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Gallo v Chief Executive, Department of Environment & Resource Management[2013] QLAC 6

Gallo v Chief Executive, Department of Environment & Resource Management[2013] QLAC 6

LAND APPEAL COURT OF QUEENSLAND

CITATION:

Gallo v Chief Executive, Department of Environment & Resource Management  [2013] QLAC 6

PARTIES:

Filomena, Francesco Ralph and John Peter Gallo

(appellants)

v.

Chief Executive, Department of Environment & Resource Management

(respondent)

FILE NO:

Appeal No. LAC005-12

Land Court No. WAA021-07

DIVISION:

Land Appeal Court of Queensland

PROCEEDING:

Appeal

ORIGINATING COURT:

Land Court of Queensland

DELIVERED ON:

6 December 2013

DELIVERED AT:

Cairns

HEARD AT:

Cairns

DATE OF HEARING:

21 March 2013

THE COURT

Henry J

CAC MacDonald, President of the Land Court 

MD Evans, Member of the Land Court

Joint reasons for judgment of Henry J and MacDonald P.  Separate reasons of Mr Evans, concurring as to the orders made.

ORDER:

  1. The appeal is allowed.
  1. The respondent is ordered to grant a licence to take 267 megalitres of water per water year, such licence to be for a stated term and subject to the imposition of appropriate conditions as to the monitoring and management of the licence, the term and conditions to be agreed, or failing agreement to be determined by the Land Court. 
  1. The parties are to meet and seek to negotiate an agreed term and conditions as to the monitoring and management of the licence, within 42 days of the date of this decision.
  1. The parties are to jointly advise this Court of the outcome of these negotiations by no later than 4.00 pm on Friday, 17 January 2014.
  1. In the event that the parties are not able to reach agreement as to the term of the licence and its conditions, the matter is remitted to the Land Court for determination of the term and conditions. 
  1. Any submissions seeking costs are to be filed and served by 4.00pm on Friday, 20 December 2013.
  1. Any submissions in response to such application are to be filed and served by 4.00pm on Friday, 17 January 2014.

CATCHWORDS:

WATER – water licences – three-way regulatory scheme : Water Act 2000, Water Resources Plan, resources operations plan – statutory criteria for deciding applications – relevant date to apply criteria – need to consider existing entitlements.

PRACTICE AND PROCEDURE – appeal to Land Appeal Court – nature of appeal, rehearing – need to prove factual, legal or discretionary error – decision governed by law and facts at date of decision.

STATUTORY INTERPRETATION – Acts Interpretation Act s 20 – accrued rights – presumption displaced by contrary statutory intent – such present here – resources plan pre 2009 amendment to apply.

WORDS AND PHRASES – "additional information" – not a technical phrase – context and Act as a whole suggests ordinary meaning to apply. 

PRACTICE AND PROCEDURE – appeal to Land Court (under Water Act) – nature of appeal – appeal de novo – to hear matter afresh – can admit fresh evidence.

EVIDENCE – direct evidence – inferences – Court not limited to consider "direct" evidence only – inferences permissible from evidence of expert witness – equity and good conscience provisions.

EVIDENCE – hearsay – evidence from expert as to what applicant landowner may have "proposed" arguably hearsay – no objection taken – properly admitted.

EVIDENCE – Jones v Dunkel rule – no evidence from applicants personally on proposed use – but such a course does not sustain an inference against them as to proposed use – other expert evidence proved such use.

PRACTICE AND PROCEDURE – de novo hearing – apply law at date of hearing – applicable conversion rate – no accrued right to procedural provision – discretionary considerations not static to date of application – "purposive" provisions of Acts Interpretation Act supports approach. 

PRACTICE AND PROCEDURE – Land Appeal Court – when fresh evidence allowable – limits under Land Court Act s 56 – displaces principles applicable in other appellate courts – but requirements of Water Act a relevant consideration. 

WORDS AND PHRASES – "it is anticipated", "it is proposed" terms used in expert report – not in a legal document where different expressions may suggest different meaning – terms not significantly different when taken in context of report.

PRACTICE AND PROCEDURE – no general positive duty on litigant to alert opponent of gap in case or to cross-examine on evidence not led. 

Acts Interpretation Act 1954

Barron Resource Operations Plan 2005

Land Court Act 2000

Land, Water and Other Legislation Amendment Act 2013

Statutory Instruments Act 1992

Water Act 2000

Water Resource (Barron River Plan) 2002

Allesch v Maunz [2000] 203 CLR 172 

Arrowsmith v Micallef [2013] QCA 142

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Australian Leisure and Hospitality Group Pty Ltd v Director of Liquor Licensing [2012] WASC 463

Australian Securities and Investment Commission v Hellicar (2012) 247 CLR 347

Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 QdR 404

Coal and Allied Operations Pty Limited v Australia Industrial Relations Commission (2000) 203 CLR 194

Clodumar v Nauru Lands Committee (2012) 245 CLR 561

De Tournouer v Chief Executive, Department of Natural Resources and Water (2008) QLC 151 

De Tournouer v Department of Natural Resources and Water (2009) 30 QLCR 150

De Tournouer v Chief Executive, Department of Environment and Resource Management [2011] 1 QdR 200

Devries v Australian National Railways Commission (1993) 177 CLR 472

Drew v Makita (Australia) Pty Ltd [2009] 2 QdR 219

Dwyer v Calcol Timbers Pty Ltd (2008) 224 CLR 124

Eastman v The Queen (2000) 203 CLR 1

Esber v The Commonwealth (1992) 174 CLR 430

Fox v Percy (2003) 213 CLR 118

Gallo & Williams v Chief Executive, Department of Environment and Resource Management [2012] QLC 15

Gold Coast City Council v Halcyon Waters Community Pty Ltd (2011) 188 LGERA 193

Gronow v Gronow (1979) 144 CLR 513

Heslin v Director-General, Department of Environment and Resource Management [2010] QCA 347

House v The King (1936) 55 CLR 499

Jones v Dunkel (1959) 101 CLR 298

Kentlee Pty Ltd v Prince Consort Pty Ltd [1998] 1 QdR 162

Lacey v Attorney-General for the State of Queensland (2011) 242 CLR 573

Langdale v Danby [1982] WLR 1123

Mickelberg v The Queen (1989) 167 CLR 259

Mooy v Williams [1992] QCA 114

Morrow v McMahon (1985) 167 CLR 259

North v South East Water Corp Ltd [2003] QSC 407

Orr v Holmes (1948) 76 CLR 632

Phillips v Commonwealth (1964) 110 CLR 347

Radioactive Substances Act 1958

Re Coldham : Ex parte Brideson [No. 2] (1990) 170 CLR 267

Re Schubert [1989] 2QdR 95

Rowe v Kemper [2009] 1 QdR 247

Shambayati v Commissioner of Police [2013] QCA 57

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306

Stockman v Chief Executive. Department of Natural Resources and Mines [2012] QLC 72

Sunskill Investments Pty Ltd v Townsville Office Services Pty Ltd [1991] 2 QdR 210

Totterdell v Nelson (1990) 26 FCR 523

Victorian Stevedoring and General Contracting Co Pty Ltd and Dignan v Meakes (1931) 46 CLR 73

Zuvela v Cosmaran Concrete Pty Ltd (1996) 71 ALJR 29.

COUNSEL:

Mr DP Morzone QC for the appellants

Mr MD Hinson QC with Dr G Sammon for the respondent

SOLICITORS:

p&e Law for the appellants

Crown Solicitor for the respondent

Henry J, MacDonald P:

[1]Filomena, Francesco Ralph and John Peter Gallo ("the appellants") have appealed to the Land Appeal Court from a decision of the Land Court.[1]  The proceedings relate to a decision by the Chief Executive, Department of Environment and Resource Management ("the respondent"), under the provisions of the Water Act 2000 (Qld) ("the Act"), to grant an allocation to take underground water for irrigation, stock and domestic supply purposes, up to an entitlement of 130 megalitres ("ML") per annum.  The licence application had sought 990 ML/year for that purpose. 

  1. [2]
    The respondent’s initial decision was confirmed by the respondent on review.  The appellants' appeal to the Land Court against the respondent's review decision was unsuccessful and, consequently, the appellants have appealed to this Court.  In their Notice of Appeal to this Court, the appellants have sought an allocation of 813 ML/year. 

Decision of the Land Court

  1. [3]
    The Land Court dealt with two appeals against two decisions by the respondent, one by the current appellants and the other by RF and MO Williams.  The appeals were heard together, there was a single body of evidence and the Land Court delivered one judgment.  The Williams' appeal was allowed by the Land Court and there has been no appeal to this Court against the decision of the Land Court in that regard.  Accordingly, the following summary of the decision of the Land Court relates only to those parts of the decision which are relevant to the Gallo appeal. 
  2. [4]
    Similarly, as those parts of the Land Court's decision dealing with the equity of the departmental practices relating to water allocation in the relevant area are not in issue in this appeal, they are not included in the summary below. 
  3. [5]
    As there was no dispute between the parties as to the availability of water and the impacts of taking water on the environment and other users, the principal issues before the Land Court and this Court were whether the appellants had provided sufficient information, in their licence application or otherwise, as to their proposed use of any water allocation, and the volume of water to be taken. 
  4. [6]
    The appellants own property on the Atherton Tableland.  On 17 February 2005, they applied, under the Act, for a licence to take water from under their land, which is located in the Atherton Subartesian Area - Management Area B. 
  5. [7]
    The appellants used the appropriate form to make their application[2] but, as the learned Member found, the section of the form, "Part F Water Requirement", that required information as to irrigation requirements - the proposed area, the maximum weekly application, maximum monthly volume and time of year required - had been left blank.  The crop type was described as "Pasture, Corn and Potatoes".  In "Part G Amount of Water", the maximum annual volume of water stated to be required was 990 ML but, as the learned Member found, Part G's section about the maximum rate at which the water was to be taken and the maximum area to be irrigated had also been left blank. 
  6. [8]
    The learned Member noted that the decision of the Court of Appeal in De Tournouer v Department of Natural Resources and Water[3] related to facts which, the learned Member said, were very similar to the facts with respect to the Gallo application.  In both De Tournouer and Gallo, water licences were sought for Area B of the Atherton Subartesian Area.  The Land Court continued: [4]

"The facts also show that many water licences were applied for within Area B.  The respondent processed a significant number of applications and then imposed what it referred to as a departmental moratorium which was subsequently followed by a Ministerial Moratorium.  A number of applications made before the institution of either moratorium remained to be considered after the Ministerial Moratorium took effect.  These applications included De Tournouer, Gallo and Williams."

  1. [9]
    The learned Member then quoted two paragraphs from the decision of the Court of Appeal in De Tournouer:

"[12] The appellant lost for the different reason that she failed to provide evidence which would allow the Member to consider the third element, concerning the use to which allocated water was to be put. That element comprehends both efficiency of water use practices in terms of ss 11(2)(c) and 51(2)(b) of the Barron Plan and the continuous use of water issue in s 11(2)(b) of that plan. In conformity with those provisions, the application form (in “Part F Water Requirement”) required the applicant to describe “the proposed water scheme”. Under a sub-heading “Irrigation Requirements”, the form called for information about “Crop Type”, “Proposed Area”, “Maximum Weekly Application”, “Maximum Monthly Volume”, and “Time of Year Required”. The applicant left all of those spaces blank, save that under the heading "Crop Type" the form records, “Pasture Hay”, “Maize” and “Potatoes". The form contained no information which would allow for any decision about the efficiency of proposed water use practices or whether the water would be used continuously.

…

[26] In challenging this reasoning the applicant’s senior counsel pointed to evidence to the following effect: the application had a long history going back over five years; the applicant and her son had invested a large amount of money in seeking a suitable water allocation, including drilling bore holes and engaging and paying large amounts of money to experts and lawyers; the applicant's son, upon whose evidence the applicant relied, was an experienced man of the land; and an officer of the respondent encouraged him to make an application based on the statutory maximum of 5 ML/ha if he was able to locate good bores (which he did). None of that justified an inference that the water allocation would be efficiently used. As I have mentioned, that topic was simply not addressed in any meaningful way in the application or in the evidence."

  1. [10]
    In Gallo, the Land Court noted that the application form’s Part F water requirement had only been partly completed by the appellants in almost identical fashion to that of De Tournouer.  Further, the learned Member said, he had scoured all of the evidence with respect to the Gallo application but was unable to find any statement or other indication by Gallo indicating in clear terms the use to which the appellants proposed to put any water obtained as a result of the application.  He noted that the appellants did not give evidence at the hearing nor was any statement or other evidence from the appellants provided to the Court.  The learned Member said that although there was clear evidence as to what, theoretically, could be produced on the land by use of the proposed water allocation, there was no evidence as to the proposed intentions of Gallo other than for the scant reference in Part F of the application, which was not sufficient. 
  2. [11]
    By contrast, the Court said, Williams had provided answers to all relevant questions asked in Part F.  The contents of Part F of his application were not challenged.  Furthermore, Mr Williams provided a written statement to the Court and gave evidence at the hearing. 
  3. [12]
    The learned Member noted that in the expert crop water resource and groundwater allocation report prepared and submitted on behalf of the appellants, Mr Sutherland said at paragraph 4.2:

"It is anticipated that the irrigated cropping regime would be based on crops such as potato for fresh vegetable sale, maize for harveststore fodder and improved pasture (rye grass/clover) for dairying."  (Emphasis added by the learned Member)"

 The learned Member said that Mr Sutherland's analysis regarding the Gallo property was entirely hypothetical as there was nothing in the evidence to explain adequately the proposed use of water.  By way of contrast, Mr Sutherland's report, in referring to the Williams' application, used the word "proposed" in relation to the use of any groundwater allocation.  The use of the word "proposed" by Mr Sutherland was not accidental, the learned Member concluded.  It showed an appreciation of an actual purposeful intent by Williams.

  1. [13]
    The learned Member concluded that as the circumstances with regard to the Gallo application were virtually identical to De Tournouer, he had no option but to refuse the application. 
  2. [14]
    Nevertheless, the learned Member did consider an appropriate allocation for the appellants.  He said that there was no dispute between the parties that the irrigation requirement for the appellants’ property at full agricultural production was 1303 ML/year.  Using that as his starting point he said that it was appropriate to deduct from that amount the existing groundwater irrigation licence for the appellants' property of 61 ML/year.  Further, he was satisfied that in accordance with s 45(2)(b)(ii) of the Water Resource (Barron) Plan 2002 ("the Barron Plan"), the current surface water entitlement enjoyed by the appellants over an area of 98 ha equated to a volumetric entitlement of 980 ML/year. 
  3. [15]
    Therefore, the amount of water which the appellants could use to fully irrigate the arable areas of their property amounted to 262 ML/year (1,303 - 980 - 61).  Although this amount was, the learned Member said, an apparent reduction of 490 ML from the 813 ML that Mr Sutherland considered appropriate, the amount of 61 ML under the existing entitlement was to be taken into account as well as a further 98 ha at 5 ML which equated to 490 ML, which was an essentially unneeded source arising from the 98 ha current volumetric entitlement.  Thus the amount of 262 ML is again arrived at.   
  4. [16]
    The learned Member acknowledged that this was a conservative approach, but, he said, it was appropriate given the legislative considerations that he was compelled to take into account.

Regulatory scheme

  1. [17]
    There is a three tier regulatory regime applicable to water licences.  At the peak of the hierarchy is the Water Act.  The Act is implemented by the relevant water resource plan, in this case the Barron Plan.  Section 50(3)(a) of the Act provides that a water resource plan is subordinate legislation.  The Act also provides that the chief executive may prepare a resource operations plan to implement a water resource plan.[5]  The resource operations plan must not be inconsistent with the water resource plan.[6]  It appears that the resource operations plan is a statutory instrument.[7]  
  2. [18]
    Section 210(1) of the Act sets out the criteria which the chief executive must consider in deciding applications for water licences:

"210  Criteria for deciding application for water licence

  1. (1)
    In deciding whether to grant or refuse the application or the conditions for the water licence, the chief executive must consider the following -
  1. (a)
    the application and additional information given in relation to the application;
  1. (b)
    if notice of the application has been published - all properly made submissions made about the application;
  1. (c)
    any water resource plan, resource operations plan and wild river declaration that may apply to the licence;
  1. (d)
    existing water entitlements and authorities to take or interfere with water;
  1. (e)
    any information about the effects of taking, or interfering with, water on natural ecosystems;
  1. (f)
    any information about the effects of taking, or interfering with, water on the physical integrity of watercourses, lakes, springs or aquifers;
  1. (g)
    strategies and policies for the sustainable management of water in the area to which the application relates;
  1. (h)
    the sustainable resource management strategies and policies for the catchment, including any relevant coastal zone and regional aquifer systems;
  1. (i)
    the public interest.
  1. (2)
    The chief executive may also consider whether the applicant has been convicted of an offence against this Act, the repealed Act or an interstate law." (emphasis added)
  1. [19]
    Section 210(1)(c) requires the chief executive to consider, inter alia, any water resource plan and resource operations plan which may apply to the licence.  The Barron Plan provides in s 11(2):

"11  General outcomes

  1. (2)
    Both surface water and subartesian water are to be allocated and managed in a way that seeks to achieve a balance in the following outcomes -
  1. (a)
    to allow water to be used for the following -
  1. (i)
    agriculture;
  2. (ii)
    aquaculture
  3. (iii)
    industrial needs;
  4. (iv)
    small scale uses;
  5. (v)
    stock and domestic purposes;
  6. (vi)
    tourism and recreational uses;
  7. (vii)
    urban needs;
  1. (b)
    to provide for the continued use of all water entitlements and other authorisations to take or interfere with water;
  1. (c)
    to encourage the efficient use of water;
  1. (d)
    to maintain areas of significant tourism and recreational value, including the Barron Falls, Barron Gorge and Tinaroo Falls Dam;
  1. (e)
    to allow cultural use by Aboriginal or Torres Strait Islander communities;
  1. (f)
    to provide water to support natural ecosystems." (emphasis added)

Applicable Law

  1. [20]
    At the hearing before this Court, an issue arose as to the relevant date at which the statutory and regulatory provisions are to be applied.  This was important because the Barron Plan 2002 was amended, inter alia, by the Water Resource (Barron) Amendment Plan (No 1) 2009 which came into effect on 27 November 2009.[8]  The original ROP for the Barron catchment was approved on 16 June 2005 and amended on 16 October 2011 and 6 June 2013.  There were no relevant amendments to the Act. 
  2. [21]
    Section 210(1)(d) of the Act requires the chief executive, in deciding whether to grant or refuse a licence, to consider existing water entitlements and authorities to take or interfere with water. 
  3. [22]
    It is convenient to deal initially with the 2009 amendments to Part 6 of the Barron Plan.  The effect of the introduction of and amendments to the ROP will be considered later in this decision.  Prior to the 2009 amendments, the Plan relevantly provided:

"51 Decisions about taking subartesian water

  1. (1)
    This section applies to an application for or about a water licence to take or interfere with subartesian water if granting the application would have 1 or more of the following effects on subartesian water -
    1. (a)
      increase the volume of water taken or interfered with;
    2. (b)
      change the location from which water may be taken or interfered with;
    3. (c)
      change the conditions under which water may be taken.
  2. (2)
    In deciding the application, the chief executive must have regard to -
    1. (a)
      the availability of an alternative water supply for the purpose for which the water is required;  and
    2. (b)
      the efficiency of the proposed water use practices;  and
    3. (c)
      whether the proposed taking or interfering is likely to have a direct adverse effect on surface water flows;  and
    4. (d)
      the cumulative impact of taking or interfering with subartesian water on surface water flows and groundwater flows.
  3. (3)
    Subsection (2) does not limit the matters the chief executive may consider.

…

53 Restriction on annual volumetric limit

  1. (1)
    In deciding the annual volumetric limit for a licence granted after the commencement of the plan, the chief executive -
  1. (a)
    must have regard to the results of a bore pumping test;  and
  2. (b)
    must not decide a volume that is more than -
  1. (i)
    for a licence to take water for irrigation purposes -

(A) in the Atherton Subartesian Area - 5 ML for each hectare to be irrigated;  and

(B) in the Cairns Northern Beaches Subartesian Area - 1.75 ML for each hectare to be irrigated;  and

  1. (ii)
    for a licence to take water for another purpose - the volume estimated by the chief executive to be required for the purpose.
  1. (2)
    The chief executive must amend the licence to state the annual volumetric limit decided." (emphasis added)
  1. [23]
    Sections 51 and 53 are in Part 6 of the Barron Plan, which is headed "Strategies for achieving outcomes (subartesian water)". 
  2. [24]
    Following the 2009 amendments, s 53 of the Barron Plan now provides -

"53  Applications for subartesian management area B

  1. (1)
    This section applies if an application for or about a water licence to take subartesian water in subartesian management area B would increase the volume of subartesian water taken in the area. 
  1. (2)
    The chief executive must refuse the application.
  1. (3)
    This section is subject to section 54." (emphasis added)
  1. [25]
    However, the application of s 53 to pre-existing appeals is qualified by s 66 of the Barron Plan[9] which provides that:

"66  Appeals against particular decisions

  1. (1)
    Subsection (2) applies if -
  1. (a)
    before the commencement, an interested person has appealed under chapter 6 of the Act against a review decision to grant in part an application for or about a water licence that had the effect of increasing the volume of water taken in subartesian management area B;  and
  1. (b)
    the appeal has not been decided before the commencement.
  1. (2)
    For deciding the appeal, part 6 as in force immediately before the commencement continues to apply.
  1. (3)
    In this section -

commencement means the day this section commences."

  1. [26]
    The law to be applied by an appeal court depends on the nature of the appeal proceedings, which in turn depends on the statutory provisions which establish the right of appeal.
  2. [27]
    The right to appeal to this Court is conferred by s 64 of the Land Court Act 2000 which provides that a party to a proceeding may appeal to the Land Appeal Court against all or part of the decision of the Land Court.  Section 56 of the Land Court Act provides that an appeal to the Land Appeal Court must be decided on the evidence on the record of the proceeding in which the decision appealed against was made, although the Land Appeal Court may admit new evidence in limited circumstances.  Section 57 of the Land Court Act empowers the Land Appeal Court to do one more of the following:

"(a) suspend the operation of the Land Court's decision and remit the matter, with or without directions, to the court or tribunal that made the decision to act according to law; 

(b)affirm, amend, or revoke and substitute another order or decision for the order or decision appealed against; 

(c) make an order the Land Appeal Court considers appropriate."

  1. [28]
    The effect of these provisions is that an appeal to this Court is by way of re-hearing which, as there was no application to adduce new evidence in this case, is to be decided on the record of the proceedings in the Land Court.[10]
  2. [29]
    Although the Land Appeal Court may, by s 57(c) make an order it "considers appropriate", to succeed in an appeal of this nature, the appellants must ordinarily establish that the lower Court's decision resulted from factual, legal or discretionary error.[11]  In Coal and Allied Operations Pty Limited v Australia Industrial Relations Commission[12], the majority said -

"Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was an error on the part of the primary decision maker.  That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error."

  1. [30]
    On an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and the law as they stand.[13]  However senior counsel for the appellants submitted that the appellants had a vested right, pursuant to s 20(2)(b), (c) or (e) of the Acts Interpretation Act 1954 to have their application for a water licence determined in accordance with the law as at the date their application was received (17 February 2005).  Alternatively, it was submitted, the appellants had a right to have the application determined as at the date the notice of appeal to the Land Court was filed (23 March 2007).
  2. [31]
    Senior counsel for the respondent accepted that the effect of s 66 of the Barron Plan was that the prohibition in s 53(2) did not apply to these proceedings and the Land Court was required to decide the appeal under Part 6 of the Barron Plan as in force before 27 November 2009.  Further, the present appeal to the Land Appeal Court was also caught by s 66, even though s 66 is not in terms addressed to this appeal.  Counsel referred to McPherson J's judgment in Sunskill Investments Pty Ltd v Townsville Office Services Pty Ltd[14]:

"A right of appeal that exists when the proceedings are instituted is considered as inhering in the proceedings from commencement of the action, and so will not be affected by subsequent statutory restriction unless it is plain that the restriction is intended to have retrospective application."

Accordingly, counsel submitted, the facts and law at the date of decision (other than the current Part 6 of the Barron Plan) are to be applied and appellate intervention is only warranted if some error in the Land Court's decision is demonstrated.

  1. [32]
    As counsel for the appellants conceded, the application of the Acts Interpretation Act may be displaced, wholly or partly, by a contrary intention appearing in any Act.[15]  We consider that s 66 of the Barron Plan evinces such an intention.  Section 66 expressly preserves the right of the appellants to have their appeal decided in accordance with Part 6 of the Barron Plan as in force immediately before the commencement of the 2009 provisions and therefore this appeal is to be decided in accordance with Part 6 as it stood before the 2009 amendments.  

Grounds of appeal

  1. [33]
    The grounds of appeal were lengthy and are not set out in full here.  As summarised by Senior counsel for the appellant, the four core grounds of appeal are that the Land Court:
    1. Allowed extraneous and irrelevant matters to guide or affect the decision (Grounds 3, 5).
    2. Did not take into account material considerations and failed to give any weight to relevant considerations (Grounds 4 and 7).
    3. Thereby mistook the facts and concluded that the facts of the case were "in fact on all fours" with De Tournouer which was inconsistent with established facts or glaringly improbable (Ground 1).  
    4. Acted upon a wrong principle of law by applying De Tournouer's case when it was distinguishable and thereby misconstrued the requirements of ss 10, 205, 210 and 880 of the Water Act, the requirements of section 11 and 51 of the Barron Plan and the requirements of section 14 of the Barron Resource Operations Plan 2005 ("ROP") (grounds 1, 2 and 6).

Proposed Use of Water

  1. [34]
    Counsel for the appellants submitted that the Land Court had erred in law in determining, contrary to the unchallenged and uncontested evidence, that there was no statement or other indication by the appellants of the use which they proposed to make of any water granted as a result of the licence application.  Further, it was submitted the Court had erroneously interpreted a component of Mr Sutherland's evidence in isolation and without context, and by comparing extraneous matters contained in the report relating to the Williams' appeal.  The Court had allegedly placed unfair and unjustified emphasis on the application form and not given due regard to the supporting information as to the purpose for which the licence was sought and the proposed "efficient" use of the water. 

Whether sufficient information supplied

  1. [35]
    Sections 206(1) and (5)[16] of the Act provide that: 

"Applying for a water licence

  1. (1)
    An owner of a parcel of land, or the owners of contiguous parcels of land, may apply for a water licence for the parcel or parcels and any other land of the owner or owners contiguous to the parcel or parcels –

(a)for taking water and using the water on any of the land;  or

(b)to interfere with the flow of water on, under or adjoining any of the land.

…

  1. (2)
    The application must be - 

(a)made to the chief executive in the approved form;  and

(b)supported by sufficient information to enable the chief executive to decide the application;  and

(c)accompanied by the fee prescribed under a regulation." (emphasis added)

  1. [36]
    Section 207(1) provides: 

"207 Additional information may be required

  1. (1)
    The chief executive may require -
  1. (a)
    the applicant to give additional information about the application;  or
  1. (b)
    any information included in the application, or any additional information required under paragraph (a), to be verified by statutory declaration;  or
  1. (c)
    if notice of the application is published - any submitter to give additional information about the submission." (emphasis added)
  1. [37]
    Counsel for the respondent submitted that because s 51(2)(b) of the Barron Plan requires the chief executive to have regard to "the efficiency of the proposed water use practices" in deciding an application for a water licence to take subartesian water, there is a statutory onus on the applicant, in s 206(5), to support the application with sufficient information about “the efficiency of the proposed water use practices” to enable the chief executive to decide the application.  It is not enough, it was submitted, to describe the crops the subject of the proposed use of the water applied for, as the appellants did in their application form (Exhibit 3), as "pasture, corn and potatoes".  The appellants failed to complete the sections of the form requiring a description of the proposed area of land to be irrigated for each crop, the maximum weekly application of water per crop, the proposed maximum monthly volume and the time of year the water was required.  Without such information it would be difficult to know what water use practices were proposed, let alone consider whether they were efficient.
  2. [38]
    Section 210(1)(a) of the Act provides that, in deciding an application, the chief executive must consider the "application and additional information given in relation to the application".  Counsel for the appellants submitted that the evidence given in the Land Court was "additional information" which could properly be taken into account by the Land Court in determining the appeal. 
  3. [39]
    We do not accept the respondent's submission that the phrase "additional information" as used in s 210 is to be construed as referring only to any additional information required by the chief executive under s 207(1)(a).  The phrase "additional information" is not a technical phrase.  The context in which the words are used does not suggest they should be given other than their ordinary meaning.  The phrase is not limited in any way in s 210(1)(a)[17] and there is nothing in the Act as a whole to suggest that the phrase should be limited in the way contended for by the respondent. 
  4. [40]
    If an applicant for a water licence is to be confined to the information contained in the application form, we would expect the relevant legislation to so provide.  It does not.  Section 206(5)(b) of the Act does provide that the application must be "supported by sufficient information to enable the chief executive to decide the application" but the section does not say that that information must be supplied with or at the same time as the application.  Obviously it behoves an applicant to supply the necessary information before the chief executive makes a decision so that it is available to the chief executive at that time. 
  5. [41]
    We also consider that the nature of the appeal to the Land Court is relevant to this discussion.  The Act provides that, following an internal review process, an interested person may appeal, in relevant cases, to the Land Court.[18]  Section 880(2) of the Act provides that an appeal “is by way of rehearing, unaffected by the reviewer's decision”.
  6. [42]
    Counsel for the respondent correctly accepted that the effect of s 880(2) of the Act is that the appeal to the Land Court in this case was an appeal de novo.[19]  It is generally accepted that in an appeal de novo, the Court hears the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error.[20]  Consistently with that approach, fresh evidence was admitted by the Land Court which in part supplemented the information included in the water licence application form by the appellants. 
  7. [43]
    We also note that in De Tournouer, the Land Court[21] the Land Appeal Court[22] and the Court of Appeal[23] all took into account the additional evidence given on behalf of the appellant before the Land Court as to the proposed use of the water applied for.  Admittedly, this particular submission does not appear to have been raised in that case, but, if it is correct, it is surprising that it was not raised before any of the Courts given the course of that litigation.  In any event, it is clear that the Court of Appeal considered both the application and the evidence given before the Land Court.  For example, Fraser JA said:[24]

"None of that justified an inference that the water allocation would be efficiently used.  As I have mentioned, that topic was simply not addressed in any meaningful way in the application or in the evidence."  (emphasis added)

  1. [44]
    It follows that we consider that the whole of the evidence before the Land Court is available for consideration by this Court in this appeal. 

Consideration of evidence and findings

  1. [45]
    In support of his submission that the Land Court had erred in law in determining that there was no statement by the appellants of the proposed use of any allocated water, counsel for the appellant submitted that:
    • Part E (not Part F) of the appellants' application form did identify the purpose for which the water is to be used.  Part E had been completed by Mr Gallo by ticking the boxes, "domestic", "stock watering" and "irrigation" as proposed uses.  The licence issued by the chief executive similarly identified the "authorised purpose" as irrigation, stock, domestic supply.
    • Further, Exhibit 21 (Mr Sutherland's report) provided comprehensive evidence, by way of additional information, as to the proposed use of the water.  Counsel pointed to numerous examples, in Exhibit 21, of Mr Sutherland's use of the word "proposed" in relation to the use of the water.  He also pointed to such examples in the joint experts’ statement (appended to the report) and in Appendix 4 to Mr Sutherland's report - Crop Water Resource Plan ("CWRP").

