in the caretaker’s cottage on a rent free basis in exchange for looking after the Site. The Site is located in an area bounded by urban development on three sides, with frontage to Yallah Road. The Applicant considers full-time security is essential.

7. Craig Meharg allows trucks to park on the Site. The trucks park on the Site only, and leave the Site to carry out their owners’ business. There is no trucking operation on the Site. The trucks are only able to park on the Site because of the security provided by Mr Meharg in the caretaker’s cottage.

8. The Site is insured. The insurance cover includes Domestic Building and Contents, the premium for which is $1,617.30, and Business Liability Cover restricted to hobby farm activities, the premium of which is $514.44 for the year ending 11 January 2024. (Ex 1 tab 4, pp 16-17 Applicant’s Amended SOFAC filed 21 December 2023, and Ex B)).

Figure 1: Photograph of the Site, from the rear of the built forms and showing the internal roads circling the Site. (Ex 1, tab 11, p 259)

Figure 2: Photograph of the Site, from the western side near Yallah Road, and the caretaker’s cottage is at the bottom right hand side facing Yallah Road. (Ex 1, tab 11, p 260)

Figure 3: Photograph of the Site, Yallah Road is on the right hand side, and the photograph further shows the internal roads circling the Site. (Ex 1, tab 11, p 261)

Figure 4: Photograph of the Site showing the entrance on Yallah Road, and further demonstrating the internal roads circling the Site. (Ex 2, tab 11, p 262)

Legislation

Land and Environment Court Act 1979

39   Powers of Court on appeals

(1)  In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction.

(2)  In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(3)  An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

(4)  In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.

(5)  The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly.

(6)  Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 or a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body—

(a)  the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted, and

(b)  in a case where the concurrence or approval has been granted—the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body.

(6A) (Repealed)

(7)  The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court.

(8) This section (other than subsection (5)) does not apply to proceedings under section 30 or 31 of the Access to Neighbouring Land Act 2000.

Local Government Act 1993

514   Categorisation of land for purposes of ordinary rates

Before making an ordinary rate, the council must have declared each parcel of rateable land in its area to be within one or other of the following categories—

•  farmland

•  residential

•  mining

•  business.

Editorial note

Land falls within the “business” category if it cannot be categorised as farmland, residential or mining. The main land uses that will fall within the “business” category are commercial and industrial.

515   Categorisation as farmland

(1)  Land is to be categorised as farmland if it is a parcel of rateable land valued as one assessment and its dominant use is for farming (that is, the business or industry of grazing, animal feedlots, dairying, pig-farming, poultry farming, viticulture, orcharding, bee-keeping, horticulture, vegetable growing, the growing of crops of any kind, forestry or aquaculture within the meaning of the Fisheries Management Act 1994, or any combination of those businesses or industries) which—

(a)  has a significant and substantial commercial purpose or character, and

(b)  is engaged in for the purpose of profit on a continuous or repetitive basis (whether or not a profit is actually made).

(2)  Land is not to be categorised as farmland if it is rural residential land.

(3)  The regulations may prescribe circumstances in which land is or is not to be categorised as farmland.

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.

(1A)  For the purposes of this section, a boarding house or a lodging house means a building wholly or partly let as lodging in which each letting provides the tariff-paying occupant with a principal place of residence and in which—

(a)  each tariff charged does not exceed the maximum tariff for boarding houses or lodging houses for the time being determined by the Minister by order published in the Gazette for the purposes of this subsection, and

(b)  there are at least 3 tariff-paying occupants who have resided there for the last 3 consecutive months, or any period totalling 3 months during the last year,

and includes a vacant building that was so let immediately before becoming vacant, but does not include a residential flat building, licensed premises, a private hotel, a building containing serviced apartments or a backpacker hostel or other tourist establishment.

(2)  The regulations may prescribe circumstances in which land is or is not to be categorised as residential.

525 Application for change of category

(1) A rateable person (or the person's agent) may apply to the council at any time--

(a) for a review of a declaration that the person's rateable land is within a particular category for the purposes of section 514, or

(b) to have the person's rateable land declared to be within a particular category for the purposes of that section.

