Vowles Properties Pty Ltd v Chief Commissioner of State Revenue

The law 6The applicable law is the Land Tax Management Act 1956 ("LTM Act"). Section 7 of the LTM Act provides that land tax shall be levied and paid on all land in New South Wales other than land which the LTM Act exempts from taxation. Section 3 of the LTM Act provides that a land tax year is the period of 12 months starting on 1 January for which land tax is levied and s8 provides that land tax shall be charged on land owned at midnight on 31st December immediately preceding the year for which land tax is levied. 7The exemption claimed by the Applicant is found in s10AA of the LTM Act which relevantly states: "10AA Exemption for land used for primary production (1) Land that is rural land is exempt from taxation if it is land used for primary production. (2) Land that is not rural land is exempt from taxation if it is land used for primary production and that use of the land: (a) has a significant and substantial commercial purpose or character, and (b) is engaged in for the purpose of profit on a continuous or repetitive basis (whether or not a profit is actually made). (3) For the purposes of this section, "land used for primary production" means land the dominant use of which is for: (a) ..., or (b) the maintenance of animals ... for the purpose of selling them or their natural increase or bodily produce, or (c) ... (4) For the purposes of this section, land is "rural land" if: (a) the land is zoned "rural", "rural residential" or "non-urban" under a planning instrument, ..." 8In summary s10AA provides that land zoned rural that is used for primary production is exempt from land tax. However land zoned other than rural that is used for primary production is not exempt unless the dominant use is primary production and the commerciality tests in s10AA(2) are satisfied.

The Applicant's Case 9In his written submissions dated 12 November 2013 ("AS"), which related to both the Land and the Conceded Land, Mr Skinner for the Applicant, submitted that the Land and the Conceded Land, were used during the Relevant Period for more than one purpose including sheep and cattle sales and agistment and maintenance of livestock. He further submitted that trading revenue from stock sales is not alone decisive or determinative of the issue and at [7] that "Based on land area, the area devoted to farming activities far exceeds those (sic) devoted to derivation of income from sale activities" and "it is the use of the greater proportion of the land for the maintenance of animals, which brings the totality of the property within the exemption provided in s10AA(3)(b)". 10In his oral submissions Mr Skinner submitted that the Land, in conjunction with other nearby land, some owned by the Applicant and some owned by another company associated with the Applicant, was used to carry and breed livestock and accordingly the Land was used for primary production. In particular the Applicant submitted that Lot 4 was used for holding, pasturing and crutching sheep and this use was self evidently one of primary production. The predominant use of Lot 5 was as a feedlot for the maintenance of cattle and this use occupied the greater part of Lot 5. These uses of the Land were, according to Mr Skinner, uncontradicted. 11Mr Skinner further submitted that, what is described by the Respondent as the commerciality test under s10AA(2) of the LTM Act, was hair splitting and not common sense, and that zoning the Land other than rural ignored the use of the Land. He further submitted that the Respondent had not suggested that the Land was used for charitable purposes and that the evidence satisfies the commerciality test. 12The evidence relied on by the Applicant comprised two affidavits by Mr W.J. Vowles dated 20 October 2013 and 1 May 2014, respectively WJV1 and WJV2, and an email dated 2 May 2014 to Mr Vowles from the District Veterinarian of South East Local Land Services.

The Respondent's Case 13In summary Mr Mescher for the Respondent submitted that the Applicant carries the onus of proof; the Land is not zoned "rural land" under s10AA(4) of the LTM Act; the Applicant must show not only that the dominant use of the Land is the maintenance of animals for the purpose of selling them or their natural increase or bodily produce, but also that the use of the Land has a significant and substantial commercial purpose or character and is engaged in for the purpose of profit on a continuous or repetitive basis. 14Mr Mescher submitted that if there was a dominant use of the Land and the Conceded Land during the Relevant Period, it was that of a saleyard for sheep and cattle, which did not come within s10AA(3). He submitted in the alternative that there was no use of the Land at all as most of it was vacant for the majority of the Relevant Period. He also submitted that the Applicant had not satisfied the commerciality and profitability tests in s10AA(2). 15The evidence relied on by the Respondent comprised the s58 documents of 2 volumes containing 688 pages, the Respondent's Tender Bundle received by the ADT on 16 December 2013 (Exhibit R1), the Respondent's Tender Bundle Volume 2 received by this Tribunal on 16 April 2014 (Exhibit R4), a title diagram of land including the Land, and special purpose financial statements of the Applicant for the 2009 to 2012 financial years (Exhibit R5).