 Counsel for the respondent submitted that:

  • The information required by Part F of the application form, which had largely been left blank by the appellants, was connected with the requirement in s 57(2)(b) of the Barron Plan to address the efficiency of the proposed water use practices.  Mr Sutherland's evidence did not assist because, as correctly characterised by the Land Court, Mr Sutherland's evidence was as to what could hypothetically or theoretically be produced.  It did not show the appellants' proposals as to the efficient water use at the time they made the application.
  • The appellants' failure to give evidence before the Land Court, in the face of the Court of Appeal decision in De Tournouer, allowed an inference to be drawn that -
  1. (a)
    the appellants had not developed proposed water use practices, as required by s 51(2)(b) of the Barron Plan;  and/or
  1. (b)
    the purpose of the application was to obtain close to the legally maximum use possible allocation of water, regardless of the efficiency of that use.
  • The appellants' focus on the "proposed" use of the water was incorrect.  The statutory test includes and requires an assessment of the efficiency of the proposed water use practices.
  1. [46]
    In De Tournouer, as in the present case, s 52(2)(b) of the Barron Plan meant it was incumbent upon the chief executive and in turn the Member in making the decision about the application to have regard to “the efficiency of the proposed water use practices”.  There are two elements to that consideration:

  i. the proposed water use practice,

  ii. the efficiency of that proposed water use practice. 

  1. [47]
    Information about both was missing in De Tournouer.  Here however there was evidence as to the efficiency of the water use practice.
  2. [48]
    In this case, as in De Tournouer, the appellants’ application form did not provide sufficient information about what water use practice was being proposed so as to allow regard to be had to its efficiency.  However unlike in De Tournouer the appellant advanced evidence before the Land Court of a water use practice and its efficiency.  That evidence consisted predominately of Mr Sutherland's report[25] and his oral testimony.  His report appended a CWRP[26] as well as a joint expert report prepared by Mr Sutherland and the respondent's expert Dr Watts.[27]  Mr Sutherland’s CWRP had been amended in consequence of his joint expert meeting with Dr Watts.  Dr Watts also gave evidence and a report by him was tendered.[28]  Setting to one side the question of whether the water use practice addressed by this body of evidence was “proposed” by the appellant, there is no doubt that there was comprehensive evidence before the Land Court of both a water use practice and its efficiency.
  3. [49]
    The problem perceived by the Member was that that water use practice was not the water use practice proposed by the application and that no water use practice had been proposed.
  4. [50]
    The learned Member appears to have perceived that without the requisite information being in the application form there needed at least to be direct evidence of a proposed water use practice given in the hearing before him.  His Honour said:

"It would have been a simple matter for the Gallo applicants to have properly completed Part F of their application.  They failed to do so.  It would have been a simple matter for those applicants to have provided direct evidence to the court as to their proposed use of allocated water.  They failed to do so.  Following the clear authority of the decision of the Court of Appeal in De Tournouer in virtually identical circumstances, I am left with no option but to dismiss the appellant Gallo’s appeal."[29] (emphasis added)

  1. [51]
    Once it is accepted, as we have and as the Member implicitly did, that the omissions in the form could be remedied by evidence at the hearing before the Member as to the applicants’ proposed water use practice there is no reason to limit the consideration of evidence relevant to that topic to “direct” evidence. 
  2. [52]
    In De Tournouer there was no evidence of the efficiency of a particular water use practice.  Nor could it be inferred that a particular water use practice was “proposed” by the applicant because the applicants had adduced inconsistent evidence as to what was proposed.  The applicants in this case advanced evidence about the efficiency of a water use practice at the hearing before the Member.  Why should it not be inferred as a fact from all of the circumstances that the appellants were proposing that water use practice for the application?  Why would the appellants need to give direct evidence of what they were proposing for it to be regarded as their proposal, when the entire conduct of their case indicated, by implication, that that was the water use practice they were proposing?  What relevance did the water use practice proposed by the expert evidence of Mr Sutherland have, if it were not the water use practice the appellants were advancing for the purposes of their application?
  3. [53]
    A consideration arguably detracting from the inference that the appellants were proposing the water use practice canvassed by the experts is that the appellants advanced their case in the alternative.  On the one hand they continued to seek the maximum possible water allocation, essentially on equity grounds built on comparable past treatment of applicants.  However their clear position remained that they ought, on any view, be granted a lesser allocation supported by the comprehensive evidence of the water use practice canvassed by the expert evidence.  If the appellants were, as a matter of fact, proposing the water use practice canvassed at length in the expert evidence before the court, then it would be inconsistent with this court’s obligation to act according to equity, good conscience and the substantial merits of the case[30], to disregard it as constituting the proposal merely because the appellants also sought to maintain an alternative argument that would give them a greater allocation than that supported by the proposal.
  4. [54]
    A consideration the learned Member regarded as weighing significantly against the appellants was that in Mr Sutherland’s report, in referring to the irrigated cropping regime for the appellants’ property, he at one point spoke of it as being what was “anticipated.”  He contrasted that with Mr Sutherland’s use of the word “proposed” in a similar context in respect of the Williams application.  He regarded the use of the word “proposed” as distinct from merely “anticipated” as demonstrating a purposeful intent in respect of the Williams application.[31] 
  5. [55]
    The learned Member regarded the different choice of words as deliberate and significant but the broader content of Mr Sutherland’s report suggested to the contrary.  In his report, Mr Sutherland used the word “proposed” on a variety of occasions in referring to the water use practice for the appellants.  For instance, the passage emphasised by the learned Member where the word “anticipated” was used is itself found under a sub heading “4.2 Proposed land use” which is in turn under a major sub heading “4) Proposed farm program and layout”[32] (emphasis added).  By way of further example he also said:
    • “For each appellant I prepared detailed CWRP's which entailed a thorough review of the proposed farm and irrigation practices, assessed the land form and soils, addressed water use efficiency, environmental risk and detailed monitoring and reporting programs to manage those risks.”[33]
  • “...the CWRP assesses the merits of the proposed additional irrigation of farming land …”[34]
  • “The plan demonstrates the proposed additional irrigation of the farming land described herein would not result in land or water quality degradation on or off farm”[35]
  • “The objectives in preparing the following CWRP… were to:
  • Review the proposed farming and irrigation practices.
  • Outline the proposed uses for additional irrigation of water. …”[36]
  • “The proposed cropping cycle for the high production intensity irrigation area represents an allocation of 57ha to late potatoes, 26.6ha to maize for the dairy harvestor ® and 86ha to ryegrass/clover pastures.”[37]
  • “The crop water resource plan prepared for the site demonstrates that the proposed irrigation regime and farm management practices will use any ground water allocation to increase agricultural production without impacting on the receiving environment.  Further, this plan describes principles that will ensure that allocated ground water resource in an efficient and a sustainable manner in agricultural and environmental terms.”[38] (emphasis added).
  1. [56]
    Read as a whole Mr Sutherland’s report carries the obvious implication that the water use practices outlined therein in respect of the Gallo property are the water use practices which were proposed in respect of the Gallo’s appeal before the Land Court.  Further, as the above examples demonstrate, those water use practices were also expressly described as being “proposed”.  On the face of it this was direct evidence as to what was proposed. 
  2. [57]
    This evidence would arguably have been open to objection to receipt as hearsay evidence as to what was proposed by the appellants’ but no such objection was taken.  Nor was it put to Mr Sutherland when he gave evidence that the water use practices canvassed by him as proposed were not proposed.  That is unremarkable.  The respondents plainly understood the water use practises canvassed by Mr Sutherland, as well as by their own witness Dr Watts, were the water use practices which were being proposed. 
  3. [58]
    The joint expert report, to which Dr Watts was party, referred repeatedly to the "proposed irrigation area" and to the "land use proposals."[39]  Further in Dr Watts own report he had been instructed by Crown Law (who acted for the respondents) "to evaluate, inter alia, the efficiency of the appellants proposed water use practices."[40]  His report went on to indicate by way of background that he and Mr Sutherland were acting "as expert witness on the issue of the efficiency of the proposed water use practices associated with the licence applications as this is a criterion to be considered when deciding the licence."[41]  His subsequent analysis of the Gallo crop water use plan was replete with references to what was "proposed."[42]
  4. [59]
    Against this background, the fact that the appellants did not give evidence from their own mouths as to what was proposed is of no material consequence.  The position might arguably have been different had the respondents mounted a challenge at the hearing to the direct and indirect evidence of Mr Sutherland that the water use practice canvassed at length by him was the proposed water use practice for the purposes of the Gallo application.  However, even if that had occurred, it is doubtful that the absence of any of the individual appellants from the witness box could have supported an inference that their uncalled evidence would not have assisted in indicating what water use practice they were proposing for the purpose of the application.[43]  That is because the obvious inference arising from the fact that their own legal representatives had advanced Mr Sutherland’s evidence about a proposed water use practice at the hearing is that was the water use practice the appellants were proposing.
  5. [60]
    In our view the nature of Mr Sutherland’s evidence about the proposed water use practice and the context in which it was advanced on the appellants’ case compels the conclusion that was the water use practice proposed by the appellants for the purpose of the application.  The learned Member therefore erred in dismissing the appeal for want of evidence as to the appellants’ proposed water use practice.  The appellants were entitled to a determination of their application and the making of an appropriate allocation with regard being had, inter alia, to the efficiency of their proposed water use practice. 

Volume of water

  1. [61]
    Mr Sullivan and Dr Watts agreed that the available irrigable area of land was 276.6 ha and that the maximum peak irrigation rate would be 4.7 ML per hectare.  This would equate to a total annual volume of 1300.02 ML which appears to have been rounded to 1303 ML. 
  2. [62]
    However there are two existing licences benefiting the subject land, a 98 ha surface irrigation allocation and a groundwater licence 183639 (expired 31/7/12) authorising the taking of 61 ML/year. 
  3. [63]
    The parties do not agree as to how those two licences should be taken into account in determining the current application. 

Existing surface water entitlement

  1. [64]
    As set out above[44] the learned Member accepted the respondent's submission that, in accordance with s 45(2)(b)(ii) of the Barron Plan, the appellants' current surface water entitlement over 98 ha equated to a volumetric entitlement of 980 ML/year.  Accordingly he deducted 980 ML from the notional allocation of 1303 ML/year.[45]
  2. [65]
    Mr Sutherland allowed for this entitlement by deducting 98 ha from the total irrigable area of 276.6 ha to leave a balance irrigation area of 178.6 ha.  He applied the agreed rate of 4.7 ML to that area to determine the volume of water to be allocated : 178.6 x 4.7 = 839.42 ML, rounded to 813 ML.
  3. [66]
    The appellants submitted that the Court had erred in deducting 980 ML because, inconsistently with the practice and policy of the Department, the Court had converted and deducted a hectare based licence according to its maximum volume of water, rather than applying a conversion rate of 5 ML/ha or 490 ML.
  4. [67]
    The Barron Plan originally came into effect on 20 December 2002 and has been amended on three occasions since that date.  Relevantly, as at the date of application for the water licence (17 February 2005) and the date the notice of appeal to the Land Court was filed (23 March 2007), s 45(2)(b)(ii) provided that the annual volumetric limit for a licence that states the area that may be irrigated was the volume decided by the chief executive having regard to the volume of water required to efficiently irrigate the area, but not more than the volume, expressed in megalitres, calculated by multiplying the area in hectares by 6.6 for subcatchment area C[46], where the appellants land is located. 
  5. [68]
    As at the date of the Land Court hearing and decision the relevant conversion rate in s 45(2)(b)(ii) was 10.[47]  The learned Member applied a conversion rate of 10. 
  6. [69]
    The provisions of the ROP are also relevant to this issue.  The original ROP was approved on 16 June 2005.  It was not, therefore, in force at the date of the water licence application.  The 2005 ROP did not contain any provisions dealing with surface water entitlements in subcatchment area C. 
  7. [70]
    As at the date of the Land Court hearing,[48] the 2005 ROP had not been amended.  However, at the date the Land Court decision was handed down[49] the ROP had been amended, on 16 October 2011.[50]  Relevantly, the effect of the amendments was that s 52, Part 1, Chapter 3 provided that: 

"This part sets out the rules for converting existing water authorisations and the granting of unsupplemented water allocations in accordance with the schedule of water allocations in attachment 8."

  1. [71]
    Attachment 8 identifies five water licences in the names of the appellants, being licence numbers 175046, 56790K, 175034, 03046K, 56792K.  These are the five licences that together constitute the appellants surface water entitlement over 98 ha.  The effect of the 2011 ROP is, therefore, that the appellants' surface water licences were converted to water allocations. 
  2. [72]
    Section 53 of the 2011 ROP provides:

"The water authorisations must be converted to water allocations as follows -

  1. (e)
    the annual volumetric limit for the water allocation must be in accordance with section 39 of the Water Resource (Barron) Plan 2002."
  1. [73]
    Section 39(b) of the Barron Plan[51] provides that:

"The annual volumetric limit for a water allocation to take unsupplemented water is -

  1. (b)
    for an authorisation that states the area that may be irrigated - the volume, expressed in megalitres, calculated by multiplying the area, in hectares, by 10;"
  1. [74]
    Consistently with s 39(b), Attachment 8 to the 2011 ROP provides a volumetric limit for each of the converted surface water licences as follows -  

Licence No.Volumetric Limit

175046Not greater than 120 ML/year

56790KNot greater than 250 ML/year

175034Not greater than 250 ML/year

03046KNot greater than 80 ML/year

56792KNot greater than 280 ML/year

  1. [75]
    The total volume available under the converted licences is 980 ML.
  2. [76]
    Counsel for the appellants submitted that instead of applying the maximum conversion rate, the Land Court should have applied a rate of 5 ML/ha consistently with departmental practice.  However, the relevant conversion rate in the ROP and the Barron Plan cannot be ignored.  This is because s 210 (1)(c) of the Act mandates that the chief executive “must” consider any water resource plan and resource operations plan in deciding whether to grant or refuse an application or in deciding any conditions for the licence.
  3. [77]
    It can be seen that the relevant conversion rate in s 39 of the Barron Plan has the potential to materially affect the volumetric conditions for the licence. The relevant conversion rate in s 45(2)(b)(ii) the Barron Plan as at the filing of the water licence applications and the notice of appeal to the Land Court was 6.6.[52]  It was still 6.6 at the time of the hearing in the Land Court.[53]  However it had increased to 10 at the date of the decision of the Land Court by operation of the 2011 ROP and s 39(b) of the Barron Plan as explained above.[54]  It is still 10.  Which rate should be applied for the purposed of determining the outcome of this appeal?
  4. [78]
    For reasons already explained, the usual approach in the case of a hearing de novo required the decision below to be based on the law as it stood at the time of the decision.  That required the application of a conversion rate of 10 at the time of the learned Member's decision below.  In the present context no issue arises as to the consequence of any variation between then and now because there has been no variation.  The conversion rate remains 10. The issue is whether there should be a departure from the usual approach so as to apply the conversion rate of 6.6, or 5 as submitted by the appellants, which was the prevailing rate at the time of the application and hearing below but not at the time of the decision below. 
  5. [79]
    The argument in support of such a departure is "rights" based.  In effect it is that if an application for a water licence is successful the applicant has a right to a water licence conditioned according to the system in place at the time the licence was applied for. Such an argument relies upon the application of s 20 of the Acts Interpretation Act 1954 (Qld) which relevantly provides:

"20  Saving of operation of repealed Act etc.

…

(2) The repeal or amendment of an Act does not -  …

(c) affect a right, privilege or liability acquired, accrued or incurred under the Act; or …

(e) affect an investigation, proceeding or remedy in relation  to a right, privilege, liability or penalty mentioned in               paragraph (c) or (d).

(3) The investigation, proceeding or remedy may be started, continued or completed, and the right, privilege or liability may be enforced and the penalty imposed, as if the repeal or amendment had not happened."

  1. [80]
    That provision applies to the ROP.[55]  If an applicant for a licence has any arguable entitlement in the context of s 20 it would likely be characterised as a right rather than a privilege. What though is the “right” relied upon?  It may be accepted for present purposes that an applicant for a licence has a right to a decision on the application, a right to review of it and a right to appeal to the Land Court about it.[56]  These processes of decision, review and appeal are all accorded to applicants under the Act.  But it does not follow that in the exercise of a "right" of appeal a disappointed applicant can be said to have a "right" to the continued application of the same procedural provisions that would or should have informed the calculation of volumetric conditions which could have been imposed as part of the making of the initial decision. 
  2. [81]
    The consideration of an application for a water licence involves the application of a variety of discretionary considerations pursuant to s 210 of the Act.  However, an obligation upon the decision-maker to have regard to those considerations does not confer a right in the applicant to have those considerations remain static, to be assessed as they stood at the moment of the application.  The fact that a decision maker is entitled to seek further information after the making of the application is inconsistent with the applicant having such a right. 
  3. [82]
    The language of s 210 of the Act is also inconsistent with such a right.  The change of conversion rate occurred between the hearing in the Land Court and the decision of the Land Court.  The learned Member was in effect deciding the matter, for the purposes of s 210, as if he were the chief executive.  Section 210 therefore required the Member, "in deciding" whether to grant or refuse the application and in deciding the conditions for the licence, to consider "any water resource plan, [and] resource operations plan that may apply to the licence".  On the face of it the water resource plan, which "may apply to the licence" for the purposes of determining the volumetric conditions of the licence, would be that which applied at the time of the making of the decision as to the licence conditions. This is because the time of the decision is the point in time when the licence and the conditions therein would be directed to be granted.  That is, it is the conversion rate in the ROP at the time of the making of the decision about the licence conditions rather than at the time of the hearing or earlier that is prima facie relevant.  
  4. [83]
    The purposive approach to statutory construction, encapsulated by s 14 of the Acts Interpretation Act 1954, does not suggest a different conclusion.  To the contrary, applying a past rather than current conversion rate in determining the conditions of a licence to be issued would be at odds with the purpose, identified at s 10 of the Act, of advancing sustainable management and efficient use of water and other resources by establishing a system for the planning, allocation and use of water.  It is in the nature of any system concerned with the sustainable management and efficient use of a natural resource that it may be modified from time to time to enhance sustainability and efficiency.  Such a system is unlikely to be effective if variations that have been made to it are not implemented when licences relating to the future use of the resource are being issued.  In short, the Act's systemic approach to sustainable management and efficient use of water is at odds with the existence of a right to a water licence conditioned upon superseded conversion rates.
  5. [84]
    For all of these reasons the appellants do not have a right to the application of the conversion rate of 6.6 (or 5) that was in existence as at the time of the application or hearing below.  It is the current conversion rate of 10 that should be applied.

Existing groundwater entitlement

  1. [85]
    The evidence was that the water licence was to benefit the following lots - 

Lot 1 RP 71953426.128 ha

Lot 169 SP 12469946.3372 ha

Lot 50 NR 800959  9.372 ha

Lot 210 NR 80095820.871 ha

Lot 208 SP 11617864.6585 ha

Lot 207 SP 11617826.49 ha

Lot 215 RP 80484744.991 ha

Lot 1 NR 80484650.318 ha

Lot 219 N 15717865.559 ha

  1. [86]
    Groundwater licence 183639 authorises the taking of 61ML/year.  That licence is attached to Lot 3 on SP 177333, Lot 1 on RP 719534, Lot 169 on SP 124699, Lot 210 on NR 800958, Lot 208 on SP 116178, Lot 207 on SP 116178, Lot 48 on SP 116178, Lot 48 on SP 188685, and Lot 1 on NR 804846.  It is apparent that six of those lots (Lot 1 on RP 719534, Lot 169 on SP 124699. Lot 210 on NR 800958, Lot 208 on SP 116178, Lot 207 on SP 116178 and Lot 1 on NR 804846 with a total area of 234.8027 ha) are also part of the land for which the subject water licence is sought. 
  2. [87]
    The licensees named in licence 183639 are John Peter Gallo and Linda Cherie Gallo.
  3. [88]
    The activity authorised by licence 183639 is the taking of underground water from Atherton Basalt under land described as Lot 3 on SP 177333.  Counsel for the appellants said that Lot 3 is owned by John Peter Gallo and Linda Cherie Gallo.  John Peter Gallo is one of the appellants in this matter;  Linda Cherie Gallo is not.
  4. [89]
    Counsel for the appellants submitted that it was inappropriate to count the allocation under the licence as available to the appellants' land when the licence is in different ownership and is applicable to a different area.  To treat the allocation as a reason for reducing the allocation under the application before the Court is to give with one hand and take with the other, contrary to the decision in Heslin v Director-General, Department of Environment and Resource Management.[57] 
  5. [90]
    Counsel for the respondent submitted that the proposed deduction recognized the 61 ML as something capable of applying to the appellants' land and recognized that the effect of the deduction would be to avoid doubling up or the over-allocation of water.
  6. [91]
    In a supplementary outline of submissions, counsel for the respondent advised that, after the hearing in the Land Court, licence 183639 was subdivided in 2011.  The effect of the subdivision is that only 5 ML is allocated to land other than the subject.  An amount of 56 ML is allocated to 7 lots, including lots which are included in the subject land.  Accordingly, the respondent accepted that the appropriate deduction should be 56 ML not 61 ML. 
  7. [92]
    Counsel for the appellants objected to this information, although he subsequently conceded that it was factually correct.
  8. [93]
    Section 56 of the Land Court Act provides:

"56 Evidence admissible on appeal

(1) An appeal in the Land Appeal Court must be decided on the evidence on the record of the proceeding in which the decision appealed against was made.

(2) However, the court may admit new evidence if

  1. (a)
    the court is satisfied admission of further evidence is necessary to avoid grave injustice;  and
  1. (b)
    the party applying to have further evidence admitted gives the court an adequate reason for the evidence not previously being given; and
  1. (c)
    application to have further evidence admitted is made before the hearing of the appeal."
  1. [94]
    The information about the subdivision of licence 183639 was not part of the evidence heard by the Land Court and no application was made to the Court under s 56(2) for the admission of new evidence.
  2. [95]
    We consider that it is appropriate to take account of this information in determining the allocation to be granted to the appellants. 
  3. [96]
    Section 210(1)(c) of the Act requires the chief executive, in deciding whether to grant a water licence, to consider existing water entitlements and authorities to take or interfere with water.  As Fraser JA noted, in De Tournouer v Chief Executive, Department of Environment and Resource Management,[58] it is mandatory that the chief executive consider all the specified criteria in s 210.  Further, McMeekin J said, in the same case, that it is self evident that the legislature is concerned with the proper allocation of a scarce resource.[59] 
  4. [97]
    The new information does not affect the substance of the issue, that is, whether licence 183639 should be allowed for in determining the appropriate allocation to the appellants.  Even in the absence of the new information, our conclusion is that the licence must be taken into account.  As the new information goes only to the volume to be granted, we consider it should be taken into account in order to allocate a scarce resource appropriately. 
  5. [98]
    Accordingly, the volume of water to be allocated is 267 ML calculated by deducting from 1303 ML, 980 ML for the surface water entitlement and 56 ML for groundwater licence 183639.

Conclusions

  1. [99]
    It follows from what has been said that the appeal should be allowed and the respondent be directed to issue a licence to the appellants to take 267 ML per annum.
  2. [100]
    The learned Member below considered the evidence before him concerning hydro-geological issues.  His conclusions are set out at [41] to [50] of his reasons for judgment.[60]  The learned Member discussed whether the impacts that would ensue if a bore and pump were placed into the aquifer as proposed by the appellants before him, Messrs Gallo and Williams, would be acceptable to the long term management of the water resources in Area B or whether the grant of either or both licence applications would put Area B under an [un]acceptable level of stress.[61]  The learned Member was satisfied that there is some interconnection between the aquifers from which the water will be drawn and the surface waters in the immediate vicinity.  However, he was not satisfied as to the extent of any such inter-connectivity which, he said, remained a matter of scientific doubt.  However, he said, the scientific doubt was not such as to preclude the making of a decision favourable to the appellants.[62]  The learned Member concluded that the doubts due to the scientific uncertainty as regards the hydro-geological evidence could be met by the institution of an appropriate groundwater and surface monitoring program as suggested by Mr Smith.[63] 
  3. [101]
    Accordingly, the learned Member directed in the Williams appeal, that the licence to be issued was to be subject to appropriate conditions as to the monitoring and management of the licence.  He ordered Williams and the respondent to meet and seek to negotiate agreed conditions of the licence within 28 days, and if they were unable to reach agreement the matter to be listed for further review and directions.
  4. [102]
    Consistently with the findings and orders of the learned Member, we consider that similar orders should be made in this appeal.  However, if the parties are unable to reach agreement as to the appropriate conditions, we consider that it is appropriate to remit the matter to the Land Court to determine that issue.  We also note that s 213(1)(a) of the Act requires that a water licence must state the term of the licence.  Accordingly, our orders require that the term of the licence be agreed and, if the parties cannot reach agreement, that issue is also to be remitted to the Land Court.  

Mr Evans:

Introduction

  1. [103]
    Filomena Gallo, Francesco Ralph Gallo and John Peter Gallo (the appellants) have appealed to this Court pursuant to s 64 of the Land Court Act 2000 from a decision of the Land Court dismissing their appeal under s 877 of the Water Act 2000 ("the Act") against a "review decision" made by the respondent confirming an earlier decision of the respondent made on the appellants’ application for a water licence.
  2. [104]
    The appellants are the owners of certain rural land situated on the Atherton Tablelands.  On 17 February 2005 they applied under s 206(1) of the Act to the respondent for a water licence to take 990 MLs of water per year for irrigation purposes (Ex 3 - Application 96533).  This application superseded a previous application made on 11 January 1999.  On 9 November 2006 the respondent, by its delegate, allowed the application to the extent of 130 MLs per water year.  The authorised purpose was for “irrigation, stock, domestic supply.”  Water licence 400431 was issued in accordance with that decision.  It was stated to attach to Lot 1 on RP 719534, Lot 169 on SP 124699, Lot 50 on NR 800959, Lot 210 on NR 800958, Lot 208 on SP 116178, Lot 207 on SP 116178, Lot 215 on RP 804847, Lot 1 on NR 804846, and Lot 219 on N157178.  The decision granting the application, in part, was made under s 211 of the Act.  By s 211(3) the respondent was obliged to give the appellants an “information notice”.  That was done. By s 211(5) the licence had effect from the day the information notice was given to the appellants.  The licence, as granted, was subject to certain conditions.  The licence permitted the taking of underground water from Atherton Basalt under land described as Lot 1 on NR804846 and Lot 219 on N157178.  
  3. [105]
    On 19 December 2006 the respondent received an application for internal review of the original decision made on 9 November 2006.  The appellants, being persons who had been given an information notice by the respondent under s 211(3) were "interested persons" within the meaning of s 851(1) and accordingly could apply for internal review of the original decision by reason of s 862.
  4. [106]
    On 13 February 2007 the respondent, by its delegate (being a different delegate to the one who had dealt with the original application) decided under s 864(2) to confirm the original decision.  This decision was notified to the appellants in a letter dated 14 February 2007.
  5. [107]
    By s 877, the appellants were given a right of appeal to the Land Court.
  6. [108]
    Section 877 relevantly provided:

"877  Who may appeal or apply for external review

(1) If an interested person has applied for an internal review of an original decision, any interested person for the original decision may appeal against or apply for a review of the review decision to—

…

  1. (b)
    if the review decision was about an original decision or action mentioned in section 851(1), other than the giving of a compliance notice – the Land Court..”
  1. [109]
    The appellants exercised that right.  Their appeal was dismissed.  By s 880:

"880  Hearing procedures

(1) The procedure for an appeal must be in accordance with the rules of court applicable to the appeal or, if the rules make no provision or insufficient provision, in accordance with directions of the judge.

(2) An appeal is by way of rehearing, unaffected by the reviewer’s decision."

  1. [110]
    By s 881 the Land Court was given power to appoint an assessor or assessors as follows:

"881  Assessors

If the judge or member hearing an appeal is satisfied the appeal involves a question of special knowledge and skill, the judge or member may appoint 1 or more assessors to help the judge or member in deciding the appeal."

  1. [111]
    The learned Member who heard the appeal sat alone without any assessor.
  2. [112]
    By s 882 the Land Court was given powers as follows:

"882 Powers of court on appeal

(1) In deciding an appeal, the court may—

  1. (a)
    confirm the review decision;  or
  1. (b)
    set aside the review decision;  or
  1. (c)
    amend the review decision in the way the court considers appropriate;  or
  1. (d)
    send the matter back to the reviewer and give the directions the court considers appropriate;  or
  1. (e)
    set aside the review decision and substitute it with a decision the court considers appropriate.

(2) If the court amends the review decision or substitutes another decision for the review decision, the amended or substituted decision is, for this Act (other than this part) taken to be the reviewer’s decision.

(3) Each party to the appeal must bear the party’s own costs for the appeal.

(4) However, the court may order costs for the appeal, including allowances to witnesses attending for giving evidence at the appeal, as it considers appropriate in the following circumstances—

  1. (a)
    the court considers the appeal was started merely to delay or obstruct;
  1. (b)
    the court considers the appeal, or part of the appeal, to have been frivolous or vexatious;
  1. (c)
    a party has not been given reasonable notice of intention to apply for an adjournment of the appeal;
  1. (d)
    a party has incurred costs because the party is required to apply for an adjournment because of the conduct of another party;
  1. (e)
    a party has incurred costs because another party has defaulted in the court’s procedural requirements;
  1. (f)
    without limiting paragraph (d), a party has incurred costs because another party has introduced, or sought to introduce, new material;
  1. (g)
    a party to the appeal does not properly discharge its responsibilities in the appeal.

(5) If the court makes an order under subsection (4), the court may also order the party ordered to pay costs under subsection (4) to pay to the other party an amount as compensation for loss or damage suffered by the other party because of the appeal if the court considers -

  1. (a)
    the appeal was started merely to delay or obstruct;  or
  1. (b)
    the appeal, or part of the appeal, to have been frivolous or vexatious."
  1. [113]
    The only order made on the appeal concerning the appellants was that the appeal was dismissed.  This was, in effect, an order confirming the review decision.
  2. [114]
    The appeal to this Court is not sourced in the Act but is conferred by s 54 and 64 of the Land Court Act 2000.  Section 64 provides:

"64  Right of appeal to Land Appeal Court

A party to a proceeding in the Land Court may appeal to the Land Appeal Court against all or part of the decision of the Land Court."

  1. [115]
    Sections 54 to 57 of the Land Court Act provide:

"54  Jurisdiction of Land Appeal Court

The Land Appeal Court has the jurisdiction given to it under this Act or another Act.

55 Land Appeal Court to be guided by equity and good conscience

In the exercise of its jurisdiction, the Land Appeal Court -

  1. (a)
    is not bound by the rules of evidence and may inform itself in the way it considers appropriate;  and
  1. (b)
    must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts.

56  Evidence admissible on appeal

(1) An appeal in the Land Appeal Court must be decided on the evidence on the record of the proceeding in which the decision appealed against was made.

