Namrog Investments Pty Ltd v Pembroke Olive Downs Pty Ltd
[2024] QLAC 2
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- Unreported Judgment
- Appeal Determined (QCA)
- Namrog Investments Pty Ltd v Pembroke Olive Downs Pty Ltd[2024] QLAC 2
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Namrog Investments Pty Ltd v Pembroke Olive Downs Pty Ltd[2024] QLAC 2
Namrog Investments Pty Ltd v Pembroke Olive Downs Pty Ltd[2024] QLAC 2
LAND APPEAL COURT OF QUEENSLAND
CITATION: | Namrog Investments Pty Ltd v Pembroke Olive Downs Pty Ltd [2024] QLAC 2 |
PARTIES: | NAMROG INVESTMENTS PTY LTD ACN 120 177 148 (appellant) v PEMBROKE OLIVE DOWNS PTY LTD ACN 611 674 376 (respondent) |
FILE NOs: | LAC003-23 LAC001-24 MRA487-20 |
DIVISION: | Land Appeal Court of Queensland |
PROCEEDING: | Appeal from the Land Court of Queensland |
ORIGINATING COURT: | Land Court of Queensland |
DELIVERED ON: | 2 August 2024 |
DELIVERED AT: | Rockhampton |
HEARING DATE: | 13 June 2024 |
THE COURT: | Crow J Clarke DCJ, Acting Member of the Land Court WA Isdale, Member of the Land Court |
ORDERS: |
Costs in the hearing in the Land Court to be the parties’ costs in the cause. |
CATCHWORDS: | APPEAL – ERROR OF LAW INTERPRETATION – GENERAL MATTERS – whether the court erred in defining the word “dam” in s 68(1)(b)(i)(A) of the Mineral and Energy Resources (Common Provisions) Act 2014 Mineral and Energy Resources (Common Provisions) Act 2014 (Qld), s 68 Water Act 2000 (Qld), Sch 4 AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2024] HCA 10 Queensland Bulk Water Supply Authority t/as Seqwater v Rodriguez & Sons Pty Ltd [2021] NSWCA 206 Zizza v Minister Administering the Water Management Act [2014] NSWLEC 170 |
APPEARANCES: | Mr G A Thompson KC with Mr D Quayle (instructed by McCullough Robertson Lawyers) for the appellant Mr S Holt KC with Ms K McAuliffe-Lake (instructed by Allens) for the respondent |
THE COURT:
- [1]This appeal raises the question of the proper interpretation of s 68(1)(b)(i)(A) of the Mineral and Energy Resources (Common Provisions) Act 2014 (‘MERCPA’) which attempts to provide a measure of protection[1] to landowners by including in the definition of “restricted land” land within 50m laterally of an area used for the purposes of an artesian well, bore, dam or water storage facility.
- [2]Section 68 of the Mineral and Energy Resources (Common Provisions) Act 2014 provides:
“68What is restricted land
- Restricted land, for a production resource authority or exploration resource authority, means—
- land within 200m laterally of any of the following—
- a permanent building used for any of the following purposes—
- a residence;
- a childcare centre, hospital or library;
- a community, sporting or recreational purpose or as a place of worship;
- a business;
- an area used for any of the following purposes—
- a school;
- a prescribed ERA, under the Environmental Protection Act, that is aquaculture, intensive animal feedlotting, pig keeping or poultry farming;
- an area, building or structure prescribed by regulation; or
- land within 50m laterally of any of the following—
- an area used for any of the following purposes—
- an artesian well, bore, dam or water storage facility;
- a principal stockyard;
- a cemetery or burial place;
- an area, building or structure prescribed by regulation.
- Restricted land, for a resource authority other than a production resource authority or exploration resource authority, means land within 50m laterally of any area, building or structure mentioned in subsection (1).
- However, despite subsection (1), land is only restricted land for a production resource authority if the use of the area, building or structure mentioned in the subsection started before the application for the resource authority was made.
- In this section—
exploration resource authority means a resource authority that is—
- an exploration permit or mineral development licence under the Mineral Resources Act; or
- an authority to prospect under the P&G Act; or
- an authority to prospect under the 1923 Act; or
- a geothermal exploration permit under the Geothermal Act; or
- a GHG exploration permit under the Greenhouse Gas Act.
place of worship means a place used for the public religious activities of a religious association, including, for example, the charitable, educational and social activities of the association.
production resource authority means a resource authority that is—
- any of the following under the Mineral Resources Act—
- a mining claim;
- a mining lease; or
- any of the following under the P&G Act—
- a petroleum lease;
- a pipeline licence;
- a petroleum facility licence; or
- a lease under the 1923 Act; or
- a geothermal production lease under the Geothermal Act; or
- a GHG injection and storage lease under the Greenhouse Gas Act.
water storage facility—
- means an artificially constructed water storage facility that is connected to a water supply; and
- does not include an interconnecting water pipeline.”