(2) An application must be in the approved form, must include a description of the land concerned and must nominate the category the applicant considers the land should be within.

(3) The council must declare the land to be within the category nominated in the application unless it has reasonable grounds for believing that the land is not within that category.

(4) If the council has reasonable grounds for believing that the land is not within the nominated category, it may notify the applicant of any further information it requires in order to be satisfied that the land is within that category. After considering any such information, the council must declare the category for the land.

(5) The council must notify the applicant of its decision. The council must include the reasons for its decision if it declares that the land is not within the category nominated in the application.

(6) If the council has not notified the applicant of its decision within 40 days after the application is made to it, the council is taken, at the end of the 40-day period, to have declared the land to be within its existing category.

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 both, as the case requires.

6. Leslie George Bisley, a director of the Applicant, filed three affidavits for the Applicant in the proceedings (Ex C, D and E), and deposed to the following:

1. “The land has erected on it a dwelling house and unused abattoir buildings. The dominant use of the land is for residential accommodation. The land is not used for business or commercial purposes. The Respondent provides a residential waste service removal for the land.” (Ex C, p 3).

2. The Site was acquired by Yallah via a contract for sale dated 8 December 2003, with settlement taking place in February 2005. (Ex D, p 2).

3. The built form consisted of a disused abattoir, which ceased operations in about 1988. The s 149 Certificate attached to the contract for sale dated 8 December 2003 included a list of consents in relation to the Site, and all the consents related to the operation of the abattoir with the exception of the caretaker’s cottage which was approved in 1974. (Ex D, p 2 and pp 11-12 of Annexure A to Ex D)

4. At the date of completion in February 2005, the only development still in use was the caretaker’s cottage. The caretaker’s cottage was, and still is, located at the entrance to the Site. (Ex D, p 2)

5. At the time of settlement there was a pallet repair business on a small part of the Site. The lease was informal and not reduced to writing. The pallet business did not have a development consent, and after Council took steps to require cessation of the pallet repair business, it ceased operations on or before 24 November 2019. (Ex D, pp 2-3)

6. In May 2005, Craig Meharg leased the caretaker’s cottage for a rent of $165pw. He and his family have been in occupation of the caretaker’s cottage since May 2005. (Ex D, p 3)

7. In June 2018, the Site was rezoned pursuant to the new LEP, approximately 20ha rezoned residential R3, and about 6ha rezoned light industrial. No development has been carried out pursuant to the rezoning. (Ex D, p 3)

8. Since 24 November 2019, when the pallet repair business ceased operating, the only active use of the Site has been the occupation of the caretaker’s cottage for residential accommodation. This has been the dominant use of the Site, there being no other active use of the Site. (Ex D, p 3)

9. On the southeast corner of the Site and around the remnants of the building there is a lot of junk. “On my attendance at the Site from time to time nothing appears to be the same apart from the building remnants.” (Ex E, pp 2-3)

7. Leslie George Bisley in cross examination on 30 May 2024, said words to the effect of:

1. “I am a director of Yallah and I run its day to day operations.”

2. “I understand the contest between the parties is dominant use as residential or some other use.”

3. Mr Bisley was taken to Ex 1, p 153 to a photograph of “washing detergent stored within the western portion of the site”. Mr Bisley’s response was: “You are telling me what it is. I have not looked at it”.

4. Mr Bisley was taken to Ex 1, pp 261 and 262 (Figures 3 and 4 above) and asked: “In light of the concerns with Mr Meharg what, if any, steps you have taken to turn up and go to that part of the property?” Mr Bisley replied: “I go to see Craig (Meharg). I usually park in that area under cover of the tree, and you cannot see over the right-hand side. I do not walk around the back of the property or these buildings.” The tree to which Mr Bisley refers is adjacent to the caretaker’s cottage on the edge of the entry road to the Site.

