Currareva Partnership v Chief Executive Dept of Natural Resources [1999] QSC 420

/ ,\.. 5'( f1. ~2.D- State Reporting Bureau" -TRANSCRIPT OF PROCEEDiNGS Copyright in this transcript IS vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION de JERSEY CJ No S8519 of 1997 CURRAREVA PARTNERSHIP and CHIEF EXECUTIVE DEPARTMENT OF NATURAL RESOUR(!ES BRISBANE :.. DATE 01/11/99 JUDGMENT 1 REVSSED COPfES ISSUED State Reporting Bu~u Date / /1 / Applicant Responaent it 1"1,,"1', Tire 1.:11V COllrts, CO:llrgo: Stn:d, Brisl':IIIO:, Q. -111(11) TelephollO:: (117) .12-17 -1.i(oI) 1-":1"(: (1l7) .12-17 S::.\:! -- 1 of 9 -- 011199 T1-2/HMH8 M/T 6426/9') (de Jersey CJ) HIS HONOUR: The applicant h~s applied for declarations under Rule 11 of the Uniform Civil Procedure Rules. The declarations relate to two wotterworks licences under the water Resources Act. The licences permit the diversion of water from Cooper Creek for the irrigating of the property Hammond Downs. The ap~licant wishes, in substance, to transfer the benefit of those licences to a property on the other side of Cooper Creek culled Currareva. To secure this the applicant has had to apply for renewal of those two licences and the consequent transfer of the benefit of them to the new property. The Minister for Natural Resources has given public notice under section 25F of the Act of the preparation of a draft 10 20 water management plan for water courses including Cooper 30 Creek. Because of section 2~N subsection 1 paragraph B the bhief executive of the Department of Natural Resources must not deal with the applications made by the applicant unless they are exempted by section 250 subsection 1 paragraph A subparagraph 3 which provide~; that section 25N does not apply to an application for a licence "if the application does not seek an increase in the benefit to which the licensee is entitled under an existing licence". 40 The applicant contends that these applications fall within ~ that exception because the conditions proposed under the renewed and transferred licences would lead to no increase in benefit beyond that provided by the existing licences. That is said to be so because the volume of water which 2 JUDGMENT 60 -- 2 of 9 -- 011199 T1-2/HMH8 M/T 6426/9~1 (de Jersey CJ) could be taken and the circmlstances in which it could be taken would remain unaltered This is a matter of contention between the parti,!s. The respondent asserts that the word "benefit II in section 250 refers to overall benefi t accruing to an applicant from the use of the works and there is material before me at lea~t suggesting that there could be an increase in value of property accruing to the applicant which would mean some benefit in that broader sense. The first point taken, however, by the respondent is that this application should have been dealt with in the Land Court. Mr Batch, who appears for the respondent, relies on section 51 subsection 1 of the Water Resources Act which 10 20 says that a dissatisfied person may appeal to the Land Court 30 against a decision of the chief executive "with respect to" an application for a licence, the renewal of a licence, or the transfer of a licence among other things. I have heard brief submissions on this issue and determine 40 it against the respondent. I consider that section 51 relates to determinations upon the merits of such applications, in other words, that the words "with respect to" were not intended to capt.ure respectively each and every stage of the process of treatment of an application before it reaches the point of ultimate determination, as I say, on the merits. An examination of other provisions of the Act shows up a scheme for the receipt of such applications, their advertisement, objections, the making of decisions 3 JUDGMENT 50 60 -- 3 of 9 -- 011199 T1-2/HMH8 M/T .6426/9 ' ) (de Jersey CJ) upon them, the publication ot those decisions and thence the prospect of appeal to the Lalld Court. Significantly, section 51 subsection 4 referring to the institution of appeals provides for the commencement of the limitation period from the day of notification of decisions in newspapers. The sorts of decisions made here by the chief executive essentially, for present purposes, not to decide the application for the moment, were not required to be published in that way. Had I been of the view that the Land Court had jurisdiction to deal with these matters, I may have left the issue in that Court for reasons similar to those expressed by Mr Justice Shepherdson in Re: The Proprietors, Portman Place Building Units, plan number 4313 (1995) 1 Queensland Reports 525 at 534, but that discretionary aspect does not arise. I therefore determine "that this Court has jurisdiction to deal with this matter. HIS HONOUR: In addressing tl'te question under section 250 subsection 1 paragraph A subparagraph 3 whether the application seeks an increase in the benefit to which the licensee is entitled under an existing licence, one needs to 10 20 30 40 compare the old licence, if I can put it that way, number 50 G43718, which is Exhibit HSW, to the affidavit of Mr Waldring filed on 21 September 1999, with the application for the new licence, Exhibit ASH2 to the affidavit of A S Halliwell filed on 14 October 1999. One is immediately 4 JUDGMENT 60 -- 4 of 9 -- ) 011199 T1-2/HMH8 M/T 6426/9(1 (de Jersey CJ) struck by the description of the "purpose of works". Under the former licence it is "ir:oigation", under the new application it is "water harvesting". On one view, there could be benefit in the ability to 10 maintain a darn, in effect, by contrast with drawing the water from the watercourse a~; needed for the purposes of direct irrigation. It appears, however, that the crossing of the water harvesting box on the form of application may hav~ been a mistake. The correspondence which accompanied 20 the application and followed it is consistent with the applicant's simply wishing to transfer any existing benefit to the other property across the creek. When, however, this point was taken. by the respondent, a formal amendment was made to the application by fctcsimile