Consideration 16The Applicant has the onus of proving its case in a review by the Tribunal, s100(3) of the TA Act. The requisite standard of proof in such a review is the "balance of probabilities" Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25 ("Cornish") at [31] and B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187, (2008) 74 NSWLR 481 ("B & L Linings") at [104]. 17In order for the Applicant to succeed in its claim for land tax exemption in respect of the Land it is necessary for it to establish the facts on which it relies to satisfy its onus of showing that in each land tax year during the Relevant Period each of Lot 4 and Lot 5 was: (1)Used for primary production s10AA(2); and (2)The dominant use was for the maintenance of animals for the purpose of selling them or their natural increase or bodily produce s10AA(3)(b); and (3)The use had a significant and substantial commercial purpose or character s10AA(2)(a); and (4)The use was engaged in for the purpose of profit on a continuous or repetitive basis s10AA(2)(b). 18The Applicant conceded that the zoning of both Lots was commercial light industrial, not rural, and accepted its obligation as set out in the preceding paragraph. The Applicant also conceded that operating livestock saleyards on land does not mean that the land is used for primary production in accordance with s10AA. 19The area of the Land and the Conceded Land in aggregate is 10.4 hectares. The separate areas of Lot 4 and Lot 5 were not provided to the Tribunal. Except where specifically stated all evidence outlined in this decision was given by Mr Vowles. 20Mr Vowles is the sole director and sole shareholder of each of the Applicant, Kattle Gear Australia Pty Ltd ("Kattle Gear") and Goulburn Regional Livestock Exchange Pty Ltd ("Goulburn Regional"). 21Mr Vowles grew up on a rural property until the age of 11. His background includes 20 years' experience as an agricultural scientist and 20 years as a consultant. He had owned rural land in Victoria. 22The Applicant has owned the Land and the Conceded Land since at least 2006 and land at Painters Lane Goulburn ("the Painters Lane Property") since August 2011. The latter is zoned primary production. Mr Vowles stated that the Applicant runs sheep and cattle on its own account on both Lots comprising the Land. 23Since at least 2004 Goulburn Regional has owned farmland at Mazamet Road, Goulburn ("the Mazamet Road Property"). 24Kattle Gear grazes livestock at both the Mazamet Road Property and the Painters Lane Property. Cattle are mainly run on the Painters Lane Property. 25Throughout the Relevant Period Kattle Gear conducted sheep sales in saleyards on the Conceded Land each Wednesday and conducted cattle sales each Tuesday in saleyards on Lot 5 and on the Conceded Land. Stock sold includes stock owned by the Applicant , by Kattle Gear and stock placed by owners on consignment for sale with one of four stock and station agents who operate from the saleyards. 26Sheep are delivered to the saleyards facility each Tuesday from 6 a.m. and the sale runs from 10 a.m. until finalised. Cattle are delivered to the saleyards facility on the evening prior to the auction until 8 p.m. and the cattle sales run from 10 a.m. the following day until finalised. 27Kattle Gear, as operator of the saleyards facility, is required to maintain livestock while they are at that location and agistment "on behalf of clients of the operator (of the saleyards) is an integral part of the saleyards facility", WJV1 at [22]. 28Large numbers of livestock are walked between the Mazamet Road Property and the Land, a distance of 3 or 4 kilometres and trucked between the Painters Lane Property and the Land. 29Kattle Gear holds sheep on the Land until it is convenient to transfer them to the Painters Lane Property or the Mazamet Road Property. At least once a month sheep are transferred between the Mazamet Road Property, the Painters Lane Property and the Land. Sheep have been sold via Lot 4 and Lot 5 to other persons. 30The phrase "the maintenance of animals ... for the purpose of selling them or their natural increase or bodily produce" as used in s10AA(3)(b) is not defined in the legislation. 31Mr Skinner placed some reliance on Greenville Pty Ltd v Commissioner of Land Tax (NSW) (1977) 7 ATR 278 ("Greenville") to submit that a broad commonsense approach was appropriate to determine the dominant use of land. In Greenville, Helsham CJ said at p 280: "To claim an exemption under the Act the owner must be able to point to an activity being conducted on the land that will give the land the character of mainly being used for that activity, or that will enable a person to decide the matter to say that the land is, in substance and looked as a whole, being used for an activity that gives rise to the exemption." 