Betts & Ors v The Chief Executive, Primary Industries Corporation [1993] QLC 27

LAND COURT BRISBANE 8TH OCTOBER 1993 Re: Appeals A93-46, 47, 48 and 49 Matters concerning Jurisdiction of the Land Court to determine Appeals pursuant to Section 4.26 of the Water Resources Act 1989 Adrian William BETTS; Reginald William, Hilda Joan and Owen James BETTS; John Winton and Rosa Maria HILL; Leslie Robert and Leith Ester BOULLY v. The Chief Executive, Primary Industries Corporation D E C I S I O N Four appeals have been lodged against the decision of the Chief Executive to issue Waterworks Licence No. G-49300 to Stevenson Finance Corporation and H.I.D. Stevenson. The licence was issued on 7th May, 1993 subject to twenty-one "special terms" for works described as an earth dam with the following dimensions: Height to top................10.0m Base width...................80.0m Crest width...................8.0m Crest length...............20,000m Capacity................ .100,000ML The works are to be located at Portion 7, Parish of Codernah and Portion 11, Parish of Cubbie, and are stated to be "not on a watercourse" and for the purpose of "water conservation for irrigation". The works fall within the meaning of a "referable dam" in terms of s.1.4(1) of the Water Resources Act 1989 (the Act). [1993] QLC 27 -- 1 of 8 -- 2 The application for the licence was made on 8th March, 1991 notified by the Water Resources Commission, as it then was, by advertisement in "The Balonne Beacon" published on 21st March, 1991. The advertisement contained the location and description of the proposed works .......... "for the purposes of Irrigation and Water Harvesting - not on a watercourse" then the following: "Written objections to the above applications are to be made to the Commissioner at the above address. Closing date for written objections from riparian landholders within a radius of 8km upstream and 24km downstream is 26th April, 1991. Objectors must state their property description and their grounds for objection". Each appeal was filed in the Land Court on 7th July, 1993 by the same firm of solicitors and each contains similar grounds, being five in number, ground 4 comprising 12 sub-grounds. The Registrar of the Court advised the Department of Primary Industries of the filings and sought particulars relative to the licence. The response, with the requested information, in correspondence dated 3rd August, 1993, under the hand of the Executive Director (Water Resources), contained an opinion that, for several reasons, there was no basis for appeal against the decision. The Registrar was also advised that no objection had been lodged by one of the appellants and in another instance the appellants' objection had been received subsequent to the closing date. The Department advised that it would prefer "to see the points of jurisdiction determined on a date prior to the hearing of the appeals". The matters were brought before the Court on 15th September, 1993 to determine whether or not the Court had jurisdiction to determine the appeals. No Objection or Late Objection: While the grounds of each appeal are similar, it is convenient to deal firstly with those where counsel for the Chief Executive submits no right of appeal exists, for, in one matter, no objection had first been lodged, and in the second an objection was -- 2 of 8 -- 3 lodged but after the closing date for the receiving of objections. A.W. Betts (A93-46) did not lodge an objection. L.R. & L.E. Boully lodged an objection dated 9th May, 1991 received by the Department on 20th May, 1991. Closing date for receipt of written objections was advertised as 26th April, 1991. There is no argument that no objection was lodged in the first appeal nor that the objection was lodged after the closing date in the second appeal. Indeed, in the second matter the letter of objection contained the statement "This objection is late being lodged due to an oversight." S.4.26 of the Act deals with an appeal to the Land Court, ss.(1) containing the following passages relevant here: "A person aggrieved by a decision of the Chief Executive with respect to - (a)an application for (i)a licence; ....................................................... ........................................................ (b)an objection duly lodged to an application for a licence; .......................................................... may appeal therefrom to the Land Court." The Chief Executive submits that it was not the intention of the legislature for "a person aggrieved" to include persons other than an applicant or an objector. It is submitted that to interpret the legislature otherwise would give no meaning to s.4.26(1)(b). Then, in the case of L.R. & L.E. Boully the Chief Executive submits that the proper interpretation of s.4.26(1)(b) is that the late objection was not "duly" lodged or lodged in the proper manner, being outside the prescribed time for the lodgment. The submission for the appellants is that in both cases the appellants are -- 3 of 8 -- 4 "persons aggrieved". Their properties are situated (as prescribed in s.4.17(3) of the Act) for them to qualify as owners who may have objected. It is submitted that: (i) s4.18 of the Act (Inquiry by Chief Executive and grant or refusal of application) does not confine the field of inquiry, which the Chief Executive is instructed to make, to the effect of the granting of a licence upon those who have objected; (ii) the legislature does not require objectors to receive any special form of notification once a decision as to an application for a licence has been made and in the absence of "a closely circumscribed set of procedures" dealing with objectors, s.4.26 of the Act should not be construed as has been submitted by the Chief Executive; (iii) the right of appeal is not then limited to the applicant, or an objector to the application, but includes "a person aggrieved" by the decision. The appellants perceive themselves to fall within the category of persons aggrieved. They gain support for that perception from the comments of Stable J. in the Full Court judgment Mundy & Anor. v. Brisbane City Council and Piggott (1966) Qd.R. 609 where His Honour at pp.610, 611 wished to "add a word or two on the scope of the phrase `persons aggrieved'" as follows: "The oft-quoted classic statement of James L.J. in Ex parte Sidebotham. In re Sidebotham (1880) 14 Ch. D. 458 was the subject of remark by the Judicial Committee in Attorney-General of the Gambia v. N'jie (1961) A.C. 617, at p. 634, where it was re-affirmed that the definition of James L.J. is not to be regarded as exhaustive. It was held that the words `person aggrieved' are of wide import and should not be restricted to a restrictive interpretation. `They do not include, of course, a busybody who is interfering in things which do not concern him: but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests.' And, as Lowe J mentioned in Johnstone v. Hicks (1948) V.L.R. 213, at p. 214, Fullagar J. in Dentry v. Stott (1947) V.L.R. 462 posed as a test that a person's interest must be really and directly affected by the order made for him to be a party who feels aggrieved." Reference is also made by counsel for the appellants to the judgment of Walsh -- 4 of 8 -- 5 J. in Colarc Pty Ltd and Donarc Pty Ltd (1991) 4 A.C.S.R. 155 where at p.157 His Honour said: " I adopt the following statement from the judgment of Olney J in Salter v NCSC [1989] WAR 296 at 301: `Although the term "a person aggrieved" is frequently used in statutes it is one which has defied concise definition. No universal test has been devised to provide an instant test as to the meaning of these words. Whenever they are used their meaning will be conditioned by the context in which they appear.'" The appellants say that it should be difficult to dispute that, being owners of property located within the prescribed limits of the proposed works, and considering themselves detrimentally affected by the decision of the Chief Executive, they have a real basis to claim that they have been aggrieved. It is noted that Stable J also said in the Mundy judgment (supra) at p.611: "Another way of explaining `person aggrieved' is the expression of Lord Esher M.R. in Ex parte Official Receiver. In re Reed, Bowen & Co. (1887) 19 Q.B.D. 174, at pp. 177-8, where he said that `a person aggrieved' must be a man against whom a decision has been pronounced which has wrongfully refused him something which he had a right to demand."; and in the same judgment, Hoare J. said at p.615: "As observed by Lord Parker C.J. in Ealing Corporation v. Jones (1959) 1 Q.B. 384, at p. 390, it is easier to say what will not constitute a person aggrieved than it is to say what `person aggrieved' includes. It is clear from the authorities that a person aggrieved does not include every person who is discontented or annoyed at the decision or who is adversely affected in some indirect manner by the decision." It may well be that the appellants, Betts and Boully, are discontented or even annoyed at the decision of the Chief Executive to grant the application, but repeating what Olney J. said in Salter v. NCSC (supra): "Whenever they" (the words "a person aggrieved") "are used their meaning will be conditioned by the context in which they appear." -- 5 of 8 -- 6 In this matter, I agree with the Chief Executive's submission that, if it was intended that the words "a person aggrieved" in s.4.26 of the Act should include any person, other than the applicant, who owns property within the prescribed area, then there would be no purpose in identifying an objector specifically as has been done by inclusion of ss.4.26(1)(b). Weight is given to such an interpretation when it is noted that, in