8. The Respondent read the following affidavits:

1. Dallas McConnel filed 3 April 2024, and Ex DM-1 (Ex 1, tabs 8-9, pp 62-71 and 72-254 respectively);

2. Mahendra Jaywardena filed 3 April 2024 (Ex 1, tab 10, pp 255-257);

3. David Thomas Addinall filed 11 April 2024, and Ex DTA-1 (Ex 1, tabs 12-13, pp 279-340);

4. David Thomas Addinall filed 22 April 2024 and Ex DTA-2 (Ex 1, tabs 14-15, pp 341-487).

9. The Applicant did not call the Council’s witnesses for cross examination.

Applicant’s submissions

10. Pursuant to s 518 of the LG Act, land may only be categorised as “business” if it cannot be categorised as farmland, residential or mining.

11. There is no contention that the land could be farmland or mining but it can be categorised as residential pursuant to s 516(1)(a) of the LGA:

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 for of residential accommodation (not being a boarding house or a lodging house) prescribed by the regulations).

……”

12. The Site is a parcel of rateable land that is valued in one assessment.

13. The exemptions in the words following the first bracket in subs (1)(a) of s 516 of the LG Act do not apply, and so the question is simply whether the dominant use of the Site is for residential accommodation.

14. The statutory requirements for land to be categorised as “residential” may be contrasted with that to be categorised as farmland. For the latter, there is a requirement for a significant and substantial commercial purpose or character, that is engaged in for the purpose of profit on a continuous or repetitive basis (s 515(1) of the LG Act)).

15. As Pearlman CJ observed in McKenzie v Randwick City Council [1996] NSWLEC 42 (p 2) (‘McKenzie’):

“Two questions arise. First, what is the proper construction of the words ‘dominant use’ in s 516 and secondly, on the fact can the premises be categorised as residential applying the test in s 517?”

16. Pearlman CJ held in relation to the proper construction of “dominant use” (p 4):

“However, the alternative meaning of ‘dominant’ or ‘main’ or ‘principal’ is available. It is not an unusual meaning of the word, and construing the word ‘dominant’ is that sense will avoid absurdity and injustice and will accord with the context of Chap 15 Pt 3of the Act (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR at 304, 320).

Accordingly, the term ‘dominant use’ in s516 must refer to the main or principal purpose for which land is used. If there is one use of land, that use will of course be the dominant use; if there are two or more uses, an inquiry needs to be made as to which of those uses is the main or principal use.”

17. This approach has been cited in a number of cases, including by Sheahan J in SH Camden Valley v Camden Council [2015] NSWLEC 104.

18. The Applicant’s submissions in relation to the Council’s evidence are as follows:

1. Dallas McConnell’s affidavit (Ex 1, tabs 8-9) (McConnell affidavit):

1. "The McConnell affidavit and the voluminous exhibit to it are almost wholly irrelevant.”

2. In pars [1]-[11] Mr McConnell deposes as to some preliminary matters, which may be noted, but which do not go to the real issue in the proceedings, being the use of the Site.

3. At pars [12]-[14] certain matters as to ownership are referred to but again these do not go to the use of the Site.

4. At pars [15]-[18] some matters concerning historical uses and previous applications are referred to, and again these matters do not go to the use of the Site since November 2019. To the extent that these paragraphs refer to the horse agistment use, (including the letter at Ex 1, pp 29-53 (including photographs that show some horses)), but as noted in Mr Bisley’s affidavit filed 16 April 2024 (Ex E), the horse agistment business ceased in November 2011.

5. At pars [19]-[20] reference is made to the request for particulars and the response (Ex 1, tab 8, pp 66). The Applicant relies on the response including that the horses on Site are owned by the Applicant and Mr Meharg.

6. At par [21] reference is made to a development application and certain documents which are part of Ex 1, tab 9. These documents related to a proposed use of the Site, as opposed to its actual use, but at part 6 of the Site Investigation (Ex 1, tab 9, p 79) reference is made to the “Current Land Use Activity” as rural residential.

1. At pars [22]-[25] reference is made to photographs that are at Ex 1, tab 9 pp 155-163. These photographs are of no real assistance in that they show the disused buildings and other things on the Site. These are fully consistent with the Applicant’s case in that they are derelict buildings and no use is apparent from them.

2. Finally, at pars [26]-[36] there is a lengthy discussion of the alleged attempts to negotiate access to the Site. All of this is irrelevant.

