Burtenshaw & Ors v Chief Executive, Department of Environment and Resource Management; Radlof v Chief Executive, Department of Environment and Resource Management [2011] QLC 10

LAND COURT OF QUEENSLAND CITATION: Rosemary A Burtenshaw, Gary F Burtenshaw and Cameron GF Burtenshaw v Chief Executive, Department of Environment and Resource Management Michael Robert Radlof v Chief Executive, Department of Environment and Resource Management [2011] QLC 10 PARTIES: Rosemary A Burtenshaw, Gary F Burtenshaw and Cameron GF Burtenshaw (Applicants) v. Chief Executive, Department of Environment and Resource Management (Respondent) FILE NO: WAA034-10 PARTIES: Michael Robert Radlof (Applicant) v. Chief Executive, Department of Environment and Resource Management (Respondent) FILE NO: WAA002-09 DELIVERED AT: Brisbane DELIVERED ON: 18 March 2011 HEARD AT: Brisbane MEMBER: His Honour, Mr WL Cochrane, Member ORDERS: With respect to both appeals 1. While the moratorium notice published on 18 January 2010 has effect this Court is precluded from continuing to hear and determine the appeals filed by the appellant in each of appeals nos. WAA034-10 (the Burtenshaw Appeal) and WAA002-09 (the Radlof Appeal). 2. Upon the moratorium notice ceasing to have effect each party has liberty to apply for further directions by making a written request to the Court that the appeal be listed for directions and by giving at least three working days notice to the other party. -- 1 of 12 -- 2 In the Radlof appeal - WAA002-09 1. The orders made on 11 May 2010 are vacated. CATCHWORDS: Preliminary Point — Water Act 2000 s.206 — Jurisdiction of Court when appeal filed APPEARANCES: Ms DA Skennar, instructed by Mr A Palmer of Rees R & Sydney Jones, appeared for the Burtenshaws Mr MR Radlof, by telephone, appeared on his own behalf Mr MD Hinson S.C. appeared for the Respondent in both matters Background [1] The respondent has raised a preliminary point in each of the two above appeals (which for convenience hereafter I shall refer to as the Radlof Appeal and the Burtenshaw Appeal), against a review decision made by the Chief Executive’s delegate in respect of applications pursuant to s.206 of the Water Act 2000 (hereafter “the Act”). The Radlof Appeal [2] So far as the Radlof appeal is concerned, the original application was made on 11 September 2003 seeking a new water licence to authorise the taking of 400 ML of waters from Five Mile Creek to supply Lot 1 CAR 124204 for the purpose of selling water. The application was publicly advertised on 20 November 2003 and the opportunity for submissions closed on 12 January 2004 at which time seven submissions had been received. There appears to have been some delay in dealing with the matter and it was not until 24 June 2008 that the application was assessed against the criteria contained within s.210 of the Act and approved with a variation and a licence granted for a total volume of 6 ML subject to some conditions. That should be contrasted to the application which was for 400 ML. [3] The decision was disseminated on 24 June 2008 and on 31 July 2008 Mr Radlof made application for internal review pursuant to s.863(1) of the Act. That application was not considered to have been properly made and he was granted an extension of time until 24 September 2008 to lodge a properly made application for review. That occurred on 9 September 2008 and the Department extended the period for determination of that review until 18 November 2008. On that date the designated departmental officer decided under s. 864(2) of the Act to confirm the original decision in respect of Water Licence no. 407291. -- 2 of 12 -- 3 [4] Consequently, Mr Michael Robert Radlof on 5 January 2009 filed a notice of appeal in this Court pursuant to ss 877 and 878 of the Water Act 2000. [5] The relevant steps are summarised in the chronology below: Date Event 11 September 2003 Water Licence Application 82426 was made by Mr Radlof seeking a new water licence to authorise the taking of 400 mega litres (ML) of water from Five Mile Creek from Lot 1 CAR 124204 to supply Lot 1 CAR 124204 for the purpose of selling the water. 20 November 2003 Public Notice inviting public input published in the Tully Times. 12 January 2004 Submissions regarding the application closed and seven submissions were received. 24 June 2008 Application assessed against criteria within s.210 of the Water Act 2000 and approved with a variation and a licence granted for a total volume of 6 ML with a maximum instantaneous extraction rate of 1 litre/second (l/s) and conditioned to prohibit the take of water when flow in Five Mile Creek falls below 32 l/s at the Bruce Highway Crossing of Five Mile Creek. 24 June 2008 Information notice advising of decision sent to all interested parties. 31 July 2008 An application for internal review pursuant to s.863(1) of the Water Act was submitted by M Radlof and received in the South Johnstone office. Application not considered properly made as it was not on the approved form. 4 August 2008 Mr Radlof is notified that the application was not properly made and an extension of time was granted until 24 September 2008. 