Moore v Local Land Services

Levying of rates - relevant legislative provisions

1. LLS is a statutory corporation established under the Local Land Services Act 2013 (the LLS Act). The objects of the LSS Act are set out in s 3 and include: (b) to establish a governance framework to provide for the proper and efficient management and delivery of local land services, … (e) to ensure the proper management of natural resources in the social, economic and environmental interests of the State, consistently with the principles of ecologically sustainable development (described in section 6 (2) of the Protection of the Environment Administration Act 1991), … (h) to establish mechanisms for the charging of rates, levies and contributions on landholders and fees for services, (i) to provide a framework for financial assistance and incentives to landholders, including, but not limited to, incentives that promote land and biodiversity conservation.
2. Division 2 of Part 5 of the LLS Act deals with rates, levies and contributions. There appears to be no dispute that Ms Moore's land is rateable land for the purposes of the LSS Act: s 56.
3. Section 57(1) of the LSS Act provides that: (1) Local Land Services may make and levy, in accordance with the regulations, such types and amounts of rates, levies and contributions on rateable or other land in a region as are prescribed by, or determined in accordance with, the regulations. (2) The regulations may - (a) provide for the period in respect of which a rate, levy or contribution is payable, and (b) describe the purposes for which or basis or bases on which any particular type of rate, levy or contribution may be imposed, and (c) describe the rateable or other land in respect of which a particular type of rate, levy or contribution is payable.
4. Clause 6 of the Local Land Services Regulation 2014 (the LSS Regulation) states that each year LSS is to make and levy a general rate on all rateable land and an animal health rate. Ms Moore was not charged an animal health rate as her annual return for the preceding year stated that there were no stock on the land and it was therefore exempt in accordance with cl 14 of the LSS Regulation. Under cl 6 LSS may also make and levy one or more special purpose rates for any year on any land within a district if LSS considers it is necessary to do so.
5. Clauses 6(3) and 6(5) set out how general rates are to be calculated. Clause 6(3) provides: (3) A general rate, or a special purpose rate (if any), for rateable land is to consist of - (a) a base amount for each holding of rateable land (determined by Local Land Services), and (b) an amount payable for each stock unit based on the total notional carrying capacity of rateable land in the district or for each constituent part (within the meaning of clause 49 of Schedule 7 to the repealed Act as in force immediately before its repeal) of the district.
6. Clause 6(5) sets out a formula in accordance with which a rate is calculated. It is not necessary for present purposes to set out detail of the formula other than to say that one element "represents the notional carrying capacity of rateable land determined in accordance with clause 17". Relevantly, cl 17 provides: (1) Local Land Services must assess the notional carrying capacity of each holding of land. (2) In determining the notional carrying capacity of land for the purposes of this clause - (a) a 40 kilogram wether sheep of any breed represents 1 stock unit, and (b) a 400 kilogram steer of any breed represents 10 stock units. (3) Local Land Services is to assess the notional carrying capacity of land by reference to the number of stock units that could be maintained on the land in an average season under management practices that, in the opinion of Local Land Services, are usual for the district. (4) The assessment is to be made whether or not the land is, at the date of assessment, used for any purpose. (5) Without limiting matters that Local Land Services may have regard to in assessing the notional carrying capacity of particular rateable land, Local Land Services - (a) must disregard the presence of noxious weeds or pest animals on the land, and (b) must not take into consideration the use of irrigation if the land is irrigated land used for permanent plantings of trees or vines, and (c) must make its assessment as if the raising of stock were the only use of the land, and (d) in the case of land that remains in or is reverting to its original undeveloped state - must base its assessment on the condition of the land as at the date of assessment.
7. Clause 16 of the LSS Regulation ensures that the notional carrying capacity of a holding of land is assessed on a regular basis. Any specified or a class of land, person(s) or activities can be exempted from the provisions of Part 5 to impose rates, levies and contributions: s 208 LSS Act. The exemptions, however, must be specified in the LSS Regulation. Clause 15 of the LSS Regulation sets out land that is, for the purposes of s 208, exempt from the operation of Part 5 of the LSS Act. Ms Moore's land holding clearly does not fall within the current exemptions in the LSS Regulation.

