Charlesworth v The Commissioner of Water Resources [1991] QLC 31

LAND COURT BRISBANE 13th September, 1991 Re: Appeal under Section 4.26 of the Water Resources Act 1989-90 by Kevin James Charlesworth and Loretta May Charlesworth, The owners/occupiers of Lot 1 on RP 184548, Parish of Stephens, County of Aubigny, against the decision of the Commissioner of Water Resources to grant Waterworks Licence No 50720 to E.S., E.N., I.D. and A.R. Dieckmann. (A91-43). Kevin James Charlesworth and Loretta May Charlesworth v. The Commissioner of Water Resources D E C I S I O N (Hearing at Toowoomba) E.S., E.N., I.D. and A.R. Dieckmann applied for a Waterworks Licence to authorise the installation of a 65 mm centrifugal pump on an unnamed tributary of Kings Creek to be used to irrigate an area of 22 hectares of lucerne. The application was advertised in the "Clifton Courier", the local newspaper circulating in the district on Wednesday, 9th January, 1991, allowing objections to be lodged up to 8th February, 1991. Six objections were received to the application including one from the appellants in this matter. In due course, after investigation, the licence issued on 2nd May, 1991, authorising the installation of a 65 mm centrifugal pump on the unnamed tributary of Kings Creek for the irrigation of 10 hectares, subject to certain conditions. The objectors were advised of the decision by letter of 2nd May, 1991. The letter to the appellants here had a final paragraph reading: "If you are dissatisfied with the Commissioner's decision to grant the licence, you may apply to the Land Court in accordance with the provisions of Section 4.26 of the Water Resources Act 1989-1990. If you intend to appeal you are required to file a Notice of Appeal in the Land Court Registry within thirty (30) days from the date you receive this letter. Notice of Appeal forms are available on request from this office. " Mr and Mrs Charlesworth lodged a Notice of Appeal in the Land Court on 4th [1991] QLC 31 -- 1 of 4 -- 2 June, 1991. The matter was listed for hearing on 26th August, 1991. The Commissioner wrote to the appellants on 21st August, 1991, in the following words: "Regarding your appeal under Section 4.26 of the Water Resources Act 1989, an issue has arisen which, I believe, should be brought to your notice. Last May, opinion was sought from the Crown Solicitor's office regarding whether a non-riparian licence holder would be a bona-fide objector under Section 4.17(3) of the Water Resources Act. Advice has been received from the Crown Solicitor that there is no provision in the Act for a right of objection to a non-riparian licence holder, in respect of a new licence application. As you are a non riparian licence holder on Kings Creek, it may be that you have no objection right and perhaps, it may follow, no right of appeal under the provision of Section 4.26 of the Act. It is my intention to bring the matter of jurisdiction to the attention of the Land Court during the hearing of the appeal. A copy of this letter will be forwarded to the Land Court. " When the matter was called on before me, it was first necessary for me to consider whether I had jurisdiction to hear and determine the appeal. Mr Fisher, Counsel for the Commissioner, submits that the right of appeal to the Land Court is found in Section 4.26 of the Act, subsection 1 (so far as it is relevant here) reads: "A person aggrieved by a decision of the Commissioner with respect to - (b)an objection duly lodged to an application for a licence; may appeal therefrom to the Land Court. " It is then necessary to look to the Act to see who may lawfully object to an application for a licence. Section 4.17(3a) reads: "On or before the date specified in the notice, an owner of land situated as prescribed or, as the case may be, of intervening land referred to in section 4.14 (2) or, in the case of an application for a licence in respect of works specified in section 4.13(1)(i) or (1)(j), the person specified in paragraph (c) may, by writing signed by him and addressed to the Commissioner, object to the granting of the application and submit to the Commissioner the grounds of his objection. " The meaning of "land situated as prescribed" is addressed in sub-section 3(b) -- 2 of 4 -- 3 which reads: "For the purposes of paragraph (1), land is to be taken to be situated as prescribed when the provisions set forth below apply with respect to that land - (i)where the application relates to works constructed or to be constructed in or on a watercourse or spring, the land abuts that watercourse or spring and - (A)being upstream of the land of the applicant in question or to which the application relates (in this subsection referred to as the 'affected land'), is so situated that the point where its downstream boundary abuts the watercourse or spring is within a radius of 8 kilometres measured from the point where the upstream boundary of the affected land abuts the watercourse or spring; (B)being downstream of the affected land, is so situated that the point where its upstream boundary abuts the watercourse or spring is within a radius of 24 kilometres measured from the point where the downstream boundary of the affected land abuts the watercourse or spring; " The Charlesworth land is downstream of the land of the applicants in this case and it does not have a boundary abutting the creek. Mr Fisher then directs his submissions to the other two matters which arise in section 4.17(3)(a). The first concerns "an owner of land intervening" referred in section 4.14(2) which reads: "The applicant may make, with owners or occupiers of land intervening between the subject land and the watercourse, lake or spring, or the water contained in or conserved by a weir, barrage or dam, in respect of which the application is proposed to be made, arrangements in writing signed by all parties with respect to the construction, use and maintenance on, in, over or under those intervening lands of works necessary to carry out the purposes for which the application is made. " This is not relevant in this case. Mr Fisher then directs my attention to section 4.13(1)(j) which reads: "retains, uses or continues to use in a designated area controlled works - (i) constructed prior to and in existence at the date of the constitution of the designated area; (ii) that consists of levy banks to which section 7.5 applies, after the date of the constitution of the designated area or in a case to which -- 3 of 4 -- 4 section 7.5 applies after the date on which that section came into operation, commits an offence against this Act. " He says that he is instructed that there are no controlled works designated for that area. It is his submission that the appellants here do not have a right to object to a decision of the Commissioner in respect of an application for a licence and it follows that they do not have the right of appeal to the Land Court against any such decision and the Court has no jurisdiction in the matter. In view of the late notice given to the appellants that this matter would be raised, I offered an adjournment to enable them to seek advice but they elected to proceed with the matter. Mr Charlesworth says that he has a letter from one of the riparian owners who had objected but had not taken the further step to appeal the decision, leaving the matter to him. This, of course, does not assist if the appellants themselves did not have a right to object in the first place. It is unfortunate that Mr and Mrs Charlesworth had their objection considered and in due course were advised of the decision of the Commissioner and invited to appeal to the Land Court if they so desired. This, however, is not a factor which I can take into account. This Court was created by statute and all of its powers are conferred by the various statutes. I cannot assume to hear a matter if the relevant Act does not convey jurisdiction to the Land Court to hear the matter. The submissions made by Mr Fisher are well founded and I find that the appellants, being non-riparian licensees, have no right of objection to an application for this licence and, it follows, no right of appeal to the Land Court. I find that the Court has no jurisdiction to hear and determine the appeal and the appeal is struck out for want of jurisdiction. (D.J. Barry) President of the Land Court -- 4 of 4 --