Mr Page alleges that his land is "farm land" as defined.

The onus of establishing that rateable land is "farm land" is on the ratepayer. Mr Page appealed to the Land and Environment Court. The matter was determined by Assessor Stewart who, on 20 July, upheld the appeal and made an order to the effect that the general rate applicable to the subject land for the year 1990 to be the amount in the dollar specified in Council's resolution made pursuant to s 118(4)(b) of the Local Government Act relating to "farm land".

On 14 August 1990 the Council appealed pursuant to the provisions of s 56A of the Land and Environment Court Act 1979. The appeal is limited to questions of law only. The grounds of appeal were that:

as to "farming" which was not in accordance with 2. The learned Assessor erred at law in his of the concept of "significant and of the Local Government Act".

On 5 November 1990 amended grounds of appeal were filed. These grounds included the earlier grounds and added the following:

learned Assessor erred at law in his a continuing and repetitive basis" as defined in 4. The learned Assessor erred at law in his of the use in s 118 of the words 'signficant and substantial commercial purpose or in the sense that no tribunal acquainted with the decision expressed in the judgment.

learned assessor erred at law in failing to his was no objection by the Respondent to Council raising the additional grounds of appeal.

Section 118 of the Local Government Act makes provision for concessional treatment of owners of "farm land". "Farm land" is defined in the Act as follows:

land' means a parcel of rateable land which is as one assessment and the dominant use of which (a) has a significant and substantial commercial (b) is engaged in for the purpose of profit on a "'Farming' means the business or industry of grazing, pig farming, poultry farmining, viticulture, bee keeping, horticulture, vegetable or or fish farming within the meaning of the and Oyster Farms Act 1935 or any combination evidence before the Assessor was that at the relevant time Mr Page was the owner of about 18 acres of land near Parkes bing portions 405 and 560, Condobolin Road, Parkes. Mr Page was formerly a grazier. At the time of hearing before the Assessor he was aged 80 and said that he had undertaken the "farming activity" the subject of the litigation for the last few years.

The Court was concerned with the rating year beginning 1 January 1990. Approximately three quarters of the land was, at the relevant time, under oats as a cover crop. The crop was grazed by cattle and afterwards the area was cut for hay. At the relevant time Mr Page produced approximately 1000-1200 bales of hay of which about 800 were sold and the remainder used to feed the cattle. The area was divided by fences and gates. Mr Page had four cows which produced vealers for sale yielding approximately $1800-2000 during the relevant period. Mr Page lived on the land and, in addition to the farming activity referred to above, repaired machinery for reward.

A number of expert reports were tendered, all of which made reference to the use to which the land was being put, the profit made from the sale of vealers and hay, the amount of expenses incurred etc. Mr Page's financial records were tendered including taxation returns. His records corroborated his evidence.

In my opinion, it was open to the Assessor to conclude that what was being undertaken by Mr Page was the business of grazing and growing of crops. Furthermore, notwithstanding Mr Page's admission that he also repaired machinery for reward on the subject land, it was open to the Assessor to conclude that the "dominant" use of the land was the business of grazing and growing crops and that that activity was engaged in for the purpose of "profit on a continuous or repetitive basis". The Assessor's conclusions with respect to these matters were essentially questions of fact. In my opinion, it has not been demonstrated that he misdirected himself or defined otherwise that in accordance with law the question of fact he had to answer with respect to these matters (see Azzopardi v Tasman UEB Industries Limited 4 NSWLR 139).

Mr Webster has submitted that the Assessor erred in law in his understanding of and application of the words "a significant and substantial commercial purpose or character" where appearing in the definition of "farm land". Finally, he submits the Assessor erred in law in failing to give adequate reasons for the conclusions he reached with respect to why he concluded that the activity was relevantly the business of grazing and growing crops, why he concluded that the use was the dominant use of the rateable land, why he concluded that it was engaged in for the purpose of profit on a continuous or repetitive basis and why he concluded that it had a significant and substantial commercial purpose or character.

"Significant and Substantial Commercial Purpose or Character"

The Assessor referred to the activity as being a "significant and substantial commercial venture". He referred to the fact that Mr Page was putting the land to the best and most profitable use it could be put to if he wished to use it to graze cattle and grow crops. It is fairly clear, I think, that it was for this reason the Assessor thought that the subject activity had "a significant and substantial commercial purpose or character". The Assessor did not, in terms, address the question whether the "significant and substantial commercial purpose or character" was to be considered in the context of the best use of the rateable land for the farming activity being undertaken or whether that attribute must be found with respect to the "farming" activity ie that of grazing cattle and growing crops.

On behalf of the Respondent, Mr Bourke has submitted that the Assessor was entitled to have regard to the size and quality of the rateable land when considering whether the activity being carried out had a "significant and substantial commercial purpose or character". His submission would appear to acknowledge that that was how the Assessor applied the test and he submits that any other interpretation would render the test so vague that it should not be adopted.

