Heslin v Department of Environment & Resource Management
[2010] QSC 226
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- Appeal Determined (QCA)
- Heslin v Department of Environment & Resource Management[2010] QSC 226
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Heslin v Department of Environment & Resource Management[2010] QSC 226
Heslin v Department of Environment & Resource Management[2010] QSC 226
SUPREME COURT OF QUEENSLAND
CITATION: | Heslin & Fry v The Department of Environment & Resource Management & Ors [2010] QSC 226 |
PARTIES: | Raymond Allan Heslin and Judith Ellen Heslin (first applicants) and Kenneth William Fry and Gwendolyne May Fry (second applicants) and Director General, Department of Environment and Resource Management (first respondent) and State of Queensland (second respondent) |
FILE NO/S: | 173 of 2010 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court |
DELIVERED ON: | 25 June 2010 |
DELIVERED AT: | Supreme Court at Townsville |
HEARING DATE: | 10 June 2010 |
JUDGES: | Cullinane J |
ORDER: |
|
CATCHWORDS: | ENERGY AND RESOURCES – WATER – WATER LICENCES – where the applicants are members of a family – where the applicants seek declarations in relation to a water licence – where the licence relates to a dam constructed on a creek on a large grazing property which is preferential pastoral holding – where the purpose of obtaining the licence was to take water for irrigation and stock watering purposes – whether the taking of water from the dam constitutes an offence – whether a denial of natural justice in issuing an altered licence – whether statutory extension of licence applies Water Act 2000 Water Resources Act 1989 |
COUNSEL: | L Bowden for the applicants S Keim SC for the respondents |
SOLICITORS: | Suthers Lawyers for the applicants The Department of Environment and Resource Management for the respondents |
- In this matter the applicants seek certain declarations in relation to a water licence No. 49981K.
- The first applicants and the second applicants are members of a family. The licence relates to a dam constructed on a creek (“L Creek”) on a large grazing property (“Iverleigh”) which is a preferential pastoral holding.
- The relevant licence has been issued in differing names at different times reflecting alterations to the ownership of the relevant land.
- Records indicate that a dam had been constructed on L Creek in about 1901. In 1941, the then holder of the lease obtained a water works licence under the then existing legislation authorising the use of the dam which had been constructed earlier. The licence at that time was issued for a period of some ten years but it appears that it was subsequently surrendered.
- The relevant history for present purposes commences in 1987. It appears that the applicant, Kenneth William Fry, desired to establish a stock water facility and also was considering a fodder irrigation project using water from the dam.
- A letter of 28 August 1987 from an officer of the first respondent's predecessor to Mr Fry refers to this and canvasses the options which were available to establish a greater water storage for such purposes for the dam. However the recommendation at the time was that the issue of a licence would not be required.
- By letter dated 13 October 1988, from the same officer with whom the applicant, Mr Fry had discussed the matter in August 1987, the proposal was discussed in somewhat greater detail. The irrigation needs for the purposes that Mr Fry had indicated were discussed and the works which were then in the process of being carried out at the dam site and the volume which might be obtained from water storage there, were also discussed. The irrigation method was canvassed and the type of pumping plant which might be used and the approximate cost were also canvassed.
- In this correspondence the author indicated that a licence would be required for the dam and for the proposed pumping plant which had been canvassed in the letter. An application accompanied the letter and Mr Fry was invited to complete it.
- This document is exhibit D to the affidavit of the first applicants.
- The details of the dam were included in the application which was in a standard form. Under the heading "Purpose of Work" appeared "water conservation for irrigation and stock water".
- The application was advertised and a licence issued. It was forwarded to the second applicants under letter of 23 July 1990.
- It is also an exhibit to the affidavit of the second applicants.
- Under the heading "Description of Works" appears the words "a concrete weir with the following dimensions" and the dimensions are thereafter set out.
- Under the heading "Purpose of Works" appears "irrigation …. stock watering".
- The licence was issued on 20 July 1990.
- It was subject to a number of conditions and its expiry date was shown as 30 April 1993.
- The licence was granted under the Water Resources Act 1989 which had come into effect following the making of the application.
- The first applicants depose to the fact that Mr Fry repaired and raised the dam at his own expense and used water from the dam to irrigate. The first applicant, since acquiring the property, have used water from the dam to irrigate.
- By a document which bears the stamp of the Water Resources Mareeba Regional Office and the date 22 March 1993, the second applicants were notified of the expiry notice of the original licence (30 April 1993).
- The document which appears to be in standard form provided for the second applicants to notify the commissioner if they wished to have the licence renewed. They did so.
