McClymont & Anor v Nelson & Anor

In this significant judgment, North J considered whether a statutory easement under s 180 Property Law Act 1974 could be granted in respect of artesian water from a bore. His Honour found that the defendants’ rights in respect of the bore water were not rights in respect of land, and did not otherwise fall within the ambit of s 180.

North J

23 March 2023

The McClymonts and the Nelsons (respectively, the “plaintiffs” and the “defendants”) operate cattle stations which are opposite one another, separated by the Flinders Highway and the Mount Isa railway line. [1]–[4]. For many years, the proprietors of the plaintiffs’ cattle station sourced their water from an artesian water bore situated on the property leased by the defendants. [5]–[7]. On 16 March 2018, the defendants were granted a Water Licence in respect of the bore. [8]. In 2020, the defendants’ solicitors wrote to the plaintiffs, demanding that their use of water from the bore cease. [9].

The plaintiffs ultimately commenced proceedings, relevantly seeking an order under s 180 Property Law Act 1974 (“PLA”) that the defendants deliver up an easement in registrable form, prohibiting them and their successors in title from interfering with the flow of water from the bore to the plaintiffs’ property. [10]–[11]. The defendants applied for summary judgment under r 293 UCPR and to strike out the plaintiffs’ statement of claim under r 171 UCPR. [13]. The defendants relied on three grounds in their application: [18]

1.A right to take or interfere with water is not a right in respect of land, and so cannot be subject to an order under s 180 PLA;

2.Any right to take or interfere with water is properly made under the Water Act 2000 (“Water Act”). No such application was made by the plaintiffs; and

3.The Water Licence obtained by the defendants already allocated the rights to take water from the bore.

Justice North considered that each of the latter two grounds was an elaboration of the first ground, such that they should be considered together. [27].

The defendants submitted that s 26 Water Act vests in the State all rights to the use, flow and control of all waters, which includes the artesian bore waters subject to the defendants’ Water Licence. [20], [25]. Further, while the State may authorise the use of water under s 27 Water Act (such as by granting the Water Licence), this does not have the effect of vesting in the licensee the rights vested in the State under s 26 Water Act. [20], [25]. These rights to the water itself are distinct from rights to land subject to the PLA, including s 180. [21]–[22], [25]–[26]. Such rights to water can be distinguished from rights for the transport or flow of water, which may give rise to statutory easements under s 180 PLA. [26].

It was not controversial between the parties that the bore water over which the plaintiffs sought an easement was “water” and “underground water” for the purposes of the Water Act. [28]. This was distinguished from the definition of “watercourse” (being a creek, river or other stream). [30]. This distinction was meaningful, as s 96(2) Water Act permits the owners of land adjoining a watercourse to take water from that watercourse for stock purposes. [29]. Justice North considered that there was no evidence that the bore constituted a river, creek, stream or spring before the drilling of the bore such that it was a “watercourse” for the purposes of the Water Act. [30].

Justice North accepted the defendants’ submissions. In his Honour’s view, the rights granted in respect of water under ss 26 and 27 Water Act are distinct from rights in respect of land. [35]. Section 180 PLA contemplates the existence of a “servient land” and can only be imposed “in respect of land”, not water. [35]. Further, the bore water the subject of these proceedings is not a “utility” for the purposes of s 180(7), which refers to “public utilities that commonly have to cross and burden land so as to deliver essential services such as electricity, gas, power, telephone, water and others”. [35]. His Honour was also not satisfied that there was a “river, creek or other stream” such that s 96(2) PLA was enlivened. [35].

Ultimately, North J concluded that the plaintiffs had not pointed to a “right, title or interest” in the water which could be subject to an order under s 180 PLA. [35]. Accordingly, his Honour granted the defendants summary judgment against the plaintiffs. [35], [39].

M Paterson