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Telface Holdings v Redcliffe City Council

 

[2002] QSC 426

 

SUPREME COURT OF QUEENSLAND

 

File No S6568  of 2001

BETWEEN:

TELFACE HOLDINGS

Applicant

AND:

REDCLIFFE CITY COUNCIL

Respondent

 

MOYNIHAN J – REASONS FOR JUDGMENT

 

DELIVERED ON:

17 December 2002

DELIVERED AT:

Brisbane

HEARING DATE:

11 June 2002

JUDGE:

MOYNIHAN J

ORDER:

Declare that the area which is lot 855 on SL10201 in the parish of Redcliffe, County of Stanley and lot 856 of SL12658  in the parish of Redcliffe, County of Stanley is a canal to which the Canals Act 1958 applies so as to require the respondent to “reserve, maintain and keep clean the canal constituted by the allotments.

CATCHWORDS:

DECLARATIONS – where applicant owns and operates a water marina at Redcliffe – where applicant seek declarations that certain wet blocks constitute a canal – where section 11 of the Canals Act 1958 will apply if the wet blocks are declared a canal – what constitutes a canal – whether it is a canal.

Canals Act 1958

Harbours Act 1955

Land Act 1994

AG v Cooma Municipal Council (1962) NSWR 663 – referred to

Hayn v Culliford (1878) 3 CPD 410 – referred to

COUNSEL:

AM Daubney SC with G. Beacham for the applicants

R.W. Gotterson for the respondents

SOLICITORS:

Stubbs Barbeler Grant for the applicants

King and Company for the respondents

[1] The applicant owns and operates the Newport Waterways Marina in the city of Redcliffe.  The Marina extends over three allotments of land.  Lot 2 is an L shaped dry land lot (the dry lot) on which buildings, hard stand and other facilities are constructed.  There is access to the other two lots which are continuous with it.  These lots, 855 and 856 are submerged.  It is convenient to refer to them collectively as wet lots and by lot number where it is necessary to distinguish between them.

[2] The applicant seeks declarations that the wet blocks constitute a canal to which the Canals Act (1958) applies and that by virtue of s 11 of that Act the respondent is obliged to dredge them regularly at its expense.

[3] Alternatively the applicant seeks declarations that the dry block does not have direct access to or direct use or enjoyment of the canals of the Newport Waterways estate of which the Marina is a part.  These declarations are designed to found a declaration that the respondent cannot validly impose special canal maintenance rates on the applicant and for the repayment of rates unlawfully levied.

[4] The application proceeded on the basis of an agreed bundle of facts.  The more solvent of which are summarised in this and the following paragraphs.  The Newport Waterways estate was developed by Redcliffe Seaside Estate Pty Ltd.  (“Redcliffe Seaside Estate”).  The development was to include a Marina and took place in two stages. 

[5] The land which became Newport Waterways was freehold land owned by Redcliffe Seaside Estate.  Large parts of the land which is now submerged was not under water when the Newport Waters was brought into existence.

[6] In 1978/79 Redcliffe Seaside Estate obtained approval from the respondent to subdivide and construct canals for Newport Waterways.  Approval to do so in stages was obtained and the development proceeded.

[7] A certificate of compliance under the Canals Act 1958 was issued on 14 May 1981 in respect of stage 1 and on 13 August 1987 for stage 2.  When such a certificate is issued the canal to which if refers has been filled with water.  At the end of this process the Marina was established on the three lots 2, 855 and 856. 

[8] Section 77(1) of the Harbours Act 1955, then applicable, deemed land in Queensland waters below the high water mark to be Crown property.  This vested the stage 1 allotments in the Crown once they flooded it in 1981 and the stage 2 land in 1987.

[9] In 1983 Redcliffe Seaside Estate negotiated with the Port of Brisbane Authority to operate a Marina generally in the Stage M1 area.  The negotiations were on the footing that the Crown Land to be leased would be first vested in the Authority then leased to the company.

[10] A new plan was prepared to delineate the area over which Redcliffe Seaside Estate would be granted a lease.  This area is now described as Lot 855 on SL 10201.  By Order in Council dated 29 September 1983 Lot 855 was devested from the Crown and vested in the Authority.  By a lease commencing 6 June 1984, the Authority leased lot 855 to Redcliffe Seaside Estate.

[11] In 1988, Redcliffe Seaside Estate requested an extension of the lease area to include the area required for stage M2.  As an interim measure, the Port of Brisbane Authority granted Redcliffe Estate a permit to occupy the Stage M2 Marina area on 9 August 1988.

[12] A new plan delineated the area over which Redcliffe Seaside Estate would be granted the extension it sought for the Marina.  This is described as Lot 856 on SL 12658, on 19 October 1989, Lot 856 was vested in the Authority.