(2) However, the court may admit new evidence if—

  1. (a)
    the court is satisfied admission of further evidence is necessary to avoid grave injustice;  and
  1. (b)
    the party applying to have further evidence admitted gives the court an adequate reason for the evidence not previously being given;  and
  1. (c)
    application to have further evidence admitted is made before the hearing of the appeal.

57  Powers of Land Appeal Court

The Land Appeal Court may do 1 or more of the following—

  1. (a)
    suspend the operation of the decision and remit the matter, with or without directions, to the court or tribunal that made the decision to act according to law;
  1. (b)
    affirm, amend, or revoke and substitute another order or decision for the order or decision appealed against;
  1. (c)
    make an order the Land Appeal Court considers appropriate."
  1. [116]
    Section 49A of the Acts Interpretation Act 1954 provides:

"49 A Jurisdiction of courts and tribunals

If a provision of an Act, whether expressly or by implication, authorises a proceeding to be instituted in a particular court or tribunal in relation to a matter, the provision is taken to confer jurisdiction in the matter on the court or tribunal."

  1. [117]
    Before the Court commenced hearing argument in the appeal, the Court pointed out the provisions of s 56 of the Land Court Act to the parties.  The appellants had objected to certain matters referred in the written supplementary outline of argument of the respondent, which had been provided to the Court prior to the hearing of the appeal.  No application to adduce further evidence was made prior to the Court embarking on the hearing of the appeal.[64]  In their amended notice of appeal to this Court, the appellants have sought an increase in the allocation allowed by the respondent in the original decision from 130 ML per water year to 813 ML per water year. 

The hearing of the Appeal in the Land Court and its nature

  1. [118]
    The appeal to the Land Court was heard jointly with another appeal by other landowners (“the Williams”) who were dissatisfied with a similar review decision of the respondent confirming the issue of a water licence to those applicants at a lower level than what they sought.  Unlike the present appellants, the Williams applicants succeeded in their appeal to the Land Court in increasing the water allocation sought to 515ML per year from 80ML per year.  The Williams original application had sought 750 ML per year.
  2. [119]
    The appeal below proceeded in accordance with s 880(2) of the Water Act with, inter alia, extensive expert evidence being led which had not been before the original decision-maker at the time the decision to issue the water licence was applied for, and made.  The jointly-heard appeals occupied several sittings days with written submissions being made later at different times. 
  3. [120]
    In Victorian Stevedoring and General Contracting Co Pty Ltd and Dignan v Meakes[65], Gavan Duffy and Starke JJ explained:

"Appeal” is used in more senses than one: it is a process which may subject (1) the whole matter for rehearing; (2) a question of law only, for review; (3) the facts as well as the law for review – that is, whether the order of the tribunal from which the appeal is brought was right, on the materials it had before it. Orders nisi to review belong to the third type of description of appeals." 

  1. [121]
    In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd[66] Mason J explained[67]:

“An appeal is not a common law proceeding. It is a remedy given by statute…Upon an appeal stricto sensu the question considered is whether the judgment complained of was right when given…, that is, whether the order appealed from was right on the material the lower court had before it.

An appeal stricto sensu is to be distinguished from an appeal by way of rehearing of which the most notable example has been the appeal to the English Court of Appeal provided for the by the Supreme Court of Judiciature Act 1873 (U.K.), ss 18-19 and the Rules of Procedure contained in the Schedule to the Act of 1875.  It was provided that the appeal should be by way of rehearing and that the court should have power to take fresh evidence and draw inferences of fact (see O58, rr 1, 4).  The appeal had its origin in the jurisdiction of the Court of Appeal in Chancery established by 14 & 15 to rehear cases determined in Chancery.  This appeal by way of rehearing involves rehearing of the cause at the date of the appeal, that is “by trial over again on the evidence used in the court below, but there is special power to receive further evidence” (Re Chennell Jones v Chennell (1878) 8 Ch D 492 at 504).  On such an appeal the rights of the parties must be determined by reference to the circumstances as they then exist and by reference to the law as it then exists; the appellate court may give such judgment as ought to be given if the case at that time came before the court of first instance. But this appeal by way of rehearing did not call for a fresh hearing or hearing de novo; the court does not hear the witnesses again: See generally the Victorian Stevedoring Case (46 CLR at 107-9): Da Costa v Cockburn Salvage & Trading Pty Ltd (1971) 124 CLR 192 at 208).

It was observed by Viscount Sankey LC in Powell v Steatham Manor Nursing Homes [1935] AC 243 at 249 that “There are different meanings to be attached to the word “rehearing”. The appeal to Quarter Session in New South Wales is frequently described as a rehearing although the Justices Act 1902 (NSW) as amended contains no specific provision to that effect. In truth, the appeal to Quarter Sessions is most aptly described as a hearing de novo because, even if it be the defendant who appeals, the informant or complainant starts again and has to make out his case and call his witnesses. The appeal to Quarter Sessions is the outcome of historical development and its only utility for present purposes is that it provides an illustration of what is in truth a hearing de novo, although as I have said, it is frequently described as a rehearing.

Another illustration of a similar kind is furnished by Phillips v Commonwealth (1964) 110 CLR 347. Section 20(1) of the Compensation Employees Compensation Act 1930-1956 (Cth) provided that a person affected by a determination of the Commissioner might appeal to the County Court against the determination and the court should have jurisdiction to hear and determine the appeal. The section went on to say “such appeal may be in the nature of a rehearing”. Of the sub-section the court had this to say (at 350):

“…the form of proceeding for which the sub-section provides is not an appeal in the strict sense at all. What the section does is to provide for the judicial review of administrative decisions of a particular character and upon such review it is, we think, for the Court to pronounce anew upon the rights of the parties as disclosed by the evidence before it.”

In so saying the court was expressing the view, which accords with the accepted practice, that there is a hearing de novo before the County Court, the nature of the proceeding before the Commissioner not lending itself to an appeal to which the County Court could be confined to the materials before the Commissioner or his delegate.”

  1. [122]
    In Re Schubert,[68] the Full Court of the Supreme Court of Queensland was concerned with s 19 of the Radioactive Substances Act 1958 which provided, inter alia, for an appeal against the refusal of the Minister to grant a certain type of licence.  The appeal was to be to “a judge of the Supreme Court sitting in Court” and by s 19(3) was to be “by way of rehearing”.  Notwithstanding that the section did not expressly say the appeal was to be “by way of rehearing de novo” the Full Court held that that was the nature of the appeal[69].  Williams J (with whom Kelly ACJ and Matthews J agreed) applied the High Court’s decision in Builders’ Licensing Board v Sperway Constructions (Syd) Pty Ltd[70] dealing with New South Wales legislation which had conferred a right of appeal “by way of rehearing” to the District Court of New South Wales against a decision of the Licensing Board to cancel or suspend a licence after the holding of an inquiry. In that case the High Court held the appeal was by way of rehearing de novo.
  2. [123]
    Mason J in Builders’ Licensing Board v Sperway Constructions (Syd) Pty Ltd[71]  after referring to Phillips v Commonwealth,[72] (as extracted above) made these observations (which were applied by the Full Court in Re Schubert):

“Where a right of appeal is given to a Court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the Court will undertake a hearing de novo, although there is no absolute rule to this effect… There are, of course, sound reasons for thinking that in many cases an appeal to a Court from an administrative authority will necessarily entail a hearing de novo…The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the Court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo.

On the other hand the character of the function undertaken by the administrative authority in arriving at its decision may differ markedly from the instances already supposed. The authority may be required to determine justiciable issues formulated in advance; to conduct a hearing, at which the parties are represented by barristers and solicitors, involving the giving of oral evidence on oath which is subject to cross-examination; to keep a transcript record; to apply the rules of evidence; and to give reasons for its determination. In such a case a direction that the appeal is to be by way of rehearing may well assume a different significance.

But in the end the matter will depend on an examination of the legislative provisions rather than upon an endeavour to classify administrative authority as one which is entrusted with an executive or quasi-judicial function… Primarily it is a question of elucidating the legislative intent, a question which in the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of rehearing.”

  1. [124]
    The nature of an appeal to the Land Court under s 880(2) of the Act in matters of this type is as prescribed “by way of rehearing, unaffected by the reviewer’s decision”.  Having regard to the Act, the nature of such an “appeal” is intended by s 880(2) to be, and is, a full rehearing on the merits.  It is intended to be, and is, a rehearing de novo, unaffected by what has gone before, and allowing fresh evidence to be adduced.
  2. [125]
    To that end, the nature of what is sought to be reviewed is a decision whether to issue, in whole or in part, or at all, a water licence under s 206.  The application is dealt with by lodging it with the respondent in the approved form, “supported by sufficient information to enable the” respondent to “decide the application” and paying a fee”:  s 206(6)[73].  The respondent has power to require additional information under s 207.  The application must, save for where s 209 applies, be publicly notified.  The public notification allows for submissions to be made “by any entity about the application”.  In deciding the application, no hearing occurs.  Rather, the respondent must have regard to the criteria set forth in s 210.  This mandates consideration of material which would not be expected to be in the applicant’s possession.[74]  It would be expected that the respondent would have superior access to much material not in the applicant’s possession bearing on the matters in s 210 (for instance, what water allocations have already been made by it) having regard to its functions under the Act.  Within 30 business days after deciding the application, the chief executive must give the applicant and any person who gave a properly made submission about the application an information notice under s 211.  An information notice is “a notice” stating the decision, the reasons for it, the name and address of any other person who was given the notice, that any person given the notice may apply for internal review of the decision within 30 business days after the notice is given, and must include a copy of the relevant internal review provisions of the Act.  As can be seen the decision is an administrative one.  There is no opportunity to examine or cross-examine witnesses to resolve conflicts of evidence.  The matter is decided on the papers. As the appeal to the Land Court demonstrated, water allocations are the type of matter where expert evidence is relevant.  Experts can differ and this can affect the ultimate decision.  The facts on which experts base their opinions may be in dispute. Other factual matters (which might be in conflict) might also assume importance.  If an objector makes a “properly made submission” this may raise fresh issues not dealt with by the applicant in its material lodged with the respondent in support of the application.  Further, the nature of what is being dealt with, being the allocation of water, is one where circumstances may change bearing on its allocation from time to time, so that by the time of the hearing of any appeal by the Land Court many months later[75], the circumstances might be quite different. One of the factors relevant to the deciding on the allocation of water is “the public interest”: s 210(1)(i).  It is unlikely that the legislature would have intended to limit the Land Court to the evidence before the respondent at the time of the original decision or at the time of the internal review. 
  3. [126]
    Accordingly, the parties to such an “appeal” are free to adduce evidence which was not before either the original decision-maker or the reviewer and the Court reaches it decision afresh on the evidence then adduced before it “unaffected by the reviewer’s decision”.
  4. [127]
    In the case of re-hearings de novo the Court hears the matter having regard to the facts and the law at the time of the hearing before the Court:  Builders’ Licensing Board v Sperway Constructions (Syd) Pty Ltd.[76]  That does not mean that any change in the state of the law is necessarily applicable.  This is to be contrasted with an appeal stricto sensu.  On such an appeal, the appellate court has no power to admit further evidence and may only consider whether the decision appealed against was (or was not) correctly made on the basis of the evidence at the original hearing and the state of the law at the time of the original hearing.  An appeal to the High Court from a State Supreme Court under s 73 of the Constitution is an example of an appeal stricto sensu:  Mickelberg v The Queen.[77] 
  5. [128]
    An appeal by way of rehearing (whether de novo or not), as contrasted to an appeal stricto sensu, allows the court to consider the evidence at the time of the hearing of the appeal (although in the case of a re-hearing not de novo fresh evidence is not generally admissible unless it satisfies the tests for the admission of fresh evidence on appeal or any applicable statutory test) and the state of the law at the time of the hearing of the appeal:  Builders’ Licensing Board v Sperway Constructions (Syd) Pty Ltd[78];  Mickelberg v The Queen[79];  Eastman v The Queen[80];  Clodumar v Nauru Lands Committee[81].  That said, this does not mean that any changes in the state of the law are necessarily applicable.  For instance, even though a statute might be amended or repealed after the hearing below and before the determination of the appeal, whether the amendment or repeal will affect the matter depends on the intention of the particular statutory provision and the facts as well as a consideration of provisions such as s 20(1) of the Acts Interpretation Act 1954 or like provisions:  see for instance Kentlee Pty Ltd v Prince Consort Pty Ltd.[82]  
  6. [129]
    The nature of what is being dealt with shows why the Land Court hearing such an appeal can and ought have regard to the current position before it.  As the Act notes in its long title, it is an “Act to provide for the sustainable management of water and other resources and the establishment and operation of water authorities and other purposes.”  In Ch 2 which is headed “Allocation and sustainable management” s 10(1) provides that the purpose of Ch 2 is to “advance sustainable management and efficient use of water and other resources by establishing a system for the planning, allocation and use of water.”  Section 12 provides that “[i]f under this chapter, a function or power is conferred on an entity, the entity must perform the function or exercise the power in a way that advances the chapter’s purpose.”  Water is a precious resource.  Under s 19 all rights to “the use, flow and control of all water in Queensland are vested in the State.” Section 206(1), under which the application for the water licence was made to the respondent, is contained in Ch 2. Section 211, the section under which the respondent decided the application and gave the information notice which allows the trigger for an internal review, is also in Ch 2.  It is true that the rights of review and appeal are not contained in Ch 2 but are located in Ch 6.  The application for review must be in the approved form and “supported by enough information to enable the reviewer to decide the application”: s 862(2).  The applicant must send a “submitter notice” (i.e. notice of the application) and a copy of the application and supporting documents to any other person who was given an information notice about the original decision informing the recipient that written submissions on the application may be made to the reviewer within 5 business days after the application is made to the reviewer: ss 863(3), 863(4).  The respondent, on an internal review, must review the original decision and make the review decision within a very short time frame of 20 business days after receiving the application for review and must consider “any properly made submissions by a recipient of the submitter notice”, although there is power to extend this by not more than 30 business days: s 864.  Nothing in the Act expressly prohibits the reviewer from receiving further material or from having regard to any change in circumstances in the period between when the original decision was made and the time of having to make the review decision.  Indeed s 862(2)(b) contemplates that there might be further material and s 863(4) allows a submitter to give further submissions.  The reviewer is not limited by s 864 in relation to having to demonstrate any particular type of error in order to be able to interfere with the original decision but to all intents and purposes is deciding the matter afresh.  This is consistent with the nature of what is being dealt with - the allocation of water.   
  7. [130]
    The power given to the Land Court in s 880(2) to hear the appeal to it from the reviewer’s decision “by way of rehearing, unaffected by the reviewer’s decision” is consistent with the nature of the subject matter of the appeal.  It is not inconceivable that relevant circumstances affecting a decision in relation to the allocation of water will not remain constant and will change from time to time.  The Land Court in dealing with such matters is not dealing with the situation where all relevant facts have occurred in the past and is simply ruling on the legal effect of those facts: as, for instance, with a court dealing with an appeal from an action for debt. Rather, the Court is dealing with the allocation of water rights.  It would be odd if the Land Court hearing an appeal from a reviewer’s decision about the allocation of water rights could not have regard to the factual situation at the time it decides the appeal in making a decision.  If the situation were otherwise, the Land Court, on such an appeal, could find itself making an allocation of water which, whilst it was an efficient and proper allocation in the public interest at the time the reviewer’s decision was made, is no longer one having regard to intervening events and is in fact positively harmful. It is hardly likely that the legislature would have intended the Land Court to act in such a way in relation to a precious resource.
  8. [131]
    The decision of the learned Member below turned on his Honour’s assessment of the evidence in relation to the requirement in the Act and his Honour’s consideration of a decision of the Court of Appeal in the matter of De Tournouer v Department of Natural Resources and Water.[83]
  9. [132]
    The Act relevantly provides:

“210  Criteria for deciding application for water licence

  1. (1)
    In deciding whether to grant or refuse the application … for the water licence, the chief executive must consider the following –

…

  1. (c)
    any water resource plan … that may apply to the licence …”

211 Deciding application for water licence

  1. (2)
    If the chief executive is not satisfied the application should be granted, the chief executive must refuse the application.”
  1. [133]
    The land in question was in an area (subartesian management area B in the Atherton Subartesian Area) covered by a water resource plan being the Water Resource (Barron) Plan 2002 ("the Barron Plan") which provided:

"11 General outcomes

  1. (2)
    Both surface water and subartesian water are to be allocated and managed in a way that seeks to achieve a balance in the following outcomes –

… (c) to encourage the efficient use of water …”

51

Decisions about taking subartesian water

  1. (1)
    This section applies to an application for or about a water licence to take or interfere with subartesian water if granting the application would have 1 or more of the following effects on subartesian water –
  1. (a)
    increase the volume of water taken or interfered with …
  1. (2)
    In deciding the application, the chief executive must have regard to –

…

  1. (b)
    the efficiency of the proposed water use practices …”
  1. [134]
    In De Tournouer v Department of Natural Resources and Water[84]  the applicant for a water licence failed because he did not provide any evidence to satisfy the respondent about the matter in s 51(2)(b) of the Barron Plan.  
  2. [135]
    In the present case, where the land also fell within the same area and was also subject to the Barron Plan, the learned Member held that the appellants had similarly failed to adduce evidence to satisfy this requirement.  His Honour noted that none of the appellants in the Gallo appeal gave evidence and that of the evidence given in the Williams appeal, the evidence of Mr Williams did not deal with this point.  However, his Honour found for the Williams on the basis that what was stated by them in Part F of their Application for Water Licence (which was in evidence and not challenged when Mr Williams gave evidence) was enough to satisfy this requirement.  His Honour contrasted this to the application as completed by the appellant.  His Honour also relied on drawing an inference that the Williams, not having received any allocation of water rights previously, would be likely to adopt the proposed use, whereas this could not be said of the appellants because they already had some pre-existing water allocation.  His Honour also drew contrasting inferences from the manner in which the expert called for the appellant, Mr Sutherland, had expressed himself in the report, Ex 21 dealing with proposed uses for each of the Williams and the Gallos. 

The appeal to this Court, its nature and changes to the law

  1. [136]
    Whilst there are several grounds of appeal stated in the amended notice of appeal, condensed in some ways in the outlines of argument, the essence of the appellants’ challenge to his Honour’s decision in this Court is that by reason of how the case was conducted below sufficient evidence was led.  Rather, the appellants argue that, unlike the position in De Tournouer v Department of Natural Resources and Water,[85] the appellants did adduce evidence by means of the evidence of Mr Sutherland and his report, Ex 21 which contained Appendix 4, and that this was their proposal.  The learned Member sensibly, and in accordance with the long-established practice in other cases, proceeded to assess the entitlement his Honour would have allowed had he been persuaded to alter the review decision.  The appellants say that his Honour erred in this assessment and it ought to have been higher for reasons which are dealt with below.
  2. [137]
    The notice of appeal commencing the appeal to the Land Court was filed on 23 March 2007.  On 27 November 2009, prior to the commencement of the hearing in the Land Court, the Barron Plan was amended to insert a new s 53 as follows:

"53 Applications for subartesian management area B

  1. (1)
    This section applies if an application for or about a water licence to take subartesian water in subartesian management area B would increase the volume of subartesian water taken in the area.
  1. (2)
    The chief executive must refuse the application.
  1. (3)
    This section is subject to section 54."
  1. [138]
    Previously, and at the time the appellants applied to the respondent for the water licence, and at the time of both the respondent’s original decision and the review decision, s 53 provided:

"53 Restriction on annual volumetric limit

  1. (1)
    In deciding the annual volumetric limit for a licence granted after the commencement of this plan, the chief executive-

(a)must have regard to the results of a bore pumping test; and

(b)must not decide a volume that is more than - 

  1. (i)
    for a licence to take water for irrigation purposes -

(A)in the Atherton Subartesian Area—5ML for each hectare to be irrigated; and

(B)in the Cairns Northern Beaches Subartesian Area—1.75ML for each hectare to be irrigated; and

  1. (ii)
    for a licence to take water for another purpose—the volume estimated by the chief executive to be required for the purpose.
  1. (2)
    The chief executive must amend the licence to state the annual volumetric limit decided."
  1. [139]
    However, the November 2009 amendments by SL 266 of 2009 (which commenced on the date of their notification in the Gazette on 27 November 2009 ) also introduced a transitional provision in s 66 which provides:

"66  Appeals against particular decisions

(1) Subsection (2) applies if -

(a) before the commencement, an interested person has appealed under chapter 6 of the Act against a review decision to grant in part an application for or about a water licence that had the effect of increasing the volume of water taken in subartesian management area B;  and

(b) the appeal has not been decided before the commencement.

(2) For deciding the appeal, part 6 as in force immediately before the commencement continues to apply.

(3) In this section -

commencement means the day this section commences."

  1. [140]
    The decision of the Land Court was not given until 5 April 2012.
  2. [141]
    In the meantime, the Barron Plan has been amended twice since, in 18 December 2009 by SL 280 of 2009 and in 2013 by the Land Water and Other Legislation Amendment Act 2013 ss 1, 2(d), 253 and Sch 1 pt 2. None of these subsequent amendments make any amendments relevant to the present matter.
  3. [142]
    Clearly, s 53 of the Barron Plan, as amended, expressly did not apply to the hearing before the Land Court and the Land Court was bound by s 66 to apply s 53 (which was in Part 6 of the Plan) and Part 6 of the Barron Plan in the form as it existed prior to 27 November 2009 as set out at [138] above.
  4. [143]
    However, that is not the end of the matter. There have also been amendments to the relevant Resource Operations Plan being the ROP.  The ROP commenced on the first business day after it was notified in the Gazette i.e. 16 June 2005.  This was not in force at all at the time of the Application for Water Licence but was the Resource Operations Plan in force at the time of the original decision and the review decision.  However, the plan was amended before the decision given by the Land Court on 5 April 2012 following its amendment in October 2011 which came into effect on 10 October 2011.  This was after the evidence in the Land Court had been heard (from 20 September 2010 to 27 September 2010).  Although submissions were made after these dates, this amended plan was not pointed out to his Honour by any of the parties below prior to his Honour giving his decision on 5 April 2012, and unsurprisingly therefore, it was not taken into account by the Land Court in reaching its decision.  Further, the ROP has since been amended in June 2013.
  5. [144]
    By s 210(1)(c) of the Water Act 2000, it is relevantly provided:

"210 Criteria for deciding application for water licence

(1) In deciding whether to grant or refuse the application or the conditions for the water licence, the chief executive must consider the following -

  1. (c)
    any water resource plan, resource operations plan and wild river declaration that may apply to the licence."
  1. [145]
    Must this Court in hearing the present appeal, have regard to the state of the law applying at the time of the determination of this appeal before it?  Again, this depends on the nature of the appeal having regard to the relevant statutory provisions.
  2. [146]
    The jurisdiction of the Land Appeal Court to hear the appeal is given by s 64 of the Land Court Act 2000 (perhaps taken in combination with s 49A of the Acts Interpretation Act 1954).  The general powers given to the Land Appeal Court in hearing the appeal are as contained in ss 54-57 of the Land Court Act 2000.  These allow for the admissibility of further evidence, albeit in the limited circumstances set out in s 56(2).  This is not consistent with an appeal stricto sensu but is only consistent with an appeal by way of rehearing.  Accordingly, this court has regard to the law and the facts at the time of the hearing provided, of course, that any changes in the law are applicable, and that any evidence to show a change in the facts is permitted to be adduced under s 56(2).
  3. [147]
    Section 56(2) might not be the only circumstance in which the Land Appeal Court might have regard to changed facts.  It may be that this Court might be able to have regard to changed facts where the parties consent to those facts being placed before the Court by means of concessions even though no application is made under s 56(2) prior to the hearing of the appeal and even though the pre-conditions in s 56 are not otherwise met, or where another statute gives the Land Appeal Court power to do so in relation to the particular appeal being heard.  However, even if the Court is constrained by s 56(2) and may only receive further evidence in accordance with it, this does not affect the conclusion expressed in the preceding paragraph.
  4. [148]
    Both of the parties adopt the same position (albeit for different reasons) that the changes to the Barron Plan are irrelevant to this appeal.
  5. [149]
    On one view it might be said that the “appeal” referred to in s 66 of the Barron Plan is limited to the appeal before the Land Court.  Indeed, having regard to the words “has appealed under chapter 6 of the Act” the reference in s 66(1)(a) can only refer to an appeal to the Land Court because no right of appeal under chapter 6 of the Act is given to the Land Appeal Court.  This conclusion is re-inforced by s 66(2) which can only be referring to the appeal before the Land Court.  That said, whilst s 66 does not expressly mention any subsequent appeal to the Land Appeal Court it would be a bizarre result if the purpose of s 66 could be defeated simply by instituting a further appeal from the Land Court to the Land Appeal Court.  The Barron Plan is a “statutory instrument” being a document made under an Act (the Water Act 2000) “of a public nature by which the entity making the instrument unilaterally affects a right or liability of another entity”: ss 6, 7 of the Statutory Instruments Act 1992.  Part 4 of the Statutory Instruments Act 1992 picks up some of the provisions of the Acts Interpretation Act 1954 in considering the interpretation of statutory instruments. Section 14A of the Acts Interpretation Act 1954 is one of the provisions picked up.  Having regard to its purpose, implicitly, s 66 must be intended to apply to all subsequent appeals until the matter is determined.  Accordingly, the amendments to pt 6 of the Barron Plan (including the amendment to s 53) are not applicable to the hearing of the present appeal.  The amended s 53 has no application.  The current s 53, being inapplicable, does not dictate that this Court must allow the appeal to substitute the review decision with a decision refusing the water licence. 
  6. [150]
    What then of the changes to the 2005 ROP?  Apart from s 210(1)(c), s 217 of the Act provides:

"217  Amending water licence to implement water resource plan

(1) The chief executive must amend a water licence, if the water licence is inconsistent with a water resource plan or a resource operations plan.

(2) The chief executive must, within the time stated in the plan or as soon as possible after the plan is approved -

  1. (a)
    amend the licence; and
  1. (b)
    give the licensee a notice under section 205(2) stating the aspects of the existing licence that are inconsistent with the plan; and
  1. (c)
    give the licensee an amended licence in the approved form.

(3) The amended licence takes effect from the day the chief executive gives the licensee the licence."

  1. [151]
    It is necessary to say something about the purpose and effect of a water resource plan (such as the Barron Plan and the purpose and effect of a resource operations plan (such as the 2005 ROP).
  2. [152]
    Section 38 of the Act provides:

"38 Minister may prepare water resource plans

  1. (1)
    Subject to subdivision 2, the Minister may prepare a water resource plan for any part of Queensland to advance the sustainable management of water.
  1. (2)
    Subject to subsection (6), only 1 water resource plan may have effect for the part at any time.
  1. (3)
    The plan may be prepared for, but is not limited to, the following purposes—
  1. (a)
    to define the availability of water for any purpose;
  1. (b)
    to provide a framework for sustainably managing water and the taking of water;
  1. (c)
    to identify priorities and mechanisms for dealing with future water requirements;
  1. (d)
    to provide a framework for establishing water allocations;
  1. (e)
    to provide a framework for reversing, where practicable, degradation that has occurred in natural ecosystems, including, for example, stressed rivers.
  1. (4)
    The plan must also regulate the taking of overland flow water if the Minister is satisfied that—
  1. (a)
    if there is an existing water resource plan—there is a risk that taking overland flow water in the area may significantly impact on the plan’s outcomes; or
  1. (b)
    there is a risk that taking overland flow water in the area may significantly affect—
  1. (i)
    the availability of water for existing water entitlement holders; or
  1. (ii)
    the water requirements of natural ecosystems; or
  1. (iii)
    beneficial flooding; or
  1. (c)
    changes in land use activities or intensification of land use in the area are significantly affecting the taking of overland flow water; or
  1. (d)
    there is a risk that proposed changes in land use activities in the area are likely to significantly affect the taking of overland flow water.

(5) The plan must also regulate the taking of subartesian water if the Minister is satisfied that -

  1. (a)
    if there is an existing water resource plan—there is a risk that taking, or interfering with, subartesian water in the area may significantly impact on the plan’s outcomes; or
  1. (b)
    there is a risk that taking, or interfering with, subartesian water in the area may significantly affect -
  1. (i)
    the availability of water for existing water entitlement holders; or
  1. (ii)
    the water requirements of natural ecosystems; or
  1. (iii)
    the quality of water.

(6) Two plans may have effect for the same part of Queensland at the same time if -

  1. (a)
    one of the plans applies to—
  1. (i)
    artesian water; and
  1. (ii)
    subartesian water connected to the artesian water; and
  1. (iii)
    water in springs connected to the artesian water; and
  1. (b)
    the other plan does not apply to water mentioned in paragraph (a)."
  1. [153]
    Sections 38A to 53 deal with the process for the development and approval of water resource plans, after preparation of a draft.  Section 55 allows for the Minister to amend a water resource plan.  All of the provisions relating to water resource plans are contained in Part 3 of the Act which is headed “Water planning”.
  2. [154]
    Part 4 of the Act is headed “Implementing water resource plans”.  Division 2 of Part 4 deals with resource operations plans. Section 94 provides:

"94 Purpose of pt 4

The purpose of this part is to—

  1. (a)
    implement water resource plans through—
  1. (i)
    the preparation of resource operations plans; and
  1. (ii)
    the granting of resource operations licences; and
  1. (iii)
    the conversion of certain existing water licences and interim water allocations to water allocations; and
  1. (iv)
    the granting of water allocations; and
  1. (b)
    allow for the registration of, and dealings with, water allocations."
  1. [155]
    Section 95 provides:

"95  Chief executive may prepare resource operations plans

  1. (1)
    The chief executive may prepare a resource operations plan to implement a water resource plan for any water in the plan area in all or part of the plan area.
  1. (2)
    Only 1 resource operations plan may have effect for each water resource plan at any time.
  1. (3)
    However, before preparing a resource operations plan, the chief executive must prepare a draft resource operations plan."
  1. [156]
    Sections 96 to 104D relate to the process of the development and approval of a resource operations plan after the development of a draft.
  2. [157]
    Although the Act contemplates that a resource operations plan will be consistent with the water resource plan it seeks to implement, it also contemplates that inconsistencies can arise.  Section 103(5)(a) provides that the Governor in Council will not approve the final draft of a resource operations plan unless “the final draft is not inconsistent with the final water resource plan”.  That said, ss 105 to 106AA deal with inconsistencies which may arise between a water resource plan and a resource operations plan. They provide:

"105  General provision for amending resource operations plan

(1) The chief executive may amend a resource operations plan.

(2) Subsection (3) applies if a resource operations plan will be inconsistent with a water resource plan for which it has effect because of a proposed amendment to the water resource plan of which the chief executive has become aware under section 39(2) or 49(7).

(3) The chief executive must amend the resource operations plan if it is inconsistent with the water resource plan, as proposed to be amended, so that the 2 plans are consistent.

(4) Sections 95 to 104 must be followed for preparing the amendment—

  1. (a)
    as if a reference in the sections to preparing a draft plan were a reference to preparing the amendment; and
  1. (b)
    with any other necessary changes.

(5) Without limiting subsection (1) or (3), the amendment may—

  1. (a)
    change the plan area; or
  1. (b)
    amalgamate the resource operations plan with another resource operations plan or part of another resource operations plan;  or
  1. (c)
    change the water infrastructure operating arrangements and other requirements of the plan;  or
  1. (d)
    improve the relationship between the resource operations plan and any system operating plan applying to the plan area, or a part of the plan area.

