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

APPLICANT T Prior PARTIES : 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

McKenzie v Randwick City Council [1996] NSWLEC 42 CASES CITED: 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

APPLICANT Mr J Doyle, barrister INSTRUCTED BY LEGAL REPRESENTATIVES: Thomson Playford Cutlers

RESPONDENT Mr T Cork, solicitor McPhee Kelshaw

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE SC

WEDNESDAY 9 SEPTEMBER 2009 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 wrote a letter of objection to that, seeking a review of that decision. On 24 March 2009, the council wrote indicating that the business categorisation was to be maintained. At no time, prior to January 2009, had Mr Prior been given any intimation of the intention of the council to categorise his land as being for business purposes. 5 The scheme in Part 3 of categorisation of land in the Act includes provisions relating to all four of the categories within which land can be declared for rating purposes. Those categories are: farmland, residential, mining and business. A series of tests are set out in the Act for categorisation as farmland, residential or mining with there being, in s 518, a default provision that says if it is not fitted within one of those three earlier categories land defaults to being categorised as business. 6 Mr Prior has appealed against that declaration pursuant to s 526 of the Act. Section 526 provides for two separate forms of appeal, that being an appeal against the date of operation of a declaration or, secondly, an appeal against the nature of the declaration. In these proceedings, Mr Doyle, who appears as counsel for Mr Prior, has pressed appeals on both bases and it falls to me to determine both how Mr Prior's land should be categorised and what effective date such new categorisation should take effect. 7 The relevant contest in this case is whether the land is to be categorised as residential or not, it not being pressed that the land should be categorised as mining or as farmland. The relevant test in this case is the first of the three alternatives contained in s 516 of the Act. If it does not satisfy that test then the land is to be categorised as business from a date that falls to me to determine. 8 There are a number of matters arising out of the comparatively limited range of authorities to which I have been taken and to which I should have regard. 9 The first case to which I have been taken is the decision of the former Chief Judge of the court, Pearlman CJ, in McKenzie v Randwick City Council [1996] NSWLEC 42, a case that dealt with how premises that were used partly as a doctor's surgery and partly for residential purposes should be categorised. 10 I have also been provided with other decisions, one being the case of Taylor v Lismore City Council [2005] NSWLEC 146, a decision of Nott C, and the decision in Jakd Pty Limited v Randwick City Council being an unreported decision of Bignold J in March 1996. 11 In each of those cases, an assessment of the facts and circumstances of the particular case was necessary to work out what was the dominant use of the land, it being necessary in these proceedings, for Mr Prior to be successful, for me to conclude that the dominant use of the land is for residential accommodation for it to fall within the categorisation of residential. 12 In each of the three cases to which I have been taken a number of factors were considered. In each of the cases, apportionment has played a significant but not solely determinative role – the proportion of the property in the Jakd Pty Limited v Randwick City Council case; the proportion of the building as proportion of the land that was subject to the rating in both Taylor v Lismore City Council and McKenzie v Randwick City Council. 13 In this case, it seems to me that I need have regard to the three matters that were discussed by Pearlman CJ in McKenzie v Randwick City Council where, toward the conclusion of her decision, she assessed the principal use of the premises (in that case against the tests of space occupied, time spent in occupation and layout). Whilst the present appeal is not immediately amenable to such precise characterisation, the matters assessed provide a useful guide to the range of matters that I need to consider when determining what is the dominant use of these parcels of land. To do that I should return to a more complete description of the land itself. 14 The land is located to the north of the Great Western Highway and it falls from its south-western corner downwards toward the north-east. The small frontage of the land within the generally sloping allotment has a frontage to the rail corridor of the Great Western Railway line serving the Blue Mountains. Some hundreds of metres of frontage of the property, as shown in an aerial photograph of it, is a frontage to the Great Western Highway as one travels up Boddington Hill (with the vegetated area on one's right being RTA owned corridor – beyond which glimpses of the property and the residence could be seen). At the top of the hill is the entrance to the commercially operated nursery that forms the smaller element of this parcel of land. The ratio of the area of the nursery to the remainder of the land is a ratio of approximately 9:1. 15 On the larger portion of the land is located Mr Prior's residence together with landscaped gardens that, at least at some time in the past, have been open to the public as part of the Australian Broadcasting Commission's Open Garden Program. It was Mr Prior's uncontradicted evidence during the course of the conciliation conference that took place on 19 June, the contents of which were agreed by the parties to be carried forward by me into the determinative process I am undertaking pursuant to s 34(4) of the Land and Environment Court Act 1979 in these proceedings, that, in addition to using the immediate curtilage of his house as part of his residence, he also used the gardens for recreational purposes, both for quiet enjoyment and for the exercising of his dogs. The land - showing all three allotments – is in the air photo below: 16 I am satisfied for the purposes, therefore, that I should regard the use of the whole of that nearly 20,000 m sq or so of the property upon which his house is located as being used for the purposes of residential accommodation or activities necessarily ancillary to or linked to that use as residential accommodation and therefore forming part of that use. 17 I am equally satisfied that the remainder of the property, some 2,000 m sq or so in area, is used for the purposes of the intensive use as a nursery. The permitted use of that element of the site, pursuant to the commercial lease entered into by Mr Prior with the company that is the proprietor of the nursery, is for its use as a garden centre for the supply of greenstock, associated garden dry goods and hardware, furniture sales, sales of giftware, conducting gardening classes and related functions. 18 In resisting the proposition that the land should be regarded as having its dominant use as being for residential accommodation, Mr Cork, solicitor on behalf of the council, has in the council's Statement of Facts and Contentions in Reply particularised a number of matters upon which the council relies. These are set out below.