COUNCIL OF THE SHIRE OF MUSWELLBROOK v BROMLEY [1991] NSWCA 64

COUNCIL OF THE SHIRE OF MUSWELLBROOK v BROMLEY SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KIRBY P, SAMUELS JA and CLARKE JA 25 February 1991

[1991] NSWCA 64

LAND & ENVIRONMENT — Local Government Act 1919 — rates — farm land — meaning of — application for leave to appeal from Cripps J dismissing appeal from Assessor — whether Assessor erred in his understanding of the new definition of "farm land" — held: (dismissing summons): The case was not an appropriate vehicle, having regard to the way in which it had been argued below, to grant leave to appeal.

WORDS & PHRASES — "farm land". Local Government Act 1919, s 118.

Kirby P. The issue of the meaning of the new definition of 'farm land' in the Local Government Act s 118 is one which, in due course, may attract leave to appeal. However, for several reasons this case is not a suitable vehicle for considering the meaning of that expression.

The issue of whether the land here in question was used for 'farming' was not argued. The contention that proper reasons had not been given by the Assessor within the instruction of the Court in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 was not argued. The matter comes to the Court as it did to Cripps J only on a point of law within the stringent test of that precondition stated in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. All of the points now taken were not, apparently, taken before his Honour. Accordingly the case is not one to warrant leave being given.

Necessarily, this decision does not involve a confirmation of what the Assessor said about the application of the new definition of 'farm land' or an approval of his application of the definition in this case. It simply indicates that this mater is not an appropriate one for leave to allow the question to be explored as one of principle.