9 September 2008 An application for internal review was received by the Department as properly made. 25 September 2008 Radlof notified that the review period had been extended up until 18 November 2008. 18 November 2008 Department officer decided under s.864(2) of the Act to confirm the original decision in regard to Water Licence 407291 (reference no. 82426). 5 January 2009 Michael Robert Radlof filed notice of appeal in the Land Court at Brisbane pursuant to ss 877 and 878 of the Water Act 2000 (also s.851(1)) of the Water Act 2000 18 January 2010 The Minister published a moratorium for the Wet Tropics Area. The Burtenshaw Appeal [6] With respect to the Burtenshaws, the original application for a water licence was made on 27 March 2007 to take water from Crooks Dam on Nanyetta (Return) Creek. Again, in common with the Radlof decision, the department took a long time to consider and determine its attitude to the application and on 23 October 2009 granted the application with conditions -- 3 of 12 -- 4 pursuant to s.211(1) of the Act with an annual entitlement of 60 ML. The application had attracted some submitters and in December 2009 those submitters applied for internal review of the decision. [7] An internal review as carried out and by correspondence dated 18 January 2010 the Burtenshaws were notified that the internal reviewer had substituted the original decision by refusing the application. That notification included advice that the Burtenshaws were entitled to bring an appeal to this Court against the internal review decision. [8] On 24 February 2010 the Burtenshaws by their solicitors filed a notice of appeal against the review decision. [9] The relevant steps are summarised in the chronology below: Date Event 27 March 2007 Burtenshaws applied under s.206 of the Water Act 2000 for a water licence to authorise the taking of sufficient water from Crooks Dam on Nanyetta (Return) Creek for the periodic irrigation of 20 ha within Lot 43 on SP 106048 and Lot 219 on AP 2662. 23 October 2009 Chief Executive’s delegate granted the application with conditions under s.211(1) with an annual entitlement of 60 ML. December 2009 Submitters apply for internal review of 23 October 2009 decision. 18 January 2010 The Minister published a moratorium for the Wet Tropics Area. 18 January 2010 A review decision was made by the Chief Executive’s delegate under s.864(2) of the Water Act to substitute a decision refusing the application for the original decision. 24 February 2010 The appellants’ appeal to the Land Court against the review decision. The Moratorium [10] On 18 January 2009 two significant events happened with respect to the Burtenshaw appeal and one significant event in common with the Burtenshaws’ matters occurred with respect to the Radlof appeal. So far as the Burtenshaw appeal is concerned the Minister on 18 January 2010 published a moratorium pursuant to s.26 of the Water Act 2000 and a review decision was made by the Chief Executive’s delegate under s.864(2) of the Act to substitute a decision refusing the application for the original decision. With respect to the Radlof appeal the event was the publication of the moratorium prior to which Mr Radlof had (on 5 January 2009) filed an appeal against the review decision. [11] Unlike Mr Radlof’s appeal the Burtenshaw appeal was not filed until 24 February 2010 more than a month after the moratorium had issued. -- 4 of 12 -- 5 The Preliminary Point [12] By application filed on 25 May 2010 the respondent has sought the following orders: “1. A declaration that, while the Moratorium Notice has effect, it precludes the Court from setting aside the review decision and substituting a decision to grant the licence applied for by the Appellant. 2. All orders made on 11 May 2010 are vacated. 3. Upon the Moratorium Notice no longer having effect, each party has liberty to apply for further directions by making a written request to the Court that the Appeal is listed for directions and by giving at least three (3) working days notice to the other party.” [13] The basis upon which the respondent sought the orders referred to in the previous extract from its application of 25 May 2010 are as follows: “1. The Court does not have the power to grant the relief sought by the Appellants under section 882 of the Water Act 2000 (‘the Act’) while the Moratorium Notice is in effect. 2. In Sinclair & Anor v Chief Executive, Department of Natural Resources and Mines [2006] QLC 6 it was held that in exercising its power under section 882 of the Act, the Court stands in the shoes of the original decision maker pursuant to section 211 of the Act. Accordingly, any constraints that apply to the Chief Executive at the time the Court exercises this power also apply to the exercise of power by the Court. 