2. Mahendra Jaywardena’s affidavit filed 3 April 2024 and Ex MJ-1 (Ex 1, tabs 10-11, pp 255 – 278)

1. This affidavit simply exhibits as MJ-1 aerial photographs taken from a drone. These photographs are in the precise same category as those referred to at [18(1)(g)].

3. Thomas Addinall’s affidavit filed 22 April 2024 and Ex DTA-2 (Ex 1, tabs 14-15):

1. (a)   Mr Addinall refers to a subpoena that he defines as the “SEG Subpoena” and then exhibits certain things that were produced in response to it at Ex 1 tab 14 being Ex DTA-2, being, specifically, certain photographs that appear to have been taken in January and February of 2022. These photographs also do not show any (then or now) current use of the Site. Rather, they very clearly show the decrepit and derelict nature of the improvements and other items evidencing some former (not current) uses of the Site.

19. The Applicant submits that its evidence shows that the only use of the Site is residential. The Applicant further submits that the Council has brought no evidence as to any other (current) use. As residential is the only use it must be the dominant use. The application must succeed.

Council’s submissions

20. The Council submits that the only decision open to the Court on the evidence is to confirm the decision that the Site use is ‘Business’ not ‘Residential’. In this respect the Court would apply the test in McKenzie as to the dominant purpose.

21. The parties are at odds in the approach to evidence. The Applicant contends that the Council has led voluminous evidence that is irrelevant. The Council contends:

1. Other than admissions as to the commercial use of the Site, the Applicant has utterly failed to lead meaningful evidence of the actual use of the Site;

2. In relation to Mr Bisley’s affidavit, Ex C, at Annexure A he annexed the Application for Change in Rating Category dated 6 June 2023, and his reason for this is as follows:

“The dominant use of the land is for residential accommodation. The land is not used for business purposes. The Council removed the pallet business on 24/11/2019. The Council says that the land is not rural land. The Council provides residential waste services to the property.”

3. Mr Bisley’s affidavit, Ex D, he states at pars [17]-[18]:

“[17] In May 2005, Craig Meharg leased the caretakers cottage from the owner and he and his family moved into occupation of the caretakers cottage.

[18] The cottage was leased through a real estate agent. The rent was $615.00 per week.”

22. The Council has led significant evidence – all of it objective (e.g. photographs and planning documents relevant to the Site) – as to the commercial use.

23. The photographs the Council leads should be given weight because they are said to be sufficient by the Applicant. On 5 July 2017, Mr Bisley wrote to Council (Ex 1, tab 9, pp 97-98), in again refusing the Council access to the Site, said:

“I note your request to enter the property. In the past, it has never been necessary to enter the property in order to determine the application for postponed rates. Since there has been no change of circumstances, permission for entry is not given. If you wish to do so, you can inspect the property on Google.”

24. The Council notes the comment made during the on site view that Mr Meharg has to stay on site to look after the rest of the property, but, according to the Applicant, the only reason Mr Mehrag stays on the site is to permit four trucks to stay there.

25. For the purposes of these submissions the Site can be divided into the following parts:

1. ‘Main’ part which comprises the significant part of the Site from the driveway to the right of the lot and through to the ‘Field’ at the back;

2. ‘Caretaker’s Cottage’ part which is the small space in the front left corner with the cottage on it; and

3. The ‘Field’ which is the green field and ponds at the rear.

Figure 5: p 4 of Council’s submissions 27 May 2024

4. The Main part on which the business activities are undertaken dominates the Site as to area. The Field comes close but is largely unused space. The Caretaker’s Cottage part is de minimis as to the area it occupies.

26. Council gave the Applicant a request to enter the property for the purpose of preparing evidence via a letter from Kells dated 25 March 2024 (Ex 1, tab 9, p 237). That request was refused via a letter from Russoniello Lawyers dated 26 March 2024 (Ex 1, tab 9, p 239).

27. Council subsequently issued a Notice of Intention to Enter Premises dated 26 March 2024 pursuant to ss 191 and 193 of the LG Act for the purpose of:

“Obtaining evidence to assist in determining the appropriate rating category of the Premises, being the subject of Land and Environment Court Proceedings 2023/00252849.”
(Ex 1, tab 9, p 240)

28. Entry was refused by the Applicant via a letter from Russoniello Lawyers dated 27 March 2024 (Ex 1, tab 9, p 248). Correspondence continued between the parties in relation to access which continued to be denied (Ex 1, tab 9, pp 250-254).