Tribunal's jurisdiction

1. The Tribunal's jurisdiction is conferred under the NCAT Act and other legislation: s 28 NCAT Act. The Tribunal exercises different types of jurisdiction and s 28 of the NCAT Act deals with the jurisdiction of the Tribunal. The jurisdiction of the Tribunal consists of the general jurisdiction, the administrative review jurisdiction, the appeal jurisdiction and the enforcement jurisdiction. In its appeal jurisdiction the Tribunal has external and internal appeal jurisdiction. Under s 31 of the NCAT Act the Tribunal has external appeal jurisdiction over a decision made by an external decision-maker if legislation provides that an appeal may be made to the Tribunal against any such decision.
2. Following a review of an assessment of the notional carrying capacity of a holding by LSS, cl 20 of the LSS Regulation provides an owner or occupier of land with a right to appeal to the Tribunal against the assessment. Clause 21 provides a similar right of appeal with respect to the validity of any rate levied on land. Clause 22 provides that the Tribunal, after hearing the appeal, must confirm or vary the assessment or rate.
3. Clause 14 of the LLS Regulation provides that an external appeal under the LLS legislation may be made without requiring the leave of the Tribunal and is to be by way of a rehearing. Fresh evidence may be given in the appeal with the leave of the Tribunal. The Tribunal has previously held that the nature of an external appeal under the LLS legislation is by way of a hearing de novo: Yammatree Pty Ltd v North West Local Land Service [2015] NSWCATAD 35 at [16]-[18]; Mills v Local Land Services [2015] NSWCATAD 207 at [10]-[14]; Ryan v Northern Tablelands Local Land Services [2021] NSWCATAD 36 at [10].
4. Ms Moore appeals against the assessment of the notional carrying capacity and corresponding rates levied against her property.

