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. 1. 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. 2. Since 2019, when the pallet repair business ceased, the residential use by Mr Meharg has been the dominant use of the Site. 3. At all material times Council has provided waste collection services to the Site. 4. (Ex 1, tab 2, Applicant's Statement of Facts and Contentions (SOFAC) filed 15 September 2023, pp 7-8 and Ex A) 5. 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. 6. 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. 7. 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)