29. What the Council submitted was when the Applicant has as its director a solicitor who knows the dispute, it would be reasonable for that director (Mr Bisley) to bring all the evidence available at his disposal. The Applicant did not bring all the evidence available to it at its disposal. Further, the Applicant consistently refused entry to the Site by Council. What the Council submitted was : “A reasonable applicant would say to the court: ‘I can give entry to the Site anytime. I can get evidence from Mr Meharg as to what is going on’.” It is in that sense that we say that the Court would look at the Applicant’s case as not only lacking evidence, but it has taken active steps to prevent Council from bringing evidence before the court.

30. In response to Mr Astill’s submissions in relation to McKenzie: Council submitted that McKenzie supports the Council’s case, and the facts are in stark contrast to what is before the Court in this case.

31. All Mr Bisley’s has done in his evidence is as follows:

1. In his first affidavit (Ex C) he annexes an Application for a Change in Rating Category, and his reasons are: dominant use of the land is for residential accommodation, not used for business purposes.

2. In his second affidavit (Ex D) at par [17] Mr Meharg leased the caretaker’s cottage. There is no written record of the lease or the rent being $165 per week. Council notes the comment made on the Site view by Mr Bisley that Mr Meharg has to stay on site to look after the rest of the property, but the only reason for doing so, according to the Applicant, is that there is nothing else going on except Mr Meharg has allowed four trucks to be stored on the Site. However, in Ex D Mr Bisley states in pars [23]-[24] that since the pallet repair business ceased operating, the only active use has been the occupation of the caretakers cottage for residential accommodation. He says that this has been the dominant use of the property, “there being no other active use of the Property”. Mr Bisley must have known that four trucks were being stored there.

3. The Council submits that what the Applicant should be doing is to do everything it can to bring evidence before the court. In this case the Applicant has not answered the fundamental question: what is the Site being used for?

32. The Council has led significant evidence showing that the Main part of the Site is being used for commercial structures, trucking and storage purposes, and other purposes deposed to in Ex 1, and the page references are pages in Ex 1 as follows:

1. Unregistered vehicles scattered over the Site (pp 263, 371, 375, 398, 415, 470);

2. Registered vehicles, truck and trailers that would be expensive to acquire (pp 263, 290, 297, 304, 314, 426);

3. Equipment such as the well maintained digger at p 387; and

4. New pallets in good repair at pp 291 – 298.

33. All the above have capacity for substantial logistics (all page references are to Ex 1):

1. The logistics business includes the storage and movement of chemicals as set out on pp 153, 319-322, 331-340, 337-382, 400, 404-412 and 417-422.

2. There are modern fuel pumps on the Site on pp 401-402.

3. There are spare tyres for the logistics trucks and trailers kept on the Site, pp 385-386.

4. There is a workstation and staff area for the logistics business staff, pp 376, 451, 455.

5. Solar panels were installed outside the workstation sometime after 20 January 2022, p 270.

6. The Site presents as a business rather than a residence as you approach the Site, pp 234-235.

34. The Applicant has made various admissions that the Site is used for commercial and business use:

1. The Applicant maintains ‘Business Liability’ insurance for the Site with CGU Insurance (Ex B, p 3, par 5(c)). The renewal schedule of the Policy states:

“Section 7 – Business liability

This cover extends to all situations listed Sum Insured Total Premium

in the Situation Summary

Limit of indemnity            $10,000,000

Property Damage excess $250

Section 7 Total Premium               $616.81”

35. The occupation of the Caretaker’s Cottage Part is not subject to a written lease agreement, and therefore has no duration or other terms you would expect to find in a landlord/tenant relationship.

36. There is no evidence of the Applicant’s income tax returns showing any rent being received for the alleged residential use.