- This document under the heading "Purpose of Works" again showed "irrigation …. stock watering".
- As I understand matters, the applicants did not receive any response to their application for renewal until a letter from the commission dated 19 September 1997 under the signature of the regional engineer was received. The letter had attached to it a licence in respect of L Creek with an expiry date of 30 April 2005. The licence showed under the heading "Purpose of Works" the word "conservation".
- There had been no contact prior to the applicants receiving this and nor had the alteration of the purpose of the licence been foreshadowed.
- Senior counsel for the respondents was not inclined to challenge the claim made by counsel for the applicants that the unilateral alteration of the purpose of the licence without giving the applicants the opportunity to be heard, breached the requirements of natural justice with the result that the determination that a licence be issued in those terms should be set aside. The statutory consequences of this will be considered later.
- By a document which appears to be dated 13 May 2005, the applicant Judith Ellen Heslin applied for the reinstatement of an expired water licence, the licence having expired on 30 April 2005. This document, which was also a pro forma document, described the authorised purpose of the licence as "conserve water".
- By letter of 21 July 2005, an officer of the commission informed the applicants that the application was approved and a new licence issued.
- By this time the Water Act 2000 had been enacted and the renewed licence was issued subject to its terms.
- A new licence was issued in the names of the first applicants dated 25 July 2008 the authorised purpose of this licence is shown as "conserve water". This licence issued was issued during the currency of the existing licence and for the remainder of its term was issued to the first applicants who had acquired the property.
- In summary, it is the applicants' case that on the proper construction of the licence as it was issued, the applicants are entitled lawfully to take water from the storage and to use it for irrigation and stock watering purposes. It was also contended that since the licence which was issued in 1975, unilaterally altered the terms of the licence in a way which affected the applicants' property rights and did so without giving them the opportunity to be heard, the issue of such a licence should be set aside with the result that the licence issued in 1990 remains in force.
- The respondents on the other hand contend that on its proper construction the licence did not confer upon the applicants any right to take water from the dam for irrigation or stock watering purposes and that the reference in the licence to the use is no more than a reference to the riparian rights which are statutorily provided for and for which no licence is required. The description in this regard is indicative only and has a limiting effect in the sense of precluding any use other than the statutorily conferred rights just referred to.
- The riparian rights are preserved by section 4.11 of the Water Resources Act 1989.
- Section 4.13 of that Act provides as follows:
(1)Subject to sections 4.31 and 4.32 a person who, except under the authority of a licence under this Act –
"(a)constructs on his land a referable dam or alters, repairs, maintains, uses, operates, abandons or removes a referable dam already constructed;
(b)(i) constructs works or uses works already constructed in or on a watercourse, lake or spring -
(A)to conserve water;
(B)to take water therefrom or water contained in or conserved by a weir, barrage or dam;
(ii)constructs works or uses works already constructed in or on a watercourse, lake or spring or on or in connexion with land that abuts any of them -
(A)for the purpose of drainage;
(B)for the prevention of flooding of land by water or the erosion of banks;
(C)for improvement in the flow of water in or changes to the course of any of them."
……
commits an offence against the same".
- The applicant contends that unless the licence, which was issued in 1990, is construed in the way the applicants contend for, the taking of water from the dam constitutes an offence. The discussions with officers of the commission reflected in the correspondence, clearly indicates that the purpose of obtaining the licence was to take water for irrigation and stock watering purposes and the scope and extent of the proposal is canvassed in those letters.
- Section 4.17 provided for applications for licences and s 4.19 dealt with the licences themselves.
- The respondent referred the Court to s 4.18(3):
"(3)Where he grants the application, the Commissioner is to issue to the applicant a licence in respect of -
(a)so much of the land, watercourse, lake, spring or water storage specified in the application;
(b)the use of so much of the quantity of water applied for;
(c)the referable dam specified in the application modified or varied;
(d)the works specified in the application modified or varied, as he thinks fit."
- Section 4.19 under the heading "Licences" contains the following provision:
"(1)A licence under this Act -----
(f) may be -
(i) renewed;
(ii) suspended;
(iii) cancelled;
(iv) revoked;
(v) transferred;
(vi) amended, modified or varied
by the commissioner during the currency thereof."
- Section 4.21 provided for the renewal of a licence in the following terms:
"4.21 Renewal of licence
(1)An application for the renewal of a licence must be in writing signed by the applicant, accompanied by the prescribed fee, if any, and furnished to the Commissioner on or before the date of expiration of the licence or, at the discretion of the Commissioner in a particular case, within 4 months after that date.
