CH Baldwin, CA Turvey & DM Watts v Chief Executive, Department of Natural Resources and Mines [2001] QLC 135

LAND COURT BRISBANE 20 DECEMBER 2001 Re: A2000/0013 An appeal against a Decision to Issue a Waterworks Licence – Water Resources Act 1989 CH Baldwin, CA Turvey and DM Watts v. Chief Executive, Department of Natural Resources and Mines (Hearing at Gympie) D E C I S I O N The Chief Executive, Department of Natural Resources and Mines has sought an order that an appeal by CH Baldwin, CA Turvey and DM Watts, against a decision to issue a licence authorising the pumping of water from a watercourse, be struck out for want of the Court's jurisdiction to hear and determine the appeal. Background On 17 June 1999 an application (No. 10125) was made to the Department of Natural Resources (as it was then) by DR & LK Wilcox of Anderleigh Road, Kia Ora, Gympie, for a licence to pump water from Tinana Creek at a location in an easement encumbering Lot 5 on RP 157585 to supply Lot 4 on RP 141986, both in the Parish of Neerdie. Lot 5 is owned by the appellants. Easement A had been granted in 1978 by predecessors-in-title of Lot 5 in favour of the predecessors-in-title of Lot 4 as a "right of way for irrigation and water supply purposes … to pump water from Tinana Creek …" Notice of the application for the licence was advertised pursuant to s.42(6) of the Water Resources Act 1989, in "The Gympie Times" on 26 June 1999. The notice advised that the closing date for written objections was 16 July 1999. In a correctly addressed letter dated 16 July 1999, Mr Baldwin on behalf of the owners of Lot 5 registered their opposition to the application. There was another written objection to the application dated 1 July 1999 received by the department on 5 July 1999. [2001] QLC 135 -- 1 of 4 -- 2 On 4 April 2000, the department issued a licence in amended terms from the application, and by letter dated 14 April 2000 Mr Baldwin and his co-owners were advised of the chief executive's decision. That letter of advice included information that the owners "may appeal to the Land Court in accordance with Section 51 of the Water Resources Act 1989". Notice of Appeal forms were attached. Mr Baldwin on behalf of all owners of Lot 5 appealed to the Land Court against that decision, the Notice of Appeal filed by post on 4 May 2000. The matter of the appeal was brought before the Court for mention on 28 November 2000 and on advice of the ill-health of Mr Baldwin, the matter was adjourned to the next available sittings of the Court in Gympie. The matter was further brought before the Court on 23 November 2001 for mention with a view to determining a date for hearing. Again, due to his continuing health problems, Mr Baldwin was unable to attend the Callover but requested telephonically that the matter be "further adjourned to a date to be fixed pending discussions with Gympie Department of Natural Resources and Mines staff". However, at the Callover, counsel for the chief executive advised the Court that there was "a jurisdiction question involved in that the Notice of Objection was lodged outside the prescribed period". As the next sittings of the Court at Gympie was imminent, the matter of the jurisdiction question was set down for hearing on 12 December 2001. Mr Baldwin was able to attend that hearing, with some difficulty, and Mr Grealy of counsel appeared for the chief executive. The Issue The chief executive had established that the written objection had not been received by the advertised closing date for objections. Despite the fact that the objection had been considered at a district level, as if it had been duly lodged, and the objectors had been invited to appeal the decision to issue a licence, if they so wished, the procedure followed had been in error. It was submitted that in terms of the relevant legislation, the owners had no right of appeal. The Evidence Mr Grealy called Mr M Perry, a senior technical officer employed by the chief executive. Tendered through him was a copy of the written objection. The letter bore a Gympie departmental stamp dated 6 August 1999. It was Mr Perry's evidence that the practice in the Gympie District office was to have correspondence date stamped -- 2 of 4 -- 3 on the day the correspondence was received. It appears the envelope in which the objection was received had not been retained. Mr Baldwin's evidence was that he was confident that the objection letter was written on 16 July 1999 as dated. After referring to a relevant diary, he advised the Court that he had visited Gympie on 16 July 1999. While he was not certain of the facts, he believed he would have posted the letter in Gympie on that same day. He had no explanation for not having hand delivered the objection. He agreed that it would have been unrealistic to have expected that the correspondence would have been received by the addressee on the day of posting. Finding There seems little doubt that the objection was not received until 6 August 1999 some three weeks after the closing date for objections, regardless of when it was, in fact, posted. The Water Resources Act 1989 was the relevant legislation in force at the time the application for the licence was made. Section 42 of the Act relevantly provided: "(6) Upon receipt of an application for a licence … the chief executive must cause notice thereof to be published in a newspaper circulating in the locality in which the land the subject of the application is situated. (8) The notice must specify – (a) the place at which; (b) the time and date, being a date not more than 60 days after the date on which the notice was last published, before which; objections to the application may be lodged." There is no dispute that there was sufficient compliance with the provisions of subsections (6) and (8). Then subsection (9) provided: "On or before the date specified in the notice, an owner of land situated as prescribed … may, by signed notice and addressed to the chief executive, object to the granting of the application and submit to the chief executive the grounds of his or her objection." As has earlier been found the owners did not, by signed notice, object on or before the date specified in the notice, but some three weeks later. Provisions for appeal to the Land Court are found in section 51 of the Act and are relevantly as follows: "(1) A dissatisfied person may appeal to the Land Court against a decision of the chief executive with respect to – -- 3 of 4 -- 4 (b) an objection duly lodged to an application for a licence. (13) In subsection (1) – "dissatisfied person" means – (e) a person who, on or before the date specified in a notice under section 42(8), had a right to object, and objected, to an application." It follows that not having lodged the objection on or before the date specified in the notice under section 42(8) the owners are not a "dissatisfied person" in terms of the meaning of those words in subsection (13). It may be seen as unfortunate that the question of the late lodgment of the objection was not raised with the owners at the time the objection was received. However, regardless of the actions of the district office in acting upon the late objection as if it had been valid, and advising the owners that appeal rights were available to them against the eventual decision to issue a licence, the Court is not permitted to exercise a jurisdiction which does not exist under the legislation. At least the owners can take some comfort in the fact that their objection, together with one other objection, was considered in the departmental investigation process. That process in fact resulted in the benefit to the applicants being significantly less than that sought in the application. Order The appeal is struck out for want of jurisdiction. RE WENCK MEMBER OF THE LAND COURT -- 4 of 4 --