3. In accordance with section 26(2) of the Act, section 5 of the Moratorium Notice provides that applications to which the Moratorium Notice applies and which were received before the date the Moratorium Notice has effect will not be dealt with while the moratorium notice has effect. Section 5 of the Moratorium Notice applies even if the application was made before the Moratorium Notice was published, pursuant to section 26(3) of the Act.” [14] The basis set out above remains the basis upon which the present application is founded. The Moratorium Notice [15] Relevantly the Moratorium Notice provided: “1. This is a Moratorium Notice (the Notice) under section 26 of the Water Act 2000 (‘the Act’) for the Wet Tropics Area as shown in the map below. (Note: The map below shown in this Notice is indicative only and is not the legally recognised map of the area under the provisions of the Water Act 2000. The map of the area shown and the exact location of the boundaries of the Area is held in digital electronic form by the Department of Environment and Resource Management and may be inspected at the department’s Cairns; Mareeba; South Johnstone and Townsville offices.) 2. The Notice has effect on and from 18 January 2010. 3. The purpose of the Notice is to: (a) protect natural ecosystems; (b) protect existing water entitlements and authorisations, by preventing further take and/or interference with surface or underground water. 4. The Notice applies to: (a) the following water within the Wet Tropics Area; (i) water in a watercourse, lake or spring; and (ii) underground water; (b) all applications for or about a water licence to take or interfere with the water to which the Notice applies, if granting the application would have one or more of the following effects on the water; (i) increase the amount of water that may be taken; (ii) change the location from which water may be taken; (iii) increase the rate at which water may be taken; (iv) change the flow conditions under which water may be taken; (v) increase or change the interference with the water; (vi) change the purpose for which the water may be taken or interfered with. (c) the construction of works to the extent that the works would: (i) increase the amount of underground water being taken or that could be taken; or -- 5 of 12 -- 6 (ii) change the location from which underground water is being taken or could be taken; or (iii) increase or change the interference with underground water. 5. Applications stated in clause 4(b) of the Notice received: (a) before the day the Notice has effect, will not be dealt with; and (b) on or after the day the Notice has effect, will not be accepted.” [16] It was not disputed by any party that, insofar as the moratorium notice is expressed to apply to water in a watercourse in the wet tropics area that Nanyetta (Return) Creek is such a watercourse in the wet tropics area. It is of course the watercourse out of which it is sought by both the Burtenshaws and Radlof to extract water. [17] Neither was it seriously disputed that the applications were for the granting of a water licence to take water to which the moratorium notice would apply. The Moratorium powers [18] It is appropriate to consider the context of the moratorium. [19] Section 26 of the Water Act 2000 relevantly provides for the Minister to publish a notice described as a moratorium notice. The section provides at s.26(1), (2), (3) and (7) as follows: 26 Moratorium notices (1) The Minister may publish a notice under this section, for a part of the State, (a moratorium notice) if the Minister is satisfied action should be taken in the part— (a) to protect natural ecosystems; or (b) to protect existing water entitlements and other authorities under this Act to take or interfere with water. (2) The notice may state that an application under this Act, or the repealed Act, will not be accepted, or will be accepted but not dealt with, while the moratorium notice has effect if granting the application would have 1 or more of the following effects on the water to which the application relates— (a) increase the amount of water that may be taken; (b) change the location from which water may be taken; (c) increase the rate at which water may be taken; (d) change the flow conditions under which water may be taken; (e) increase or change the interference with the water; (f) change the purpose for which the water may be taken or interfered with. (3) Subsection (2) applies even if the application was made before the notice was published. … (7) The notice has effect— (a) from the later of the following— (i) the day stated in the notice; (ii) the day the notice is published; and (b) until— (i) a water resource plan is approved for any water to which the moratorium notice applies, but only if a water resource plan for the water to which the notice applies had not been approved before the notice was published; or (ii) the Minister publishes a further notice ending the effect of the moratorium notice, including, for example, in the following circumstances— (A) when a water resource plan for the water to which the moratorium notice applies had been approved before the moratorium notice was published; (B) when a resource operations plan for the water to which the moratorium notice applies had been approved before, or has been approved after, the moratorium notice was published. -- 6 of 12 -- 7 [20] Within Schedule 4 