32Leda Manorstead Pty Ltd v Chief Commissioner of State Revenue [2011] NSWCA 366 involved a dispute concerning the meaning and operation of s10AA of the LTM Act. Mr Skinner referred to paragraph [11] where Allsop P, in referring to Gzell J's reasoning as primary judge, observed: "A number of authorities from other jurisdictions concerning differently worded provisions were presented to the primary judge (and this Court) for consideration. It was accepted that none was determinative of the issue in the controversy." 33Mr Skinner suggested that the cases were not much help in the matter before the Tribunal. The written submissions for the Applicant were to the effect that "it is the use of the greater proportion of the land for the maintenance of animals, which brings the totality of the property within the exemption provided in s10AA(3)(b)". 34The Respondent submitted at [33] and [34] in written submissions received by the ADT on 16 December 2013 (RS1) that the period for which livestock are held (or maintained) on the relevant land is important and that (omitting footnotes): "Simply keeping sheep for a few hours on the land prior to sale and keeping cattle for half a day prior to their sale does not involve the "maintenance" of sheep and cattle so as to come within the provisions of s.10AA(3)(b) LTMA. To "maintain" means to "cause to continue; keep up, preserve; support by work, nourishment, expenditure". "Maintenance" means "the provisions of the means of existence or continuation; the repair or upkeep of something". It denotes the regular supply of food, clothing and lodging. "Maintain" involves some degree of regularity in the giving of such assistance." 35In Caruana v Chief Commissioner of State Revenue [2011] NSWADT 183 ("Caruana") Block JM, when considering the maintenance of animals in the context of s10AA stated at [42]: "..."maintenance" for the purposes of the Act comprises the keeping in existence or continuance of live animals. Thus, the activity of "maintenance" includes the provision of food, water and shelter to keep the animals alive. Further, to comprise "primary production" under the Act, such "maintenance" must occur on the land where the animals live for the purpose of selling the live animals themselves or the natural increase or bodily produce of the live animals." 36In Ashleigh Developments Pty Ltd v Chief Commissioner of State Revenue (RD) [2012] NSWADTAP 25 ("Ashleigh"), the Appeal Panel of the ADT made the following observations: "35 The Tribunal was not obliged by the words of the statute to confine its attention to acts, facts, matters or circumstances that related only to the physical, tangible use of the land. It could look at use in a 'protean' way so as to have regard to the commercial purpose of the owner that use of the land on an interim basis for cattle grazing might serve. It could then move to making a finding as to which of the identified uses was dominant." "38.... the dicta of Helsham CJ in Equity at 280 do not go so far as to suggest that any physical primary production use of land, however minor, is sufficient to qualify the use as one to which an exemption for primary production use should flow." " 45 In contrast to the position in relation to land that is rural land, it is not enough that there be some primary production activity on land. Sub-s (2) requires the following steps: (i) A threshold determination that the land is used for primary production. That means more, we consider, than some de minimis use of the land. It should be shown that the land as a whole is used for primary production in the requisite sense, even if that occurs in combination with some non-primary production uses... (ii) If the threshold determination is favourable, there must be a level of use that 'has a significant and substantial commercial purpose or character' (factor (a)). This criterion eliminates hobby or token operations even though they may have passed the de minimis threshold to which we have referred in (i). The taxpayer then needs to show that the operation is run on a commercial basis with appropriate attention to the orthodoxies of income, expenditure and the aim of profitability; cognisant of the elements of unpredictability of any business operation, especially primary production. This is a higher standard than the one that applies to rural land. This is where the dispute starts in the present case. (iii) The next criterion, factor (b), takes the issues raised by factor (a) to a further level of exactitude. The activity must be engaged in for the purpose of profit 'on a continuous or repetitive basis (whether or not a profit is actually made)'. The reference to 'continuous' or 'repetitive' we see as connoting a business enterprise of a well structured, long term character, with administrative features (organisation, management, book keeping) which support the conclusion that it is set up with the aim of generating a profit year to year over a succession of years." "46 We accept, as did the Chief Commissioner, that the consideration of these factors can take appropriate account of the overall farming enterprise...."