37. No evidence is lead from the alleged tenant, Mr Meharg.

38. Applicant’s failure to lead evidence: In respect of the obligations of parties to adduce evidence which is within their knowledge, in BCI Finances Pty Limited (in Liq) v Binetter (No. 4) [2016] FCA 1351 (‘BCI Finances’) Gleeson J (as her Honour then was) noted the following from par [122]:

“[122] Where a plaintiff has the onus of proving a matter, and “relevant facts are peculiarly in the knowledge of the defendant or where the defendant has the greater means to produce evidence relating to those facts”, then if the plaintiff provides sufficient evidence from which the matter may be inferred, “the defendant then comes under an evidential burden, or an onus of adducing evidence”: Krstic v Brindley [2006] NSWSC 1414 at [26].

“[123] Where a fact is peculiarly within the knowledge of a party to litigation, slight evidence of that fact may suffice to prove the fact unless that evidence is explained away by the party with the knowledge of the fact: Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367 at 375; Tyco Australia Pty Ltd v Optus Networks Pty Ltd [2004] NSWCA 333 at [121]; Parker v Paton (1941) 41 SR (NSW) 237 at 243; Ex parte Ferguson; Re Alexander (1944) 45 SR (NSW) 64 at 67, 70.

“[124] A failure by respondents to deny or explain facts when it was in the respondents’ exclusive power to do so allows increased strength or weight to be given to primary facts favourable to the applicants and allows inferences favourable to the applicants to be more confidently drawn: United Group Resources Pty Ltd v Calabro (No 5) [2011] FCA 1408; (2011) 198 FCR 514 at [75]-[76]. The silence of a party may serve to resolve a doubt or an ambiguity regarding the existence of a fact, especially where the facts are peculiarly within the knowledge of the silent party: Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125; (1996) 9 ANZ Insurance Cases 61-385 at 142.”

39. Here the Respondent’s evidence, including objective photographs taken at various times over the relevant period, establishes the substantial commercial use of the Site. It falls to the Applicant to explain away that evidence as the information to do so is peculiarly within the Applicant’s knowledge. But, instead, the Applicant chose to stay silent and be obstructive of the Respondent’s attempts to obtain evidence.

40. The objective evidence and the Applicant’s admissions confirm the ‘Business’ use as the dominant use. Other than Mr Bisley’s subjective statements that there is a residential use, there is no evidence of an actual occupation of the caretaker’s cottage, and Mr Bisley is not a witness on whom weight can be placed for the reasons set out above in these submissions.

41. The Court ought to dismiss the application.

Findings

42. I note that Council declared the Site to be rateable land within the category of ‘business’ in accordance with s 514 of the LG Act.

43. I note that the parties submitted, and I agree, that the Site could not be categorised as farmland in accordance with s 515(1)(a) and (b) or (2) of the LG Act.

44. The Site is to be categorised as ‘residential’ if it is a parcel of rateable land valued as one assessment and its dominant use is for residential accommodation (s 516(1)(a) of the LG Act).

45. The site is one parcel of rateable land valued as one assessment (Ex 1, tab 2, p 7, par B(4)(c), and Ex C and Annexure B).

46. I adopt the meaning of ‘dominant’ in accordance with the decision of Pearlman CJ in Mackenzie (at [15] and [16] above).

47. The Site has an area of 28.4ha (Ex 1, p 139).

48. The Applicant’s case is that the previous ‘business’ uses on the Site have been abandoned, and the only use left on the Site is the ‘residential’ use of the caretaker’s cottage.

49. The caretaker’s cottage can be seen on the photographs in Ex 1 pp 272-273, 275-277, and on the photograph on p 272 it is the building at the bottom of the page, just inside the Site on the entry road. The photograph depicts the various buildings, plant and equipment spread throughout the front part of the Site, with a well maintained road circling through and around the buildings, plant and equipment. The paddocks of vacant land are at the rear of the Site.

50. The tree to which Mr Bisley referred to as parking under on the Site, and not moving further into the Site, can be seen on the photograph at Ex 1, p 272. Mr Bisley’s evidence is that he parked his car under the tree, and spoke with his tenant and Site Manager, Mr Meharg, and that he did not look around the Site. In other words Mr Bisley was not aware of what was occurring on the Site. This is the position Mr Bisley put forward prior to and during the hearing, that to his knowledge the only activity on Site is occupation of the caretaker’s cottage.