of 13 October 1991, 30 being Exhibit JSOB1 to the affidavit of J S O'Brien filed on "27 October 1999. That makes it clear that the purpose of the licence sought by the neVI application is simple irrigation. Mr O'Brien further swears in paragraph 13B of that affidavit in these term~: "It was never intended that there would be an increase of benefit or alteration of the terms and conditions of the licences. The only alteration was the land on which the works were to be located and the land which was to be supplied." I raised with counsel the qu~:stion whether an application of this character is amenable to amendment. Mr Batch did not suggest that it was not. Had it been advertised, as is required of the respondent at: a certain stage of the matter, then the issue may have arisen whether the application could 5 JUDGMENT 40 50 60 -- 5 of 9 -- 011199 T1-2/HMH8 M/T 6426/9') (de Jersey CJ) be proceeded with in any amellded form prior to further advertisement, but I am info:~med that no advertisement has as yet taken place. It seem,; to me, therefore, that the amendment made to this application has been efficacious and that I should determine the matter on the basis that this is 10 indeed an application specifying, as the purpose of the proposed work, irrigation and not water harvesting. 20 HIS HONOUR: The submissions made with relation to section 25(0) subsection (1) paragraph (iii) of the Act focused initially on the character ot what I have termed the new applications. 30 I refer for convenience to Exhibit ASH2 to the affidavit of A S Halliwell filed on 14 October, 1999. Is it to be regarded as a new applicatioTl or as seeking the amendment of the hitherto existing licence - see Exhibit HSW7 to the affidavit of H S Waldring fiJ.ed 21 September, 1999, or as an 40 application for the transfer of that existing licence to the new property called Currarev~? This led to consideration of whether section 25(0) 1 (a)(iii) assumes an existing licence and an application for a new 50 licence, whether by way of amendment or transfer or whatever, but relating always to the same piece of land. There is an indication in th8 Act that waterworks licences will ordinarily be tied to specific land as is obvious "' 60 6 JUDGMENT -- 6 of 9 -- 011199 T3/RK21 M/T 6426/99' (de Jersey CJ) enough. See section 44 subs! !ction 1, paragraph (d) for example, which says that such licences "Operate for the benefit of the owner for the time being of the land on which the works the subject of the application are constructed or proposed to be constructed .. ,". Licences may be amended and transferred as is confirmed in se'ction 44 (1 ) (f) and 1 note that the form of transfer there contemplated rests in a change in ownership of the land, not extending to a transfer from one piece of land to another. See section 47. The issue is nevertheless, however, whether a licence of this character can be amended to reposition the works to 10 20 another property in the ownership of the licence holder. 30 '1 note in that regard the cOIlcluding words of section 44(1 )(d) following the three dots, which 1 mentioned earlier, which provide that a licence operates for the benefit of the owner for the time being of the land and so ~O on, or "Of the person whose proposal it is", referring to the proposed construction of works. Here of course, the applicant fi ts into that catE:gory. 1 have reached the view that there is no reason emerging 50 from this analysis of the st~tutory provisions why a licence cannot be amended to repositjon the works as here to another property. The issue then is whether this new application, whether properly so styled or whether better regarded as an 7 JUDGMENT 60 -- 7 of 9 -- 011199 T3/RK21 M/T 6426/99 (de Jersey CJ) application to amend the exi, ;ting licence "seeks an increase in the benefit to which the .. icensee is entitled under (the) existing licence II. Mr Couper, who appears for the applicant, contends that it does not. It contemplates the same areas. It contemplates irrigation as the purpose of the works and it contemplates diawing water by the same type of pump of the same capacity. There is on one view, benefit sought for the applicant in that the applicant seeks to draw the water onto other land which now better suits its purposes. But is that the sort of benefit to which the Act refers? Mr Couper submitted that the reference to benefit in section 25(O)(1)(a)(3) is to objective benefit determined by the '~olume of water which can be extracted and the circumstances in which it can be extracted. Volume, he contends, is dictated by the size of the pump leading to his submission that "The purpose of the provision dealing with exceptions to a general freeze on processing of applications reinforces the view that the provision is concerned with the objective effect of the application on water extraction from the water course." Here no change is sought beyond the repositioning of the right to draw the water to benefit the other related property. 8 JUDGMENT 10 20 30 40 50 60 -- 8 of 9 -- 011199 T3/RK21 M/T 6426/99 (de Jersey CJ) The purpose of the Act I broac lly speaking I is again obviously enough I the measurement and llanagement of the State's water supplies wi th relation to pa: ·ticular areas wi thin it. I am not satisfied that section 2~;(O) is concerned with the sort of particular personal benefj.t to which I referred before. Some further indication about: the relevant concerns of the Adt may be drawn although le~s compellingly from section 43 of the Act which deals with l:he issues relevant to the Chief Executive's assessment of suc:h applications. I accept the submissions which have been made by Mr Couper with relation to the proper ~nterpretation of section 25(0)(1 )(a)(iii) and conclude that this application "does 10 20 not seek an increase in the benefit to which the licensee is 30 entitled under an existing ltcence". HIS HONOUR: I will adjourn t.he matter to a date to be fixed to enable counsel to agree upon minutes of judgment which reflect the order I have made and the consequential necessary orders. 9 JUDGMENT 40 50 60 -- 9 of 9 --