(6) However, if the amendment of a resource operations plan is not being made under subsection (3), section 99(b), (ba), (ca) and (d) does not apply to the preparation of the amendment if—

  1. (a)
    the chief executive is satisfied that sufficient public notice of, and opportunity to make submissions on, the proposed amendment, will be available under section 100; or
  1. (b)
    the amendment is of a type that the resource operations plan states may be made to the plan under this subsection.

105A  Amendment to provide for deferred aspect

(1) This section applies only if a resource operations plan has a deferred aspect and the plan has not previously been amended to include provisions about that aspect.

(2) Despite section 105(4), the Governor in Council may approve an amendment of the resource operations plan without sections 95 to 104 applying if the amendment—

  1. (a)
    is about the deferred aspect; and
  1. (b)
    is not inconsistent with the water resource plan that the resource operations plan implements.

106  Minor or stated amendments of resource operations plan

Despite section 105(4), the Governor in Council may approve an amendment of a resource operations plan without sections 95 to 104 applying if—

  1. (a)
    the amendment is only to correct a minor error in the plan, or make another change that is not a change of substance; or
  1. (b)
    the amendment is of a type allowed under the plan for this paragraph, and the chief executive reasonably believes the amendment will not adversely affect the rights of water entitlement holders or natural ecosystems; or
  1. (c)
    in relation to a wild river area -
  1. (i)
    the water resource plan has been amended under section 57(c); and
  2. (ii)
    the amendment of the resource operations plan is to ensure consistency with the water resource plan as amended; or
  1. (d)
    the amendment is necessary to make the resource operations plan consistent with a water resource plan for which the resource operations plan has effect and is not an amendment to which section 105(3) applies.

106AA  Amendment of resource operations plan between approval and commencement

The chief executive may amend a resource operations plan after its approval under section 103(5) but before its commencement to take account of—

  1. (a)
    the current details of any proposed conversions of existing water licences, interim water allocations and other authorities, to take water or to interfere with the flow of water, to water allocations; or
  1. (b)
    the details of the current holders of the water licences, interim water allocations and other authorities mentioned in paragraph (a).
  1. [158]
    Further, an inconsistent resource operations plan can continue to have effect despite the inconsistency with the relevant water resource plan. Section 106A provides:

106A  Continuation of resource operations plan for new water resource plan

(1) This section applies if—

  1. (a)
    a new water resource plan that replaces an existing water resource plan is approved under section 50(2); and
  1. (b)
    the chief executive has not prepared a resource operations plan, to implement the new water resource plan, concurrently with the Minister’s preparation of the draft water resource plan.

(2) The resource operations plan that implements the existing water resource plan—

  1. (a)
    continues to have effect for the plan area for the new water resource plan;  and
  1. (b)
    is the resource operations plan for the new water resource plan.

(3) Unless, and to the extent, the new water resource plan expressly provides otherwise, the resource operations plan continues to have effect for the plan area for the new water resource plan despite any inconsistency between the resource operations plan and the new water resource plan.

(4) This section does not limit or otherwise affect section 105(3)."

  1. [159]
    To that end, the statement made in Stockman v Chief Executive. Department of Natural Resources and Mines[86] must be seen in this light.
  2. [160]
    The October 2011 and June 2013 amendments to the 2005 ROP both contain Chapter 7a headed “Subartesian water”.  Sections 152B (inserted by the October 2011 amendment and located in this chapter)  provides:

"152B  Subartesian management area B

(1) This section applies to an application for water in subartesian management area B other than those to which part 6, division 2 of the Water Resource (Barron) Plan 2002 applies.

(2) The chief executive must refuse the application:"

  1. [161]
    Section 152B is retained in the same form in the June 2013 amendments and follows on from s 152 which provides:

"152  Scope of division 2

(1) This division applies to each application for a water licence made under section 206 of the Water Act 2000 if granting the application would have the effect of increasing the total nominal entitlement for taking subartesian water in the Atherton subartesian area.

(2) This division applies even if the application was made before the commencement of this plan.

(3) This division does not apply to an application made under the following provisions of the Water Act 2000 -

  1. (a)
    section 221—reinstating an expired licence;
  1. (b)
    section 224—amalgamating water licences;
  1. (c)
    section 225—subdividing a water licence; and
  1. (d)
    section 229—effect of disposal of part of the land to which a water licence to take water attaches.”
  1. [162]
    Division 2 of Part 6 of the Barron Plan is headed “Strategies for Atherton Subartesian Area only”.  It includes s 53 as noted above but does not include s 66 (which is in Part 10).
  2. [163]
    Does s 152B of the 2005 ROP first inserted in October 2011 (after the 2009 amendments to the Barron Plan which changed Division 2 Part 6 and inserted Part 10), dictate that the water licence must be refused?  Reading the resource operations plan with the water resource plan which it is intended to implement, there is really no inconsistency between s 152B of the resource operations plan and s 66 of the water resource plan which would dictate this result.  Rather, the two are to be read together.  Section 152B plainly refers to Division 2 of Part 6 of the current water resource plan.  However, the current water resource plan also contains s 66, located in Part 10 but which deals with division 2 of Part 6.  Reading s 66 with s 152B in the single instance where s 66 applies, the reference in s 152B must be a reference to Division 2 of Part 6 at the time referred to in s 66.  Accordingly, nothing in the 2011 or 2013 amendments to the 2005 ROP dictates the refusal of a water licence to the appellants.  
  3. [164]
    However, the amendments may be relevant to another aspect of this appeal. In this matter, if the appellants are successful in showing that they led sufficient evidence to have entitled them to succeed, the further issue arises as to the calculation of their entitlement.  They contend for 813ML per annum whereas the water licence was issued for 130ML per water year.  The learned Member below would have allowed an increase to 262ML per water year, had he not found against them on the lack of evidence point.  The respondent contends for this level plus an amount of 5ML per water year to take account of an event occurring after the hearing of the appeal before the Land Court in the event the appellants are successful.  The difference between the two positions comes down to calculating what deductions (if any) ought to have been made for existing surface and ground water licences held by the appellants.  The ground water licence (licence 183639) was in evidence as Ex 44. (It is common ground that the handwriting which appears on Ex 44 in the appeal record was not before the Land Court and does not form part of the evidence).  The surface water licences were referred to in evidence in Ex 45 but curiously it appears the actual licences were not in evidence.  They were licences 56790K, 56792K, 03046K, 175034 and 175046. Subsequently copies of these licences were provided to the Land Appeal Court pursuant to an order made on 21 March 2013.  Whether the Court should have regard to these copies in view of s 56 Land Court Act 2000 is another matter. For present purposes they will be ignored.
  4. [165]
    The October 2011 amendments to the 2005 ROP substituted a new attachment 8.
  5. [166]
    Sections 52 to 54 provided:

"52  Application of Part 1

This part sets out the rules for converting existing water authorisations and the granting of unsupplemented water allocations in accordance with the schedule of water allocations in attachment 8.

53 Rules for converting existing water authorisations for taking unsupplemented water

The water authorisations must be converted to water allocations as follows -

  1. (a)
    the person granted the water allocation must be the person who holds the existing water authorisation from which the water allocation is converted;
  1. (b)
    the location for the water allocation must be the zone that includes the place on a watercourse, lake or spring at which the water could be taken under the existing water authorisation;
  1. (c)
    the purpose for the water allocation must be in accordance with section 33 of the Water Resource (Barron) Plan 2002;
  1. (e)
    the nominal volume for the water allocation must be in accordance with section 38 of the Water Resource (Barron) Plan 2002;
  1. (e)
    the annual volumetric limit for the water allocation must be in accordance with section 39 of the Water Resource (Barron) Plan 2002;
  1. (f)
    the seasonal volumetric limit for the water allocation must be in accordance with section 39A of the Water Resource (Barron) Plan 2002;
  1. (g)
    the daily volumetric limit for the water allocation must be in accordance with section 40A of the Water Resource (Barron) Plan 2002;
  1. (h)
    the maximum rate at which water may be taken under the water allocation must be specified in accordance with section 41 of the Water Resource (Barron) Plan 2002;  and
  1. (i)
    the water allocation group for the water allocation must be in accordance with section 43 of the Water Resource (Barron) Plan 2002.

54  Granting of unsupplemented water allocations

The chief executive must grant unsupplemented water allocations for existing authorisations converted under this part in accordance with attachment 8."

  1. [167]
    Attachment 8 in turn, included a reference to all of the five surface water licences referred to in Ex 45.
  2. [168]
    In particular:
  1. (a)
    water licence 56790K is set out as water allocation no 1868 of the amended ROP stating the nominal volume for the licence at 205 ML, and the volumetric limit at “not greater than 250.0 megalitres per water year and not greater than 165.0 megalitres for the calendar period 1 July to 31 December and not greater than 3.5 megalitres per calendar day).  The maximum rate for taking water was stated as 40 litres per second;
  1. (b)
    water licence 56792K is set out as water allocation no 1869 of the amended ROP stating the nominal volume for the licence at 229.6 ML, and the volumetric limit at “not greater than 280.0 megalitres per water year and not greater than 184.8 megalitres for the calendar period 1 July to 31 December and not greater than 3.5 megalitres per calendar day).  The maximum rate for taking water was stated as 40 litres per second;
  1. (c)
    water licence 03046K is set out as water allocation no 1945 of the amended ROP stating the nominal volume for the licence at 72.8 ML, and the volumetric limit at “not greater than 80.0 megalitres per water year and not greater than 52.8 megalitres for the calendar period 1 July to 31 December and not greater than 2.6 megalitres per calendar day).  The maximum rate for taking water was stated as 30 litres per second;
  1. (d)
    water licence 175034 is set out as water allocation no 1947 of the amended ROP stating the nominal volume for the licence at 227.5 ML, and the volumetric limit at “not greater than 250.0 megalitres per water year and not greater than 165.0 megalitres for the calendar period 1 July to 31 December and not greater than 2.8 megalitres per calendar day). The maximum rate for taking water was stated as 32 litres per second;
  1. (e)
    water licence 175046 is set out as water allocation no 1865 of the amended ROP stating the nominal volume for the licence at 98.4 ML, and the volumetric limit at “not greater than 120.0 megalitres per water year and not greater than 79.2 megalitres for the calendar period 1 July to 31 December and not greater than 3.1 megalitres per calendar day).  The maximum rate for taking water was stated as 26 litres per second;
  1. [169]
    The amendments made in June 2013 retain these entries in schedule 8 save that they are at pp 127 (water licence 175046), 128 (water licence 56790K), 128-129 (water licence 56792K), 161 (water licence 03046K), 162 (water licence175034).  Sections 52 to 54 are in identical terms to the October amendments.
  2. [170]
    These amendments may have a bearing on the allocation this Court ought make if it allows the appeal. 

Decision of the Land Court

  1. [171]
    The essence of what his Honour held in relation to these appellants appears at [30] of the judgment[87]:

“[30] I have scoured all of the evidence with respect to the Gallo application but have been unable to find any statement or other indication by Gallo indicating in clear terms the use to which Gallo proposes to use any water obtained via the water licence application. It is of note that Gallo did not give any evidence at the hearing nor was any statement or other evidence from Gallo provided to the Court. Accordingly, the only conclusion that can be drawn is that Gallo is in fact on all fours with De Tournouer, as submitted by Counsel for the respondent. The result is that, in light of the Court of Appeal decision in De Tournouer, I have no option but to refuse the application.”

  1. [172]
    His Honour dealt with this in a section of the judgment headed “Threshold issue – similarities with De Tournouer”.
  2. [173]
    In another section of the judgment headed “The efficiency of the use to which allocated water is proposed to be put” his Honour stated:

"[51] With respect to this aspect of the case, the Court had the advantage of expert reports of Mr Sutherland (called by the appellants) and Dr Watts (called by the respondent) with respect to the efficiency of proposed water use practices for water allocations.

[52] Having considered all of the evidence of Dr Watts and Mr Sutherland in detail, I am satisfied that appropriate cropping plans have been formulated which represent the full utilisation of the properties for realistically achievable agricultural production. This aspect of this issue has been essentially conceded by the respondent: See submissions of respondent paragraphs 97 and 98. The key dispute between the parties essentially comes down to a matter of mathematics in determining the actual allocation that should be made with respect to each appellant.

[53] There is no dispute between the experts that the irrigation requirements for the respective properties at full agricultural production are 1,303 megalitres per year with respect to Gallo and 515.2 megalitres per year with respect to Williams.

[54] As regards the Williams’ application, the final conclusion is straightforward. The Williams’ property does not currently have any existing irrigation entitlements. Accordingly, I am satisfied that the Williams’ property could make efficient use of 515.2 megalitres per annum fully utilised for appropriate agricultural uses.

[55] The matter is somewhat more complex when one considers the Gallo property. I am persuaded by the submissions for the respondent as set out from paragraphs 101 to 116 of his submissions. Starting at a point of an appropriate allocation for Gallo being 1,303 megalitres per year, it is appropriate to deduct from that amount the existing groundwater irrigation licence number 183639 of 61 megalitres per annum: See Exhibit 44. I am also satisfied that, in accordance with s.45(2)(b)(ii) of the BWRP, the current surface water entitlement enjoyed by Gallo over an area of 98 ha equates to a volumetric entitlement of 980 megalitres per year. By these calculations, the amount of water which Gallo could use to fully irrigate the arable areas of their property amounts to 262 megalitres per year (1,303 minus 980 minus 61). Although this amount is an apparent reduction of 490 megalitres from the amount (813 megalitres) that Mr Sutherland considers appropriate, I agree with the respondent that, when the amount of 61 megalitres under the existing entitlement is taken into account, as well as a further 98 ha at 5 megalitres which equates to 490 megalitres which is essentially an unneeded source arising from the 98 ha current volumetric entitlement) the amount of 262 megalitres is again arrived at. Although this approach may seem quite limiting to Gallo, in my view it is the correct, conservative approach to be undertaken when considering the question of the appropriate use of water in accordance with the Water Act. It is undoubtedly a conservative approach, but an approach which in my view is appropriate considering the legislative considerations that I am compelled to take into account.

[56] Counsel for the appellants contends that the allocations that I have set out above, whilst consistent with the legislative principles, are manifestly unfair when the appellants Gallo and Williams are considered alongside all previous applicants for water licences in Area B who had their licences granted on the basis of 5 megalitres per hectare of the total area of their land as opposed to the requirement to only consider 5 megalitres per hectare of land suitable for agricultural production. I agree that, on the face of the matter, this is manifestly unfair. As Counsel for the respondent put it in their submissions [At paragraph 93] “if that stance means that later applicants “miss out” as compared to earlier ones, that is unfortunate at the individual level, but is a necessary outcome in order to achieve the purposes of the Water Act which are about the long term sustainable use of water in the overall public and environmental interest …”. This matter is subject to further discussion later in these reasons."

  1. [174]
    His Honour returned to the “threshold issue” at another part of the judgment headed “Proposed water use practices”.

[57] The respondent has sought to make great mileage out of s.51(2)(b) of the BWRP. As examined earlier in these reasons, when making a decision on an application for a water licence under the BWRP, the decision maker must have regard to, amongst other things, “the efficiency of the proposed water use practices” (emphasis added). As Counsel for the respondent submitted at paragraphs 119 - 121 of their submissions:

“119. Something is ‘proposed’ if there is a specific intention to do it which has been overtly declared in some way so that it can be said, objectively, that it is something which the proposer in fact intends to do.

120. The Shorter Oxford English Dictionary, for example, defines ‘propose’ (verb) as:-

‘1. Put forward as a scheme or plan, suggest (a thing). Also, intend, resolve (on), purpose

2. Put forward or present for consideration, discussion etc; advance, propound, posit

3. Exhibit or display to view or perception;

4. Present or offer for acceptance or assent’

121. In de Tournouer, the appellant failed because she failed to produce to the court satisfactory evidence about what it was that she in fact proposed to do with the water allocation sought if it were granted.”

[57] The question then remains to be asked: what are the proposed water use practices of Gallo and Williams? I have already set out the differences in Part F of the applications of Williams and Gallo, noting that Williams has provided answers to all relevant questions asked of them in the respondent’s form relevant to their proposed use of the water obtained via the water licence if granted. The information provided by Gallo in Part F is scant at best. I have already quoted from the Court of Appeal decision in De Tournouer, and in particular from the reasons of Fraser JA. There is no need to repeat the reasoning of Fraser JA as to the requirement for an applicant for a water licence to demonstrate the proposed use to which the water is to be put. McMeekin J also made useful statements as to evidence of how water is proposed to be used. His Honour had this to say [De Tourouner, Court of Appeal, paragraphs 38, 39 and 43]: 

'[38] McMEEKIN J: I have had the advantage of reading in draft the reasons for judgment of Fraser JA. He has comprehensively set out the relevant legislative provisions and issues. As his Honour demonstrates there was no meaningful evidence led of how the allocation sought was to be used.

[39] Essentially the arguments to this court and the court below were two-fold. First, it was contended that the question of the use of the water was a subsidiary issue. I cannot see why. There is nothing in the legislation or logic to suggest that it is.

…

[43] The applicant is no more entitled to succeed in the absence of evidence of proposed use, and demonstrated efficient use, than she would be if she had failed to show there was any water there. Both are essential requirements under the Act.'

[59] Given the differences in the Gallo’s and Williams’ applications in Part F, I was hesitant to accept the legal representatives’ assertions that there was no evidence of the proposed use of the water with respect to Gallo or Williams. I have painstakingly read and reread the Exhibits and the transcript in this matter. With respect to Gallo, although there is clear evidence of what can theoretically be produced on the land by use of the proposed water allocation, there is a lack of any evidence as to the proposed intentions of Gallo, save for the scant reference in Part F of the application which, applying the reasoning from De Tournouer, with which I respectively agree, is simply not sufficient. I note that in Exhibit 21, which is the expert crop water resource and groundwater allocation report prepared and submitted on behalf of the appellants, Mr Sutherland has this to say at paragraph 4.2 on page 4-5 of Exhibit 21:

“It is anticipated that the irrigated cropping regime would be based on annual crops such as potato for fresh vegetable sale, maize for haveststore fodder and improved pasture (rye grass/clover) for dairying” (emphasis added)

[60] The inescapable conclusion I reach from an analysis of what Mr Sutherland had to say in his report is that his analysis as regards the Gallo property is entirely hypothetical. No doubt, as the Gallo property already receives water entitlements, the Gallo application may simply have been taken as being an extension of the irrigation practices already undertaken on the property. However, that is nothing more than a supposition on my part, and there is simply nothing in the evidence to adequately explain the proposed use of water from the licence applied for.

[61] Mr Sutherland’s evidence in his report as regards Gallo is even more telling when an examination is had of his report with respect to the Williams’ application. At page 4 - 5, part 4.2 of Exhibit 21, Mr Sutherland states that:

“It is proposed that any groundwater allocation granted would enable the development of irrigation areas based on low pressure boom supplemented by small areas of fixed sprinkler irrigation infrastructure (especially associated with the high intensity crop and pasture irrigation area). It is envisaged that the irrigated cropping regime would be based on annual crops such as potatoes, maize and improved pasture (rye grass) plus a longer term improved pasture (four year period).”

In my view, the use of the word “proposed” by Mr Sutherland is not accidental; it shows an appreciation of an actual purposeful intent of Williams. This is exemplified by reference to the crops potatoes, maize and pasture, which of course are entirely consistent with the Part F statement of irrigation requirements for “potatoes, pasture, and grain”.

[62] It is unfortunate that Mr Richard Williams did not include any reference to the proposed use of the water in his statement Ex 22 or oral evidence. I have already noted that Mr Williams was not cross-examined as to the contents of Exhibit 1.

[63] For completeness, I should note that in the report of Dr Watts, Ex 29, Dr Watts sets out, at page 3, part 5, his sources of information. It is indeed curious that his sources of information do not include the actual applications for water licences as set out in Exhibits 1 and 3.

  1. [175]
    Essentially then the Land Court has made findings below that:

(a) The CWRP in Ex 21 Appendix 4 was “entirely hypothetical” as regards the appellants and was not evidence of any proposal by the appellants as to how they proposed to use the water if their application was granted;

(b) there was no evidence outside of this to demonstrate how the appellants proposed to use the water if their application was granted;

(c) accordingly, there was no evidence of how the appellants’ proposed to use the water.  

  1. [176]
    In Australian Broadcasting Tribunal v Bond,[88] Mason CJ stated:

"The question whether there is any evidence of a particular fact is a question of law: McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8, at p 9; Australian Gas Light Co v Valuer-General (1940) SR (NSW) 126, at pp 137-138. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law: Australian Gas Light ..; Hope v Bathurst City Council (1980) 144 CLR 1, at pp 8-9. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions: Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150, at pp 155, 157, 160."

  1. [177]
    Mason CJ’s statement must be understood in the context in which it was made. His Honour distinguished between a complete absence of evidence and lack of evidence for the purposes of finding what the scope of a provision of the Administrative Decisions (Judicial Review) Act 1997 (Cth) which allowed review on the ground of “error of law” with another provision allowing review on the basis of “no evidence”.  Only a complete lack of evidence gives rise to an error of law.  That said, it is not necessary in the present appeal to categorise any error below as an error of law or fact or both.  The right of appeal given by s 64 of the Land Court Act 2000 is not limited to an appeal on a question of law only.  That said, unlike an appeal by way of hearing de novo, on the appeal to this Court it is still necessary for the appellants to demonstrate some form of error on the part of the Land Court[89].  
  2. [178]
    The learned Member’s finding that Ex 21 was “entirely hypothetical” did not involve his Honour resolving any issue of credit which had arisen, or depend upon his Honour’s advantage of having heard and seen the witnesses who did give evidence[90].  Rather, it centred on his Honour’s interpretation of that document as part of his Honour’s overall review of the complete transcript and all the exhibits.  This Court is, in these circumstances, in as good a position as the court below in assessing the evidence relevant to this issue and any inferences to be drawn from it.[91].
  3. [179]
    In my view there was sufficient evidence upon which the Land Court could have been satisfied that the appellants intended to use the water they sought in the way set out in the amended crop water resource report in Appendix 4 to Ex 21 if their higher case failed.  The finding that this was wholly hypothetical cannot stand. 
  4. [180]
    To that end, the appellants below were, on their highest case, seeking to be treated the same as previous applicants had been (by the respondent) for water licences in the same area.  To that end their application for 990ML per annum was consistent with this.
  5. [181]
    They failed on that case, and it is not sought to be re-agitated on appeal to this Court.  The crop report in Appendix 4 to Ex 21 did not deal with what the appellants would have done with the 990ML had they been granted that amount[92]. It dealt only with a lesser amount of 813ML.  On any view, then the appellants did not have before his Honour any evidence of their proposals of what to do with the water in relation to their higher case.  The higher case was run on the basis of a fairness argument – that the appellants ought be treated the same as other applicants had been.
  6. [182]
    However, it is clear that the appellants were not limiting themselves to only their higher case. They also sought, in the alternative, an allocation based on what was in the crop report in Appendix 4 to Ex 21. In these circumstances, merely because they ran the higher case does not mandate an inference to be drawn that if they were granted the case put by them in the crop report Appendix 4 to Ex 21 (and the evidence from their experts in support of it) that these were not their proposals for the use of the water.  
  7. [183]
    This is not a case where the appellants gave evidence and were cross-examined about their proposals, such that his Honour might have drawn the conclusion from having seen and heard them that they would, or would not, have used the water in the way set out in Appendix 4 to Ex 21.  In such a case the appellants would have to surmount the tests in Devries v Australian National Railways Commission[93] in order to succeed.
  8. [184]
    Whilst the respondent’s written submissions made reference to an argument based on Jones v Dunkel[94] seeking to draw inferences from the appellants not having gone into the witness box to give evidence, at the hearing in this Court the respondent did not press any reliance on such an argument conceding that the resolution of the matter came down to whether the evidence that was given below was, or was not, sufficient to satisfy the requirement[95].  Such a concession was rightly made.  A fair reading of the transcript below shows that the appellants’ counsel thought he had covered the points arising from De Tournouer through the crop report in Appendix 4 in Ex 21 and Mr Sutherland when he opened the case. An inference that the appellants’ evidence would not have assisted their case had they given evidence would not be drawn in these circumstances.
  9. [185]
    The respondent’s written submissions, on one view, might be thought to have argued that the Land Court, and this court also, was constrained in the evidence it could consider on the proposal point, although they do not expressly say so in terms.  The submission was that the reference in s 210(1)(a) of the Act to “additional information” was a reference to the additional information the respondent might require under s 207 of the Act.  As the respondent had not required as additional information much of the evidence that was given in the Land Court (which included Ex 21), then it followed that this was not “additional information” for the purposes of s 210(1)(a).  In my view “additional information” in s 210(1)(a) is not restricted to additional information required by the respondent under s 207.  To hold otherwise would be to say that an application for water licence could never be supplemented by additional information not required by the respondent under s 207 and which did not otherwise fall within any other parts of the enumerated factors in s 210(1).  It might also mean an applicant could never amend its position in relation to such an application to seek a lower allocation than that initially sought but greater than the respondent has allowed.  This is consistent with the nature of what is being dealt with as discussed above when considering the nature of the appeal to the Land Court and is also consistent with the right of appeal to the Land Court being one by way of rehearing de novo.  In any event, regardless of this, information about the appellants’ intended proposals in relation to the water and whether they would be efficient was admissible under s 210(1)(c) which picked up the requirements of the Barron Plan.  Whether the other enumerated factors in s 210(1) such as s 210(1)(i) would have also permitted this evidence need not be considered.
  10. [186]
    Indeed, Senior Counsel for the respondent in oral argument did not press the argument about “additional information”[96].
  11. [187]
    The judgment of the Land Court in De Tournouer v Chief Executive, Department of Natural Resources and Water,[97] shows it was a case different from this one.  Evidence was in fact given by the applicant’s son who was the manager of the applicant’s land.  He was cross-examined, but the evidence was not sufficient to satisfy the Court that the applicant intended to use the water for the purposes set out in a letter tendered in evidence from a Mr McQuillam about crop use.  Mr McQuillam did not give any evidence.
  12. [188]
    Member Scott said this:

"[17] Evidence as to the use to which the allocation of 715 ML/a of water would be put was provided by Mr James Maurice De Tournouer, the appellant's son and active manager of the enterprise on the land. In an affidavit sworn 22 August 2007 Mr De Tournouer deposed: “The motive behind our making the Application in the first place was to drought proof the property as in 2002 we were severely effected by drought and suffered badly from having to buy feed and supplements. We are again in a drought situation and there is little or no standing grass…”

[18] The appellant's land is a grazing property and has been managed as such since 1971. When asked in  cross-examination about his intended use of the water he said "I want to irrigate pasture". Mr De Tournouer did not at any time provide evidence as to how much water would be needed to drought-proof the property even though he was cross-examined on the point. Nor did he refer to any plans whether detailed or rudimentary, as to how the drought-proofing would be given effect to including, in particular, how much water would be needed. He simply said that he would grow winter “crops” that is winter rye grass and clover and thereby, in his estimate, almost double the carrying capacity of the land for cattle. I observe at this point that this idea of doubling of carrying capacity appears to me to be inconsistent with such evidence as was led as to the volume of water required and which I discuss below. There was no evidence as to the area to be sown to winter crops and the water needs for such plantings. He said that he would harvest grass seed, produced hay and graze the area.

[19] It appears to me that the requirement for an allocation of 715 ML/a was based on s.53(1)(b) of the Barron Plan:

“53 Restriction on annual volumetric limit

  1. (1)
    In deciding the annual volumetric limit for a licence granted after the commencement of this plan, the chief executive —

(a) …

  1. (b)
    must not decide a volume that is more than—
  1. (i)
    for a licence to take water for irrigation purposes -
  1. (A)
    in the Atherton Subartesian Area -5ML for each hectare to be irrigated; and
  1. (B)
    in the Cairns Northern Beaches Subartesian Area—1.75ML for each hectare to be irrigated; a nd
  1. (ii)
    for a licence to take water for another purpose—the volume estimated by the chief executive to be required for the purpose.

(2) …”

[20] That is, the volume sought was not estimated by reference to a plan of productive and effective usage, but represented the maximum volume that might be allowed. If such volume was to be permitted it would place the applicant's within the top 1% of water allocations in the Barron River catchment. Clearly, cogent justification for such an outcome or for a slightly lower allocation of, say, 633 ML/a is required.

[21] Whilst Mr De Tournouer said that he intended drought-proofing the property, and that the growth of such crops as vegetables (potatoes were mentioned) was not a specific proposal but an option that he had in mind if beef prices declined, such evidence as there was as to the volume of water requirements of the property were based essentially on non-forage cropping. Mr De Tournouer and his wife had met with Mr David McQuillam of Malanda Rural Supplies on or before 17 July 2007. And it was in that meeting that Mr McQuillam advised the De Tournouer’s as to the appropriate crops that could be planted and the amount of water considered necessary to sustain those crops. Immediately following that meeting, the advice from Mr McQuillam was transmitted (apparently by facsimile) to the appellant's solicitor by letter dated 17 July 2007; that is, after the filing of the notice of appeal.

[22] Whilst the letter was produced on the letterhead of Malanda Rural Supplies it was explained by Mr De Tournouer that it represented a typed version prepared by Mrs De Tournouer of handwritten notes prepared by Mr McQuillam. Mr De Tournouer added some brief annotations to the typed version and the salutation “Dear John”, a reference to the appellant's solicitor.

[23] The letter commences with, “This is a suggested usage of water from the four bores on our property” – words added by Mr De Tournouer. That is, it does not purport to be a cropping and water usage plan based on the appellant's intentions but represents suggested water usage if cropping of the type outlined in the letter ever eventuates. The letter assumes that a total area of 140.93 ha would be irrigated. On the basis of s.53 of the Barron Plan the maximum volume of water that could be allocated is therefore 524.65 ML/a whereas the letter suggests a maximum of 539 ML/a. In evidence Mr De Tournouer suggested 633 ML/a as being the maximum required based on Mr McQuillam’s assumptions; however, the derivation of that higher figure was not fully explained.

[24] The volume of 539 ML/a was based on there being no rainfall on the appellant's land, whilst a volume of 458.5 ML/a was calculated on the basis of rainfall figures “considered low” for the area. There was no attempt by the appellant to explain what irrigation requirements there would be in an average rainfall season. Mr McQuillam was not called to give evidence.

[25] The water usage presented in the letter assumes the planting of potatoes, corn (silage) and “hay – grass seed" on 84.7 ha. Crop rotation is needed when potatoes are grown. The letter also assumes the establishment of orchard trees in one paddock of 20.23 ha. Four thousand orchard trees comprising avocadoes, citrus and macadamia are mentioned.

[26] The water volumes attributed to Mr McQuillam assume an intensive use of the appellant's land for cropping and the devotion of part of it to permanent tree crops. Those uses are not consistent with Mr De Tournouer’s stated intention in his affidavit to drought-proof the property as a grazing enterprise and his expectation of doubling the grazing capacity nor with his evidence that he viewed cropping as an option without any present commitment to pursue that option. Not only does the evidence as presented by the appellant provide me with no sound basis for an identification of the volume of water needed for the drought-proofing of the property but I cannot conclude that such a cropping usage of the type set out in the letter under discussion is intended by the appellant. It is apparent that the information from Mr McQuillam was not produced to serve a plan of land usage intended by the appellant, but was probably produced for the purpose of providing evidence in the hearing and to give Mr De Tournouer some idea of what cropping might be carried out on the land should he discontinue or modify the current cattle grazing use.