to the Act, “publish” is defined with respect to s.26 which is located within Chapter 2 Part 2 Division 3 to mean: “2 Publish, for a notice under section 22 or chapter 2, part 2, 3 or 4, means to publish the notice— (a) in a newspaper circulating generally throughout the area for which the notice is published; and (b) on the department’s website on the internet.” [21] Some issue was taken by Counsel for the Burtenshaws with respect to the use of the conjunctive “and” between parts (a) and (b). [22] Nothing, it would seem now turns upon any debate as to the use of the conjunctive. An affidavit filed by leave from David William Noble filed 29 October 2010 establishes without dissent that the moratorium notice which issued under s.26 of the Water Act 2000 for the wet tropics area (“the Moratorium Notice”) was published on the relevant departmental website at 11:18:57 am on 18 January 2010. [23] Further, as a consequence of a request made by me the respondent has also provided copies of an advertisement of the moratorium notice published in the Townsville Bulletin on 18 January 2010, the Cairns Post on 18 January 2010 and the North Queensland Register on 21 January 2010. Thus it would appear that all of the requirements of the Act with respect to the obligation to “publish” the moratorium notice have been complied with. [24] At the hearing of the matter Mr Radlof appeared by telephone and advised the Court that he had no knowledge of the issue being ventilated. This was not withstanding that the department had assumed that an email had been received by Mr Radlof. The solution, in any event, was to allow Mr Radlof to listen to the application involving the Burtenshaws on the basis that exactly the same preliminary point had been raised in his appeal and then to allow Mr Radlof time to make further submissions over and above those made on behalf of the Burtenshaws if he wished. The Court received submissions from Mr Radlof on 20 October 2010 and those submission have been taken into account together with the material advanced on behalf of the Burtenshaws by Ms Skennar of Counsel. [25] Ms Skennar for the Burtenshaws contends that the reference to “applications” in clause 4(d) of the moratorium notice had the affect of restricting the moratorium only to “applications” which she describes as “the actual application for the licence or an application about an existing licence”. She did not provide any authorities which supported the notion that a restricted view should be taken of the reference to “applications”. [26] She went on to contend that the internal review against which the current appeals have been brought was not dealing with an application “for or about a water licence” but was an internal review of the original decision pursuant to s.861 of the Water Act. -- 7 of 12 -- 8 [27] Section 862 of the Water Act determines who may apply for internal review. Importantly, an internal review requires that an “application” must be made. An application is not defined in Schedule 4 – Dictionary to the Act but in my opinion, the descriptor “application” for or about a water licence is sufficiently broad to encompass not only the original application for a water licence but any subsequent application that may be made, either for internal review or external review of a decision. [28] Section 877 provides for appeals and/or external review. In the present cases, the parties have proceeded by way of an appeal to the Land Court and I am of the view that that procedure is not encompassed by even a broad view of the expression “application” for or about a water licence because it is simply not an application but an appeal in respect of a decision about an application with which appeal the Court would have eventually to deal with. I am satisfied for the reasons set out below that hearing the appeal would be “dealing with” an application. [29] Having regard to the propositions advanced by the respondent in its ground relied upon in the bringing of the application it is appropriate to consider the provisions of s.882 of the Water Act. Section 882 provides (so far as is relevant): “882 Powers of court on appeal (1) In deciding an appeal, the court may— (a) confirm the review decision; or (b) set aside the review decision; or (c) amend the review decision in the way the court considers appropriate; or (d) send the matter back to the reviewer and give the directions the court considers appropriate; or (e) set aside the review decision and substitute it with a decision the court considers appropriate. (2) If the court amends the review decision or substitutes another decision for the review decision, the amended or substituted decision is, for this Act (other than this part) taken to be the reviewer’s decision. …” [30] It would be immediately observed that on an appeal the Court is acting judicially and not as a tribunal, that it is to say it is making a decision rather than making recommendations which might be acted upon by the Minister. [31] It should also be noted that when regard is had to the provisions of sections 210 and 211 it becomes clear that the Chief Executive