[13] On or about 12 September 1989, Redcliffe Estate sold the Marina to the applicant and assigned the lease of Lot 855 to it.  The Authority leased Lot 856 to the applicant by a lease commencing 8 October 1991.  These leases were conditioned on the development of the Marina.

[14] On or about 4 May 1999, at the request of the Authority, the applicant surrendered the leases of lots 855 and 856, effective on the day immediately preceding divestment of Lots 855 and 856 from the Authority.

[15] The land having vested in the Crown on 9 December 1999, the Crown granted the applicant a lease of lots 855 and 856 for a period of 50 years from 12 November 1999.

[16] The following terms of that lease are relevant.  The purpose of the lease which is under the Land Act is a marine facility.  The specified conditions include:-

“(1) The lessee shall use the leased land for marine facility purposes namely for the management and operation of a Marina providing wet storage facilities for the berthing and mooring of not less than 211 vessels, or such lesser number as the Minister administering the Land Act 1994 may agree from time to time, and fuel sales and associated facilities and no more than fifteen percent (15%), or such other percentage as may be agreed to by the Minister administering the Land Act 1994, of the berths may be used as places of human habitation.”

[17] The lease is subject to specific Acts and “any  other relevant Acts”.  The Canals Action would seem to be such an Act if the development is caught by it terms.  There is no reservation of public rights.

[18] The earlier leases from the Authority obliged the lessee to maintain a minimum depot 2 in within the leased land.  The lease from the Crown does not contain any such provision.

[19] The Newport Waterways Marina is situated at 158 Griffith Road, Scarborough, at the northern end of the Redcliffe Peninsula.

[20] The applicant owns and operators the Marina.  It leases commercial space at the Marina to third parties for marine related enterprise (eg. yacht broker, mini-storage sheds).  The public gains access to the Marina’s mooring facilities on a weekly, monthly, quarterly or annual basis.  A specific number of moorings are available for people who want to live on board.  Lot 2 is freehold and all land entry to the seabed leased is across Lot 2. 

[21] Access from Griffith Road to the Marina is by way of a driveway along the right hand (or eastern) edge of an “L” shaped dry block Lot 2.  The access driveway continues to the right-angle of the “L”, where there is a chain-wire security fence and a set of gates, giving access to the other half of Lot 2.  To the left (or west) of the driveway, between it and the water, is a fenced-in hardstand area for boats and trailers.  This was initially intended for those who wished to keep their boats at the Marina, but on dry land rather than continually moored in the water.  That hardstand area is no longer used for that purpose but is fenced off on 3 sides with a high chain wire fence topped with four strands of barbed wire.  The side parallel to the access driveway but adjacent to the water is unfenced.  There is also a line of trees along the fence line adjacent to the access driveway.  Access to the hardstand area is through another set of gates, which are chained and padlocked.  Due to the security fencing surrounding the hardstand (the high fence topped with barbed wire strands, and the locked gate), boats moored adjacent to the hardstand area.  This area cannot be accessed directly from the access driveway.  The other half of Lot 2 (the “base” of the “L”, to the north) provides access to the pontoons and moorings, as well as the marina building and car park.

[22] What I have endeavoured to describe is illustrated graphically in various plans and photographs forming part of the agreed facts.

[23] Access to Lot 856 from the water is only from Albatross Canal.  Albatross Canal is the main thoroughfare that leads from the sea (Deception Bay) into the Newport Waterways canal system.  Access to Lot 855 from the water is either via Albatross Canal or Pelican Canal.  As I understand it there is no barrier to vessels mooring from those canals to the wet blocks which form part of the Marina

[24] The public can access Lot 2 via the driveway, without passing through any security arrangements.  Cars can be driven onto Lot 2 and parked in the parking areas surrounding the Marina building.  This enables members of the public to access the charters and boat-selling business (as well as enabling access for people who have their boats moored at the marina).  Other common facilities available at the marina include showers, toilets, laundry, storage, BBQ area, ice and drink machines and public telephone.  These facilities are located in the marina building.  A fuel jetty is open to both marina tenants and members of the public.  If a person comes to the fuel dock to purchase fuel, someone from the marina office will pass through a security gate to the head of the gantry and meet that person on the pontoon.

[25] There are two signs at the gate at the right angle of the “L”–shaped block, warning of security patrols, and advising persons entering onto the premises, the conditions of entry.

[26] Although the public can readily access Lot 2, they cannot access the hard-stand area (which, itself, is part of Lot 2) which has direct access (albeit over a boulder wall) to the water at Lot 856 (between Lot 2 and the walkway to the first set of pontoons at which vessels are moored).  Similarly, members of the public cannot access boats moored at the pontoons on either Lot 855 or 856 without permission.

[27] Access to the floating pontoons or walkways from Lot 2 is via a gantry or access bridge.  At the head of each gantry is a security gate.  The gates lock automatically upon being closed.  A person with a vessel moored at one of the pontoons (whether it be a charter vessel, or recreational vessel owned by a member of the general public, or a home to a “live-aboard”) can obtain a key to the relevant gate, upon payment of a $25.00 deposit.