Use of Lot 4 37Cattle are run on Lot 4 for short periods as a holding operation. Sometimes 20 to 30 head are on Lot 4. 38The majority of grazing on Lot 4 is sheep purchased in the saleyards and then moved to the Mazamet Road Property and the Painters Lane Property. Sheep are also held on Lot 4 to be sold in the adjoining saleyards. 39Sheep have been treated on Lot 4 for crutching, fly strike and pink eye and later returned to the Mazamet Road Property and the Painters Lane Property. 40A photograph of part of Lot 4 (at page 43 in Exhibit R1), shows a mob of sheep. Mr Vowles said those sheep, comprising 32 animals, were on Lot 4 for several weeks prior to being sold. 41I accept that, during the Relevant Period, some grazing of livestock, mainly sheep, occurred on Lot 4 and that some treatment of sheep was carried out on that land. However there is no evidence as to the number of sheep held on Lot 4 in each land tax year during the Relevant Period nor how long they were so held. Nor is there any evidence as to the number of sheep treated for crutching, fly strike or pink eye in any particular period nor the frequency with which the facilities on that land were used for such purposes. 42The evidence conveys the impression that to the extent that Lot 4 is physically used, its use is substantially in support of the livestock saleyard operation carried on at Lot 5 and on the Conceded Land. I also suspect, although there is little direct evidence on the point, that Lot 4 is unused for any purpose for much of the time. In this regard I refer to the above observations in Greenville and Ashleigh Developments to minor or de minimis primary production use of land not necessarily satisfying a threshold determination that land is used for primary production. I also refer to the judgment of Gzell J in Leda Manorstead v Chief Commissioner [2010] NSWSC 867, when His Honour, in considering the dominant use test, said: "69 Dominant in its ordinary meaning connotes ruling, prevailing, or most influential. The statute's reference to a dominant use presupposes that land may be used for more than one purpose and requires a determination of which use of the land is the main, chief or paramount use. 70 That is a question of fact and degree that may, in the end, be determined as an objective matter of impression having regard to the facts. 71 In Saville v Commissioner of Land Tax (1980) 12 ATR 7, Roden J was concerned with whether land was used primarily for the maintenance of animals thereon under a former provision in the Land Tax Management Act. The primary use test was not unlike the dominant use test in the present legislation. His Honour said at 10: "I am of the view that, for any use of the land to justify the statement that the land is used primarily for that purpose, it is necessary not only that that use prevail over any competing use but also that it be sufficiently substantial to prevail over the proposition that the land is primarily to be regarded as unused land." 43I accept that Lot 4 is used in conjunction with the Mazamet Road Property and the Painters Lane Property for the overall businesses of the Applicant and Kattle Gear. However, having regard to the limited evidence concerning the extent to which Lot 4 is used for maintenance of livestock, separate from its use as a transit holding area in conjunction with the operation of the nearby saleyards, I am not satisfied, on the balance of probability, that there is an appropriate dominant use of the land which is sufficient to satisfy s10AA(3)(b).

Use of Lot 5 44Lot 5 includes cattle saleyards. Approximately half these saleyards are used one day each year. The remainder is used weekly. 45The feed lots are used to hold agisted cattle and cattle owned by Kattle Gear. The feed lots are used before the weekly sale on Monday and Tuesday and used after the sale to maintain cattle owned by people who purchased them while awaiting sufficient capacity to truck them. At times cattle have been held for Wingham for 2 months. Sometimes up to 200 head could be held for several weeks. Sometimes no cattle were held on Lot 5. 46The cattle are fed and checked 7 days a week while at the feed lot. 90% of the cattle are agisted and 10% are owned by Kattle Gear. 47Lot 5 includes some land used for sheep grazing. Sheep are held in areas described as grazing land which is neither prime nor improved pasture. 10% of the sheep are agisted and 90% are owned by Kattle Gear. 48Lot 5 includes an asphalt and bitumen road, a truck parking area, and a truck washing area. No livestock graze in these areas. The truck wash facility is used to reduce the potential of pollution from animal waste products and cross contamination in relation to transported stock. I take Mr Vowles' reference to "transported stock" to be stock sold at the saleyard facility. 49Lot 5 contains a pile of concrete waste (shown in the photograph at page 27 of Exhibit R4). Mr Vowles does not know how long the concrete has been on the land. Lot 5 also holds piles of scrapings from the feed lot; piles of cow manure; a sheep loading ramp stored until it is installed elsewhere; barren earth, and has some hilly country on which sheep are occasionally placed for a few weeks to clean up an area. 50There are several effluent holding dams in Lot 5 and no dams for watering stock. Troughs are used to supply town water for stock. 51Accordingly the evidence is that there are several uses of Lot 5. Other than evidence that the area occupied by feed lots on Lot 5 is smaller than the area of the saleyards on Lot 5 there is no evidence as to the size of Lot 5 nor the amount of land within Lot 5 which is used for each of the separate purposes of saleyards, cattle feed lots, occasional sheep grazing, asphalt and bitumen road, truck washing, truck parking, concrete waste, feed lot scrapings, cow manure and effluent holding dams, nor how much is simply barren earth. 52The Applicant's counsel's submitted that the greater portion of the land is used for the maintenance of animals. I am not satisfied that the evidence before the Tribunal supports this submission. 53I am not satisfied that occasional grazing of sheep on unidentified parts of Lot 5, together with holding cattle in feed lots is the dominant use of the land. Nor am I satisfied that holding cattle on Lot 5 is not predominantly in support of the saleyard business conducted by Kattle Gear on Lot 5 and the adjoining Conceded Land.