Evidence and submissions

1. Ms Moore states that she has owned part the land in question since 1986. The land was amalgamated with that owned by her partner at a later date and now comprises the holding the subject of this appeal. Ms Moore states that she and her partner wanted to turn the land into a wildlife refuge and have worked to revegetate the land (which had been farming land in the past). As noted above, approximately 91 hectares of the 123.2 hectare holding has been a Conservation Area since June 2019.
2. I note that it is not in dispute that about three quarters of Ms Moore's 123.2 hectare holding is a Conservation Area under a Conservation Agreement with the Biodiversity Conservation Trust. It is also not in dispute that Ms Moore does not run stock on any part of her property and is not in fact permitted under the terms of the Conservation Agreement to run stock on that part of the property comprising the Conservation Area.
3. The evidence of Mr Pope is that LLS issues rates notices to landholders in the first quarter of each year. The notice sets out: 1. the total area of the holding of land; 2. the notional carrying capacity of the land in stock units per hectare; 3. the total notional carrying capacity of the land; and 4. the calculation of the rates owed in relation to the holding of land.
4. Mr Pope states that the macro determinants that may impact the notional carrying capacity of holdings of land in the state is reviewed every five years. These macro determinants include soil type, land capability and climate. The most recent review took place in December 2021 and it was determined that there was no need to adjust the notional carrying capacity of land holdings at the macro scale and that the notional carrying capacity then in force for all holdings of land across the state would continue to apply. The notional carrying capacity applied to Ms Moore's land in the original rates notice was that assessed in the five yearly review.
5. Mr Pope sets out the process by which a requested reassessment of notional carrying capacity is carried out. He states that a LLS Biosecurity officer conducts a desktop audit of the land holding which includes a review of the following: 1. annual land and stock numbers return history; 2. the assessed notional carrying capacity of neighbouring properties; and 3. geographical and topographical mapping of the holding of land, including land and soil capability mapping.
6. Mr Pope states that the officer may also inspect the land, but this usually only occurs at the request of the landowner or if it appears that the notional carrying capacity as assessed is inconsistent with that of neighbouring properties. As noted above, the outcome of the reassessment the notional carrying capacity of the land was adjusted to 2.0 stock units per hectare and the rates reduced accordingly to $196.37.
7. In Mr Pope's opinion the conclusions reached in the reassessment were appropriate for the following reasons: 1. Management practices usual for the district include the production of sheep, beef cattle and small scale horticulture. Land holdings in the district are also treated as unofficial nature reserves or bush blocks that support an array of native fauna and feral pest animals and do not raise livestock. 2. The national carrying capacity reflects the potential productivity of Ms Moore's holding of land. It takes into account the natural state of the land and, in particular, reflects that the part of the land that is subject to the Conservation Agreement is less productive due to shallow soils and other constraints. 3. The notional carrying capacity is comparable and within a range of notional carrying capacities applied to other properties in the area of similar land and soil capability, landscape composition and geography.
8. Ms Moore states that, while there is some volcanic soil to the east of her property, the soil quality of the holding itself is very poor and unsuitable for farming. She states that the land is steep and ungrassed in some places and heavily vegetated in others making it unable to support livestock. Ms Moore also states that the external boundary of the property is largely unfenced (except on the western and eastern side where fences are needed to separate her property from those adjoining it for various reasons), which makes running stock impossible as any stock would then have access to the Conservation Area. She submits that LLS's assessment of the notional carrying capacity of her land is unjust and illogical. She also submits that the assessment is inconsistent with the terms of the LLS Act itself and other legislation.
9. Ms Moore states that there is an inconsistency of approach in the assessment of rates between those levied by LLS and local government. She states that local government rates are only payable on land falling outside the Conservation Area as it is recognised that land under a Conservation Agreement cannot be used for any other purpose. Ms Moore also states that the LLS Act conflicts with other legislation which aims to protect biodiversity, such as the Biodiversity Conservation Act 2016, the Protection of the Environment Administration Act 1991 and the Environmental Planning and Assessment Act 1979. In her submissions she sets out and compares various provisions in these Acts and the LLS Act. It is not necessary to set out those provisions in detail here. Ms Moore states that, while the LLS Act refers to environmental outcomes as a focus of the delivery of local land services, good environmental outcomes are not prioritised.
10. Ms Moore refers to the objects of the LLS Act set out s 3 of the LLS Act which include: (a) to establish a statutory corporation (to be known as Local Land Services) with responsibility for management and delivery of local land services in the social, economic and environmental interests of the State in accordance with any State priorities for local land service (e) to ensure the proper management of natural resources in the social, economic and environmental interests of the State, consistently with the principles of ecologically sustainable development (described in section 6 (2) of the Protection of the Environment Administration Act 1991); and (i) to provide a framework for financial assistance and incentives to landholders, including, but not limited to, incentives that promote land and biodiversity conservation.