Mr Webster, on the other hand, submits that the language of s 118, the legislative history and, if there be any doubt about the matter, the Second Reading Speech, make it plain that the words "a significant or substantial commercial purpose or character" must be found to be a quality of the identified "farming" use. That is to say, he submits that land does not qualify for "farm land" concession unless the "farming" use is the dominant use of the land and that that use has "a significant and substantial commercial purpose or character". He submits that in the present case it was not open to the Assessor to conclude that the business or industry of grazing cattle and growing crops had a "significant and substantial commercial purpose or character".

If Mr Webster's submission is correct, as I think it is, there is a good argument to the effect that it was not open to the Assessor in the present case to conclude that the activity came within the meaning of these words. The question whether that matter can be raised in these proceedings will be discussed later. However, if the question was posed, was it open to the Assessor to conclude that the activity being undertaken by Mr Page was an activity having a "significant and substantial commercial purpose or character" I would be disposed to the view that the answer would be that it was not. Accepting that the answer to the question must always involve matters of fact and degree, it would seem to me that the grazing of four cows and the cultivation (I am prepared to assume) of 15 acres of crops could not reasonably be said to be a use having a "significant and substantial commercial purpose or character".

In my opinion, the history of the legislation and, in particular, the decision of the Court of Appeal (and later the High Court) in Hope v Bathurst City Council 1979 2NSWLR 471 and [1980] HCA 16; 144 CLR 1 respectively makes it fairly clear what the legislature was intending to achieve when it passed the amendments to s 118. It is to be noted that the majority of the Court of Appeal referred to the "singificant commercial purpose or character" the activity was required to have to meet the description of "business" in the legislation as it was. Samuels JA of the Court of Appeal referred to "important", "real", "genuine" or "weighty". The High Court reversed the Court of Appeal. It is fairly clear, I think, that the legislature intended to overcome the effect of the decision of the High Court in Hope's case. If Mr Bourke's submission is correct, it has not done so. However, I do not think Mr Bourke's submission should be accepted. It would seem to me, as a matter of grammar, that "the significant and substantial commercial purpose or character" is an attribute of the "farming use" as identified and is not to be measured or assessed by reference to the size of the land on which the farming activity is undertaken (see also Lismore City Council v WH & IM Durheim 20 July 1990 unreported).

However, the matter does not end there. I do not have a copy of the transcript of the addresses before the Assessor. It is conceded by Mr Webster, on behalf of the Council, that no submission was made to the Assessor that it was not open to him to find that the subject activity came within the words "a significant and substantial commercial purpose or character (or that in law the activity did not meet any of the defined criteria). It was submitted that the Assessor should (not must) find in favour of the Council and conclude that the activity did not come within the definition.

It is, of course, a question of law whether evidence in a case is capable of proving a fact. If the answer is in the affirmative, it then becomes a question of fact whether the fact has been proved. It was not put to the Assessor that upon the assumption that he accepted all the evidence advanced by Mr Page he could not in law conclude that Mr Page's land was not entitled to "farm land" concession because the activity being undertaken on it could not be described, in law, as having a "significant and substantial commercial purpose or character". The question for determination, therefore, in the present case is whether that question of law can be raised in these proceedings it not having been raised before the Assessor.

To a lawyer a submission such as that put to the Assessor in the circumstances of the case under consideration would raise a question, first, whether it is open to the Court to hold in favour of the applicant and, second, if it is, whether the Court should determine the matter in the applicant's favour. To a non lawyer, however, a submission to the effect that a finding should be made in the respondent's favour does not, unless clearly stated, raise the distinction between whether a finding can be made or whether it ought be made. In the present case, the submission before the Assessor with respect to the subject defined words did not raise the question whether it was open to the Assessor to conclude in law that the activity had a "significant and substantial commercial purpose and character".

In Norcom Pty Limited v Hunters Hill Municipal Council 13 September 1986, the Court held that it was a prerequisite to raising a question of law under s 56A that that question of law be advanced and identified in the proceedings before the Assessor if that were possible. The Court concluded that where the question was not one going to jurisdiction and not a question emerging only after the decision was given, it ought not entertain an appeal if it was not raised during the hearing (see also Coles v Woollahra Municipal Council 59 LGRA 133). In Coulton v Holman [1986] HCA 33; 162 CLR 1 the High Court was concerned with the exercise of the discretion of the Court of Appeal to entertain a question not raised in the proceedings before the trial judge. Although the High Court was concerned with a discretionary judgment of the Court of Appeal given pursuant to s 75A of the Supreme Court Act 1970, the principles enunciated by the High Court have application, in my opinion, to appeals to a judge of the Land and Environment Court pursuant to s 56A of the Land and Environment Court Act against decisions made by assessors.

In Coulton the High Court did not accept the wide public interest claimed by the appellant as justifying an entitlement to raise of question of law not raised earlier. It based its decision upon the principles which it said had stood the test of time, namely, that litigants must be bound by the conduct of their case and not permitted to raise a new argument after a case has been decided except in exceptional circumstances, the importance of the finality of itigation, the difficulty of inducing an appeal court to consider new facts, the undesirability of encouraging tactical decisions not to present an issue in the first instance (keeping it in reserve for appeal) and the need for vigilance to avoid injustice to a party having to meet new facts and new issues of law for the first time at the appeal court (see University of Wollongong v Metwally No 2 59 ALJR 481).