Commercial purpose or character and operating the Land for the purpose of profit on a continuous or repetitive basis 54Should I be wrong in my findings as to the dominant use of each of Lot 4 and Lot 5 I now turn to the requirements of s10AA(2), referred to by the Respondent as the commerciality test. 55The Respondent submitted at [16] in written submissions received by the Tribunal on 16 April 2014 (RS2): "Even if the dominant use of the relevant properties comes within s10AA(3)(b) LTMA (which is denied), the Applicant still needs to show that the use of the relevant properties has a significant and substantial commercial purpose or character and is engaged in for the purpose of profit on the continuous or repetitive basis (whether or not a profit is actually made: s.10AA(2) LTMA." 56In response counsel for the Applicant submitted that the Respondent's submission smacked of "hair splitting" and was not common sense; that use of the feed lots was self evidently use of the land for primary production. Counsel also submitted "that trading revenue from stock sales is not alone decisive or determinative of the issue", AS at [6]. 57I accept the Applicant's submission in the second sentence of the preceding paragraph. However I do not accept the thrust of the first sentence. The Respondent's submission at [16] in RS2 uses the wording of s10AA(2)(a) and (b) which the Applicant has conceded it is required to satisfy if it is to succeed. 58Exhibit R5 shows the income of the Applicant during the Relevant Period was derived from a trust distribution, rent received from Kattle Gear, and a small amount of interest. There is no evidence of income derived by the Applicant from carrying on any primary production activity. The expenses detailed in the financial statements refer to structural improvements and subdivision costs of unidentified property, and other expenses none of which appear to relate to carrying on any primary production business. The assets make no reference to livestock. 59In Caruana Block JM said at [13], and I agree, "as a matter of statutory construction... the question of whether or not the exemption is available is resolved by reference to its use for a prescribed primary production activity and not by reference to its ownership". Accordingly it is not necessary for the Applicant to itself use the land for primary production in order to gain the benefit of the primary production land tax exemption. The primary production use may be that of a third party such as Kattle Gear. 60Mr Vowles's affidavits show that receipts for "livestock yard dues" for the saleyards on both the Land and the Conceded Land was $332,496, $328,445, $245,421 and $321,625 for the 2009 to 2012 years respectively ( [9] in WJV1). The amount received for agistment on behalf of clients of the saleyards operator during the 2009 and 2010 years was respectively $29,461 and $50,054 ([22] and [24] of WJV1). 61While it is not explicitly stated in evidence I find on the balance of probability that the receipts referred to in the immediately preceding paragraph were income of Kattle Gear. There is no evidence as to income received by Kattle Gear from agistment for the 2011 and 2012 financial years. No apportionment is provided as to how much income was derived from agistment use of the Land as distinct from use of other land by Kattle Gear. 62Mr Vowles stated that the Painters Lane Property, the Mazamet Road Property and the Land are operated with a view to making a profit. I am willing to accept this statement at face value. However it is not evidence that the Land itself was used for primary production during each land tax year in the Relevant Period. 63I again refer to [13] in Caruana where Block JM said: "because the PPL exemption is attracted where relevant by its use, it cannot be available in respect of land which is either not used at all or land which is not used in respect of a prescribed primary production activity. Moreover the fact that it is used in conjunction with other property owned by the Applicants and on which there is primary production activity does not have the effect of passing that same character to the property in question." 64During the 2013 financial year Kattle Gear held 20 cattle and 454 sheep on the Land and the Conceded Land. I observe that half of this financial year is outside the Relevant Period. I also observe that no evidence was presented as to the number of livestock on Lot 4 or Lot 5 as distinct from the number held on the Conceded Land, nor how long such livestock were on Lot 4 or Lot 5, nor whether the livestock on the Land were held there because they were in transit either before or after their sale in conjunction with the operation of the saleyard facility. 65At [17] in Caruana Block JM said: "the relevant "land" the subject of the PPL exemption is land which is used for a prescribed primary production activity, not simply land that is owned by a primary producer and/or which plays some ancillary role in a primary producer's wider business." 