A licence in respect of which an application for renewal has been furnished to the Commissioner remains in force until the applicant has been notified of the Commissioner's decision on the application or where the application is refused and the applicant has appealed against that decision until the date on which notification of the final outcome of the appeal has been provided to the applicant."
A provision to the same effect appears in the Water Act 2000 in the following terms (220(3)):
"(3)If a licensee applies to renew a licence, the licence remains in force until -
(a)if the application is approved with or without variation - the applicant is given a new licence; or
(b)if the application is refused and the applicant has appealed against the decision - until the date on which notification of the final outcome of the appeal has been given to the applicant; or
(c)if the application is refused and the applicant has not appealed against the decision - 30 business days after the applicant is given an information notice."
- It is this section that the applicants rely upon in support of their claim that the licence of 1990 remains in force.
- The 1989 Act was subsequently amended but it is not necessary to refer to the provisions of that Act for present purposes except to say that it makes a similar provision for riparian rights (s 36) and the statutory maintenance of a licence in force whilst an application for renewal is being considered (s 46).
- It seems to me that where the legislation makes it an offence to take and use water from a claim without a licence and the owner obtains a licence for the dam in terms which describe the purpose for which the water in the dam is to be used, the licence must be taken as authorising the use of the water in the dam for such purpose.
- It may well be however that the granting of such a licence for such a use will not in itself be sufficient for the applicants to make effective use of the water storage for the purposes described in the licence as other works may be necessary to do this. Counsel for the applicant pointed to the provisions of s (4.19(1)(g) of the Act as perhaps providing an argument to the contrary. However these are not matters which fall for consideration in these proceedings.
- It is apparent from the discussions which took place and from the correspondence which reflect these discussions that the applicants plainly had in mind the use of water from the storage substantially beyond that which they might as riparian owners be entitled to as of right.
- I therefore find that the licence which was issued on 20 July 1990, in respect of the dam on L Creek confers on the applicants the right to use such water for the purposes of irrigation and stock watering.
- I also declare that the purported issue of a licence on 19 September 1997 is void and of no effect.
- The licence has been renewed on two occasions since the coming into effect of the Water Act 2000.
- On one of these occasions application was made to reinstate an expired water licence.
- In each case the application was made in a form which included a reference to the authorised purpose as being to conserve water.
- The purpose of provisions such s 4.21 in Water Resources Act 1989 (No 112) s 46(2) of the Amended Water Resources Act and s 220(3) of the Water Act 2000 is to preserve an existing licence so as to protect the holder thereof where an application has been made for a further licence pursuant to an application for renewal until the determination by the commissioner or chief executive of the application on the determination of an appeal against a refusal.
- Although the legislation is in somewhat different terms the effect of the relevant legislation at all times was that upon the determination by the relevant decision maker of the application in a manner favourable to the applicant, the former licence ceases to remain in force upon notification to the applicant of the grant of a new licence pursuant to such a decision. In the event of a refusal the former licence remains in force until the determination of any appeal against such refusal or (under the Water Act 2000) thirty days after the applicant is given an information notice of the refusal but does not appeal against it.
- The relief sought by the applicant in the present case is necessarily predicated upon the licence granted in 1990 remaining in force.
- There can be no doubt that until the licence dated 19 September 1997 was issued and the applicants notified of it this was the case. Similarly there did not appear to be any dispute that in the event that the licence dated 19 September 1997 was set aside, the 1990 licence remained in force.
- However in 2005 and again a few years later, applications were made to renew the licence (in the former case an expired licence) and new licences were issued in response to such applications in 2005 and again in 2010. The Water Act 2000 governs these.
- No doubt both the applicants and the commission would have proceeded under the belief that the licence issued in 2005 renewed the licence granted in 1997 rather than what was in fact the true position, namely that the expired licence which was sought to be renewed was the licence of 1990, given the failure by the respondent to comply with the requirements of natural justice in relation to the purported grant of the 1997 licence.
- However there can be no argument but that a new licence was issued on the application for renewal in 2005 and again a new licence was issued in 2010 on a subsequent application for renewal.
- It is impossible in these circumstances it seems to me to reach the conclusion that the 1990 licence remains in force pursuant to the provisions mentioned above. The events have overtaken the applicants and their rights in relation to the dam on L Creek are now determined by the 2010 licence and prior to the issue of that by the 2005 licence.
- Such a conclusion is fatal to the application.
- The application is dismissed.
- I give the parties liberty to apply in writing within fourteen (14) days on the matter of costs.