51. When I attended the Site view on 20 November 2023, Mr Bisley tried to prevent the Court from inspecting the Site, on the basis that he was not insured if any person injured him/herself. We did inspect the Site with Mr Bisley on that day, and the Court walked around the road encircling the buildings, plant and equipment, and through the middle of the buildings, plant and equipment. The photographs in Ex 1, under tabs 9, 13, and 15 are reflective of what I observed on Site on 20 November 2023. My observations on 20 November 2023 were as follows:

1. Numerous unregistered vehicles spread across the Main Site;

2. Numerous vehicles across the Main Site which appeared to be registered;

3. Registered vehicles in front of, and near the workshop area;

4. Pallets of timber, both new and old (some of the old timber was in pieces);

5. Trucks, B-Doubles, trailers, buses, some of which were with a registration plate, and some of which were not;

6. Caravans lined up near the edge of the Site on Yallah Road, some of which looked like they may have been occupied, and some of which looked like they were being stored on Site;

7. Shipping containers;

8. Disused plant, equipment and general rubbish scattered around the area; and

9. Products wrapped in shrink-wrapping, bundled together in various areas.

10. All of the above was also seen by Mr Bisley on 20 November 2023 as he accompanied the Court on the Site view.

52. I prefer the evidence of the Council in this matter, to the evidence given by Mr Bisley, for the following reasons:

1. My observations on Site endorse the Council’s evidence on the operation of a ‘business’ or even different ‘businesses’ within the Main part of the Site.

2. Mr Bisley’s evidence appears to be self-serving in that he has stated that he only parked under the tree alongside the entrance road, and did not inspect or look at what was on Site. Mr Bisley relied upon his tenant, Mr Meharg, to be the caretaker and manager of the Site.

3. However, the Applicant did not call Mr Meharg to give evidence, either as to the terms of his occupation of the caretaker’s cottage, or of his role in managing the Site.

4. In view of the photographic evidence as set out in the Council’s evidence, it is difficult to accept the statement by Mr Bisley that “since 24 November 2019 when the pallet repair business ceased operating, the only active use of the Site has been the occupation of the caretaker’s cottage for residential accommodation” (Ex D, par 33).

5. In cross examination Mr Bisley was taken to Ex 1, p 153 with a caption underneath it (presumably inserted by a Council officer): “Site Photograph 6.6.2 Washing Detergent stored within the south-western portion of the site. As observed on 22 January 2022”. Mr Bisley’s response was: “You are telling me what it is. I have not looked at it.”

6. If the Applicant’s director, Mr Bisley, purposefully looked only at the caretaker’s cottage whilst visiting the Site, then he has failed in his obligation to the Court to bring evidence in support of the Applicant’s claim (BCI Finances). The Applicant had an obligation to call Mr Meharg to give evidence, when he is the person with knowledge of what activities are taking place on Site. The Applicant did not do so, and Mr Bisley chose to stay silent on these relevant issues. (BCI Finances).

7. Other than Mr Bisley’s repeated assertions that the dominant use of the Site is residential, as the occupation of the caretaker’s cottage by Mr Meharg is the only activity taking place on site, the Applicant has not deduced any evidence to refute the photographic evidence of Council in Ex 1.

8. I prefer the objective evidence of Council in relation to establishing what the dominant use is on the Site.

53. In accordance with s 39(2) of the LEC Act and s526(3) of the LG Act I find that:

1. The dominant purpose for the use of the Site is ‘business’ pursuant to s 516(1) of the LG Act.

2. The correct category of the Site for rating purposes in accordance with s 514 of the LG Act is ‘business’ from 24 November 2019.

3. The appeal is dismissed.

Orders

54. The Court orders:

1. The appeal is dismissed.

2. The rateable category of 164 Yallah Road Yallah NSW 2530, being the whole of the land in Lot 1 Deposited Plan 234771, from 24 November 2019, is ‘business’ in accordance with s 514 of the Local Government Act 1993.

M Peatman

Acting Commissioner of the Court

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Decision last updated: 30 July 2024