of the relevant department also makes a decision rather than making a recommendation to the Minister for approval by the Minister or, in some cases under other Acts by the Governor-in-Council. [32] The High Court in Esber v The Commonwealth (1991-1992) 174 CLR 430 had cause to consider proceedings where an otherwise entitled applicant had instituted proceedings which had not been completed prior to the repeal of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) which related to the opportunity to apply for redemption of weekly compensation payments made under that Act. An appeal against that determination -- 8 of 12 -- 9 had been lodged but before it was heard by the AAT the Act was repealed. It should be noted that the application was one for review. The repealing act provided that weekly payments of over $50/week were not redeemable (as was the case with Mr Esber). [33] Section 129(2) of the repealing act provided that proceedings which had been instituted under the Repealed Act but not completed upon repeal “may be continued on and after that day and, where the proceedings are so continued, the relevant authority and the Commonwealth shall be parties to those proceedings”. [34] In the Esber decision the majority (Mason CJ, Deane J, Toohey J and Gaudron J) observed (at page 440): “… It may not be possible to say of a person in the position of the appellant that he had a right to a favourable determination from the Tribunal. The Tribunal was required to stand in the shoes of the decision-maker (the delegate) and arrive at its own decision (16). In Drake, Bowen C.J. and Deane J. said of the Tribunal (16): ‘The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.’ But that was not the point here. If it be assumed that the appellant did not have a right to redemption in the sense first discussed, he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim. To borrow a sentence from the judgement of Hope J.A. in N.S.W. Aboriginal Land Council v. The Minister [The Winbar Claim] (17): ‘The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional.’ Once the appellant lodged an application to the Tribunal to review the delegate’s decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely ‘a power to take advantage of an enactment’ (18). Nor was it a mere matter of procedure (19); it was a substantive right (20). Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, ‘although that right might fairly be called inchoate or contingent’ (21). This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s. 8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act. (16) Drake v. Minister for Immigration (1979), 24 A.L.R. 577, at p. 589. (17) (1998) 14 N.S.W.L.R. 685, at p. 694. (18) Mathieson v. Burton (1971), 124 C.L.R. 1, at p. 23, per Gibbs J.; and see Robertson v. City of Nunawading, [1973] V.R. 819. (19) See Newell v. The King (1936), 55 C.L.R. 707, at pp. 711-712. (20) See, by way of analogy, Austrlaian Coal and Shale Employees Federation v. Aberfield Coal Mining Co. Ltd. (1942), 66 C.L.R. 161, at pp. 175, 178, 185, 194; Colonial Sugar Refinery Co v. Irving, [1905] A.C. 369, at pp. 372-373. (21) Free Lanka Insurance Co. Ltd. V. Ranasinghe, [1964] A.C. 541, at p. 552; see also Continental Liqueurs Pty. Ltd. v. G.F. Heublein and Bro. Inc. (1960), 103 C.L.R. 422, at pp. 426-427; Director of Public Works v. Ho Po Sang, [1961] A.C. 901.” [35] Pursuant to the Commonwealth Act reference to a compensation tribunal resulted in a decision which replaced the decision made by the relevant departmental officer. That is to say it was in a sense an appeal and not a review resulting in a further recommendation but resulting in a decision. -- 9 of 12 -- 10 [36] As learned senior counsel for the respondent/applicant set out in his submissions to the Court in each of the Burtenshaw and Radlof appeals the moratorium notice is a statutory instrument. I can do no better than to repeat what was said in the submissions for the respondent at paragraph 17. [37] Learned senior counsel submitted at paragraph 17 of his submissions: “The moratorium notice is a statutory instrument as defined by s.7 of the Statutory Instruments Act 1992. Section 14(1) of that Act provides that a provisions of the Acts Interpretation Act 1954 mentioned in Schedule 1 applies to a statutory instrument in the same way it applies to an Act as if a reference to an Act included a reference to a statutory instrument. Section 15B of the Acts Interpretation Act is mentioned in Schedule 1 and provides that if an Act commences on a day it commences at the beginning of the day. Accordingly, by operation of s.14(1) of the Statutory Instruments Act, the moratorium notice commenced at the beginning of 18 January 2010.” [38] Further, I agree that the making of the review decision on 18 January 2010 constituted a dealing with the application. In my view the expression “will not be dealt with” (as set out in clause 5 of the moratorium notice) is broad enough to encompass consideration of the application by way of appeal by this Court. [39] The Court is a Court of statutory jurisdiction. Its powers with respect to