- [3]The area of restricted land that is 50m laterally from an artesian well, bore, or water storage facility is a matter which is, ordinarily, easily determined as the area of the well, bore or water storage facility is easily determined. The same cannot be said with respect to the word “dam”. The primary judge was right to accept the submission of the parties that in order to determine what the area used for the purposes of a dam consisted of, it was necessary to provide a definition of the word “dam”. The MERCPA, unlike the Water Act 2000, does not include a definition of the word “dam”. The primary judge was asked to decide whether “dam” in s 68(1)(b)(i)(A) meant only the physical barrier constructed to impound the water or the barrier and area of water so impounded.
- [4]Orders 3 and 4 of her Honour’s orders need to be considered. They provide:
- “3.For the purpose of section 68 of Mineral Resources (Common Provisions) Act 2014 (Qld), a 'dam' is the artificially constructed wall or barrier built to obstruct the flow of, and impound, water.
- 4.For the purpose of section 68 (1) of the Mineral Resources (Common Provisions) Act 2014 (Qld):
- a)the words “an area used for … [the purpose of a] dam” in section 68(1)(b)(i)(A)
- i.do not include:
- an area of land over the surface of which water flows and supplies water to a dam; or
- a watercourse along which water flows and supplies water to a dam; but
- ii.do include:
- the dam wall and the necessary works required to support the dam wall.”
- [5]As may be observed from orders 3 and 4, the primary judge construed a “dam” as the artificially constructed wall or barrier built to obstruct the flow of or impound water, but excluded the area of land over the surface of which water flows and supplies water to a dam, or a watercourse along which water flows and supplies water to a dam.
- [6]The primary judge concluded[2] that the proper interpretation of the word “dam” in s 68(1)(b)(i)(A) of the MERCPA was that it is “the artificially constructed wall or barrier built to obstruct the flow of and impound water” rather than that physical barrier and the water that it contains.
- [7]The primary judge was attracted to the former definition for three reasons. Firstly, the uncertainty argument. That is the MERCPA needs specific metes and bounds to operate effectively and the definition of a dam with reference to the dam wall provides that certainty as opposed to the inclusion of the area of water of the dam which may fluctuate considerably depending on seasonal rainfall. Secondly, the infrastructure argument, namely that the text of s 68 is directed towards infrastructure and the dam wall is infrastructure as opposed to the area of pondage of the dam. Thirdly, the statutory construction argument, that the construction of s 68 is directed towards the integrity of the infrastructure, not the use of the infrastructure. The third argument is that the buffer areas of 50m laterally in respect of s 68(1)(b) and 200m laterally in respect of s 68(1)(a) suggests that it was Parliament’s intention to preserve the integrity of the infrastructure itself as opposed to its use; the example that was provided was that an open cut coal mine can be constructed up to 50m laterally from a principal stock yard, thus isolating the principal stock yard and rendering its use otiose, thus while the integrity of that asset itself is not to be compromised it may be rendered useless.
- [8]The most persuasive of the primary judge’s reasoning is the uncertainty argument. The primary judge’s interpretation solves that by restricting the definition of dam to the “artificially constructed wall or barrier built to obstruct the flow of and impound water”. While it may be accepted that the narrow definition of the word “dam” is a convenient construction as it avoids the uncertainty problem, it would seem that such reasoning ought not to be accepted. Just because the expansive definition may create a difficult factual question as to the proper dimensions of a dam, that is not sufficient reason to prefer a highly restrictive definition of the word “dam” which is significantly prejudicial to the rights of a landowner.
- [9]In terms of the infrastructure argument that was considered by the primary judge as persuasive, it would seem that all of the earthworks utilised in the construction of a dam, accepting there are many types of dams, can properly be considered to be infrastructure. This includes not only the dam wall but the floor of the dam which may be constructed by heavy plant, such as a scraper.
- [10]As to the third argument, namely that s 68 is directed towards integrity of the infrastructure, not its use, it appears that the answer is that the MERCPA is directed to regulation of rights of landowners to many different types of resource activities. Accordingly, a construction based only on a postulated scenario asset isolated as a result of an open cut coal mine as being persuasive, ought not to be accepted. A purpose of the MERCPA[3] is to provide a common process to resolve the rights of landowners and resource operators in respect of many different types of resource operation, i.e. underground coal, gas, petroleum or exploration, which may not create asset isolation.