[28] Section 11(1) of the Canals Act expressly requires the respondent to “preserve, maintain and keep clean any canal”.   The Act defines “canal” to mean:-

“… any artificial channel or lake for use or intended for use for navigational, ornamental and recreational purposes, or any of those purposes, and connected or intended to be connected with any tidal water so that the water of such artificial canal or lake becomes or, on such connection, will become tidal water, and includes any access channel, any addition to or alteration of any canal, and any system of canals provided in any subdivision of land.”

[29] The expressions “artificial channel”, “lake” and “navigational, ornamental and recreational purposes” are not defined and so have their ordinary English meaning.

[30] The submerged lots are artificial, they are not natural but are the product of constructive skill.

[31] A lake is a body of water of considerable size surrounded by land (the Oxford English Dictionary, the Macquarie Dictionary).  The submerged lots are not surrounded by land and so is not a lake.  It is however in my view a channel.

[32] According to the OED channel is an old form for canal; a channel “includes an artificial water way “a canal”,  “an artificial water way for boats”.

[33] The Macquarie included in its definition “a means of access”, “a navagitable route between two bodies of water”.

[34] The channel is connected to tidal waters which vessels pass on the water across the submerged lots to access the canal system, Deception Bay or the Marina.  Each lot is therefore used (and was intended for use) for navigational purposes.  The Oxford English Dictionary defines “navigation” as including “...the action or practice of passing on water…” while the Macquarie dictionary defines “navigation” as the “act or purpose of navigating”.

[35] A ship need not be in a state of motion to be in a state of navigation: Hayn v Culliford (1878) 3 CPD 410 at 417.  It is true that the whole of the lots cannot be navigated because of the mooring facilities previously mentioned.  That part of the submerged blocks are not navigable.  That does not detract from the fact that they are used for navigational purposes.  Navigable purposes have navigation as an object.

[36] Note the qualification that purpose, (“the object for which anything exists or is done…” Macquarie Dictionary) effects on  navigational or recreational vessels.

[37] In AG v Cooma Municipal Council [1962] NSWR 663 at 667 Jacobs J acknowledged that recreation was “a very wide word” and referred to the Oxford dictionary definition before concluding that recreation was not limited to physical or sporting activities. 

[38] The Oxford English Dictionary defines “recreational” as “of or pertaining to recreation … used for, or in the form of recreation; concerned with recreation ..”.  The Macquarie definition includes “... a past time, diversion, exercise or other source affording relaxation and enjoyment”.

[39] Vessels using the marina (even including those in which people live) are involved in recreational purposes they are moored as a consequence of the fact that when they are not being used they have to be secured and kept in order.  For some mooring provides an opportunity for socialising or for working on the boat so affording a diversion, a source of relaxation and enjoyment.  A boat underway within lots 855 and 856 because it is moving to or from the canal system or Deception Bay, even if a charter boat, is being put to recreational use.

[40] Section 10(2) of the Canals Act provides, and provided at all material times:

“Any right of navigation belonging to or enjoyed by the public over tidal waters shall, subject to this Act and the other Acts mentioned in subsection (1), extend to the tidal water in any canal.”

[41] As a consequence of clause 32 of the lease it is applicable here.

[42] I should have thought that to the extent that if there was an inconsistency with the provisions of the lease the Act would provide it.

[43] It may be that the provisions of the lease from the Authority imposing dredging responsibility were explicable only on the basis that the submerged lots were not considered to be a canal but the relevance of that consideration is removed by the subsequent dealings.

[44] The submission on behalf of the respondent was that there was a rationale for the imposition of a responsibility for maintenance of a canal on local government where the canal was over non devolved Crown land over which the public could exercise public rights.  There would otherwise be nobody with responsibility, the rationale is inapplicable where the land is devolved to a lessee for the purpose conducting a commercial facility.

[45] On the view I take of the matter, however, the land is a canal in terms of the Canals Act and there is no basis for reading down the effect s 11(1).

[46] I therefore declare that the area which is lot 855 on SL10201 in the parish of Redcliffe, County of Stanley and lot 856 of SL12658 (lot 856) in the parish of Redcliffe, County of Stanley is a canal to which the Canals Act 1958 applies so as to require the respondent to “reserve, maintain and keep clean the canal constituted by the allotments”.

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Editorial Notes

  • Published Case Name:

    Telface Holdings v Redcliffe City Council

  • Shortened Case Name:

    Telface Holdings v Redcliffe City Council

  • MNC:

    [2002] QSC 426

  • Court:

    QSC

  • Judge(s):

    Moynihan J

  • Date:

    17 Dec 2002

  • White Star Case:

    Yes

Litigation History

No Litigation History

Appeal Status

No Status