the present appeal are set out in the Water Act 2000 and the Land Court Act 2000. The moratorium is subordinate legislation pursuant to the provisions of the Water Act 2000. (See Statutory Instruments Act 1992 s.9 and the Dictionary at s.36 of the Acts Interpretation Act) [40] Such a view is entirely consistent with the observations of the High Court in Attorney- General (Qld) v Australian Industrial Relations Commission1 where the High Court was considering the meaning to be applied to the words “must cease” as a legislative command of a particularly emphatic kind which description I accept might be applied to the description “will not be dealt with”. [41] Consistent with the High Court decision in Esber’s case referred to above I accept that the powers of the Court with respect to hearing of an appeal are unaffected by the moratorium notice. The right to bring an appeal remains but that is not the question with which I am confronted. The real question is whether appeals having been lodged in each of the Burtenshaw and Radlof matters, the Court is now precluded from “dealing with” those appeals from an internal review decision relating to an application. [42] My initial inclination was to the view that an appeal having begun, the Court was empowered to continue to determine the appeal. However, such a view may result in a futility because even if the Court continues to hear and determine the appeal, the moratorium notice makes it clear that any decision by the Land Court will not be acted upon by the Department or the Minister. 1 (2002) 213 CLR 485. -- 10 of 12 -- 11 [43] Accordingly, I have become persuaded that the view expressed by Member FY Kingham (as Her Honour then was) in Sinclair & Anor v Chief Executive, Department of Natural Resources and Mines2 is both persuasive and correct. The right to an appeal is, in my opinion, protected by s.20 of the Acts Interpretation Act but that section does not protect the right of the appellants to have the appeals “dealt with” until such time as the moratorium notice is revoked or lifted. (see the authorities referred to in paragraph [18] of Her Honour’s decision) [44] The reference to the dicta of Fitzgerald P in the Kentlee case referred to by Her Honour (see para 18 of the judgment) makes it clear, in my opinion, that the effect of the subordinate legislation constituted by the moratorium notice is to remove from the appellants (ie each of Burtenshaw and Radlof) the entitlement, presently, to have the appeal heard and determined. [45] Again, consistent with the findings of Her Honour in the Sinclair matter I endorse the view that while the moratorium notice has affect this Court does not have any power pursuant to s.882(1)(e) of the Water Act to review the decision and to otherwise complete the hearing of the appeal. [46] Accordingly, the appropriate course to take is to adjourn the proceedings in each of the Burtenshaw and Radlof appeals until such time as the moratorium notice no longer has effect. [47] With respect to the Radlof matter the appeal had been filed well and truly prior to the making of the moratorium notice on 18 January 2010. With respect to the Burtenshaw matter the review decision was entirely contemporaneous with the making of the moratorium notice. Both of those events having occurred on 18 January 2010. [48] Such an outcome is hardly pleasing to the applicants, Radlof or Burtenshaw, given that the application and initial decisions with respect to each of their applications were made back in 2003 in the case of Mr Radlof and 2007 in the case of the Burtenshaws. Those applications were obviously made in good faith and it must be galling to those parties and, to some extent, to the submitters that the effluxion of time combined with the making of the moratorium notice precludes this Court from concluding the appeal proceedings. [49] Accordingly I make the following declaration: 1. While the moratorium notice published on 18 January 2010 has effect this Court is precluded from continuing to hear and determine the appeals filed by the appellant in each of appeals nos. WAA034-10 (the Burtenshaw Appeal) and WAA002-09 (the Radlof Appeal). 2. Upon the moratorium notice ceasing to have effect each party has liberty to apply for further directions by making a written request to the Court that the appeal be listed for directions and by giving at least three working days notice to the other party. 2 [2006] QLC 0006. -- 11 of 12 -- 12 [50] In the Radlof matter, orders were made on 11 May 2010 for the further conduct of the appeal. In the event, having regard to the determination made by me it now seems appropriate that those orders in the Radlof appeal should be vacated. If, and when, the moratorium notice ceases to have effect then further orders can appropriately be made if necessary. [51] In the Burtenshaw appeal because negotiations were occurring between the parties, no orders for the further conduct of the appeal were made. [52] The application for declaration is allowed in the terms set out in paragraphs 49 and 50 above. HIS HONOUR, WL COCHRANE MEMBER OF THE LAND COURT -- 12 of 12 --