11. Ms Moore states that, despite these objects, the LLS Act is disproportionately weighted in favour of matters related to stock and to a lesser extent, land clearing and private forestry. Further, the imposition of rates for landholders who do not own stock, particularly those who have entered into an agreement to protect the biodiversity values of their holding, is in direct conflict with object (i) and inconsistent with the other Acts she refers to.
12. Ms Moore points out that, while the Local Lands Services Rates brochure on the LLS website states that rates must be levied on all rateable land, s 57(1) of the LLS Act provides that LLS may levy rates. Thus, she argues, the imposition of rates is a discretionary matter and notes that the discretion has been applied during drought to give landholders rate relief. Ms Moore submits that LLS should exercise its discretion under s 57(1) to not levy rates on that part of the land which is subject to a Conservation Agreement.
13. LLS agrees that the decision to levy rates under s 57(1) of the LLS Act is discretionary. Having made the decision to levy rates, LLS argues that it must then comply with cl 6 of the LLS Regulation and levy a general rate and an animal health rate on a holding of rateable land. LLS submits that cll 20 and 21 of the LLS Regulation do not give the Tribunal jurisdiction over an external appeal from LLS's decision to exercise its discretion to levy rates under s 57(1). For that reason, LLS asks that Ms Moore's application in relation to the levying of the rate itself be dismissed under s 55(1)(b) of the NCAT Act.
14. In relation to its assessment of the notional carrying capacity of Ms Moore's land, LLS notes that the notional carrying capacity must be assessed in accordance with cl 17 of the LLS Regulation. That clause is concerned with the number of stock that "could" be maintained on a holding of land in an average season under management practices that are usual in that district. LLS states that the notional carrying capacity is intended to be the hypothetical number of stock units that could be maintained on the land, not the actual number of stock units maintained on the land.
15. LLS refers in particular to cll 17(4) and 17(5) of the LLS Regulation. LLS states that the terms of cl 17 (4) and (5)(c)-(d) mean that an assessment of the notional carrying capacity of land is an assessment of the land in its present and natural state. Mr Pope in his statement states that the assessment is a measure of the natural state of the land's productivity and its ability to support livestock and other agricultural operations.
16. LLS submits that, in accordance with cl 17(4), the assessment must be made irrespective of the use to which the land is put. Under cl 17(5)c) the assessment must be made as if the raising of stock were the only use of the land. On that basis, LLS argues, a holding of land may be assessed as having a notional carrying capacity of one or more units of stock per hectare even where there is in fact no stock being raised on the land.
17. LLS also states, however, that the use to which the land is put is put may be relevant to the assessment of notional carrying capacity and provides an example where the land is used for growing lucerne. In those circumstances, the absence of bushland on the property as a result of it being used to cultivate lucerne, might have some bearing on the assessment of the number of stock units that could be maintained on that land. This is because lucerne is usually grown on flat, open pastoral land which is more conducive to the raising of stock than land covered in bush. Similarly, if a holding of land is subject to a Conservation Agreement, the aim of which is to cause the land to revert to its original state, then the state of the land, which may have less open pastoral land and more bushland, will also have some bearing on the assessment of the number of stock units that could be maintained on the land. Mr Pope states that the reassessment of the notional carrying capacity of Ms Moore's land carried out by LLS staff took into account that part of the land is subject to a Conservation Agreement and is therefore less productive.
18. LLS disputes Ms Moore's contention that cl 17 of the LLS Regulation is inconsistent with the objects of the LLS Act. LLS refers to various authority which notes that an Act may have many purposes some which may point to one construction, while others may point against that construction. Furthermore, a general statement of purpose must be interpreted in its context and thus may be qualified by specific provisions in the legislation: see Carr v Western Australia 920070 232 CLR 138 at 143; Rodriguez v United States 480 US 222 (1987) at 525-526; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 91 ALJR 177 at [93].
19. LLS notes that some objects in the LLS Act are directed at environmental sustainability while others are not. In any event, LLS notes that where a Conservation Agreement has resulted in a holding of land having reverted to its original natural state, that may have an impact on the assessment of the notional carrying capacity of the land. This in turn would reduce the rates otherwise payable. LLS argues that landholders thus have an incentive to promote biodiversity on their land and thus reduce rates.
20. LLS also argues that, to the extent that the assessment of the notional carrying capacity of a holding of land that is subject to a Conservation Agreement may be inconsistent with some objects set out in s 3 of the LLS Act, it is in fact consistent with other objects relating to the levying of rates and the provision of other local land services to landholders.
21. In relation to the other Acts referred to by Ms Moore and in particular the Local Government Act and the Biodiversity Conservation Act, LLS states that there is nothing in the relevant legislation or any related extrinsic material that indicates that Parliament ever intended that those Acts should be construed in conjunction with the LLS Act.

