Watts v Ellis[2006] QDC 56

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:  The appellant has appealed against his convictions in the Magistrates Court at Bowen on 27 October 2005 of two offences against section 814 of the Water Act 2000.

The offences are:

1. That between the 1st of May 2004 and the 18th of June 2004 at Lot 25, Registered Plan DK276 at Collinsville in the State of Queensland, Shane Andrew Watts not being a holder of a permit under section 269 of the Water Act 2000 did excavate in a watercourse, namely Teatree Creek.
2. That between the 1st of May 2004 and the 18th of June 2004 at Lot 25, Registered Plan DK276 at Collinsville in the State of Queensland, Shane Andrew Watts not being a holder of a permit under section 269 of the Water Act 2000 did destroy vegetation in a watercourse, namely Teatree Creek.

The appellant was fined $2,000 and ordered to pay costs. 

The excavation and destruction occurred in the course of constructing a pipeline to bring water to a paddock for drought affected cattle.

The appellant's argument on the appeal commences with the proposition that the Parliament of Queensland has no power to regulate some activities carried out on the land which is owned by his parents and managed by him, including prohibiting without a permit excavation in a watercourse and destruction of vegetation in a watercourse.  It will be simpler if I refer to the land as the appellant's land.

The watercourse the subject of the charges that the appellant was convicted of - Teatree Creek - is on his land. The appellant's argument is that the Water Act 2000, in particular sections 266, 748 and 814 has no application to his land. The reasons for this are said to be the nature of the conditions attached to the Grazing Homestead Freeholding Lease under which the land is held. The appellant refers to the lease and these conditions as "the contract" between his parents, the lessees, and the Queensland Government.

The relevant conditions which the lease is subject to are:

1. The payment of the purchasing price;
2. The reservations specified;
3. The covenants specified; and
4. Such other reservations and conditions as may be contained in and declared by laws of the State.

The specified reservations are:

1. All minerals and petroleum on and below the surface of the land;
2. The right of access for the purpose of searching for and working any mines in any part of the land; and
3. All rights of access related to searching for and obtaining petroleum in any part of the land.

The only specified covenant is that upon compliance with section 125 of the Land Act 1962 the lessee is entitled to a grant in fee simple of the land.

The appellant argues that because the "contract" does not refer to the Water Act 2000, that Act cannot apply to his land and the Queensland Parliament has no power to provide that it does. It was submitted that the State of Queensland lacks the legal power to prevent the appellant excavating and destroying vegetation in Teatree Creek because the creek is on his land. The "contract", it is submitted, does not contain any reservation rights over watercourses.

For similar reasons, the appellant argued that government officers had no power under section 748 of the Water Act 2000 to enter his land. The land, it was submitted, is no longer Crown land because of the "contract" and the legislative provisions relied upon in argument.

For that reason also it was submitted that the Magistrate had no jurisdiction to hear the charges. Any attempt by the Queensland Parliament to extend the provisions of the Water Act to his land amounts, it is submitted, to a breach of the "contract" which his parents have with the Crown.

In support of his argument the appellant relied on certain parts of various Queensland and Commonwealth statutes and related speeches and agreements which are referred to in detail in the outline of argument prepared by Mr Walter, the appellant's agent who appeared for him on the appeal. I need not repeat the details here. I have considered all of these provisions.

Mr Walter frankly conceded that arguments of this nature were rejected by the Court of Appeal in Bone v. Mothershaw [2002] QCA 120 and that if I considered that decision to have application to the present case, I would have no option but to follow the reasoning in that decision and dismiss the appeal.

In my view the circumstances here are not so different that the reasoning in Bone v. Mothershaw should not be followed.

Arguments of the nature advanced by the appellant here were also rejected in the following unreported decisions:

-Burns v. State of Queensland, Planning and Environment Court Cairns, 2nd August 2004, Judge White;

-Burns v. State of Queensland [2004] QSC 434;

-Dore v. Penny, District Court Cairns, 17 September 2004 Bradley DCJ;

-Wilson v. Raddatz, District Court Maryborough 24th of August 2005, Brabazon QC DCJ; and

-Glasgow v. Hall, District Court Rockhampton, 2nd of March 2006, Nase DCJ.

I agree with those decisions and they, like Bone v. Mothershaw, compel me to also reject the arguments advanced by the appellant here.

In my view the Parliament of Queensland does have power to legislate to restrict and regulate excavation in a watercourse and the destruction of vegetation in a watercourse, including Teatree Creek, and the provisions of the Grazing Homestead Freeholding Lease over the appellant's land (the "contract") do not prevent the Parliament from doing that.

The appellant also contended that section 266 of the Water Act 2000 did not in fact require the appellant to obtain a permit to excavate in a watercourse and to destroy vegetation in a watercourse. So far as is relevant section 266 provides:

"266Applying for permit to destroy vegetation, excavate or place fill in a watercourse, lake or spring -

1. (1)
   A person may apply to the chief executive for a permit to do any or all of the following activities-

(a)destroy vegetation in a watercourse, lake or spring;

(b)excavate in a watercourse, lake or spring;

(c)place fill in a watercourse, lake or spring.

2. (2)
   Subsection (2A) applies if the applicant is neither of the following in relation to land that wholly contains the watercourse, lake or spring or the part of the watercourse, lake or spring where the activity is to take place-

(a)the registered owner of the land;

(b)the holder of a mineral development licence or a mining lease under the Mineral Resources Act 1989 for the land.

2. (2A)
   The application must include the written consent of the registered owners of land-

(a)wholly containing the length of the watercourse in which the activity is to take place or the part of the lake or spring where the activity is to take place; or

(b)adjoining the watercourse, lake or spring where the activity is to take place."

Mr Walter argued that these provisions mean that the registered owner of the land (the appellant's parents on whose behalf he said he was acting) may excavate and destroy the vegetation without a permit. With respect the provisions do not have that effect. They do not mean that the appellant's parents could do so without a permit. What they mean is had the appellant applied for a permit, his parents would have to have consented to the application. There is no substance in the argument of Mr Walter.

In all of the circumstances the appellant has not demonstrated that the decision of the Magistrate to convict was wrong. Accordingly, the appeal will be dismissed with costs fixed at $1,800.

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