[27] In short, I am not convinced that the volume of water sought by the appellant will be used for the purposes apparently assumed by Mr McQuillam. The appellant has not therefore demonstrated that there would be a “continued use of (the) water entitlement” sought, nor of any identifiable lesser entitlement. I have been presented with no means of ascertaining what would constitute “the efficient use of” any water entitlement that could be ordered by me.

[28] The demand for water continues to grow whilst its supply remains at best constant or at worst in decline. It is therefore a resource whose efficient and productive continuing use is to be encouraged consistent with maintaining the integrity of the aquatic environment. It is not a resource that is to be sequestered to an individual for purposes not patently involved in economic production. As much as made clear in s.53 of the Barron Plan.

[29] The appeal is dismissed and, consequently, the review decision is affirmed."

[emphasis added]

  1. [189]
    On one view it might have been thought that this was a finding of fact based on credit in having seen the applicant’s son/manager and formed a view of him so as to attract the tests in Devries v Australian National Railways Commission.[98]  However, as will be seen, both the Land Appeal Court and the Court of Appeal approached the matter more favourably to the appellants, taking the evidence given by the son at its highest, in circumstances where, even on that favourable basis, De Tournouer, still lost[99].   
  2. [190]
    On appeal to it in De Tournouer v Chief Executive, Department of Natural Resources and Water,[100]the Land Appeal Court dismissed the appeal.  It said:

[29] We turn now to consider Mr Gore's submission that the learned Member had failed to exercise his discretion by considering and balancing all the criteria set out in s.210(1) of the Act. As discussed above, s.51(2)(b) of the Barron Plan imposes an obligation on the decision maker to have regard to the efficiency of the proposed water use practices. In addition, s.11(2) of the Plan requires that subartesian water is to be allocated in a way that seeks to achieve a balance in a number of outcomes including the encouragement of the efficient use of water. If there was no evidence or no sufficient evidence about these matters before the Court we consider that it would not be possible for the Court to undertake the necessary balancing exercise. The absence of adequate evidence on this issue, therefore, would have the effect that this criterion, that is otherwise but one in a list of matters to be considered, assumes a determinative significance.

[30] Was there sufficient evidence before the Land Court to enable the learned Member to balance the criteria set out in s.210 of the Act, including the requirements in ss.51(2)(b) and 11(2)(b) of the Barron Plan that he have regard to the efficiency of the proposed water practices?

[31] The learned Member found, in respect of Mr Tournouer's statement that he intended to drought proof the property, that there was no evidence as to how much water would be needed to drought-proof the property. Nor did Mr De Tournouer refer to any plans as to how the drought-proofing would be achieved including how much water would be needed. Mr De Tournouer did say that he would grow and irrigate winter pasture crops: RJ[27] and thereby double the carrying capacity of the property, but there was no evidence as to the area to be sown or the water needed for such plantings: RJ[18].

[32] Those findings were not directly challenged in the notice of appeal filed in this Court. Relevantly, ground (2) was that –

"The Member erred in deciding the third element adversely to the appellant, particularly given that:

…

(b) the evidence of Mr De Tournoeur was relevantly uncontradicted;

(c) the Member failed to take into account that the volume applied for had been suggested by an officer to the respondent."

Nor were we taken to any evidence at the hearing of the appeal to this Court, indicating that there was any error in the Land Court's findings.

[33] The only evidence lead before the Land Court as to the volume of water required by the appellant related to non-forage crops and orchard trees. The learned Member found that that evidence was not produced to serve a plan of land use intended by the appellant but was probably produced for the purpose of providing evidence at the hearing and to give Mr De Tournouer some idea of what cropping might be carried out on the land should he discontinue or modify the current cattle grazing use: RJ [26]. The learned Member therefore concluded that he was not satisfied that the volume of water sought would be used for those purposes. Further he had been presented with no way of ascertaining what would constitute "the efficient use of" any water entitlement he might order: RJ [27].

[34] Mr Gore pointed to the trouble and expense incurred by the appellant and Mr De Tournouer in their pursuit of a suitable water allocation and submitted that theirs was not the behaviour of persons who do not propose to make proper and efficient use of any water allocation obtained.

[35] We acknowledge that the appellant has incurred considerable expense in connection with the licence application and appeals, that Mr De Tournouer's evidence as to usage was not contradicted and that there is some evidence that he was encouraged by a departmental officer to expect an allocation based on the maximum entitlement for the area to be irrigated. However, none of those factors demonstrate that there was any error by the learned Member in his findings as to the proposed use of the water. In those circumstances we agree with the learned Member that there was no evidence before him as to what would constitute the efficient use of any entitlement. It follows, that in the absence of adequate evidence, the learned Member could not carry out the balancing exercised required by s.210(1) of the Act, and ss.11(2) and 51(2) of the Barron Plan.

[36] Our conclusion is therefore that the learned Member did not fail to determine the real issue in the appeal nor to give sufficient reasons for his decision.

[37] Finally, Mr Gore submitted that the Land Court had ignored the appellant's submission that there were sufficient safeguards - the proposed conditions of approval, the prospect of amending the licence under s.218 of the Act and the limited two year period of the licence- to allow the grant of the volume of water sought.

[38] This submission is premised on the more general submission that the learned Member should have considered all of the matters set out in s.210(1) of the Act. Once it is acknowledged that the failure of evidence as to the proposed use of the water had the consequence that it was not possible to balance all the considerations set out in s.210(1), there was no need to consider the proposed safeguards."

  1. [191]
    An application for leave to appeal to the Court of Appeal was dismissed by that court in De Tournouer v Chief Executive, Department of Environment and Resource Management.[101]
  2. [192]
    Fraser JA delivered the leading judgment. In reciting the facts as found in the Land Court his Honour said:

"[12] The appellant lost for the different reason that she failed to provide evidence which would allow the Member to consider the third element, concerning the use to which allocated water was to be put. That element comprehends both efficiency of water use practices in terms of ss 11(2)(c) and 51(2)(b) of the Barron Plan and the continuous use of water issue in s 11(2)(b) of that plan. In conformity with those provisions, the application form (in “Part F Water Requirement”) required the applicant to describe “the proposed water scheme”. Under a sub-heading “Irrigation Requirements”, the form called for information about “Crop Type”, “Proposed Area”, “Maximum Weekly Application”, “Maximum Monthly Volume”, and “Time of Year Required”. The applicant left all of those spaces blank, save that under the heading “Crop Type” the form records, “Pasture Hay”, “Maize” and “Potatoes”. The form contained no information which would allow for any decision about the efficiency of proposed water use practices or whether the water would be used continuously.

[13] In the Land Court the Member noted that the following evidence was provided by the appellant's son, Mr De Tournouer, who managed the property: his primary purpose for making the application was to drought-proof the property; he also would grow winter crops such as winter rye grass and clover and thereby almost double the carrying capacity of the land for cattle; and he intended to grow crops such as vegetables (potatoes) as an option if beef prices declined. Long after the original application was made but before the hearing in the Land Court Mr De Tournouer met with Mr McQuillam of “Malanda Rural Supplies”. Mr De Tournouer said that Mr McQuillam told him the appropriate crops that could be planted and the amount of water necessary to sustain those crops.

[14] The Member found that: there was no evidence as to how much water was necessary to drought-proof the property, the area to be sown for the winter crops, or the water needed for such plantings; doubling the carrying capacity was inconsistent with such evidence as there was about the volume of water required; the water volume attributed to Mr McQuillam assumed an intensive use of the appellant's land for cropping and the dedication of part of it to permanent tree crops; those uses were inconsistent with Mr De Tournouer's stated intention to drought-proof the property as a grazing enterprise and his expectation of doubling the grazing capacity; cropping was an option but Mr De Tournouer was not committed to it; a document in evidence (on Malanda Rural Supplies letterhead but in fact typed by Mr De Tournouer's wife) about this proposal was not and did not purport to be a cropping and water usage plan based on the appellant's intentions but represented suggested water usage if the cropping assumed by Mr McQuillam (potatoes, corn (silage), hay – grass seed and orchard trees) eventuated; the figure of 633 ML/a ultimately sought by the appellant was derived from a calculation by Mr McQuillam which was not fully explained; accordingly the evidence did not show that the water sought by the appellant would be used for the purposes assumed by Mr McQuillam; and the volume of water sought in the appellant's licence application was not estimated by reference to a plan of productive and effective usage but was instead the maximum volume that might be allowed.

[15] The Member concluded that the appellant had not demonstrated that there would be a continued use of the water entitlement sought or of any identifiable amount and that he had not been given material from which he could ascertain what would constitute the efficient use of any particular water entitlement. He dismissed the appeal for that reason."

  1. [193]
    His Honour explained the dismissal of the appeal in the Land Appeal Court as follows:

"[22] … The Land Appeal Court dismissed the appeal for reasons which I would paraphrase as follows:

(a) Since the Land Court was required to consider the applicant's application afresh, it was obliged to consider all of the criteria set out in s 210 of the Act; s 210(c) required the decision maker to consider any water resource plan that might apply to the licence, thus the Barron Plan must be considered; s 11(2)(c) required sub-artesian water to be allocated and managed in a way that achieved the balance               between, amongst other things, encourage­ment of the efficient use of water and s 51(2)(b) of the Barron Plan required the chief executive to have regard, amongst other things, to the efficiency of the proposed water use practices: [2009] QLAC 0006 at [25].

  1. (b)
    Nothing in the legislation suggested that the proposed use of the water was a subsidiary issue. The               statutory requirement to have regard to the efficiency of the proposed water use was a mandatory requirement. The proposed use of the water therefore required consideration despite the applicant's successful challenge to the credibility of one of the respondent's main witnesses on the issue of the availability of water. For the same reasons, if the Land Court had found that ample water was available in the system that did not significantly diminish the need to scrutinise the proposed use of the water: [2009] QLAC 0006 at [25]

(c) In light of ss 51(2)(b) and 11(2) of the Barron Plan, if there was no evidence or no sufficient evidence about the efficiency of the proposed water use practices or how allocation would encourage the efficient use of water, it would not be possible for the Land Court to undertake the necessary balancing exercise; it followed that the absence of adequate evidence on that issue would have the effect that “this criterion, that is otherwise but one in a list of matters to be considered, assumes a determinative significance”: [2009] QLAC 0006 at [29].

[23] I record my respectful agreement with the Land Appeal Court's reasons. The legislation, and particularly s 51(2)(b) of the Barron Plan, obliged the chief executive to have regard to the efficient use of water criterion in deciding an application for a water licence, yet both the application for a licence and the evidence adduced in the Land Court failed to address that criterion in any meaningful way. There was no error of law in the Member's decision that the appeal should be dismissed for that reason."

  1. [194]
    Both McMurdo P and McMeekin J agreed with Fraser JA. McMeekin J added reasons as follows:

"[38] I have had the advantage of reading in draft the reasons for judgment of Fraser JA. He has comprehensively set out the relevant legislative provisions and issues. As his Honour demonstrates there was no meaningful evidence led of how the allocation sought was to be used.

[39] Essentially the arguments to this court and the court below were two-fold. First, it was contended that the question of the use of the water was a subsidiary issue. I cannot see why. There is nothing in the legislation or logic to suggest that it is.

[40] Second, it was contended that the Member cannot carry out the balancing exercise envisaged by the legislation unless all matters in dispute are expressly found. I disagree.

[41] Another way of putting the submission is to assert that in the absence of any meaningful evidence of how the water allocated was to be used, and assuming all else in favour of the applicant, the decision must necessarily be in favour of the allocation sought.

[42] Here the combined effect of s 210(1)(c) the Water Act 2000 (“the Act”) and ss 11(2) and 51(2) of the Water Resource (Barron) Plan 2002 was to render it mandatory for the Member to consider the efficiency of the proposed use of the water allocation sought. It is self evident that the legislature is concerned with the proper allocation of a scarce resource. The respondent's concession that there was abundant water, sufficient for the maximum allocation, was made in that context. Water, plainly, is not there simply for the asking. And importantly, as Fraser JA points out, the onus lay on the applicant to demonstrate that the allocation should be made, otherwise the legislation required that the application “must” be rejected: s 211(2) of the Act.

[43] The applicant is no more entitled to succeed in the absence of evidence of proposed use, and demonstrated efficient use, than she would be if she had failed to show there was any water there. Both are essential requirements under the Act.

[44] I agree with the reasons and the order proposed by Fraser JA."

  1. [195]
    The way in which the application for the water licence was completed was only part of the evidence requiring consideration.  The case did not turn simply on whether the applicant had completed the application fully.  Even if she (or her son on her behalf had fully completed the form) given the evidence which was later given by the son on the hearing of the appeal before the Land Court, it may well be that no different result would have ensued. It was but one piece of evidence to be considered.  Simply because an applicant fills out the form completely does not entitle an applicant to succeed, or mean that the applicant has proven what its proposed water use will be, or that it will be efficient.  Similarly, merely because the appellants did not complete the form fully does not mean that automatically they must fail. What is required in each case is a consideration of all the evidence and whether it is sufficient to discharge the requirements of the Act and the requirements of any applicable provision of any applicable water resource plan, such as ss 11 and 51 of the Barron Plan.
  2. [196]
    It is fundamental to the determination of an application for a water licence how the applicant proposes to use the water being sought.  Water is a precious resource and this is no mere formality or subsidiary issue.  It is here made an express requirement because of s 210(1)(c) of the Act picking up ss 11 and 51 of the Barron Plan.  His Honour recognised this but formed the view that he could not be satisfied on the evidence before the Land Court as to what their proposed use was and, it must also follow, that he could not be satisfied that it would be efficient.
  3. [197]
    The appellants’ case is essentially that Appendix 4 of Ex 21 represented their proposals in the event their higher case based on unfairness failed and that this was clear from the report. In other words, the report provided sufficient evidence of the proposal.
  4. [198]
    This requires a detailed examination of Ex 21 and a consideration of the evidence of Mr Sutherland and any other evidence before the Land Court.
  5. [199]
    Comparison of the case with that of the Williams decision can only be taken so far in the present case. There has been no appeal from the Williams decision.  
  6. [200]
    In the present case the appellants did give evidence of proposed use through their expert Mr Sutherland, who prepared the report Ex 21, an earlier joint expert report (Appendix 2 to Ex 21), and also prepared, gave evidence and was cross-examined on Appendix 4 to Ex 4 – the amended crop report[102].  The appellants did not give any direct evidence themselves.  The Land Court was not bound by the rules of evidence[103] and if the report contained hearsay evidence of the matters required as to proposed water use and its efficiency, the fact it was not given directly is not fatal. In any event, there was no objection to any part of the report on this basis.
  7. [201]
    It was not put to Mr Sutherland by the respondent in cross-examination that the proposals in it were merely hypothetical[104] in that they did not represent the intentions of the appellants as to their proposed use. Had this been put to him and the appellants had then not gone into the witness box to give direct evidence of their intentions as to the proposals themselves, it would be unlikely the appellants would have succeeded. Had such questions been put to Mr Sutherland the appellants would have clearly been on notice that the respondent was contending the matters set out in Appendix 4 of Ex 21 were merely hypothetical or that the appellants may not be intending to adopt them. I disagree with what is said in the last two sentences of [59] of the judgment of the majority.
  8. [202]
    The first time the appellants were on notice there was a challenge to this element was when written submissions were delivered sometime after the oral evidence had all been heard. It is true that no application was then made by the appellants to re-open the case.
  9. [203]
    The appellants’ counsel below (different counsel appeared in this Court) was aware of the De Tournouer decision as appears from the transcript.
  10. [204]
    Indeed, counsel said this in his opening after tendering Ex 21:

"That report goes to the efficiency of proposed water use, applications of this nature and your Honour saw in the De Tournouer matter; that’s where De Tournouer fell down. With that in mind there’s been considerable effort placed on all areas of this appeal but especially that[105]."

  1. [205]
    At the conclusion of his opening the appellants’ counsel below said this:

"Just in conclusion, your Honour, at the end of the appeal and based on the evidence, the appellants submit that that satisfied the three broad elements as set out by Members citing the De Tournouer appeal and your Honour may remember that helpfully, Mr Scott ... set those out simply and you don’t want to have over-simplified summaries, but just to remind your Honour there’ll be three findings that we’ll be urging on the Court, that is, the first one, that the water sought is available for allocation – the water exists. Second is that if the water were to be allocated, then there’d be no detrimental impacts of the like set out in the plan to downstream users, to other irrigators, to the environment, such that would preclude the allocation. No significant impacts. And further, that if the Court grants the water sought that it will be used sustainably[106]."

  1. [206]
    These statements are clearly not evidence, but they do indicate that the appellants were proceeding on the basis that they (or their counsel) thought that the amended crop report in Appendix 4 of Ex 21 represented the proposed use they intended to make of the water if their higher case on unfairness failed and the allocation sought in the alternative was granted. It explains why no direct evidence was called from the appellants on this issue.
  2. [207]
    The respondent is a model litigant.  That said, I do not base this judgment on what, may or may not, have been the duties of a model litigant[107], or any failure to cross-examine being able to be used to cover a gap in the appellants’ case (this is not permissible), but rather on the basis what the appellants had led in evidence in terms of their proposal in Appendix 4 to Ex 21 discharged the evidential onus on them and the failure then to challenge that evidence, which was not on its face, inherently unbelievable, and was inherently credible, leads to the conclusion that the appellants discharged the onus of proof as to the threshold issue and that this Court should so find.  
  3. [208]
    Although the decision of the Court of Appeal in De Tournouer appears in one of the 2011 volumes of the Queensland Reports, the decision itself was delivered on 18 December 2009.  The hearing before the Land Court in the present case, commenced on 20 September 2010 and the statements extracted above were made on that day.
  4. [209]
    It was not in dispute between the parties that the total irrigable area of the appellants’ land in respect of the water licence was sought was 276.6 ha.  This was common between Mr Sutherland and the respondent’s expert Dr Watts.
  5. [210]
    Following the making of the application for the water licence, the appellants, jointly with a person not party to this appeal, acquired a ground water licence of 61MLs in relation to another property[108].  This property was not the subject of the application and nor was the other party an applicant. 
  6. [211]
    A perusal of the cross-examination of Mr Sutherland shows that the following exchange occurred with Mr Sutherland[109]:

"All right? – The – the ideal – and this is clearly spelt out in the Rustic Report that Dr Watts and I both relied on. The ideal use if – if we run an irrigation efficiency of between 75 and 85 per cent. Now the irrigation efficiency – I was in Court yesterday for Dr Evans. The irrigation efficiency’s a very particular definition of reliably delivering a depth of water on a square metre of property underneath your irrigation system. So Dr Watts and I have agreed on irrigation efficiencies I think between 75 and 95 per cent for the avocadoes.

Correct? – Now, the actual water use in the Atherton Tablelands is for rye grass up over nine megalitres per heactare per year.  What I have prepared is very much an idealised crop water management plan that – excuse me. Sorry. I’ve produced an idealised crop water management plan that says all things being equal with the irrigation efficiencies that have been calculated, that the amount of water that you apply to the land is in this particular case 4.7 megalitres per hectare. The practice again through these cropped areas with the respondents to the Rustic analysis that’s been done by the department is – is in some cases double that. So, by doing a crop water resource plan and by putting together the rotations very carefully, and by mapping out every square metre that we’re going to irrigate, we gain a great efficiency in managing the irrigation supply. First point. Second point; by measuring the soil moisture deficit as is proposed in the crop water resource plan, we’re able to better time the irrigation and therefore more efficiently use the water and therefore reduce the amount of water, compared to what’s routinely used on these properties. So, we’ve got current licence holders who are enjoying the benefits of the surface water allocation and their groundwater allocations who are using nine – eight, nine, 10 megalitres per hectare per year. But what I’m saying is, by going through this exercise producing a crop water resource plan, we can effectively halve that amount of water put onto the crops. The effective abstraction is less, of course, than that, and I’ll explain – if I may explain that briefly. The effective extraction on – on these particular properties falls even further because by managing the soil moisture in a particular way, you get an increase in deep percolation, and that increase in deep percolation, depending on where the hydrogeologists agree the water goes to, it leaves the root zone. So, it’s effectively, within the soil profile, but out of reach of the roots. That deep percolation, So the effective abstraction is even less than the 4.7 megalitres per hectare that we’ve calculated.

You seem to be going – are you going so far as to say that your crop water resource plan is an idealised or theoretical abstraction, rather than something which is real? No. No. I’m not saying that at all. What I’m saying ---

No. All right. The ----? What I’m saying is that at this level of detail for the first time ion this particular management area, we have a demonstration of a fairly sophisticated plan that allows for the efficient use of water comparatively compared to neighbours.

…..

Thank you. All right. Well, the final thing is just to talk a little bit about the development of these crop water plans. You mention in your evidence-in-chief that you were approached by the appellant’s solicitors. Depeoni Law; correct? – I was commissioned by them?

Yes? – Yes, I was. Yes.

All right. I don’t want you to get it out, but do you have your letter of instructions with you” – I might do. Would you like me to find it?

Well, I probably don’t need to go into detail. Is it correct that you were supplied with details about the appeal, and the issues in the appeal? – Yes, it would’ve been. Yes.

And you were then asked to go and do some work to work up a crop water resource plan for this – for both properties; correct? – Would you like me to – I’ll just see if I’ve got the brief with me.

Certainly? – Just – yes. That’s the case.

All right. As I said, you were supplied with the property details from appeal documents, Just speaking generally, what other documents were you supplied with? – I was supplied with Mr Williams’ application, Mr Gallos’ application, the notice of the appeal, the grounds of the appeal, the groundwater recharge and stream flow analysis – stream base flow analysis at Cooke et al.

Thank you? – That’s pretty much it.

All right, And then – and I think we can be quite quick about this, because on reading your report you then – “I went about the task by first visiting the site”? – Yes

Then doing research into soil types? – Yes

And research into the slopes as far as you could see them? – Certainly. And look, I’ve explained in evidence-in-chief that we’ve got the benefit of really quite considerably – quite considerable data from DNR.

Certainly. There’s no criticism of the work you did, Mr Sutherland. I should be clear about that. I’m just trying to understand the sequence of events. With that data and the soil types and the other information, you then identified the types of crop which you consider to be suitable? – Yes

All right. It’s the case is it not, that nowhere in your report does one find any sort of analysis of the economic viability of the proposal in terms of the projected – cost projected returns? – No. Not at all.

It would therefore be fair to describe both crop water resource plans as an agreed reflection of an optimal and efficient use of these properties for the crops state? – Oh, the ----

Optimal and efficient use of water for the purpose of -----? Yes.

---- growing the crops stated on the property? --- On – on these properties in a sustainable manner, yes.”

  1. [212]
    A little later on in the context of being cross-examined on the FOI information obtained by the appellants for licences previously issued and then in the context of a question about renewals of licences the following exchange occurred:

"Renewals are rubber stamped effectively, aren’t they, unless you’ve been in non-compliance? – Well, effectively, yes, and – and- and I think that that is part of this equity issue, too. It seems as though the need to assess the applications – if I can put it this way, Mr Fynes-Clinton, the appreciation of the value of the water in terms of ground water and surface water was enshrined in the plan in 2002 where there was a realisation that the – the water was becoming more valuable, and that it would become effectively more scarce as there were - as there was agricultural development. That the renewals needed to be cognisant of the provisions of the plan, I think – I think goes with it. There’s no point in having a plan if renewals are just rubber stamped. They have to be – they have to be examined. Ideally, every applicant would come up with a crop water resource plan which would show the benefits that – that we’ve – we’ve accrued from this plan should the licences be, um, allocated. But it’s about the practice and it’s about the – it’s not for me to say that the applicants were treated unfairly. It’s just that they were treated – think these applicants have been treated differently[110]."

  1. [213]
    Further, earlier in cross-examination it is clear that Mr Sutherland had spoken to Mr Gallo of the appellants.

"Well my understanding from Mr Gallo is that the entitlement on Lot 3 was attached to Lot 3 and purchased after this application went in. But that – that’s my understanding.[111]"  

  1. [214]
    From the evidence in chief of Mr Sutherland and the evidence of Dr Watts it is clear that Appendix 4 of the report which became part of Ex 21 was prepared after the joint expert report between Mr Sutherland and Dr Watts which forms Appendix 2 to that exhibit.  There were large areas of agreement between those experts after the joint meeting. An earlier report had been prepared by Mr Sutherland in August 2009.  This is Ex 46. Mr Sutherland refined that report following the meeting with Dr Watts and this became Appendix 4 to Ex 21.
  2. [215]
    At the beginning of his report, Appendix 4 of Ex 21, Mr Sutherland states:

“2.3  Crop Water Resource Plans

For each Appellant, I prepared detailed CWRPs which entailed a thorough review of the proposed farm and irrigation practices, assessed the landform and soils, addressed water use efficiency, environmental risk and detailed monitoring and recording programs to manage those risks. In each case the CWRPs estimate the peak water demand under sustainable crop rotations. For each property these detailed CWRPs are attached as Appendixes [sic] 3 and 4.

…

3.1.5 Sustainable irrigation of Gallo property

I prepared a Crop Water Resource Plan (CWRP) for the Gallo property. Through a detailed assessment of soils, slopes and general agricultural suitability, the CWRP assesses the merits of the proposed additional irrigation of farming land and demonstrates that the allocation of water at the required rate would not result in land or water quality degradation either on or off farm

The CWRP demonstrates the benefit to be gained from the allocation of additional irrigation water to the Gallo property for expanded cropping and animal production and shows that the water allocated from sub-artesian supplies will be used efficiently.

Ultimately, the CWRP indicates a total irrigable area of 276.6 ha on the Gallo property. The additional water required from underground supplies to permit operation of the irrigation enterprise is 813 ML yr¯¹ (or 2.94ML/ha).[112]"

  1. [216]
    In this summary, Mr Sutherland does not distinguish in his language used in relation to the Williams or the current appellants.  In the Land Court though, the learned Member did distinguish between the position of the Williams on the one hand and the appellants on the other.  His Honour reasoned that there was a difference in expression in the CWRP for the Williams (Appendix 3 of Ex 21) from that in the CWRP for the appellants (Appendix 4 of Ex 21) from which his Honour inferred that the proposals in Appendix 4 were hypothetical as regards the appellants but not so as regards the Williams as extracted from the reasons for judgment at [174] above.  His Honour did not refer to the parts of Ex 21 extracted at [215] above or those in [219] below. 
  2. [217]
    In the joint report (Appendix 2 to Ex 21) the experts agreed the CWRPs for both properties were reasonable estimates of the crop water requirements of both properties and in respect of the Gallo property, extensive irrigation is currently practised on the farm and there is, at least, 290 ha of irrigable land available.  Dr Watts made complaint about not knowing exactly where the appellants proposed to expand but Mr Sutherland stated it was identified in table 4.2.2.
  3. [218]
    Dr Watts did not deal with the unfairness argument, but Mr Sutherland did and some part of the joint report on differences refers to this, as does Ex 21.
  4. [219]
    In the CWRP prepared by Mr Sutherland for the Gallo property (Appendix 4 of Ex 21) the following appears:

“Summary

Neil Sutherland was engaged by P&E Law and J.P, F & F.R. Gallo to prepare the following Crop Water Resource Plan (CWRP)

The plan demonstrates that proposed additional irrigation of the farming land described herein would not result in land or water quality degradation on or off farm. It also assesses and estimates the farm benefit to be granted from the allocation of additional irrigation water for expanded cropping and animal production. The farm benefits identified in this report are based on environmental, soil, water and general farm information demonstrating that the water allocated from sub-artesian supplied will be used efficiently.

The irrigable land on the farm is 276.2 ha. The existing surface water allocation for the farm is 98 ha. This 98 ha surface allocation is made up of 45 ha within the land type pasture irrigation and 53 ha within the land type designated as high production intensive irrigation areas. The crop water requirement for the remaining irrigable land within both irrigation land types on farm is 813 ML yr¯¹.

The water required from underground supplies is some 813ML yr ¯¹.

….

1)Introduction

Neil Sutherland was engaged by P&E Law and J.P, F & F.R. Gallo to prepare a Crop Water Resource Plan (CWRP)

This plan considers irrigation of the farming land within the site and farm productivity, farm viability and the receiving environment.

…

1.1 Objectives

The objectives in preparing the following CWRP the assessment were to:

  • Review the proposed farming and irrigation practices
  • Outline the proposed uses for additional irrigation water
  • Outline water use efficiency practices and management systems
  • Identify environmental risks associated with these proposed farming and irrigation practices
  • Devise management strategies to minimise the identified risks
  • Outline recording and monitoring programs to help manage the risks,

 …"

  1. [220]
    The following also appears in Appendix 4 of Ex 21:

“4)  Proposed farm program and layout

4.1 Current land use and infrastructure

Of the total site area of 358 ha, some 152.7 ha are currently irrigated. The irrigation infrastructure consists of centre pivot irrigators and solid set systems to infill corner section of the irrigation paddocks. The distribution of the existing systems is shown in Drawing GJ0686. 1.3.

Proposed land use

Any groundwater allocation granted would be used to develop additional irrigation infrastructure in the form of centre pivot, low-pressure boom supplemented by small areas of fixed sprinkler to infill irrigable land within the paddocks.

It is anticipated that the irrigated cropping regime would be based on annual crops such as potatoes for fresh vegetable sale, maize for havestore ® fodder and improved pasture (rye grass/clover) for dairying. In addition, longer term improved pasture (2 year period) would be used as part of the soil renovation program and to supply other grassed pastures for dairy production. The growing seasons for each cropping option are shown in Table 4.2.1.

The additional irrigation areas, as shown in Drawing No. GJ0686.1.4, total some 123.9 ha. The existing irrigation on site is some 152.7 ha. The total irrigation including new and existing development is 276.6 ha.

The detailed description of these areas is best aided by dividing the property development into two land use types:

  • Intensive pasture irrigation – ryegrass/clover and fodder grass rotation
  • High production intensity irrigation areas of annual cropping and ryegrass rotation. 

4.2.1 Intensive pasture irrigation

4.2.2 …

The intensive pasture irrigation on the higher gradient areas associated with UMA103 and UMA 156. These areas are shown in Drawing No. GJ0686.1.5.

This land type is serviced by existing centre pivot irrigators P1, 6 and 7 with an irrigation area of 68.3 ha.

The new irrigation developments for this land type are centre pivot 11 (8.3 ha) and low-pressure boom areas B1, 2, 4, 9 and 10 with an area of 28 ha. All new development covers 36.3 ha. The total irrigated area for this land type is some 104.6 ha.

The cropping cycle for this land type may follow a six-year rotation with a 2 year rye grass production followed by a 2 year established improved grass pasture followed by replanting of rye for the next years. The intent is to have approximately 2/3 of the land committed to rye grass in any one year.

4.2.2  High production intensity irrigation

The high production intensity irrigation areas of annual cropping and ryegrass rotations will focus on the production of fodder for dairying with the inclusion of late potatoes as an annual cash crop. This area is shown in Drawing No. GJ0686.1.5.

This land type is serviced by existing centre pivot irrigators P2, 3, 4 and 5 with a total irrigation area of 84.8 ha.