Consideration

1. LLS submits that Ms Moore's application should be dismissed on the basis that it is misconceived or lacking in substance. Proceedings are "misconceived" if no cause of action is disclosed because there is a misunderstanding of legal principle: Alchin V Rail Corporation NSW [2012] NSWADT 142 at [26]. Further, proceedings are "lacking in substance" if the complaint is based on "an untenable proposition of fact or law" or is otherwise not "reasonably arguable": Long v Metromix Pty Limited [2019] NSWCATAP 198 at [77]; Braiding v Charles Sturt University [2016] NSWCATAD 90 at [27].
2. The power to dismiss on this basis is a discretionary power: Hariz v Commissioner of Police [2021] NSWCATAD 6 at [39]; Samuell v Medical Council of New South Wales [2020] NSWCATOD 149 at [1].

Discretion to levy rates

1. I agree with the submissions of LLS that the Tribunal does not have external appeal (or any other) jurisdiction over the decision made by LLS to exercise its discretion to levy rates against Ms Moore's land. Clauses 20 and 21 of the LLS Regulation make clear the extent of the Tribunal's jurisdiction. The Tribunal's jurisdiction is limited to two matters: assessment of the notional carrying capacity of a holding and the validity of any rate. Clause 21(2) provides that when appealing against the validity of any rate levied on land, an appeal may be made on the ground that the land or part of it is not rateable or is not subject to a particular rate.
2. Ms Moore accepts that LLS must apply the law as it stands. As I understand her submissions, she does not argue that her holding of land is not rateable land within the meaning of the current LLS legislation. Nor does she argue that her land is not subject to a particular rate. Rather, she argues that LLS should exercise its discretion to not impose rates on her land, or at least that part of it that is the Conservation Area, because the land does not and cannot support stock. Ms Moore argues that that decision would be in keeping with local government rates and the environmental protection provisions within the LLS Act and the other legislation she refers to.
3. There is nothing in that other legislation, however, which suggests that the provisions cited by Ms Moore are incorporated into the LLS Act or that the LLS Act should be read subject to these provisions. Whether or not that it may be desirable that the LLS Act has the same emphasis as the other legislation Ms Moore refers to is a policy matter for government and not one within the Tribunal's remit. As LLS points out, the only way that any specified land or class of land can be exempted from the operation of Part 5 of the LLS Act, which includes s 57(1), is if that exemption is set out in the LLS Regulation: s 208 LLS Act.
4. I am satisfied that the Tribunal lacks jurisdiction to deal with this aspect of Ms Moore's appeal. I am also satisfied that Ms Moore's proposition is not reasonably arguable and is therefore lacking in substance.

Notional carrying capacity

1. In relation to Ms Moore's appeal against the assessment of LLS that the notional carrying capacity of her land (as reassessed) is 2.0 stock units per hectare, any such assessment must be made in accordance with cl 17 of the LLS Regulation. Ms Moore conceded as much during the hearing when she agreed that LLS must apply the law as it stands.
2. I am of the view that, as submitted by LLS, the fact that part of Ms Moore's land is subject to a Conservation Agreement - meaning that stock cannot be raised on that land - is not a factor that precludes an assessment being made. The very language of cl 17 leads to that conclusion. The notional carrying capacity is an assessment of the number of stock units that could be maintained on a holding of land. In the words of Mr Pope, it is an assessment of the hypothetical number of stock units that could be maintained on a holding of land. Indeed, LLS is required by cl 17(5)(c) to assume that the only use to which the land is put is for the raising of stock, irrespective of whether any stock are actually raised on the land.
3. However, the use to which the land is actually put is relevant to the assessment of the notional carrying capacity of the land. Clause 17(5)(d) specifically provides that, in the case of land that remains in or is reverting to its original undeveloped state, LLS must base its assessment on the condition of the land as at the date of assessment.
4. In this case, LLS determined that the notional carrying capacity of Ms Moore's land, after considering the topographical, soil and land capability of the land and its neighbouring properties along with the notional carrying capacities of those neighbouring properties and the management practices for the district, is 2.0 stock units per hectare. Ms Moore states that the soil quality on her land is very poor and refers to the land being steep and ungrassed in some places while heavily vegetated in others. She has not, however, provided any technical evidence as to soil quality or any other features of the land which would indicate that LLS's assessment based on the topographical, soil quality and land capability information which was available to it at the time is in error. In the absence of any further evidence I am satisfied that the assessment by LLS took into account the issues raised by Ms Moore about soil quality, topography and vegetation.
5. I am therefore satisfied that the reassessment carried out by LSS was appropriate and in accordance with the provisions of the LLS Regulation. There is no new evidence before me which establishes that a different decision should have been made.
6. There was some discussion at the hearing about an on-site inspection of the land. That is a matter for any new assessment in the future.

Outcome of the appeal

1. Ms Moore's appeal must fail. Her arguments with respect to the exercise of the discretion to levy rates demonstrate a misunderstanding of the law and, as noted above, are misconceived and lacking in substance as the Tribunal lacks jurisdiction to deal with any appeal against the exercise of the discretion. In relation to the assessment of the notional carrying capacity, I have found, based on the evidence before me, no error in the LLS decision.
2. LLS has argued that the appeal should be dismissed under s 55(1)(b) of the CAT Act. As noted above, that is a discretionary provision. While it is clear that part of Ms Moore's appeal is misconceived and lacking in substance, her appeal against the assessment of the notional carrying capacity of the land is to some extent arguable. Ms Moore, however, lacked evidence to support her contentions about soil quality etc. In the circumstances, bearing in mind that Ms Moore is not legally represented, I decline to dismiss the matter under s 55(1)(b).
3. The appeal, however, must still be dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 June 2023