the second reading of the Water Resources Bill, as recorded in "Hansard" 6th September 1989, the speech of the Honourable D.McL. Neal, the then Minister for Water Resources and Maritime Services, contained the following at p.457, when dealing with matters now contained in s.14 and ss.4.26(1)(d) of the Act: "The owners of the lands will be alerted to watch for advertisements concerning the proposal and may, should they wish, lodge an objection within the time prescribed. If they do not object, they cannot later appeal to the Land Court if they are dissatisfied with the Commissioner's decision on the proposal." I do not accept that firstly A.W. Betts, who lodged no objection to the application is "a person aggrieved" in terms of a proper interpretation of s.4(26) of the Act. L.R. & L.E. Boully lodged an objection, but that objection was not lodged within the prescribed time and not "duly" lodged, as it was required to be, to have force. While the decision of the Chief Executive was formally notified to the Boullys, possibly as a matter of courtesy, again I am unable to find that they are "aggrieved persons" within the intent of the legislation. Counsel for the appellants submitted that if I so found, then I have power under s.41(5) of the Land Act, being governed by its equity and good conscience provisions and by ignoring technicalities, to allow the appeals to proceed. Counsel for the Chief Executive in reply, referred to the Niall Preferential Pastoral Holding matter (1974) 1 Q.L.C.R. 180 where the Land Appeal Court said in its judgment at p.182: "The Land Court and the Land Appeal Court were created by statute and their jurisdiction functions and powers are similarly conferred. These Courts possess no natural or inherent jurisdiction." At p.183 the Court, referring to s.44(15) which is, except in its reference to the -- 6 of 8 -- 7 Land Appeal Court, similarly worded to s.41(5), said: "The subsection contains no power to enable this Court to exercise a jurisdiction based on equity and good conscience nor do the introductory words of the subsection in the `Notwithstanding' phrase refer to the exercise of jurisdiction. In other words the provisions operate only during the exercise of lawful jurisdiction and do not empower the Court to assume a jurisdiction or enable the Court to waive statutory requirements precedent to its jurisdiction." I am unable to find that s.41(5) of the Land Act would allow me to waive what I accept as the statutory requirement relative to s.4.26 of the Act. Appeals A93-47 and A93-48: The Chief Executive was, it seems, hopeful that the parties may have been able to resolve an "agreed set of facts" to allow legal argument to proceed relative to the meaning of "watercourse" as defined in the Act. It is the contention of the Chief Executive that the works for which the licence was granted are to be located on a flood plain and not on a watercourse. It is conceded by the Chief Executive that the decision to grant the licence was taken without reference to matters which are interpreted as relating only to works on a watercourse. Some matters which the appellants submit should have been considered by the Chief Executive relate to riparian issues crucial to the appellants' case. It is submitted that statutory procedure necessary in the decision-making process has not been followed, regardless of whether the works are on a watercourse or not. The appellants concede that an appeal does not lie from a decision that concerns the safety or the protection of life or property and agree that the burden of proving that the Chief Executive has not turned his mind to that part of the decision, is upon the appellants. However, they say that as the matter before the Court concerns an application dealing with the question of jurisdiction, in the absence of evidence being called by the Chief Executive, the Court should proceed upon the assumption that it is possible for the appellants to prove "after a complete hearing" that the Chief Executive -- 7 of 8 -- 8 did not consider the question of safety or the protection of life or property. The Chief Executive did not dispute that the correct approach to the question of jurisdiction was that as suggested by the appellants. In the circumstances of these latter appeals, the Court is unable to deal with the question of jurisdiction, or indeed the grounds of appeal, unless the matters proceed to hearing after which, if jurisdiction is found to lie, the appeals may be determined on their merits. In summary Appeals A93-46 (A.W. Betts) and A93-49 (L.R. & L.E. Boully) are struck out for want of jurisdiction. Appeals A93-47 (R.W., H.J. and O.J. Betts) and A93-48 (J.W. & R.M. Hill) will be heard in Brisbane commencing on a date to be fixed, so that those appeals may be determined if jurisdiction is found to lie. R E WENCK MEMBER OF THE LAND COURT -- 8 of 8 --