The new irrigation developments for this land type are:

  • centre pivot 9 (23.5 ha) and 10 (9.1 ha)
  • low pressure boom areas B3, 5, 6, 7, 8 and 10 (34 ha)
  • solid set irrigation to infill irregular areas (21.0 ha)

The total area of new development is with a total area of 87.6 ha. The total irrigated area (existing and new) is some 172 ha.

The proposed cropping cycle for the high production intensity irrigation area represents an allocation of approximately 57 ha to late potatoes. 28.6 ha to maize for the dairy harvestore ® and 86 ha to ryegrass/clover pastures.

The combined and full extent of the irrigation development for this property is depicted in Drawing No. GJ0868.1.4

4.3  Irrigation technology

The irrigation methods will adopt three basis types:

  • centre pivot (low pressure)
  • low-pressure boom
  • solid set fixed sprinklers

4.3.1 Areas within the property that are suitable for irrigation

The property currently employs a significant number of centre pivot irrigators and the technology is well established.

In large contiguous areas the additional irrigation development would be based on low-pressure boom technology.

Specification documents for Upton® and Monsoon® irrigators are attached in Appendix 2 by way of examples of the type of systems proposed to be used.

The standard configuration of these types of irrigator delivers significant water use efficiencies compared to high-pressure rain gun irrigators and similar distribution efficiencies to lateral move and centre pivot irrigators.

The low-pressure boom has the advantage of being more suited to some of sloping terrain of this farm and the ability to operate in areas that centre pivots or lateral move irrigators cannot due to the shape of the paddocks.

Additionally, low energy precision application (LEPA) technology may be used to minimise mist and evaporation losses for suitable crops. This technology uses long dropper hoses to place the water closer to the ground, minimising losses.

The final irrigation option for use on the property will be solid set medium pressure irrigation. The role of this form of irrigation is to infill areas that have paddock shapes that are not compatible with the centre pivot and low-pressure boom irrigators.

The water use modelling undertaken by QDNRW indicates this irrigation method results in an approximate 2% increase in water use.

4.4 Crop water requirements

The primary crops to be irrigated on the farm following development are improved pastures, potatoes, and forages (maize).

… .

4.5 Pumping, storage and distribution

The existing water sources for the farm are surface water supplies taken from the Barron River and Leslie Creek. The existing irrigation developments are shown on Drawing No GJ06786.1.3.

The proposed underground supplies would be accessed by submersible pumps driven by electric motors and delivered via a network of underground mains into the existing infrastructure. Some additional distribution mains will be required to distribute water to the new development areas.

….

4.6 Irrigation area general management

Six management factors ensure the efficient use of water and the minimal impact of the irrigation project on the surrounding environment:

  • Irrigation schedule
  • Irrigation system performance
  • Aquifer monitoring
  • Farm run-off
  • Soil erosion control
  • Crop area assessment

…

4.6.1  Irrigation scheduling

The irrigation application will be management by soil water deficit. The intent is to use tenisometers to measure soil moisture tension.

….

The use of the tenisometer for irrigation scheduling will be supplemented by “on farm” collection of daily climatic data via portable weather station and water balance assessment using software such as WATERSHED®.

4.6.2 Irrigation system performance

Annual assessments of irrigation application efficiency and uniformity, distribution and pumping performance will be conducted to ensure the efficient use of water for crop growth. Such procedures would address:

  • boom distribution uniformity
  • checks for leaks and breakages
  • inspection of pump works and distribution mains attachments
  • monitoring erosion and evidence of tall water during irrigation

4.6.3 Acquifer monitoring

Each bore will be sampled and tested for water quality and standing water height. Each bore used as an irrigation source will be monitored annually for water quality. The list of water quality parameters for analysis would be as a minimum: pH, EC. Calcium. Magnesium, Sodium. Chloride. Sulphate, Carbonate, Bicarbonate, Total Hardness, CaMg ratio, SAR, Fe, B, F and Mn. The water quality data would be used to review and refine the irrigation management practices on the farm.

Additionally, any tail-water pr stormwater containment structures (dams or wetlands) would be sampled annually for water quality parameters as above plus Total N and Total P. Those data would be used to assess the potential impact the farm may be having on the surrounding environment.

The bore standing water levels would be monitored quarterly to assess changes in the aquifer over time.  The objectives of this monitoring are to identify the seasonal changes in water height and identify and trends over time in water standing height during the irrigation season.

4.6.4  Soil Erosion Control

The soil erosion control plan to be developed for the property will follow the principles of:

  • Land use allocation in accord with the soil land resource capability/suitability;
  • Interception of the rainfall where it lands
  • Diversion of excess run off to safe (non erosion) disposal areas
  • Store and then dispose of water into the natural water courses.

The land use allocation on the farm follows the suitability analysis detailed in the QDNRW assessments and guidelines.

The interception of the rainfall where it lands is accommodated by the agronomic methods that will be used on farm are:

  • Crop rotation to minimise soil exposure;
  • Incorporating pastures in the rotation
  • Opportunity crops to provide additional cover during normal fallow periods
  • After harvest residue retention to provide soil cover outside of the crop growth season
  • Zero or reduced tillage using tyned implements and rod weeders
  • Adjusting the timeliness of operations to ensure a minimum soil exposure during storm season
  • General management adjustments such as using herbicides for weed control, changing fertiliser applications to coincide with other operations etc.

Each of these methods represent standard practices used in the local area. In addition, where it is appropriate, controlled traffic management of the farm machinery operations will be used to minimise soil compaction and optimise irrigation and rainfall infiltration on site. 

The excess run-off would be intercepted by the pasture crops that would be part of the rotations on site. Graded banks would be constructed in appropriate placed to minimise the impact on boom movement across the site as well as divert the run off to a safe waterway.

Small tailwater and storm run-off dams would be constructed in the flow paths at the bottom of waterways to collect and temporarily store run off before overflow and discharge to the natural river system. The location of these are shown in GJ0686.1.6 (Appendix 3).

Farm run-off, stormwater and drainage

The site run-off potential will be minimised by the practices adopted on farm as part of the irrigation management. These practices are outlined in the section “Soil Erosion Control”. All the practices outlined have the primary functions of:

  • Maintaining soil surface cover
  • Maintaining soil infiltration and permeability
  • Slowing the rate of discharge from site and attenuating run-off hydrograph changes
  • Improving water quality of the run-off from the farm.

4.6.6 Crop and irrigation area assessment

The objectives of the crop and irrigation area assessment are to:

  • Optimise fertiliser applications
  • Maintain soil health in terms of salinity, organic matter and physical condition
  • Assess any changes in the soil environment
  • Estimate potential impacts on the surrounding environment

Soil Monitoring

An annual soil monitoring program will be adopted for each irrigation block identified in the water use section (blocks 1-8).

The sampling program would monitor …[various chemicals], % Base Saturation.

In addition a soil salinity profile would be plotted for each block to a depth of 1.2m. The profile will be used to adjust the irrigation schedule to ensure sustainable cropping and irrigation.

Plant tissue analysis

In addition to the soil analysis, the collection and analysis of crops harvested and exported from the farm will be undertaken. These harvested parts may be leaf, fruit or seed depending on the crop at the time.

These data would be used to assess the mass balance of nutrients as a check on fertiliser use efficiency and assess risk of fugitive nutrients and other products leaving the site and having and [sic] impact on the surrounding environment.

5) Conclusions

The Crop Water Resource Plan prepared for the site demonstrates that the proposed irrigation regime and farm management practices will use any groundwater allocation to increase agricultural production without impacting on the receiving environment. Further, this plan describes principles that will ensure that allocated groundwater resource in an efficient and sustainable manner in agricultural and environmental terms.

The irrigable land on the farm is 276.2ha. The existing surface water allocation for the farm is 98ha. This 98 ha surface allocation is made up of 45ha within the land type pasture irrigation and 53 ha within the land type designated as high production intensive irrigation areas. The crop water requirement for the remaining irrigable land within both irrigation land types on farm is 813ML yr¯¹.

The water required from underground supplies is some 813ML yr ¯¹."

  1. [221]
    The above does not set out Table 4.2.1 which shows when each crop would be grown or Table 4.4.1.1 which shows the estimated irrigation annual demand for each crop (based on 75% reliability) but these are extracted below at [253] and [254].
  2. [222]
    It is trite that in assessing Ex 21 and Appendix 4 that the document must be read as a whole. The reliance of the learned Member below on the words in the second paragraph of 4.2 to distinguish the matter from the Williams crop report is in error.  Reading the report as a whole the words “it is anticipated” do not of themselves, give rise to any inference that the report is purely hypothetical as concern the appellants or support a positive finding of a deliberate use of different words to convey a different meaning.  The document is not a legal document prepared by a legal practitioner in which a different use of expression in one part might more readily give rise to an inference that a different meaning was intended.  The words “it is anticipated” and “it is proposed” are not greatly different and in context do not signify any different meaning was intended.
  3. [223]
    The fact that the appellants had an existing allocation of water on their property and the Williams did not, also does not, of itself, demonstrate one way or the other that the appellants were any less likely than the Williams to adopt the proposals in the CWRP. 
  4. [224]
    As to the way in which the Williams completed their application as opposed to the appellants, this does not indicate any more, or less, likelihood that the Williams would act in accordance with the CWRP prepared by Mr Sutherland in the event their higher case failed.  The application as filled in by the Williams, although more complete, was not in accordance with their alternative case based on the CWRP but was based on the higher case.  The way the form was completed did not indicate anything as to whether the Williams were more or less likely to follow the CWRP prepared for them by Mr Sutherland.
  5. [225]
    The appellants could have avoided any argument on this point had they gone into the witness box and given evidence that they intended to adopt the proposals in Appendix 4 of Ex 21.  They did not.  Nor did the Williams. That said, this was not the only way they could have discharged the onus on them.
  6. [226]
    In the circumstances in which the case was run, there was evidence that the CWRP prepared for the appellants which was in Appendix 4 to Mr Sutherland’s report Ex 21 was what the appellants were proposing to do.  True enough the appellants did not give evidence themselves.  Had the respondent wished to challenge the proposals in the report as not being what the appellants were proposing to do with it, the respondent could have explored this with Mr Sutherland in cross-examination.  Had the appellants then not gone into the witness box to give evidence themselves, they most likely would have lost on this point.
  7. [227]
    The cross-examination which did occur of Mr Sutherland (part of which is set out above) did not squarely raise this as an issue.  The respondent’s senior counsel conceded this in argument[113].
  8. [228]
    This case is distinguishable from De Tournouer v Chief Executive, Department of Environment and Resource Management.[114]  The applicant’s son and manager in that case did give evidence and was cross-examined.  The degree of detail provided on the applicant’s behalf about its proposals in terms of water use, if granted the licence, was nothing like the degree of detail given in the report from Mr Sutherland.  The applicant’s son and manager altered the front of the letter he obtained from Mr McQuillam casting doubt as to whether the applicant had any intention of following what was in the letter.  His evidence created further doubt. No solid proposal could be ascertained from his evidence.  The way the form was filled in was consistent in the circumstances there with no thought being given to how the water would actually be used if the application was granted.
  9. [229]
    Here, there are detailed proposals set out in Ex 21 and Appendix 4.  The language is couched in terms of what will occur and what is proposed.  The use of the words “it is anticipated” in one paragraph signifies no different meaning.  The degree of detail in the report could not have been prepared without input from the appellants.
  10. [230]
    The respondent was entitled, if it chose, to cross-examine Mr Sutherland about what input the appellants had had in the report and to challenge the plain reading of the report that what was in it was what was proposed by them.  Alternatively, the respondent could have objected to the admission of the report into evidence as truth of the hearsay evidence contained in it about what was proposed.  The respondent did not do so.
  11. [231]
    In saying this, it is not suggested that there is any general positive duty on a litigant to alert the opponent to any gap in the opponent’s case or to cross-examine on evidence not led.  Had the appellants called no evidence whatsoever of their proposals or no evidence which could have satisfied the evidential onus (here they called it through Mr Sutherland for the reasons given above) there would have been no occasion for the litigant to put matters to the opponent which the opponent ought to have covered in its own case, or to alert the opponent that the point would later be taken.
  12. [232]
    Here, though, there was no objection to any of the hearsay in the report as to the proposals and the appellants discharged the evidential onus on them of leading sufficient evidence through Mr Sutherland.  The persuasive onus then came into play and the respondent had the options outlined above.  Although a court is not bound to accept unchallenged evidence, the evidence of the proposals in Appendix 4 of Ex 21 were not such that they ought not to have been accepted. In my judgment they ought to have been.[115]

Allocation of water

  1. [233]
    It is then necessary to consider the arguments directed to the allocation the learned Member would have made had his Honour found the appellants had discharged the onus on the “threshold issue”.
  2. [234]
    The complication arises as to the appropriate allocation because, although his Honour accepted the proposals in Appendix 4 of Ex 21 were sound and efficient, the appellants already had existing water entitlements.  These were summarised in evidence in Ex 45, a document prepared by Dr Watts.  On this point his Honour accepted that the method adopted by Dr Watts was preferable to that adopted by Mr Sutherland and accordingly, would have allowed the water licence allocation at 262MLs per water year and not 813MLs per water year as calculated by Mr Sutherland.  No such complication arose in relation to the Williams appeal and his Honour allowed the amount assessed by Mr Sutherland in relation to the Williams rounded slightly down to 515 MLs per water year[116] up from the respondent’s allocation of 80ML per water year.
  3. [235]
    The appellants seek to challenge this on a number of bases and claim an amount of 813MLs per water year.
  4. [236]
    The appellants submit that the deductions made were inconsistent with the respondent’s previous departmental practice and policy.  The existence of any policy was disputed in argument by the respondent but even accepting it to be true for present purposes, this cannot be taken too far.  There were findings made below as to the respondent’s departmental practices in relation to applications for water licences which were not in accordance with the requirements of the Act.  Simply because Mr Sutherland applied what the department may have done previously did not make his, or that, approach correct on this issue.  The Land Court was obliged to determine the matter applying the provisions of the Act and this is what his Honour set about doing.
  5. [237]
    The appellants complain that the respondent did not properly disclose information to the appellants and to the respondent’s expert Dr Watts which would have assisted a proper calculation.  Some complaint about this, in the context also of the unfairness argument, was made below.  As his Honour correctly ruled, the appellants could have brought an interlocutory application in relation to disclosure before trial.  They did not.  That said, it was not for the appellants to decide how to brief their opponent’s expert. In any event, the complaint seems to be directed to what the respondent supplied Dr Watts and that if he had been supplied with the information of previous departmental practice he would have applied it and come to the same result as Mr Sutherland so that there would not have been an alternative view put forward different from the departmental practice.  This does not give rise to any ground of appeal. Mr Sutherland said he applied the departmental practice, or at least what he thought was departmental practice[117] in relation to one aspect of his evidence.  Dr Watts simply applied a different method.  His Honour accepted Dr Watts’ approach. Whether that method was correct or not is the issue. 
  6. [238]
    As a matter of general principle, in determining the amount of water to be allowed on an application for a water licence, having regard to the purposes of the Act (being, inter alia, to provide for the sustainable management of water, and ensure its efficient use) only an allocation which is consistent with that purpose ought be made. Section 210 mandates the criteria to be considered.  One of these includes, in s 210(1)(e) “existing water entitlements and authorities to deal with water.”  To that end then, if the evidence were to show that an efficient use of water could be achieved over a certain area of land, and that land had existing water licences or authorities already, those existing entitlements must be taken into account. It is not, as was submitted for the appellants, a “giving with one hand and taking away with the other”, to take into account an applicant’s existing water entitlements.  As a matter of common sense, and as a matter expressly required by s 210(1)(d) these matters must be taken into account.  The appellants’ reliance in this regard on the decision in Heslin v Director-General, Department of Environment and Resource Management[118] is misplaced.  That case was decided in a quite different context and involved a very different point to do with the interpretation of an existing licence.  Taking into account the existence of an existing water licence in determining what allocation should be made in relation to an application for a different licence is something prescribed expressly by the Act.
  7. [239]
    Here, it is said on appeal to this Court, that the groundwater licence in Ex 44 cannot be taken into account because it relates to different land and that there is a different ownership of this land and the licence, in that the licence is held by the three appellants, and in addition Linda Cherie Gallo, who is not a party to the appeal, nor an owner of the land involved in the appeal.  The argument is put on two bases.  One, the argument based on Heslin that to take it into account would involve a giving with one hand and taking away with the other.  The application for the water licence, if granted, will not in any way rescind or otherwise alter or amend the existing groundwater licence in Ex 44 or any successor of it. (On the face of Ex 44 that licence had expired on 31 July 2012).  That said, whether as a matter of fact, taking it into account will have an adverse effect on the groundwater licence holders such that it ought not be taken into account is another matter. This depends on whether a factual basis is demonstrated for not taking it into account 
  8. [240]
    The second basis for the argument is that the groundwater licence for this land attached only to that land, so that water taken pursuant to it could not be used on the land the subject of the appeal.  Accordingly, it is argued it would therefore be wrong to deduct anything in relation to the water able to taken under this groundwater licence.
  9. [241]
    This involves a consideration of the effect in law of the licence and its terms.
  10. [242]
    Section 213 of the Act provides[119]:

"213  Contents of water licence

(1) A water licence—

  1. (a)
    must state the term of the licence; and
  1. (b)
    must state the water to which the licence relates; and
  1. (c)
    must state the location from which the water may be taken or at which it may be interfered with; and
  1. (d)
    may be amended, renewed, reinstated, transferred, amalgamated, subdivided, surrendered or cancelled; and
  1. (e)
    attaches to the licensee’s land unless the licensee is—
  1. (i)
    the State; or
  1. (ii)
    a local government; or
  1. (iii)
    a water authority; or
  1. (iv)
    a resource operations licence holder; or
  1. (v)
    an interim resource operations licence holder; or
  1. (vi)
    a petroleum tenure holder; or
  1. (vii)
    the bulk water supply authority; or
  1. (viii)
    CEWH; or
  1. (ix)
    an entity prescribed under a regulation.

(2) Despite subsection (1)(e), a following water licence (other than a licence held by a licensee mentioned in subsection (1)(e)(i) to (ix)) attaches only to the parcel of land on which the water is taken—

  1. (a)
    a water licence to take artesian water for stock purposes;
  1. (b)
    a water licence to take subartesian water, from an aquifer that is hydraulically connected to an artesian aquifer, for stock or domestic purposes."
  1. [243]
    Section 214 provides[120]:

"214  Conditions of water licence

(1) The water licence is subject to the conditions—

(a)prescribed under a regulation; and

(b)the chief executive may impose for a particular licence.

(2) Without limiting subsection (1), the conditions may require the licensee to do all or any of the following—

  1. (a)
    commence taking or interfering with water authorised under the licence within a stated time;
  1. (b)
    install a measuring device to measure the volume of water taken, the rate at which it is taken and the time it is taken;
  1. (c)
    take the water authorised to be taken under the licence;
  1. (d)
    provide and maintain access to alternative water supplies for other persons, authorised under this Act to take water, who would be affected by the granting of the licence;
  1. (e)
    carry out and report on a stated monitoring program;
  1. (f)
    give relevant information reasonably required by the chief executive for the administration or enforcement of this Act.

(4) If section 206(3) applies to the licence, the licensee must, within 40 business days after receiving the licence, register the instrument of lease or easement under the Land Title Act 1994.

(5) If the licensee fails, without reasonable cause, to register the instrument under subsection (4), the chief executive may cancel the licence."

  1. [244]
    Section 215 provides:

"215  Where water under certain licences must be used

(1) Water taken under a licence that is attached to land must be used only on the land to which the licence attaches.

Maximum penalty—1665 penalty units.

(2) However, subsection (1) does not apply to—

(a)water taken under a licence attached to land the subject of a water facility agreement under the Land Protection (Pest and Stock Route Management) Act 2002; or

(b)artesian water taken under a water licence for stock purposes; or

  1. (c)
    subartesian water, in an aquifer that is hydraulically connected to an artesian aquifer, taken under a water licence for stock or domestic purposes."
  1. [245]
    The water licence applied for by the appellants was in respect of the following land:

 (a) Lot 1 on RP 719534 – in the application Ex 3 said to be 26.128 ha and also said to be same area in Ex 45 owned by Filomena Gallo and Francesco Ralph Gallo;

 (b) Lot 169 on SP 124699 – in the application Ex 3 said to 40.061 ha and in Ex 45 said to be 46.3372 ha owned by Filomena Gallo and Francesco Ralph Gallo;

 (c) Lot 50 on NR 800959 – in the application Ex 3 said to be 9.372 ha and in Ex 45 said to be same area owned by Filomena Gallo and Francesco Ralph Gallo;

 (d) Lot 210 on NR 800958 – in the application Ex 3 said to be 20 ha and in Ex 45 said to be 20.871 ha owned by Filomena Gallo and Francesco Ralph Gallo;

 (e) Lot 119 on SP 116178 – in the application Ex 3 said to be 64.6585 ha and it seems by the time of Ex 45 had now become described as Lot 208 on SP 116178 for the same area owned by Filomena Gallo and Francesco Ralph Gallo;

 (f) Lot 178 on SP 116178 - in the application Ex 3 said to be 26.49 ha and it seems by the time of Ex 45 had now become described as Lot 207 on SP 116178 for the same area owned by Filomena Gallo and Francesco Ralph Gallo; 

 (g) Lot 215 on RP 804847 – in the application Ex 3 said to be 44.991 ha and by the time of Ex 45 (which specifically contains a note to this effect) had become Lot 48 on SP188685 but with an area of 45.3924 ha owned by               Filomena Gallo and Francesco Ralph Gallo;

 (h) Lot 1 on NR 804846 – in the application Ex 3 said to be 50.318ha and in Ex 45 said to be the same owned by Filomena Gallo and Francesco Ralph Gallo;

 (i) Lot 219 on N157178 – in the application Ex 3 said to be 65.559 ha and in Ex 45 said to be the same owned by John Peter Gallo.

  1. [246]
    It is convenient here to recall that on 9 November 2006 the respondent, by its delegate, allowed the application Ex 3 to the extent of 130 MLs per water year and issued the water licence in the name of all, notwithstanding that all three did not have ownership in each individual block of land.  The authorised purpose was for “irrigation, stock, domestic supply.”  Water licence 400431 was issued in accordance with that decision.  It was stated to attach to Lot 1 on RP 719534, Lot 169 on SP 124699, Lot 50 on NR 800959, Lot 210 on NR 800958, Lot 208 on SP 116178, Lot 207 on SP 116178, Lot 215 on RP 804847, Lot 1 on NR 804846, and Lot 219 on N157178. These were the descriptions of the land current at that time but which had changed by the time of Ex 45.
  2. [247]
    Ex 45 was in evidence with annotations for each of the lots above for existing groundwater and surface water licences.  However, the only licence tendered in evidence relevant to the present discussion was the groundwater licence, Ex 44.  None of the surface water licences were tendered below.  However, they were subsequently provided to this Court by the parties following an order of the Court in that respect made after the hearing of the appeal had commenced.  They were not provided in circumstances which would attract their admission under s 56(2) of the Land Court Act 2000. In my view, they were not provided by consent (but rather pursuant to the compulsion of the order), nor otherwise in circumstances which would permit their consideration by this Court having regard to ss 55 and 56 of the Land Court Act 2000.  Even if I am wrong, and they are to be seen as being provided by consent, I would not act on them.  For the reasons which follow at [283]-[291] I am of the view that there is a discretion in this Court to act on a concession, but whether to do so or not is discretionary.  Here, I would exercise that discretion not to act on them because I do not find them of any assistance in the resolution of this issue. 
  3. [248]
    Ex 45 described the existing water entitlements in relation to each lot as follows:

(a) Lot 1 on RP 719534 – in the application Ex 3 said to be 26.128 ha and also said to be same area in Ex 45 owned by Filomena Gallo and Francesco Ralph Gallo – 61ML GW Licence 183639 – 250ML  SW Licence to take water from the Barron River (56790K) ;

(b) Lot 169 on SP 124699 – in the application Ex 3 said to 40.061 ha and in Ex 45 said to be 46.3372 ha owned by Filomena Gallo and Francesco Ralph Gallo - 61ML GW Licence 183639 – 250ML  SW Licence to take water from the Barron River (56790K);

(c) Lot 50 on NR 800959 – in the application Ex 3 said to be 9.372 ha and in Ex 45 said to be same area owned by Filomena Gallo and Francesco Ralph Gallo – no current water entitlements;

(d) Lot 210 on NR 800958 – in the application Ex 3 said to be 20 ha and in Ex 45 said to be 20.871 ha owned by Filomena Gallo and Francesco Ralph Gallo - 61ML GW Licence 183639 – 80ML  SW Licence to take water from Leslie Creek (03046K);

(e) Lot 119 on SP 116178 – in the application Ex 3 said to be 64.6585 ha and it seems by the time of Ex 45 had now become described as Lot 208 on SP 116178 for the same area owned by Filomena Gallo and Francesco Ralph Gallo - 61ML GW Licence 183639 – 280ML SW Licence to take water from the Barron River (56792K);

(f) Lot 178 on SP 116178 - in the application Ex 3 said to be 26.49 ha and it seems by the time of Ex 45 had now become described as Lot 207 on SP 116178 for the same area owned by Filomena Gallo and Francesco Ralph Gallo - 61ML GW Licence 183639 – 280ML SW Licence to take water from the Barron River (56792K); 

(g) Lot 215 on RP 804847 – in the application Ex 3 said to be 44.991 ha and by the time of Ex 45 (which specifically contains a note to this effect) had become Lot 48 on SP188685 but with an area of 45.3924 ha owned by               Filomena Gallo and Francesco Ralph Gallo - 61ML GW Licence 183639 and no surface water licence entitlements at all;

(h) Lot 1 on NR 804846 – in the application Ex 3 said to be 50.318ha and in Ex 45 said to be the same owned by Filomena Gallo and Francesco Ralph Gallo - 61ML GW Licence 183639 – 250ML  SW Licence to take water from Leslie Creek (175034);

(i) Lot 219 on N157178 – in the application Ex 3 said to be 65.559 ha and in Ex 45 said to be the same owned by John Peter Gallo - 120ML SW Licence to take water from the Barron River (175046) and no groundwater licence.

  1. [249]
    Attached to Ex 45 was also a map with shaded areas said to indicate the position of the lots and colour-coded in relation to the licences.
  2. [250]
    The groundwater licence which was in evidence as Ex 44 - 183639 provides that it authorises

“the taking of underground water from Atherton Basalt under land described as Lot 3 on SP177333...

Authorised Purpose Irrigation, Dairying…

… Attached to the land described as Lot 3 on SP 177333 and Lot 1 on RP 719534 and Lot 169 on SP 124699 and Lot 210 on NR 800958 and Lot 208 on SP 116178 and Lot 207 on SP 116178 and Lot 48 on SP 188685 and Lot 1 on NR 804846.”

  1. [251]
    There was no clear evidence given as to what use lot 3 on SP 177133 was used for, and how the existing ground water allocation was used on lot 3.  Both Dr Watts and Mr Sutherland started from the same position and looked at what the irrigable area of land was in respect of the appellants’ land referred to in the application for the water licence.  This was 276.6 ha[121]. 
  2. [252]
    Dr Watts explained this in his report Ex 29 at p 9 as follows:

“In the amended CWRP it is proposed to irrigate 276.6 ha. However, a total 75% irrigation demand is not provided. Table 4.4.1.2 of the amended CWRP shows some areas with an irrigation demand and other areas being irrigated with the existing surface allocation. If the irrigation demand of these surface-allocation areas is set to 5.0 ML/ha (the maximum of the crops irrigated), the total irrigation demand for the property then becomes 1303 ML/yr (4.7ML/ha average).

These changes have the following effects:

  1. The total irrigation area has reduced from 290 ha to 276.6 ha (4.6% reduction).

2. The maximum irrigation demand has reduced from 1722 ML/yr to 1303 ML/yr (24.3% reduction).

The question remains as to how the annual requirement of 1303 ML will be provided. The property has a 98 ha surface irrigation allocation, which is currently being converted at 10ML/ha to a volumetric allocation of 980 ML. There is also an existing groundwater irrigation licence for 61ML for this farm. This is Water Licence 183639. Hence, 1041ML of irrigation allocation already exists. Therefore, an additional bore allocation of 262ML would provide sufficient allocation to efficiently irrigate the Gallo property with 75% reliability.”  

  1. [253]
    The Table (4.4.1.2) which Dr Watts referred to in Mr Sutherland’s report was as follows:

Land type

Crop type

Area (ha)

Water use

(ML ha)

Additional Annual water needed (ML yr)

Intensive pasture irrigation

Existing surface water allocation area

45 14

N/A

N/A

Improved pasture grass

19.6

3.6

70.6

Rye/clover

40

5.0

200

Totals

104.6

N/A

270.6

High production intensity irrigation areas

Existing surface water allocation area

53 15

N/A

N/A

Late potato

17

3.6

61.2

Maize

17

3.3

56.1

Rye/clover pastures

85

5.0

425

Total

172

N/A

542.3

Total irrigable area

276.6

N/A

 

Total groundwater required for farm

 

N/A

813

Additional water required

813

14 Licence Nos 56790K, 03046K and 175046

15 Licence Nos 56792K and 175034

  1. [254]
    Table 4.4.1.1 of the same report on the previous page did provide an estimate of annual demand based on 75% reliability having regard to the requirements of different crops and based on the RUSTIC modelling.

Table 4.4.1.1 Estimated irrigation annual demand (75% reliability)

 

RUSTIC

Estimate

Crop

Irrigation

Annual demand

(ML ha) 1

Rye grass

Low pressure boom or pivot

5.0

Grass pasture

Low pressure boom or pivot

3.6

Maize

Low pressure boom or pivot

3.3

Summer potato

Low pressure boom or pivot

3.6

  1. Queensland Department of Natural Resources and Mines, 2006 Review of crop irrigation demands Barron River water resource plan area sub-catchment area C.  Table 6 page 14
  1. [255]
    The RUSTIC modelling was accepted by both Dr Watts and Mr Sutherland as appropriate.  See for instance Ex 29 where Dr Watts at p 4 states:

“In the first expert meeting, it was agreed by Dr Watts and Mr Sutherland that the irrigation requirements in the RUSTIC report would form the basis of the irrigation requirements for these properties.

…

The modelling package RUSTIC was employed to model the theoretical amount of irrigation required for each of the crops specified in the terms of reference. The modelling irrigation needs were then compared to the application rates reported by the irrigators as a “reality check”. The irrigation requirement of a crop varies from year to year depending on the rainfall that occurs in the growing season. In wet years, a low irrigation requirement occurs and in dry years, a higher irrigation requirement occurs. A 75% reliability irrigation demand is the amount required to ensure that, in at least 75% of years, the crop receives full irrigation. (Note that in the other 25% of years, the crop would still receive considerable irrigation but not quite the full amount).

An irrigator needs some certainty in irrigation water supply when planning an irrigation development. The certainty of supply is related to crop type. For permanent crops that are expensive to establish, a high degree of certainty of supply is needed (say, 95%) while for annual crops, a lesser degree of certainty of supply is acceptable (say 75%). In the expert’s [sic] meetings, Mr Sutherland and Dr Watts agreed that a 75% reliability irrigation demand would be acceptable for al pasture and annual crops while a 95% reliability of irrigation supply would be appropriate for the permanent tree crop (avocados).  