66Mr Vowles gave evidence in WJV1 at [31] that the operator of the saleyards employs 3 full time employees with current wages totalling $2,565 per week. No evidence was provided as to the nature of the work carried out by these employees including the extent to which they were engaged working on the Conceded Land or Lot 4 or Lot 5 or elsewhere and, if they were working on Lot 4 or Lot 5, whether their work related to the maintenance of livestock or the operation of the saleyards. 67Kattle Gear's books and records incorporate all 3 properties and are not kept separately for any of the Land, the Painters Lane Property, or the Mazamet Road Property. There is no relevant evidence before the Tribunal, other than that referred to in the above paragraphs, as to the income derived or expenditure incurred in each land tax year of the Relevant Period in respect of the Land. No evidence was presented as to the cost of development of the Land whether for the maintenance of livestock or for any other purpose. 68The Respondent led evidence inrelation to the Stock Diseases Regulation 2004 and Stock Diseases Regulation 2009 with specific reference to statutory obligations regarding notification by owners or persons in charge of properties from which cattle were last held to owners or persons in charge of properties to which cattle were moved of certain information including the numbers and types of cattle moved and the property identification codes ("PICs") of properties from which cattle were last held. Counsel for the Respondent also cross examined Mr Vowles in relation to apparent failures by each of the Applicant and Kattle Gear to comply with with these obligations. 69Mr Vowles disputed that his companies did not have a system in place to check which PICs applied to which properties as the managers in charge of his companies' properties were in contact with Livestock Health and Pest Authority ("LHPA") which had not raised the issue. 70Mr Vowles said he had recently sought clarification from LHPA and intended rationalising the PICs. He also acknowledged that he was not experienced in New South Wale legal requirements to record stock movement between properties. 71Exhibit A3 is an email dated 2 May 2014 from the District Veterinarian of South East Local Land Services ("SELLS") to Kattle Gear which is stated to clarify verbal advice regarding allocation and use of PICs in New South Wales. The email confirms advice from Kattle Gear that it 'routinely' uses "the holding paddock adjacent to the Goulburn saleyards as part of your separate rural livestock business, in conjunction with your land holdings on Mazamet Rd and Painters Lane." and goes on to provide a method whereby the allocation of PICs can be corrected. 72Counsel for the Respondent submitted that the evidence showed that the Applicant was not ensuring that it complied with the basic legalities of farm management. 73Counsel for the Applicant conceded that there was no financial evidence before the Tribunal as to the income generated from maintenance of livestock on the Land. However counsel also submitted that there was no evidence that the Applicant had breached the Stock Diseases Regulations; that as the threshold test for use of the Land for primary production had been met the evidence satisfied the test at [45(ii)] in Ashleigh that the primary production use of the Land by the Applicant has "a significant and substantial commercial purpose or character"; that the reference by the Respondent to PICs was a "red herring"; that PICs and other paperwork were not relevant to this matter; that it would be an administrative nightmare if paperwork had to be completed every time stock was moved between properties; and that zoning the Land other than rural ignores the actual use of the Land. 74Having regard to the evidence before me I find that during the Relevant Period the Applicant derived no income from carrying on any primary production activity on the Land. I find that Kattle Gear carried on some agistment activities on the Land during the Relevant Period and it is more likely than not that some husbandry activities referred to by Mr Vowles in relation to sheep took place at some time during the Relevant Period. However I find that these agistment and husbandry activities were substantially in support of Kattle Gear's saleyards operation on Lot 5 and the adjoining Conceded Land. Accordingly I find that the activities did not have a significant or substantial commercial purpose or character in relation to the use of the Land for primary production in accordance with s10AA(2). 75Having regard to the above findings the Applicant has not satisfied me that it is more likely than not that the dominant use of the Land during the Relevant Period was for primary production in accordance with s10AA(3) of the LTM Act.

Decision 76The correct and preferable decision of this Tribunal is that the decision of the Chief Commissioner under review is affirmed.

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: 04 June 2014