- [11]Despite the primary judge’s reasoning in accepting the narrow definition of the word “dam”, there are three reasons why the preferable definition of the word “dam” is the broader definition, that is, a dam is the barrier and the area of the land storing the water contained by the barrier (and therefore the water contained in the area of land).
- [12]The first point in aid of this interpretation is that the definition and use of restricted land as defined in s 68 is a provision inserted by Parliament to provide some small degree of protection for the rights of a landowner; it is a classical remedial provision and therefore ought to be construed beneficially, that is, in the interests of the landowner.[4]
- [13]The second point is that the ordinary use of the word “dam” includes not only the infrastructure or embankment creating the pondage but the area of pondage created by the wall. Thus, as submitted by senior counsel for the appellant, it is an ordinary and natural use of the meaning of the word “dam” to “go fishing, swimming or boating in a dam” and the artificial structure or embankment holding the water is ordinarily referred to as the dam wall.
- [14]The third point is that Parliament has acknowledged that there are differences in meaning between the words “artesian well”, “bore”, “dam”, or “water storage facility” and Parliament has deliberately not included other types of temporary water storage facilities such as levy banks in the definition in s 68(1)(b).[5] Reading the Act as a whole,[6] Parliament has acknowledged the difference between a “dam” and a “water storage facility” which supports a broader and not a narrow interpretation of the word “dam”.
- [15]A consequence of accepting a broader definition of a “dam”, is that the uncertainty argument is not definitively resolved. The appellants accept that the watercourses which deliver water flow to a dam ought not be considered part of a dam which creates the uncertainty point, that is, where a watercourse ceases and where a dam commences. That is a question of fact, which may create uncertainty in the case of any particular dam, however that ought not be a reason for preference of a construction of the word “dam” which does not follow its ordinary natural meaning. The facts in the present appeal show that there are many types of dams and that the determination of the question of fact as to the extent of the dam and therefore area of land used for the purposes of a dam may, for example, in the case of a turkey’s nest dam, be quite a simple matter.
- [16]There are other types of dams, for example, where a large creek or watercourse is dammed which may create some factual uncertainty as to the parameters of the dam. That factual uncertainty is, however, not a sufficient reason to adopt an artificially narrow construction of the word “dam” in circumstances where s 68 is remedial and protective of the rights of the landowner. As a dam is ordinarily fed by the operation of gravity upon water, the height of the lowest point of any dam wall will determine the volumetric capacity and surface area of the dam; dams are ordinarily described by reference to their surface area and volumetric capacity.[7] Accordingly, in terms of s 68(1)(b)(i)(A) of the MERCPA, which emphasises the “use” of an area of land for the purposes of a “dam”, the area of land used for the purpose of a dam is the area of land over which the water is impounded by the dam wall when the dam is at maximum capacity. This may be determined by survey evidence or other evidence and will be a question of fact to be determined in each case.
- [17]In our view, it is unnecessary in the present appeal to provide any guidelines for the resolution of any factual question of what the parameters of any particular dam are other than to say it is a question of fact to be decided upon the evidence in each application.
- [18]The appeal ought to be allowed and the appellant ought to have its costs of the appeal and hearing below. The appropriate orders are:
- Appeal LAC003-23 is allowed.
- The respondent is to pay the appellant’s costs of and incidental to this appeal to be assessed on the standard basis.
- For the purpose of s 68 (1) of the Mineral and Energy Resources (Common Provisions) Act 2014 (Qld):
- the words “an area used for … [the purpose of a] dam” in s 68(1)(b)(i)(A)
- do include:
- the dam wall and the necessary works required to support the dam wall.
- the area of land over which water is impounded by the dam wall when the dam is at maximum capacity.
- the water impounded by the dam.
- but do not include:
- an area of land over the surface of which water flows and supplies water to a dam; or
- a watercourse along which water flows and supplies water to a dam;
- do include:
- the words “an area used for … [the purpose of a] dam” in s 68(1)(b)(i)(A)
- Appeal LAC001-24 is allowed.
Costs in the hearing in the Land Court to be the parties’ costs in the cause.
Footnotes
[1]Mineral and Energy Resources (Common Provisions) Act 2014, s 70 (‘MERCPA’).
[2]J19.
[3]MERCPA, s 3.
[4]Pearce Statutory Interpretation 9th Ed paragraph 9.2.
[5]This can be compared to the Schedule 4 definition of a “dam” in the Water Act 2000, which specifically excludes “a levee”.
[6]AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2024] HCA 10 [13].
[7]Zizza v Minister Administering the Water Management Act [2014] NSWLEC 170, (Pain J) [18]; Queensland Bulk Water Supply Authority t/as Seqwater v Rodriguez & Sons Pty Ltd [2021] NSWCA 206 [163].