For example, for avocados in the Middle Section of the Barron Area C, the modelling indicates that, to provide a 95% reliability of irrigation supply, it is necessary to provide 5.4 ML/ha allocation. However, in a median year (50% reliability), the avocadoes would only require 4.5 ML/ha.

This means that the irrigation requirements used as the basis for calculations of total water requirement in the Crop Water Resource Plans represent a maximum demand (75% or 95%) and, in a median year, a lesser amount of irrigation water should be required.

In the RUSTIC Report, the parameters used in the modelling were listed. Specifically, it is noted that, amongst other parameters:

“Losses due to percolation, evaporation and spray drift were varied according to the particular irrigation method being examined. The combined loss factor  (CLF) used for under-tree irrigation was 1.10, the CLF for low-pressure spray irrigation was 1.15 and for high-pressure spray, the CLF was 1.20.”

This means that the irrigation demands represent the amount that needs to be pumped to the field including various losses.”

  1. [256]
    Whilst Mr Sutherland in his report Appendix 4 to Ex 21, set out differential rates as extracted above for each crop, in evidence-in-chief he accepted the figures given by Dr Watts at p 14 of Ex 29 of a rate of 4.7 ML/ha per water year[122].
  2. [257]
    When Mr Sutherland prepared the crop report Appendix 4 of Ex 21 he conceded in evidence in chief that he was not aware of the existing ground water licence which is Ex 44 for 61 ML[123].
  3. [258]
    Mr Sutherland said this in relation to conferring with Dr Watts[124]:

"For the Williams property; yes. Now, the Gallo? – Now, on the Gallo report we’ve agreed on 4.7 - - - - -

What page? –  - - - - megalitres per hectare. I’ll find it for you. Page 14

Thank you? – Sorry; we’ve agreed on a – a suitable land area – 276 hectares, and we’ve essentially agreed on a suitable rate, 4.7 megalitres per hectare.

Yes, But on the overall volume there’s a – there’s a difference.

What’s the nature of the difference” – Well, I had not accounted for the 61 megalitre irrigation licence that Dr Watts raises there, and I accept that and I concede that I wasn’t aware that that – that applied to this property.

Why does it apply? – It’s a – it’s an existing irrigation licence included in within the bounds of the crop water resource plan.

Yes. And how are those existing licences dealt with in an application like this” - - That – it’s an existing licence. My – my understanding is it’s an existing licence.

And does that come from the – is that substracted from the total amount? – It is.

All right; thanks? – It would be, Now, the difference ---

…

….The- the – The Gallo plan is essentially based around the dairying operation where there is a – an ability to increase the output from the property with forage production with the water that’s been applied for and to have opportunistic crops of potatoes and also forage as well. So ---

…

And on Gallo, there’s some sort of disagreement about ----?--Well, there is. Now, I’ve arrived at a figure of 813 megalitres which would ----

How have you arrived at that? – I’ve taken the existing allocation, I’ve looked at the irrigable land area and then I’ve applied the 4.7 megalitres per hectare to that.

Right. And how much irrigable land area was there? – Um. 276.6 hectares.

So you multiplied that by five megalitres to the hectare or ---?—Well, no; 4.7.

4.7, which give you --- ? – Um, 813 megalitres.

Yes, and then- that was your figure, was it? – Yes.

Okay. And – what was Dr Watt’s  [sic]---? – Well, Dr Watts has - has said at – at his – at his response report at page 14, that the – that an irrigation allocation already exists in terms of the surface allocation.

Mmmm-hmmm? – And therefore you need substantially less in terms of the – the applied amount, so Dr Watts has 262 megalitres, What I’ve done is taken off the existing surface allocation in terms of the 98 hectares and ended up with 178.6 hectares which I have then applied the 4.7 megalites per hectare to.

Right. So you – you reduced the number of hectares that would be irrigable under this licence” – Correct. Under – under this crop water resource plan.

Sorry, on this plan? – Now, the reason that I ---

Why have you done that; yes? – The reason I did that, that particular way – and I can understand Dr Watt’s reasoning – but the reason I did it that way was because that, in my understanding, is the – has been the departmental practice for other users within area B.

Where did you get that earnest belief? – Well, there was a freedom of information application made, and I have – I’ve been through three folders which I have with me of – of the ---

…"

  1. [259]
    It would seem fairly clear that Mr Sutherland’s figure of 813 ML really comes from his report Appendix 4 of Ex 21 and the tables set out above from that report at [253]-[254].  There is no other way in which one can get to the figure of 813ML because 276.6 ha – 98 ha = 178.6 ha and multiplying this by 4.7 ML/ha = 839.42 ML.  The claim to have rounded this down to 813ML, the very figure in the table at [253], does not bear analysis.  All that Mr Sutherland has done, in reality, is adopt the figure and methodology in his report Appendix 4 of Ex 21, despite what he claimed in evidence.
  2. [260]
    That said, this is a methodology which produced a lower figure for the appellants, compared to Dr Watts at this stage of the calculation which would have produced the higher figure of 839 ML.
  3. [261]
    The summary of Dr Watts’ methodology is set out at p 14 of his report Ex 29 to which Mr Sutherland was taken.
  4. [262]
    It bears setting out:

"The Gallo property already has significant irrigation allocations and developments. It is clear that much of the property has soils and landforms that are suitable to irrigation. Irrigation water could be efficiently, sustainably and economically applied to much of the property.

The amended CWRP now shows 276.6 ha of irrigation (77% of the farm area). In the year when the cropping cycle results in the maximum irrigation demand, the 75% irrigation demand is estimated to be 1303ML, which represents 4.7 ML/ha/yr. In most years, the actual irrigation demand will be less than this figure.

The property has a 98 ha surface irrigation allocation, which is currently being converted at 10ML/ha to a volumetric allocation of 980ML. There is also an existing groundwater irrigation licence for 61 ML for this farm. This is Water Licence 183639. Hence, 1041 ML of irrigation allocation already exists.

Therefore, an additional bore allocation of 262ML would provide sufficient allocation to efficiently irrigate the Gallo property with 75% reliability. On this basis, it is concluded that it is not possible to efficiently use the 990ML.yr allocation for which the application is made.”

  1. [263]
    The figure of 1303 ML as the maximum irrigation demand assumes importance.  All that Dr Watts has done in obtaining the figure of 4.7ML/ha/yr is divide this figure of 1303ML by the irrigable area of 276.6 ha.  How did he get the 1303 ML as the maximum irrigation demand?
  2. [264]
    Earlier in his report Ex 29 at p 9 the following appears:

"In the amended CWRP, it is proposed to irrigate 276.6 ha. However, a total 75% irrigation demand is not provided. Table 4.4.1.2 of the amended CWRP shows some areas with an irrigation demand and other areas being irrigated with the existing surface allocation. If the irrigation demand of these surface-allocation areas is set to 5.0ML/ha (the maximum of the crops irrigated), the total irrigation demand for the property then becomes 1303 ML/yr (4.7ML/ha average)." 

  1. [265]
    This ignores Table 4.4.1.1 extracted above at [254] where Mr Sutherland has provided differing maximum requirements having regard to the various types of crop planted.  If these differences were ignored and an overall average used, in reality Mr Sutherland has used an overall average figure of 2.94ML/ha (813ML ÷276.6ha) and not one of 4.7ML/ha. He said as much at line 419-421 of p 3-5 of his report Ex 21:

“Ultimately, the CWRP indicates a total irrigable area of 276.6 ha on the Gallo property. The additional water required from underground supplies to permit operation of the irrigation enterprise is 813MLyr¯¹ (or 2.94ML/ha).”

  1. [266]
    Dr Watts’ approach, on the basis of an overall 4.7ML/ha, might be thought overgenerous to the appellants when regard is had to this part of Mr Sutherland’s report. It is to be noted that there is a cap on the annual volumetric limit for a licence for irrigation purposes in the Atherton Subartesian Area and also in Management Area B pursuant to ss 53(1) and 57(4) of the Barron Plan of not more than 5ML for each hectare of crops to be irrigated.
  2. [267]
    At this point, it is useful to point out Mr Sutherland’s view of how the licence that was granted of 130ML by the respondent was calculated. At pp 3-4 to 3-5 lines 370- 380 of Ex 21 Mr Sutherland states:

“Information provided to Gallo from the respondent indicated that his allocation of 130ML was based on a figure of 0.65ML per hectare for a designated irrigable area of 200ha. This figure was arrived through assessments undertaken in the “Aquifer Analysis Atherton Subartesian Area, Management Area B” report prepared by the DNRW in October 2006.

For Gallo, located in the Leslie Creek sub catchment, the report recommends that entitlements be granted based on 0.65ML per hectare of property. The formula used to derive the figure of 0.65ML is as follows:

(35% of annual recharge x working storage – existing entitlements) ÷area = allocation rate/ha”

  1. [268]
    The figure of 0.65ML/ha is certainly referred to in the Information Notice and the Notice of Review Decision which comprise part of Ex 4 and the respondent proceeded on the basis of not allowing more than a maximum of 0.65ML/ha and came to a figure of 200ha as the irrigable area in granting the licence at 130ML per water year.  On any view of the expert evidence of Dr Watts and Mr Sutherland, the review decision upholding the initial decision cannot stand. The appellant’s higher case below was to seek 5ML per hectare.
  2. [269]
    That said, one then reaches the position as to what to do in relation to the existing surface water and ground water allocations.
  3. [270]
    A feature of this case is that the October 2011 (repeated in substance in the 2013 amendments to the 2005 ROP) as summarised above at [168] have now made volumetric changes to each of the surface water licences which were the subject of Ex 45. These changes show a conversion in volumetric terms as follows:
  1. (a)
    water licence 56790K - the nominal volume for the licence at 205 ML, and the volumetric limit at “not greater than 250.0 megalitres per water year and not greater than 165.0 megalitres               for the calendar period 1 July to 31 December and not greater than 3.5 megalitres per calendar day).  The maximum rate for taking water was stated as 40 litres per second;
  1. (b)
    water licence 56792K - the nominal volume for the licence at 229.6 ML, and the volumetric limit at “not greater than 280.0 megalitres per water year and not greater than 184.8 megalitres for the calendar period 1 July to 31 December and not greater than 3.5 megalitres per calendar day).  The maximum rate for taking water was stated as 40 litres per second;
  1. (c)
    water licence 03046K - the nominal volume for the licence at 72.8 ML, and the volumetric limit at “not greater than 80.0 megalitres per water year and not greater than 52.8 megalitres for the calendar period 1 July to 31 December and not greater than 2.6 megalitres per calendar day).  The maximum rate for taking water was stated as 30 litres per second;
  1. (d)
    water licence 175034 - the nominal volume for the licence at 227.5 ML, and the volumetric limit at “not greater than 250.0 megalitres per water year and not greater than 165.0 megalitres for the calendar period 1 July to 31 December and not greater than 2.8 megalitres per calendar day).  The maximum rate for taking water was stated as 32 litres per second;
  1. (e)
    water licence 175046 - the nominal volume for the licence at 98.4 ML, and the volumetric limit at “not greater than 120.0 megalitres per water year and not greater than 79.2 megalitres for the calendar period 1 July to 31 December and not greater than 3.1 megalitres per calendar day).  The maximum rate for taking water was stated as 26 litres per second;
  1. [271]
    If regard ought be had to these changes, then the annual volumetric limits for each of the surface water licences had by October 2011 (when judgment was reserved below but after the hearing) changed to the amount calculated by Dr Watts of 980ML and these remain the allocations according to the June 2013 amendments.  In other words, Dr Watts’ conversion to volumetric limits of the existing surface water licences turned out to be completely accurate. 
  2. [272]
    I am of the view that the changes to the Resource Operations Plan are changes to the law and the Court can and ought  have regard to these changes in reaching its decision; in other words, any reference to changes to the Resource Operations Plan do not infringe s 56 Land Court Act 2000. That said, even if this is wrong, and these changes ought be ignored, it makes no difference in this case, on the basis of the evidence. Further, as the majority judgment demonstrates at [64]-[84] the same result attains on the basis of the analysis and approach there undertaken. 
  3. [273]
    Having regard to the evidence the starting point of Dr Watts of 1303ML might be too generous and it may be Mr Sutherland’s figure of 813 ML is preferable as he dealt with the different requirements of the different types of crops and did not apply an overall maximum without regard to these differences.
  4. [274]
    However, it is clear that the case run by the appellants below they did not seek to distinguish between the different ownership of all the lots the subject of the application for the water licence.  A water licence attaches to land.  The importance of the attachment to land is highlighted by s 206(1) of the Act which provides:

"206 Applying for a water licence

(1) An owner of a parcel of land, or the owners of contiguous parcels of land, may apply for a water licence for the parcel or parcels and any other land of the owner or owners contiguous to the parcel or parcels—

  1. (a)
    for taking water and using the water on any of the land; or
  1. (b)
    to interfere with the flow of water on, under or adjoining any of the land."
  1. [275]
    Generally speaking, an application under s 206(1)(a) may only be for taking water from an aquifer under any of the land or water flowing across any of the land or a watercourse, lake or spring on or adjoining any of the land (s 206(2)) unless the matter can be brought within the exceptions in s 206(2).
  2. [276]
    To emphasise the importance of ownership of the land s 211A provides:

"211A  Effect of disposal of part of land to which application for water licence relates

(1) Subsection (2) applies if—

  1. (a)
    an application for a water licence is made to the chief executive; and
  1. (b)
    the applicant disposes of part of the land to which the application relates; and
  1. (c)
    at the time the applicant disposes of the part, the chief executive has not decided the application under section 211.

(2) The application lapses on the day the applicant disposes of the part."

  1. [277]
    The provisions of s 213(1)(e), s 214 and s 215 also emphasise the importance of the licence attaching to the land.  (There are exceptions as set out in s 213(1)(e)(i) to (ix) but none of these are relevant in this case).
  2. [278]
    From the map which is attached to Ex 45 each of the lots in respect of which application has been made might on one view be considered “contiguous”, notwithstanding the intervention of a road and creek[125].  That said, of the nine lots, eight are owned jointly by only two of the appellants and not by the third appellant, and one is owned solely by this third appellant and not by the other two – see Ex 3 and also paragraph [245] above.  Also the aquifers sought to be used for the ground water are only under two of the lots which would seem to raise questions relevant to the applicability or otherwise of s 206(3). 
  3. [279]
    This was not raised by the respondent in these proceedings as an issue in this appeal.  Nor did the respondent raise any argument that this mix of ownership assisted it in relation to the appellants’ argument in relation to the groundwater licence for 61ML per water year, which was held by each of the appellants and one Linda Cherie Gallo, not a party to these proceedings or the application for the water licence[126].
  4. [280]
    This case is made more difficult because of the course adopted by the parties. In its supplementary outline of argument delivered 8 March 2013, before the hearing of the appeal commenced on 21 March 2013, the respondent stated:

“The Respondent instructs that after the hearing in the Land Court licence 183639 was subdivided in 2011. The effect of that is that now, only 5ML is allocated to land other than the subject land. An amount of 56ML is allocated to 7 lots, including lots which are included in the subject land.

Given those facts, the Respondent is prepared to accept that if the Land Appeal Court gets to the question of the appropriate amount of water that should be granted to the Appellants, then instead of the deduction being from 61ML, it should only be for 56ML. In other words, that would allow to the Appellants an extra 5ML of water. That would result in an increase to the findings of the Land Court in paragraph [55] from 262ML/year to 276ML/year.”

  1. [281]
    On 21 March 2013, before this Court proceeded to embark on hearing argument in the appeal, the provisions of s 56 of the Land Court Act 2000 were pointed out to the parties as well as this part of the respondent’s outline. The appellants declined to make any application under s 56(2) before this Court proceeded with the hearing of the appeal and indeed there seemed to be an objection to this part of the outline[127].
  2. [282]
    However, subsequently, in supplementary submissions delivered on 11 April 2013, in a paragraph headed “Concession of fact about the respondent supplementary outline” the appellants state:

“As a matter of fact, it is true that: “after the hearing in the Land Court licence 183639 was subdivided in 2011. The effect of that is that now, only 5ML is allocated to land other than the subject land. An amount of 56ML is allocated to 7 lots, including lots which are included in the subject land” (as per Para 10 of the Respondent’s Supplementary Outline of Submissions). …”

  1. [283]
    This squarely raises whether s 56 of the Land Court Act 2000 prohibits this court from taking notice of this.
  2. [284]
    Section 56 is an odd provision in the context of s 55 requiring the Land Appeal Court to “act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts” and providing that the Land Appeal Court “is not bound by the rules of evidence and may inform itself in the way it considers appropriate”.
  3. [285]
    That said, the function of this Court is to interpret and apply these provisions according to law. 
  4. [286]
    Section 56(2), is a mandatory provision limiting when the Land Appeal Court may admit new evidence on appeal.  The heading to s 56 is “Evidence admissible on appeal”.  The three pre-conditions to new evidence being admitted are as set out in ss 56(2)(a), 56(2)(b) and 56(2)(c). To the extent that s 56(2) so prescribes it displaces the principles which other appellate courts dealing with an appeal by way of rehearing have applied where new evidence is sought to be adduced pursuant to a power to do so on special grounds[128]. Those principles, requiring the evidence to, inter alia, be such that if given it would probably have an important influence on the result, might be thought to be less onerous on one view than the requirement in s 56(2)(a) requiring satisfaction that the admission of further evidence is necessary to “avoid grave injustice”. Whether the adjective “grave” signifies a more restrictive approach or not, it is not necessary to determine. Conversely, whether the requirement in s 56(2)(b) is less restrictive than those principles, also need not be determined. It may not be. Certainly, though, s 56(2)(c) has the potential to be more restrictive, and the potential in certain cases to cause injustice: eg in a case where the fresh evidence only arises after the hearing of the appeal to the Land Appeal Court has commenced, or where, even with the exercise of reasonable diligence, the fresh evidence is only discovered after the hearing has commenced.  
  5. [287]
    However, if s 56(2) is taken as a code, then it is, on any view, more restrictive than the position that might otherwise obtain and this court is bound to apply it, regardless of any public interest exception that might have existed but for it.
  6. [288]
    For instance, in Totterdell v Nelson,[129] the Full Federal Court (Morling, Burchett and Lee JJ) adverted to the existence of a lower standard applying where the nature of the appeal engaged the public interest (such as here, where the Court is concerned with the allocation of a scarce resource). They said, at 529-530:

“This result makes it unnecessary to rule finally upon the appellant's application to adduce (pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth)) fresh evidence in the appeal. The principle laid down in Orr v Holmes (1948) 76 CLR 632, in Greater Wollongong City Council v Cowan (1955) 93 CLR 435 and in the authorities discussed in those cases (and more recently considered in McIntosh v Williams [1976] 2 NSWLR 237), which restricts the exercise of an appellate court's power to receive fresh evidence, was held in R v Watt; Ex parte Slade [1912] VLR 225 to be subject to an important exception. That was an appeal involving the performance by the Treasurer of Victoria of a statutory duty to issue a licence. At the hearing of an application for a mandamus, the evidence had disclosed no justification in law for its being withheld, and the order was made. On the appeal, fresh evidence was tendered before the Full Court, and received. Madden CJ (at 236) grounded the decision on the discretionary nature of the extraordinary remedy of mandamus. But both Hodge AJ and Cussen J put forward a wider principle. Cussen J (at 245) said:

The rule [as to the restriction upon the reception of fresh evidence]… should not necessarily extend to cases where the interests of others than the immediate parties are concerned, although it ought almost uniformly to be observed in connection with ordinary civil suits between ordinary parties. Illustrations may be given of cases of trustees, or guardians of infants, or the committees of lunatics, or, it may be the case of a person whose action is really in the interests of the public at large.

It needs no emphasis that the rights and duties in question in this appeal concern creditors who are not immediate parties and concern the wider public interest to which Fry LJ referred in Re Hester, ubi cit supra. Although counsel were unable to cite any reported case in which R v Watt was relied on for the proposition stated by Cussen J, it is to be observed that a similar view of the law was the ground of the ruling given by Toohey J in Re Australasian Meat Industry Employees’ Union (WA Branch); Ex parte Ferguson (1986) 67 ALR 491 where, in the context of a challenge to a union election, his Honour (at 494) said “there [were] wider interests involved than those of the applicant and the union”, and referred to the interest of the Members and “the wider public interest in the integrity of union elections”. He held that, in a case of that kind: “The conventional tests for the introduction of fresh evidence are too narrow. The prevailing consideration is that the court reaches a satisfactory conclusion in regard to those irregularities that have been mentioned and that appear to warrant consideration.” The existence of an exception of this kind is consonant with the statement in the joint judgment of the High Court in Commissioner for Government Tram and Omnibus Services v Vickery (1952) 85 CLR 635 at 646 that the general rule is one “founded largely on policy”.

If the court is permitted to take account of the fresh evidence, there can be no question but that the bankrupt's activities and resources demand a full investigation; and further that the purposes of the Act would be ill served by a discharge except upon satisfactory evidence that the requirements of bankruptcy have been performed, and that the time for discharge has arrived. “

  1. [289]
    Does then s 56 prevent this Court taking account of the concession made by the respondent before the hearing of the appeal commenced, which the appellants elected not to rely on before the start of the hearing of the appeal, but which they now seek to rely on?
  2. [290]
    Were it not for s 56, I would have little trouble in acting on the concession, even though the appellants did not first seek to rely on it.  The reliance on the concession would not result in any prejudice and the respondent is happy to make the concession and the matter is one involving public interest considerations.
  3. [291]
    Does s 56 prevent the parties making concessions by consent inconsistent with the evidence below and the Court from acting on those concessions in determining the appeal? In a practical sense this might be thought to subvert the operation of ss 56(1) and 56(2) of the Land Court Act 2000.  In my view, s 56 does not prevent the parties making concessions by consent of matters of fact not contained in the record below.  That said, this does not mean that the Land Appeal Court is obliged to act on any such concessions.  The parties cannot, by their own acts, bind the Court to act in any particular way and it may not be appropriate in a particular case to act on such a concession. It will be for the Land Appeal Court to determine for itself whether acting on the concession is appropriate in all the circumstances and whether it is in the interests of justice to do so.  In doing so, it is appropriate to consider the fact that the concession is made by consent but it is also appropriate for the court to have regard to other considerations.  Parties ought not expect that the court will act on any such concessions, as of course or at all, and if a party is in the position where an application under s 56(2) could be made, that party would be well advised to make it.
  4. [292]
    In this case, in exercising the discretion to act on the concession, account is taken of the public interest in the type of matter under consideration. Account is also taken of the course adopted by the appellants at the outset. Account is also taken of the purpose of s 56.  The matter is finely balanced.  The appellants’ position taken at the outset of the appeal is a significant factor militating against the exercise of the discretion.
  5. [293]
    I will act on the basis of the concession in this case for the special reason that the ground water licence which is in evidence as Ex 44, on its face, expired on 31 July 2012, after judgment was delivered below on 5 April 2012 but before the hearing of the appeal on 21 March 2013.  Without the concession, this Court would have to proceed on the basis that the licence had expired with no evidence as to whether it had been renewed or not.  The concession makes it clear to the Court that a current ground water licence subsists.  Any order of this Court having the effect of allowing the grant of a water licence of more than 130ML per water year to these appellants would need to consider the present position as such a licence can only operate prospectively from the date of this Court’s judgment.  Water being a scarce resource, it would not be in the public interest to proceed on the basis the licence had expired with no evidence as to the present position where to do so might result in an over-allocation of a precious resource contrary to the public interest were the appellants’ arguments to be accepted. 
  6. [294]
    I return then to the question of what licence, if any, ought be granted to these appellants, or how ought this appeal be disposed of.
  7. [295]
    Ignoring for the moment questions of ownership, it is clear that the present licence of 130ML/yr is an insufficient allocation, given the evidence of the experts below.
  8. [296]
    Part of a consideration of the proper allocation of water involves a consideration of whether sufficient water to achieve the purpose found to be an efficient one in Appendix 4 of Ex 21 (which finding was not challenged on this appeal and which is consistent in any event with the expert evidence of Dr Watts and Mr Sutherland).  An under-allocation of water which would prevent that purpose would be as detrimental as an over-allocation.
  9. [297]
    On first principles, in deciding what regard ought be had to existing allocations of water available to the appellants for that purpose, regard ought also be had to what other demands there are on those same allocations. In other words, if the existing allocation is already being used for a purpose and that purpose is to continue in whole or in part if an application is made for a different licence having a different purpose, is it appropriate to take into account any reduction of any allocation for the new licence and new purpose the existing allocation?  This resolves itself into several factual enquiries and several different scenarios.
  10. [298]
    The simplest scenario is where there is an existing allocation and the new application will be to completely replace what has gone before with a new use and purpose and the existing allocation is attached to the same land for which the new allocation is made.  In those circumstances, the existing allocation, provided the existing licence allows for the same type of use in the new application, ought simply be deducted in deciding on any fresh allocation.  If the existing use is to be abandoned, but the existing licence permits water only to be used for the abandoned purpose and the new purpose would be unlawful under it, then it would be appropriate to deal with the new application by allowing the full allocation, but on the condition that the applicant surrender the existing licence. 
  11. [299]
    The converse scenario is where the existing allocation is for a different use entirely and the new application will not replace it but the two uses will continue side by side. If the evidence shows that the water for the existing use is required to efficiently continue that use, and no further water from it could be spared without harming that existing use, then it may be wholly inappropriate to make any deduction at all for the existing allocation.
  12. [300]
    In between these two extremes will lie other cases of more complexity where the extent of any deduction will depend on detailed evidence and a detailed review of the facts in relation to the existing licences, their relation to existing uses, whether they are required for existing uses, whether there is any spare capacity which can be applied to the uses the subject of the new application and if so what, and in the case of an application relating to multiple lots with different existing allocations relating to different lots, the interrelation between those lots and the existing water use on them, and the ability to use that water lawfully consistently with the existing allocations and on the lots the subject of the new application where the evidence shows the capacity for use is not taken up by the existing allocations.
  13. [301]
    It is necessary to consider how this issue was dealt with by the evidence led in this case. 
  14. [302]
    Mr Sutherland’s report in Appendix 4 to Ex 21, contained a series of diagrams in which he set out the existing use of the water (at least as concerns the lots the subject of the application) and the proposed use if the application were granted: see the diagrams between p 4-10 and p 5-1.  Those diagrams distinguished between the different types of crops proposed to be planted and the positions of where the various crops were to be planted if the application succeeded.  Some crops were more needful of water than others for their success as appears from the table extracted above at [254].  As the table at [253] shows, there was also a distinction between intensive pasture irrigation and high production intensity irrigation areas. 
  15. [303]
    Taking Table 4.4.1.2 extracted above at [253] at face value, the existing surface water allocation for the intensive pasture irrigation was for an area of 45 ha and the existing surface water allocation for the high production intensive irrigation areas was for 53 ha out of a total proposed irrigable area of 276.6 ha.  Ignoring for the moment the ground water licence in Ex 44 (to which Mr Sutherland’s report paid no regard) this left 178.6 ha.  However, on any view the existing surface water licences were not taken into account by Mr Sutherland as a deduction in that table.  Mr Sutherland, whilst mentioning them, has not done anything with them.
  16. [304]
    On p 4-7 of his report in Appendix 4 of Ex 21 Mr Sutherland said this:

"The irrigable land on the farm is 276.2 ha. The existing surface water allocation for the farm is 98 ha. This 98 ha surface allocation is made up of 45 ha within the land type pasture irrigation and 53 ha within the land type designated as high production intensive irrigation areas.

The crop water requirements for the remaining irrigable land within both irrigation land types on farm is 813MLyr¯¹.  The water required from underground supplies is some 813 MLyr¯¹.

Alternatively, DNRW’s practice may have adopted an approach of subtracting the 98 hectares from the original application identifying 200 hectares of irrigation that would use the groundwater supply. This results in an estimate of 102 hectares (i.e. 200-98) and a 5ML ha¯¹ allocation. This approach indicates a total groundwater allocation of 510MLyr¯¹.  "

  1. [305]
    It seems clear that Mr Sutherland did not take anything off for any existing water allocations in calculating the figure of 813ML.
  2. [306]
    In evidence Mr Sutherland proceeded on the basis that there ought to be a deduction made for the existing allocations.  Mr Sutherland, though, attempted to mount an argument that surface water allocations were inferior to ground water allocations in terms of water security (the latter being what the appellants were applying for) and that this should figure into the equation when deciding on the quantum of deductions.  That said, his evidence did not rise to the point of detail which would assist in the determination of that equation[130].  The appellants did not cross-examine Dr Watts on this point, so no assistance can be gained from his evidence as to whether deductions of surface water allocations ought be discounted when making deductions for existing allocations because of the potential for drought and evaporation loss[131].
  3. [307]
    On its face, the existing allocations of surface water on a volumetric basis of 980ML exceeded the requirements of the application of 813ML if they were going to replace the existing uses, even without having regard to the contentious ground water licence not held by all the appellants in Ex 44 and as morphed in time to the point referred to in the concessions.  That said, the position was not straightforward because the existing surface water allocations were not uniform in the sense that different lots had different entitlements to the ground water from different sources and in the case of Lot 48 on SP188685 (description changed from Lot 215 on RP804847) and Lot 50 on NR 800959, these lots had no entitlement at all to the use of any existing surface water – See Ex 45.
  4. [308]
    One of the diagrams (GJ0686.1.5) in Mr Sutherland’s crop report referred to in para [302] above, shows that Lot 48 (there called Lot 215) is to be used for pasture, rye grass, maize and potatoes (which ties in with the “High production irrigation areas” referred to in Table 4.4.1.2 extracted above at para [253] and that Lot 50 is to be used for pasture and rye grass (which ties in with the “Intensive pasture irrigation” referred to in Table 4.4.1.2 extracted above at para [253]).  Lot 48 (or Lot 215 as previously described) has an area of 45.93824 ha according to Ex 45 or 44.991ha according to Ex 4.  Lot 50 has an area of 9.372 ha according to both Ex 45 and Ex 4.  The existing irrigation is shown in diagram GJ0686.1.3.  The proposed additional irrigation is shown in diagram GJ0686.1.4.  For Lot 48 (shown as lot 215 as previously described) the proposed new irrigation is the addition to the existing irrigation, solid set irrigation and boom irrigation as marked.  For Lot 50, which had no pre-existing entitlements at all, the diagram shows a proposal for boom irrigation.
  5. [309]
    Further, the report from Mr Sutherland, whilst providing details of existing irrigation, did not detail the existing uses of the existing water allocation on the lots the subject of the application.  This was picked up on by Dr Watts in his report Ex 29 at para [35] on p 12 as follows:

“PW A plan showing all of the land uses on the farm (irrigation, farm roads, cattle lanes, creek buffers, dairy, café, buildings, vegetation, etc) with a table listing the area (ha) of each component has not been prepared. NS This is unnecessary at this stage, in my view. Comment: A plan that shows topography, cadastral details, farm features and actual irrigation areas has not been provided so it remains difficult to determine if any land use conflict is likely to occur.”