Assessors of the Land and Environment Court are appointed because they have special knowledge and experience in the administration of planning, local government, environmental science, architecture, engineering, building, construction, valuation etc. They are not required to have specialised knowledge of the practices and procedures in courts of law or the technical rules of evidence as is expected of a judge. Section 36(5) of the Land and Environment Court Act provides for a question of law raised in proceedings before an assessor to be referred to the Chief Judge for determination by a judge. In the present case it would have been open to the Council's representative to have submitted not only that it was not open to the Assessor to make the determination he did but that if his submission were not accepted, he ought refer the matter to a judge of the Court for decision. He did neither. The only inference I can draw is either that the question of law was not recognised by the Council's representative or if it was, it was kept in reserve for a later occasion. On either view of the matter, the Council ought not permit it to raise it in this appeal.

Leaving to one side questions of law going to jurisdiction and questions of law arising in a judgment for the first time, ordinarily it is not open to a litigant to raise a question of law on appeal not raised at the hearing. It follows, therefore, that notwithstanding the attractive argument advanced by Mr Webster to the effect that had the question of law been raised that it was not open to the Assessor to accord "farm land" status to the subject land, it is not open to raise that matter in this appeal. To those who would assert that upon that finding there may appear to have been an injustice in the present case, I would respond that there would have been no injustice had the question of law been identified by the lawyers appearing before the Assessor and, preferably, referred to a judge before the matter was disposed of by the Assessor. But however that may be, the discharge of the Court's business and the general fairness to future litigants dictates, in my opinion, that the Court adhere to the general rule that questions of law not raised in the proceedings cannot, save in the most exceptional circumstance, be permitted to be raised on appeal.

As I have said, the submission made to the Assessor was that he should exercise his discretionary judgment in favour of the Council. That submission failed. I do not think the Council should be permitted to raise on appeal that a submission made by it as a submission on the facts should be viewed as a submission on the law (see Bazeley v Hawkesbury Shire Council 16 June 1989 Stein J unreported, Howe v Ballina Shire Council 29 July 1987 Stein J unreported, Fiducia Pty Limited v Hastings Municipal Council 26 October 1987 Bignold J unreported).

Accordingly, I do not think the issue can be raised.

It has been submitted that the Assessor erred in law in failing to give adequate reasons.

In Soulemezis v Dudley (Holdings) Pty Limited 1987 10 NSWLR 247 the Court of Appeal dealt with circumstances in which a failure to give reasons could amount to an error of law where appeals from decisions are confined to errors of law. At page 273 Mahoney JA said it would "ordinarily be sufficient if ... by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted". McHugh JA at page 279 referred to the three purposes served by the giving of reasons viz: (i) to enable the parties to see the extent to which their arguments had been understood; (ii) to further judicial accountability; and (iii) for the formulation of rules for application in future cases.

In the present case there was no submission to the effect that it was not open to the Assessor as a matter of law to uphold Mr Page's claim that he should be entitled to "farm land" concession. The Assessor was not asked to explain why he concluded, as a matter of law, why the activity was capable of coming within the definition. (It is not without interest that Mr Webster had no difficulty in discerning from the reasons the basis of the Assessor's finding with respect to what he understood to be the meaning of " a significant and substantial purpose and character".) I do not think that a judicial officer can be said to make an error of law by not giving reasons with respect to a matter that was not the subject of submission before him. As I have said earlier, it is ordinarily not open to a party on appeal to raise a question of law that was not raised in the earlier hearing. Equally, in my opinion, it is not open to a party on appeal to complain that reasons were not given for a decision if the matter was not the subject of a submission made to the Court in a way which called for reasoned consideration (see Housing Commission v Tatmar Pastoral COmpany Pty Limited 1983 3 NSWLR 385-386, Mahoney JA).

In order to determine whether a judicial officer has discharged the obligation, it is necessary to have regard to the bases of the rule, and the way in which the litigation was conducted before the Assessor. I have read the transcript of the evidence and the decision of the Assessor. As I have said, assessors are not lawyers. Their judgements are not to be read narrowly (see Brimbilla v Mosman Municipal Council, Court of Appeal, 19 April 1985 unreported). I am of the opinion that any person who sat in the Court and heard the evidence would know when the Assessor gave judgment why he decided the matter as he did. I do not think he was required to set out all matters he took into consideration. A complaint has been made that the Assessor failed to adopt a correct interpretation of the words "a significant and substantial purpose or character". However, that conclusion derived from the reasons he gave not from the absence of them. He did not give detailed reasons but I do not think he was required to. I am of the opinion therefore that it has not been demonstrated that the Assessor erred in law in failing to give adequate reasons.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 10 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE MR JUSTICE J S CRIPPS.