Dryden v Chief Executive, Primary Industries Corporation [1993] QLC 36

LAND COURT BRISBANE 26TH NOVEMBER, 1993. Re: Appeal against a Decision of the Chief Executive, Primary Industries Corporation - Water Resources Act 1989 (A93-51) Peter James Dryden v. Chief Executive, Primary Industries Corporation (Hearing at Innisfail) D E C I S I O N Mr P J Dryden is the owner of land described as Portion 277, Parish of Glady, County of Nares, containing an area of 1 hectare. Under the provisions of Section 4.26 of the Water Resources Act 1989, Mr Dryden has appealed against the decision of the Chief Executive, Primary Industries Corporation, to cancel Waterworks Licences Nos. 33748, 50487 and 50532. The background to this matter is set out in the statement of evidence of Mr William Liddell, technical officer (Stream Control) in the Department of Primary Industries, Water Resources, based at Innisfail. The facts contained in Mr Liddell's statement are not disputed by Mr Dryden. On 28th April, 1978, Mr Dryden made application to the then Irrigation and Water Supply Commission for the installation of a No. 4 ram pump with a 25 millimetre diameter centrifugal pump as a back-up, on an unnamed tributary of the Johnstone River. On 28th June, 1978, Mr Dryden was issued with Waterworks Licence No. 33748 for two pumps to be located on Lot 14, VCL 355B3, Parish of Glady, to supply water for irrigation and domestic use to Portion 277 owned by Mr Dryden. At the time of issue the licence was endorsed with a special condition which stated - "This licence is issued conditional upon the licensee obtaining from the Land Administration Commission a Pump Site Permit in respect of the site on which [1993] QLC 36 -- 1 of 4 -- 2 the pump is located." Under Section 2.1 of the Water Resources Act, the right to the use, flow and control of water in a watercourse vests, subject to the restrictions contained in the Act or until appropriated under the Act, in the Crown. Section 4.13(1)(b)(i)(B) of the Act requires a person to obtain a licence if water is to be taken from a watercourse. The person must be the "owner" of land on which the works are located or enter into an arrangement with the intervening land owner, if the person is a non-riparian owner. Section 4.14 of the Act provides for a person whose land is non-riparian to a watercourse to apply for a licence if the person makes an arrangement with the intervening land owners regarding the construction, use and maintenance of works necessary to carry out the purpose for which the application is made. Such arrangements must be in writing and signed by all parties. Licence No. 33748 expired on 31st March, 1981. Mr Dryden made application to renew the licence and it was renewed to 31st March, 1984. Another application to renew was submitted in 1984 and the licence was again renewed to 31st March 1987. At this time Mr Dryden notified the Innisfail office that a gravity fed pipeline had been installed on the stream to supply his property. Waterworks Licence No. 33748 was again renewed until 31st March, 1990. However, the pipeline also required licensing in accordance with Section 11 of the then Water Act 1926. Mr Dryden subsequently submitted an application to the Innisfail office dated 12th January, 1990 and while investigating the application, the Water Resources became aware that Mr. Dryden had not obtained a Permit to Occupy from the Lands Department for the works licensed in 1978. However, subsequent inquiries revealed that Mr Dryden submitted an application to the Department on 5th January, 1990. Mr Dryden applied for renewal of Licence No. A33748 on 7th March, 1990, but at about that time the Innisfail staff of Water Resources were advised from Brisbane that the ram pump and the centrifugal pump covered by that licence were separate -- 2 of 4 -- 3 works and therefore should be authorised by separate licences. The following licences was issued on 26th July, 1990: Licence No. A33748 - 15 millimetre ram pump (renewed). Licence No. A50487 - 50 millimetre gravity diversion pipeline. Licence No. A50532 - 25 millimetre centrifugal pump. Each licence was endorsed with Term 1.050 which stated: "This licence is issued subject to the licensee holding a current pump site permit from the Land Administration Commission in respect of the land on which the works are to be located." Mr Dryden was offered a Permit to Occupy by the Department of Lands by letter dated 22nd February, 1991 and had 60 days from that date to accept the offer, otherwise it would lapse. By letter dated 12th August, 1991, the offer was withdrawn as he had not complied with its requirements. By letter dated 13th December, 1991, the Department of Lands informed Mr Dryden that as the works were still installed, he was in contravention of the provisions of the Land Act and Term 1.050 on the waterworks licences, as no tenure was held upon the pump sites. The Department of Lands requested Water Resources to take action to cancel the licences. On 18th March, 1992, Mr Dryden was requested to show cause under Section 4.25(1)(c)(ii) of the Water Resources Act why the three licences should not be cancelled as he did not hold tenure upon the pump site. By letter dated 10th April, 1992, Mr Dryden acknowledged the need to have the pumps and diversion pipeline licensed under the Water Resources Act, but he did not accept the fact that the Department of Lands required him to pay a fee to lease a portion of the vacant Crown land. The chief executive cancelled the licences and Mr Dryden was notified of the decision by letter dated 29th June, 1993. Mr Dryden acknowledges that his argument is not with the Chief Executive, Primary Industries Corporation, but is with the Department of Lands and the conditions which that Department applies to a Permit to Occupy. The reasons for this are contained in Mr Dryden's written statement tendered to the Court. Mr Dryden's -- 3 of 4 -- 4 statement concludes: "In the light of the arguments presented, I would urge this Court to request the Department of Lands to reconsider their proposal and issue a Permit to Occupy on a gratis basis." It is clear from Mr Dryden's submission that he is not concerned with the amount of rent for the permit alone, but is also concerned with environmental factors. There is no point in going through Mr Dryden's grounds of appeal or his written statement. Mr Dryden does not dispute any of the foregoing facts. As I pointed out at the conclusion of this case, the jurisdiction of this Court under the Water Resources Act is very narrow and is stated in subsection (4) of Section 4.26: "The Land Court may hear and determine the appeal and may confirm, vary or revoke the decision of the chief executive the subject of the appeal." This of course refers to the decision of the Chief Executive, Primary Industries Corporation and not to the decision of the Chief Executive, Department of Lands. This appeal has really has nothing to do with the Chief Executive, Primary Industries Corporation. Therefore Mr Dryden has failed to discharge the onus of proof and this appeal must fail and the decision of the chief executive must stand. Accordingly, the appeal is dismissed and the decision of the chief executive to cancel the three waterworks licences is affirmed. J J TRICKETT MEMBER OF THE LAND COURT -- 4 of 4 --