  1. [310]
    From the evidence presented below is it possible to tell what demands there were, and what demands will continue by reason of other uses in relation to the existing surface water licences?  The evidence that there is on this issue really comes down to the diagrams in Mr Sutherland’s crop report referred to in para [302] above.  Diagram GJ0686.1.4 does show the existing irrigation allocations and the proposals for the new ones, and diagram GJ0686.1.5 indicates the uses in each of these areas.  It is clear, from a comparison of these diagrams, that existing irrigation was intended to be used for the proposals being made.  The absence of any evidence from the appellants that deducting these existing surface allocations would prejudice existing uses or be inconsistent with the requirements of the existing surface water licences, coupled with the diagrams, demonstrates no factual basis shown that making a deduction for these licences would not be appropriate.  The evidence of Mr Sutherland as to how to deal with these deductions in the alternative set out by him at p 4-7 of Appendix 4 of Ex 21 is unconvincing.  It relies on choosing a completely different area to the irrigable area agreed upon between he and Dr Watts (200 ha instead of 276.6 ha), and relies on a figure of 5ML/ha, which is not indicated on any of the evidence of either Mr Sutherland or Dr Watts as appropriate, but instead relies on Mr Sutherland’s view of pre-existing departmental practice.  On that basis the alternative method adopted by him at this part of his report (which is the only method involving any deduction in that report) is flawed.  It is also inconsistent with the diagrams which indicate a full use of the existing surface water allocations as part of the irrigation required as well as the absence of any factual material put forward by the appellants below, either in the report or otherwise, that the existing surface water allocations would not be used as indicated in the diagrams.  Mr Sutherland did make an argument in evidence that was inconsistent with what he had put in his report to the effect that he had taken into account the existing surface water allocations in a different way i.e. that he had deducted the 98 ha from the 276.6 ha of irrigable land and then multiplied that by Dr Watts’ rate of 4.7ML per ha and come to 839 ML which he had rounded down to 813 ML.  That evidence is inconsistent with his report and smacks of having latched on to Dr Watts’ average of 4.7ML when Mr Sutherland had used a lower figure in his report of only 2.94ML/ha – see para [265] above. 
  2. [311]
    The attempt by Mr Sutherland in oral evidence to limit the deduction on another basis by reference to the disadvantages inherent in surface water as opposed to ground water did not descend into any detail which would permit a finding that the deduction ought be limited.  It is to be noted that rates of evaporation and the like are referred to in the RUSTIC modelling relied on by both experts and Mr Sutherland did not chose to make any such argument in Appendix 4 to Ex 21 about this or explain why he had not done so.  In my view, the whole of the allocations under the surface water licences ought be taken into account and deducted. I, was at first, reluctant to adopt a global approach given the differing lots with differing existing allocations.  The global approach taken by Dr Watts without reference to the different locations of the various lots and the different types of crop and intensity and different rights of water use from each of the existing licences at first blush appears overly-simplistic and fraught with the inherent danger of failing to properly take these various individual facts into account.  However, given a close study of the diagrams in conjunction with Ex 45 and the set-out of the lots, the volumes of water in relation to the existing licences and the individual lots they benefit, and the concessions, a global approach in this case is appropriate.  It is also consistent with how both Mr Sutherland and Dr Watts approached the issue.  That is not to say that this would be the approach which ought be adopted in all such cases.  The correct approach comes down to a close consideration of the particular facts in each case.
  3. [312]
    As to the ground water licence on Lot 3 on SP177333, there was no evidence led below by the appellants as to what the existing use of this licence was, and how taking into account that use might impact on it.  There is no doubt that this licence attached not only to Lot 3 on SP177333 but also to seven of the lots the subject of the present application.  Dr Watts had raised this as a live issue well before the hearing below.  If the appellants wanted to attempt to limit any deduction being made in respect of this ground water licence it was open to them to have called evidence to establish a factual basis for doing so.  Instead, no evidence was led below in this regard and no factual basis demonstrated.  Indeed, Mr Sutherland’s evidence in chief accepted the licence should be taken into account and that he had not done so[132].  Under cross-examination, there is no real argument put by him as to why it ought not be[133].  It was submitted by the appellants, on appeal to this Court, that to take this licence into account would be tantamount to requiring the water from this licence to be used unlawfully because it was not being used for Lot 3.  This is plainly not the case as the licence itself expressly permits the taking of ground water for seven of the lots the subject of the application and not only Lot 3.  
  4. [313]
    As noted earlier, that licence has expired and there has been a change to the licence in the way referred to above in the concessions.  Given that the licence does benefit the lots and in the absence of any evidence and any application to adduce further evidence under s 56(2) of the Land Court Act 2000 to support any factual basis for contending that the use of the successor to that licence will prejudice in any way the holders of it in relation to any existing use of water exclusively on Lot 3 (one of whom is an appellant to this appeal and the other of whom is a female bearing the same surname), the licence ought be taken into account in whole in determining what allocation this court ought make if it allows the appeal.  In the absence of any demonstrated factual basis, none of the arguments made by the appellants about taking into account the existing allocation under this licence can be accepted.  
  5. [314]
    The duty of an appellate court dealing with a matter by way of rehearing has been referred to in a number of cases. This Court has a duty to come to its own view subject to the restrictions inherent from the nature of such an appeal[134]. A different principle applies if the matter being considered is the exercise of a discretion.[135]  That does not mean the court approaches the matter as if the hearing were an appeal by way of rehearing de novo[136].
  6. [315]
    In choosing between competing views of expert witnesses, a court is obliged to descend into the reasoning supporting why it prefers the approach of one expert over another.[137]
  7. [316]
    The learned Member below commenced his discussion of this matter[138], on the premise that there was “no dispute between the experts that the irrigation requirements for the respective properties at full agricultural production are 1,303 megalitres per year with respect to Gallo.”  This was certainly the figure put forward by Dr Watts, but it is not referred to anywhere by Mr Sutherland in either his report Ex 21 or in the evidence he gave.  It is true Mr Sutherland purports to adopt Dr Watts’ average figure of 4.7 ML but in the circumstances I have outlined above.   
  8. [317]
    The way in which Dr Watts derived his figure of 1,303 megalitres per year is opaque.  That said, he was called as an expert witness, and his approach seems otherwise sound.  Whilst I have some misgivings as to how the figure was derived and whether it was overly- generous to the appellants, in the end this does not cause me to reject it. I think it highly unlikely that this expert would have made a gross error and whilst the figure is opaque at this distance, that does not mean that it is not sound nor that it ought not be relied upon.
  9. [318]
    In the result the appeal ought be allowed, and orders made to the effect that the appellants be granted a ground water licence to take up to 267ML per water year.
  10. [319]
    No evidence was given below as to what the term of the licence ought be: see s 213(1)(a) of the Water Act 2000.  That said, I note the initial licence was granted on 9 November 2006 with an expiry date of 30 November 2008 and the surface water licence which is Ex 44 was issued on 12 December 2007 with an expiry date of 31 July 2012.

Disposition

  1. [320]
    I agree, for the reasons given above, with the conclusion at [99] of the majority judgment.  I also agree with paragraphs [100] -[102] therein and the orders proposed.  

ORDERS

  1. The appeal is allowed.
  2. The respondent is ordered to grant a licence to take 267 megalitres of water per water year, such licence to be for a stated term and subject to the imposition of appropriate conditions as to the monitoring and management of the licence, the term and conditions to be agreed, or failing agreement to be determined by the Land Court. 
  3. The parties are to meet and seek to negotiate an agreed term and conditions as to the monitoring and management of the licence, within 42 days of the date of this decision.
  4. The parties are to jointly advise this Court of the outcome of these negotiations by no later than 4.00 pm on Friday, 17 January 2014.
  5. In the event that the parties are not able to reach agreement as to the term of the licence and its conditions, the matter is remitted to the Land Court for determination of the term and conditions. 
  6. Any submissions seeking costs are to be filed and served by 4.00pm on Friday, 20 December 2013.
  7. Any submissions in response to such application are to be filed and served by 4.00pm on Friday, 17 January 2014.

HENRY J

CAC MacDONALD

PRESIDENT OF THE LAND COURT

MD EVANS

MEMBER OF THE LAND COURT

Footnotes

[1] Gallo & Williams v Chief Executive, Department of Environment and Resource Management [2012] QLC 15.

[2]  Ex 3.

[3]   [2011] 1 QdR 200.

[4] Gallo & Williams v Chief Executive, Department of Environment and Resource Management [2012] QLC 15,[20].

[5]  Section 95, Water Act 2000.

[6]  See s 103(5)(a) Water Act 2000. 

[7]  See ss 7 and 8 of the Statutory Instruments Act 1992.

[8]  Other amendments to the Barron Plan since the application for a water licence was lodged are not relevant to this appeal. 

[9]  Section 66 was inserted as a transitional provision by s 20 of Water Resources (Barron) Amendment Plan (No 1) 2009. 

[10] De Tournouer v Chief Executive, Department of Environment and Resource Management [2011] 1 QdR 200 [20], 206 207 [22].

[11] De Tournouer v Chief Executive, Department of Environment and Resource Management [2011] 1 QdR 200, 207 [22]; comp Re Coldham & Others; Ex Parte Brideson [No.2] (1990) 170 CLR 267 (where the Commission was empowered "to take further evidence" and had power to "make such order as it thinks fit") distinguished in Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194, 204 [16].

[12]  (2000) 203 CLR 194, 203, 204 [14].

[13] Allesch v Maunz [2000] 203 CLR 172, 180 [23].

[14]  [1991] 2 QdR 210 at 218.

[15]  Section 4, Acts Interpretation Act 1954.

[16]  Section 206(6) of the Water Act 2000 was renumbered to become s 206(5) by virtue of s 256 of the Land, Water and Other Legislation Amendment Act 2013. 

[17]  By contrast, we note that s 207(1)(b), when referring to the additional information required by the chief executive under s 207(1)(a), expressly uses the terms, "or any additional information required under paragraph (a)".

[18]  Section 877, Water Act (2000). 

[19]  Respondent's Supplementary Submission at [7]. 

[20] Lacey v Attorney-General for the State of Queensland [2011] 242 CLR 573 at 597 [57]. 

[21] De Tournouer v Chief Executive, Department of Natural Resources and Water (2008) QLC 151 

[22] De Tournouer v Department of Natural Resources and Water (2009) 30 QLCR 150. 

[23] De Tournouer v Department of Environment and Resource Management [2011] 1 QdR 200. 

[24] De Tournouer v Department of Environment and Resource Management [2011] 1 QdR 200 at 210 [26].

[25]  Ex 21.

[26]  R 827-866.

[27]  R 780-787.

[28]  Ex 29.

[29] Gallo & Williams v Chief Executive, Department of Environment and Resource Management [2012] QLC 15, [84].

[30] Land Court Act 2000, s 55(b).

[31] Gallo & Williams v Chief Executive, Department of Environment and Resource Management [2012] QLC 15 [61].

[32]  R 839.

[33]  R 769 [2.3].

[34]  R 774 [3.1.5].

[35]  R 828.

[36]  R 831 [1.1].

[37]  R 840 [4.2.2].

[38]  R 848.

[39]  R 783-786.

[40]  R 875, 876.

[41]  R 877.

[42]  R 883, 884, 885, 887.

[43]  A so-called Jones v Dunkel inference – see Jones v Dunkel (1959) 101 CLR 298.

[44]  At [14].

[45]  RJ [55].

[46] Water Resource (Barron) Plan 2002, Reprint 1.

[47] Water Resource (Barron) Plan 2002, Reprint 1B.

[48]  Completed in March 2011.

[49]  5 April 2012. 

[50]  The 2013 amendments to the ROP are not relevant to this appeal. 

[51]  As in force at the date of the 2011 amendments to the Barron Resource Operations Plan.  Section 39 of the Barron Plan had been amended in 2009. 

[52]  Section 45(2)(b)(ii) Water Resource (Barron) Plan 2002, Reprint 1. 

[53]  Section 45(2)(b)(ii) Water Resource Barron Plan 2002, Reprint 1B. 

[54]  Section 53 Barron Resource Operations Plan 2005 (as amended in 2011) and s 39(b) of the Water Resource Barron Plan 2002, current as at 27 September 2013. 

[55]  Section 14(1) and Schedule 1, Statutory Instruments Act 1992. 

[56]  See Esber v The Commonwealth (1992) 174 CLR 430, 440.

[57]  [2010] QCA 347. 

[58]  [2011] 1 QdR 200 at [24].

[59]  At [42].

[60] Gallo & Williams v Chief Executive, Department of Environment and Resource Management [2012] QLC 15.

[61]  At [42].

[62]  At [44].

[63]  At [50].

[64]  See T 1-2, 1-3, 21 March 2013.

[65]  (1931) 46 CLR 73, 85.

[66]  (1976) 135 CLR 616, 619-622.

[67]  See also Fox v Percy (2003) 214 CLR 118, 124-125 [20].

[68]  [1989] 2 QdR 95.

[69]  Contrast s 495(1) of the Sustainable Planning Act 2009 or the now repealed Order 86 r 8(4) Rules of the Supreme Court

[70]  (1976) 135 CLR 616, 621-622.

[71]  (1976) 135 CLR 616, 621-622.

[72]  (1964) 110 CLR 347, 350.

[73]  The respondent expressly disavowed any reliance in this case on an argument that the appellants’ application was a nullity – see T1-53 lines 40 -60; T-54 lines 1-20  This is consistent with the position taken by the respondent well prior to any appeal when it allowed the application for the water licence, in part, and must thereby have treated it as having been validly made.

[74]  In saying this I am not to be taken to say anything about whether the respondent must accord procedural fairness before it can consider same.

[75]  In this case the appeal was not heard until some years later.

[76]  (1976) 135 CLR 616, 621-622.

[77]  (1989) 167 CLR 259.

[78]  (1976) 135 CLR 616, 621-622.

[79]  (1989) 167 CLR 259.

[80]  (2000) 203 CLR 1.

[81]  (2012) 245 CLR 561.

[82]  [1998] 1 QdR 162.

[83]  [2011] 1 QdR 200.

[84]  [2011] 1 QdR 200.

[85]  [2011] 1 QdR 200.

[86]  [2012] QLC 72 at [37].

[87]  Gallo & Williams v Chief Executive, Department of Environment and Resource Management [2012] QLC 15.

[88]  (1990) 170 CLR 321, 355.

[89]  See para [29] of the decision of Henry J and MacDonald P herein and cases there cited.

[90]  In cases of facts found on the basis of, or depending upon resolving issues of credibility, an appellant seeking to overturn such findings on appeal must satisfy the test explained in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306; Devries v Australian National Railways Commission (1993) 177 CLR 472, 479.

[91]  In the same way as an appellate court is in as good a position to draw inferences from primary facts found below: Warren v Coombes (1979) 142 CLR 531.

[92]  Although the report also dealt with the unfairness argument

[93]  (1993) 177 CLR 472, 479.

[94]  (1959) 101 CLR 298.

[95]  (1959) 101 CLR 298 T1-44 lines 40-60.

[96]  T 1-34 lines 5-20.

[97]  [2008] QLC 15.

[98]  (1993) 177 CLR 472, 479.

[99]  Undoubtedly, such a course was a sensible one to take.

[100]  (2009) 30 QLCR 150.

[101]  [2011] 1 QdR 200.

[102]   Mr Sutherland has prepared an earlier version of the report which was in evidence as Ex 46 but this was amended by him following discussions with Dr Watts and the amended report became Appendix 4 to Ex 21

[103]  Section 7of the Land Court Act 2000

[104]  Save for the cross-examination set out below at [211] but this was in a different context that the exercise itself was hypothetical and not that it did not represent the intentions of the Gallos.

[105]  T 1-25 lines 20-27.

[106]   T 1-27 lines 22-38.

[107]  See generally Australian Securities and Investment Commission v Hellicar (2012) 247 CLR 347.  .

[108]  See Ex 44 – the date of commencement of that licence was 12 December 2007.  Ex 3 was lodged on 17 February 2005.

[109]  T 5-28 lines 20-60 – T31 lines 1-5.

[110]  T 5-33 lines 12-30

[111]  T 5-26 lines 6-10

[112]  Emphasis added

[113]  T 1-34 lines 35-60 – T1-35 lines 1-18.

[114]  [2011] 1 QdR 200.

[115]  Cf Mooy v Williams [1992] QCA 114.

[116]  Mr Sutherland assessed 512.2 ML per water year in his report in Appendix 3 to Ex 21.

[117]  The respondent did not accept this was the practice.

[118]  [2010] QCA 347.

[119]  Section 213(1)(a) as at 12 December 2007 (the time Ex 44 was issued) previously stated that the licence “must be granted for a stated period” and s 213(2) did not exist. .

[120]  This was also in a slightly different form as at 12 December 2007 – see Reprint 5D

[121]  There is a discrepancy in the figure in paragraph 2 of the summary and in the conclusion of Appendix 4 of Ex 21 which refers to 276.2 ha but in the body of Appendix 4 the correct figure of 276.6 ha is used at 4-5 with detailed reasons given as to how that figure has been derived and in the detailed calculation in table 4.4.1.2 at 4-7. 

[122]  See at T 4-69.

[123] See at T4-69 lines 20-40

[124] See at T4-69 lines 5-42 – T4-71 lines 24-30 , T4-72 lines 52- 60 – T4-73 lines 1-40  

[125]  See North v South East Water Corp Ltd [2003] QSC 407; however cf Australian Leisure and Hospitality Group Pty Ltd v Director of Liquor Licensing [2012] WASC 463; Gold Coast City Council v Halcyon Waters Community Pty Ltd (2011) 188 LGERA 193 and also the provisions of s 206(3) which would seem to indicate “contiguous” here probably means physically touching rather than neighbouring and see generally pt 4 Land Act 1994 .

[126]  Although it would seem that even in relation to this licence the land was not owned by all of the holders of the licence but only by the appellant John Paul Gallo and the non-party Linda Cherie Gallo – see Appellants’ Outline filed 12 February 2013 at para [71] – “John Paul Gallo and Linda Cherie Gallo purchased Lot 3 with a licence for 61ML”.   That said, as this was not in evidence, I ignore it.

[127]  T1-2 –T1-3 of transcript on 21 March 2013.

[128]  See for instance Orr v Holmes (1948) 76 CLR 632 (on appeal from Queensland); Langdale v Danby [1982] WLR 1123, Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 QdR 404, 408-409; Arrowsmith v Micallef [2013] QCA 142, [70] and see generally r 766 Uniform Civil Procedure Rules 1999.

[129]  (1990) 26 FCR 523.

[130]  See at T4-74 lines 52-60 - T4-73 lines 1 -40; T 4-75 lines 30-60 - T4-78 lines 1-30, T5-27 lines 30-60 – T5-29 lines 1-34.

[131]  See at T5-37 – T5-41 lines 1-10

[132]  See at T4-69 lines 22 - 42

[133]  See at T5-8 – T5-34 lines 1-32.

[134] Fox v Percy (2003) 214 CLR 118; 124 [20]- 129[31]; cf Dwyer v Calcol Timbers Pty Ltd (2008) 224 CLR 124; Rowe v Kemper [2009] 1 QdR 247, 253-254 [3]-[5]; Shambayati v Commissioner of Police [2013] QCA 57.

[135] House v The King (1936) 55 CLR 499, 500; Gronow v Gronow (1979) 144 CLR  513; Morrow v McMahon (1985) 3 NSWLR 700, 722

[136] Zuvela v Cosmaran Concrete Pty Ltd (1996) 71 ALJR 29.

[137] Drew v Makita (Australia) Pty Ltd [2009] 2 QdR 219.

[138]  Para [53] of the judgment below ; [2012] QLC 0015.

Close

Editorial Notes

  • Published Case Name:

    Gallo v Chief Executive, Department of Environment & Resource Management

  • Shortened Case Name:

    Gallo v Chief Executive, Department of Environment & Resource Management

  • MNC:

    [2013] QLAC 6

  • Court:

    QLAC

  • Judge(s):

    Henry J, MacDonald P, Member Evans

  • Date:

    06 Dec 2013

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Allesch v Maunz (2000) 203 CLR 172
2 citations
Jump To
Cite 1 - (2000) 203 CLR 172
Cite 2 - (2000) 203 CLR 172
Australasian Meat Industry Employees Union; Ex parte Ferguson (1986) 67 ALR 491
1 citation
Jump To
Cite 1 - (1986) 67 ALR 491
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
2 citations
Jump To
Cite 1 - (1990) 170 CLR 321
Cite 2 - (1990) 170 CLR 321
Australian Gas Light Co v Valuer-General (1940) SR NSW 126
1 citation
Jump To
Cite 1 - (1940) SR NSW 126
Australian Leisure and Hospitality Group Pty Ltd v Director of Liquor Licensing [2012] WASC 463
2 citations
Jump To
Cite 1 - [2012] WASC 463
Cite 2 - [2012] WASC 463
Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 347
2 citations
Jump To
Cite 1 - (2012) 247 CLR 347
Cite 2 - (2012) 247 CLR 347
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616
6 citations
Jump To
Cite 1 - (1976) 135 CLR 616
Cite 2 - (1976) 135 CLR 616
Cite 3 - (1976) 135 CLR 616
Cite 4 - (1976) 135 CLR 616
Cite 5 - (1976) 135 CLR 616
Cite 6 - (1976) 135 CLR 616
Cf Zuvela v Cosinarnan Concrete Pty Ltd (1996) 71 ALJR 29
2 citations
Jump To
Cite 1 - (1996) 71 ALJR 29
Cite 2 - (1996) 71 ALJR 29
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404
2 citations
Jump To
Cite 1 - [1984] 1 Qd R 404
Cite 2 - [1984] 1 Qd R 404
Clodumar v Nauru Lands Committee (2012) 245 CLR 561
2 citations
Jump To
Cite 1 - (2012) 245 CLR 561
Cite 2 - (2012) 245 CLR 561
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
3 citations
Jump To
Cite 1 - (2000) 203 CLR 194
Cite 2 - (2000) 203 CLR 194
Cite 3 - (2000) 203 CLR 194
Commissioner for Government Tram and Omnibus Services v Vickery (1952) 85 CLR 635
1 citation
Jump To
Cite 1 - (1952) 85 CLR 635
Da Costa v Cockburn Salvage & Trading Pty Ltd (1971) 124 CLR 192
1 citation
Jump To
Cite 1 - (1971) 124 CLR 192
De Tournouer v Chief Executive, Department of Environment and Resource Management[2011] 1 Qd R 200; [2009] QCA 395
12 citations
Jump To
Cite 1 - [2011] 1 Qd R 200
Cite 2 - [2011] 1 Qd R 200
Cite 3 - [2011] 1 Qd R 200
Cite 4 - [2011] 1 Qd R 200
Cite 5 - [2011] 1 Qd R 200
Cite 6 - [2011] 1 Qd R 200
Cite 7 - [2011] 1 Qd R 200
Cite 8 - [2011] 1 Qd R 200
Cite 9 - [2011] 1 Qd R 200
Cite 10 - [2011] 1 Qd R 200
Cite 11 - [2011] 1 Qd R 200
Cite 12 - [2011] 1 Qd R 200
De Tournouer v Chief Executive, Department of Natural Resources and Water [2008] QLC 151
2 citations
Jump To
Cite 1 - [2008] QLC 151
Cite 2 - [2008] QLC 151
De Tournouer v Department of Natural Resources and Water [2009] QLAC 6
3 citations
Jump To
Cite 1 - [2009] QLAC 6
Cite 2 - [2009] QLAC 6
Cite 3 - [2009] QLAC 6
De Tournouer v Department of Natural Resources and Water (2009) 30 QLCR 150
3 citations
Jump To
Cite 1 - (2009) 30 QLCR 150
Cite 2 - (2009) 30 QLCR 150
Cite 3 - (2009) 30 QLCR 150
Devries v Australian National Railways Commission (1993) 177 CLR 472
4 citations
Jump To
Cite 1 - (1993) 177 CLR 472
Cite 2 - (1993) 177 CLR 472
Cite 3 - (1993) 177 CLR 472
Cite 4 - (1993) 177 CLR 472
Drew v Makita (Australia) Pty Ltd[2009] 2 Qd R 219; [2009] QCA 66
2 citations
Jump To
Cite 1 - [2009] 2 Qd R 219
Cite 2 - [2009] 2 Qd R 219
Dwyer v Calcol Timbers Pty Ltd (2008) 224 CLR 124
2 citations
Jump To
Cite 1 - (2008) 224 CLR 124
Cite 2 - (2008) 224 CLR 124
Eastman v The Queen (2000) 203 CLR 1
2 citations
Jump To
Cite 1 - (2000) 203 CLR 1
Cite 2 - (2000) 203 CLR 1
Esber v The Commonwealth (1992) 174 CLR 430
2 citations
Jump To
Cite 1 - (1992) 174 CLR 430
Cite 2 - (1992) 174 CLR 430
Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150
1 citation
Jump To
Cite 1 - (1941) 65 CLR 150
Fox v Percy (2003) 214 CLR 118
2 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
Fox v Percy (2003) 213 CLR 118
1 citation
Jump To
Cite 1 - (2003) 213 CLR 118
Gallo & Williams v Chief Executive, Department of Environment and Resource Management [1989] 2 Qd R 95
2 citations
Jump To
Cite 1 - [1989] 2 Qd R 95
Cite 2 - [1989] 2 Qd R 95
Gallo v Chief Executive, Department of Environment and Resource Management [2012] QLC 15
8 citations
Jump To
Cite 1 - [2012] QLC 15
Cite 2 - [2012] QLC 15
Cite 3 - [2012] QLC 15
Cite 4 - [2012] QLC 15
Cite 5 - [2012] QLC 15
Cite 6 - [2012] QLC 15
Cite 7 - [2012] QLC 15
Cite 8 - [2012] QLC 15
Gold Coast City Council v Halcyon Waters Community Pty Ltd (2011) 188 LGERA 193
2 citations
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Cite 1 - (2011) 188 LGERA 193
Cite 2 - (2011) 188 LGERA 193
Gronow v Gronow (1979) 144 CLR 513
2 citations
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Cite 1 - (1979) 144 CLR 513
Cite 2 - (1979) 144 CLR 513
Heslin v Director General, Department of Environment and Resource Management [2010] QCA 347
3 citations
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Cite 1 - [2010] QCA 347
Cite 2 - [2010] QCA 347
Cite 3 - [2010] QCA 347
Hope v Bathurst City Council (1980) 144 CLR 1
1 citation
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Cite 1 - (1980) 144 CLR 1
House v The King (1936) 55 CLR 499
2 citations
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Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
In re Chennell; Jones v Chennell (1878) 8 Ch D 492
1 citation
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Cite 1 - (1878) 8 Ch D 492
Jones v Dunkel (1959) 101 CLR 298
4 citations
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Cite 1 - (1959) 101 CLR 298
Cite 2 - (1959) 101 CLR 298
Cite 3 - (1959) 101 CLR 298
Cite 4 - (1959) 101 CLR 298
Kentlee Pty Ltd v Prince Consort Pty Ltd[1998] 1 Qd R 162; [1996] QCA 87
2 citations
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Cite 1 - [1998] 1 Qd R 162
Cite 2 - [1998] 1 Qd R 162
Lacey v Attorney-General (Qld) (2011) 242 CLR 573
2 citations
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Cite 1 - (2011) 242 CLR 573
Cite 2 - (2011) 242 CLR 573
Langdale v Danby [1982] WLR 1123
2 citations
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Cite 1 - [1982] WLR 1123
Cite 2 - [1982] WLR 1123
McIntosh v Williams (1976) 2 NSWLR 237
1 citation
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Cite 1 - (1976) 2 NSWLR 237
McPhee v S. Bennett Ltd (1934) 52 W.N. N.S.W. 8
1 citation
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Cite 1 - (1934) 52 W.N. N.S.W. 8
Mickelberg v The Queen (1989) 167 C.L.R 259
3 citations
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Cite 1 - (1989) 167 C.L.R 259
Cite 2 - (1989) 167 C.L.R 259
Cite 3 - (1989) 167 C.L.R 259
Mooy v Williams [1992] QCA 114
2 citations
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Cite 1 - [1992] QCA 114
Cite 2 - [1992] QCA 114
Moran v McMahon (1985) 3 NSWLR 700
1 citation
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Cite 1 - (1985) 3 NSWLR 700
Morrow v McMahon (1985) 167 CLR 259
1 citation
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Cite 1 - (1985) 167 CLR 259
North v South East Queensland Water Corp Ltd [2003] QSC 407
2 citations
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Cite 1 - [2003] QSC 407
Cite 2 - [2003] QSC 407
Orr v Holmes (1948) 76 CLR 632
3 citations
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Cite 1 - (1948) 76 CLR 632
Cite 2 - (1948) 76 CLR 632
Cite 3 - (1948) 76 CLR 632
Phillips v The Commonwealth (1964) 110 CLR 347
3 citations
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Cite 1 - (1964) 110 CLR 347
Cite 2 - (1964) 110 CLR 347
Cite 3 - (1964) 110 CLR 347
R v Ruthven [2013] QCA 142
2 citations
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Cite 1 - [2013] QCA 142
Cite 2 - [2013] QCA 142
R v Watt [1912] VLR 225
1 citation
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Cite 1 - [1912] VLR 225
Re Coldham; Ex parte Brideson [No 2] (1990) 170 CLR 267
2 citations
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Cite 1 - (1990) 170 CLR 267
Cite 2 - (1990) 170 CLR 267
Re Zopponi [2008] QLC 15
1 citation
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Cite 1 - [2008] QLC 15
Rowe v Kemper[2009] 1 Qd R 247; [2008] QCA 175
2 citations
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Cite 1 - [2009] 1 Qd R 247
Cite 2 - [2009] 1 Qd R 247
Shambayati v Commissioner of Police [2013] QCA 57
2 citations
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Cite 1 - [2013] QCA 57
Cite 2 - [2013] QCA 57
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306
2 citations
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Cite 1 - (1999) 73 ALJR 306
Cite 2 - (1999) 73 ALJR 306
Stockman v Chief Executive, Department of Natural Resources and Mines [2012] QLC 72
2 citations
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Cite 1 - [2012] QLC 72
Cite 2 - [2012] QLC 72
Sunskill Investments Pty Ltd v Townsville Office Services Pty Ltd[1991] 2 Qd R 210; [1990] QSCFC 46
2 citations
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Cite 1 - [1991] 2 Qd R 210
Cite 2 - [1991] 2 Qd R 210
The learned Chief Justice referred to Powell v Streatham Nursing Home (1935) AC 243
1 citation
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Cite 1 - (1935) AC 243
Totterdell v Nelson (1990) 26 FCR 523
2 citations
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Cite 1 - (1990) 26 FCR 523
Cite 2 - (1990) 26 FCR 523
Victorian Stevedoring and General Contracting Company Pty Ltd v Dignan (1931) 46 C.L.R., 73
3 citations
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Cite 1 - (1931) 46 C.L.R., 73
Cite 2 - (1931) 46 C.L.R., 73
Cite 3 - (1931) 46 C.L.R., 73
Warren v Coombes (1979) 142 CLR 531
1 citation
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Cite 1 - (1979) 142 CLR 531
Wollongong City Council v Cowan (1955) 93 CLR 435
1 citation
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Cite 1 - (1955) 93 CLR 435

Cases Citing

Case NameFull CitationFrequency
Balanced Property Pty Ltd v Pembroke Olive Downs Pty Ltd [2025] QLAC 32 citations
Citigold Corporation Limited v Chief Executive, Department of Environment and Heritage Protection (No. 5) [2016] QLC 621 citation
Department of Transport and Main Roads v Mahoney [2014] QLAC 13 citations
Gallo v Department of Environment and Resource Management (No. 2) [2014] QLAC 111 citation
1

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