Ciranni v Department of Natural Resources, Mines and Energy
[2004] QLC 36
•23 April 2004
LAND COURT OF QUEENSLAND
CITATION: Ciranni v Department of Natural Resources, Mines and Energy [2004] QLC 0036 PARTIES: Albert Salvatore and Annina Ciranni
(appellants)v. Chief Executive, Department of Natural Resources, Mines and Energy
(respondent)FILE NO: A2003/0068 DIVISION: Land Court of Queensland PROCEEDING: Appeal against the decision to refuse an application for an allocation of 300ML of water.
DELIVERED ON: 23 April 2004 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER Mr RP Scott ORDER: The appeal is dismissed. CATCHWORDS: Water Act 2000 - Application for water licence - Question of jurisdiction - Jurisdiction found
Water Act 2000 - Application for water licence - Refusal by Chief Executive under s.209(1) - Question of construction of s.56 Water Resource (Barron) Plan 2002 - Illegal taking of water should not be taken into account as benefit to applicant - Nature of Court's jurisdiction - Appeal dismissed
APPEARANCES: Mr A Entriken (instructed by Braes Apel, Solicitors) for the appellants
Mr TW Quinn (instructed by Mr J O'Rourke, Principal Legal Officer) for the respondent
Pursuant to the provisions of s.877(1)(b) of the Water Act 2000 the appellants have appealed against the refusal of the respondent to increase the volume of subartesian water that may be taken under water licence on land owned by the appellants. I have purposely been less than precise in my description of the nature of the appeal. The reason for that becomes apparent in the reasons below.
The appellants elected to move the Court to dispose of a question of law relevant to the appeal prior to any consideration of the appeal on the merits. That question relates to the construction of s.56 of the Water Resource (Barron) Plan 2002 (the Barron Plan). A construction which favours the respondent would, as I conclude below, have the effect of disposing of the appeal. A conclusion in favour of the appellants may not have that effect, however questions of cost savings and convenience indicate that consideration of the preliminary question is appropriate. See, for example, Re Cotton Crops Pty Ltd (1985) 2 QdR 448 at p.451.
The parties supplied a document entitled "Statement of Agreed Facts", however supplemented that statement with documents and some brief oral evidence.
Notwithstanding the parties' earlier consent to my hearing argument on and disposing of the s.56 question of law, at the commencement of proceedings counsel for the respondent raised the question of whether the Court had jurisdiction to consider the appeal. My first duty is to consider the question of jurisdiction (Hazeldell Ltd v The Commonwealth [1924] 34 CLR 442 at p.446). In order to do that, some facts need to be briefly recited.
Chronology
The subject property is located near Tolga in the Atherton Tableland. It has an area of about 89 ha and in recent years has been used mainly for the growing of sugarcane. On 3 August 1983 Water Licence G45547 originally issued allowing a nominal allocation of 36 megalitres of water to be extracted from a bore located on the subject land. That licence was renewed on 3 March 1988 and the nominal allocation was increased to 100 megalitres. A further renewal took place on 17 December 1997 with that licence expressed to expire on 30 June 2000.
On 18 November 1998 a "moratorium" on most water licences was instituted to the effect that applications would not be processed during the life of the moratorium. The moratorium supported a proposal to prepare a draft water management plan for the Atherton basalt groundwater area and remained in place until 20 December 2002.
On 11 December 1998 the appellants experienced pumping problems with their licensed bore, so lodged an application to replace that bore. That application was dealt with as an exemption under the moratorium and Licence 92975K issued on 16 April 1999. The bore licensed under Licence 45547K remained valid as a backup facility. The nominal allocation remained at 100 megalitres overall, whether the water was extracted from the initial bore or that recently licensed.
Also on 11 December 1988 the appellants lodged an application for a nominal allocation of 300 megalitres. The application was headed "Application For Licence Authorising The Construction Or Use Of An Artesian Or Sub-Artesian Bore". The appellants answered "No" to a question on the form "Is this application to amend an existing licence?" Apart from that they did not supply an existing licence number in the space provided and made no indication elsewhere on the form that the application was for an amendment to a licence. The office of the Chief Executive allocated the reference number 2310 to the application.
On 19 February 1999 the appellants were advised by the Chief Executive that investigation of application reference 2310 would not proceed until the moratorium was lifted. On 19 December 2002 the Barron Plan was released and on the following day the moratorium was lifted.
On 25 June 2000 the appellants applied for the renewal of both Licence 92975K and 45547K, each of which was due to expire on 30 June 2000.
On 4 February 2003 a letter bearing that date was sent from the Chief Executive, together with an undated Information Notice, informing the appellants that application reference 2310 was refused. The letter and the Information Notice were received by the appellants on 7 February 2003. The Information Notice included the following:
"Evidence Or Other Material On Which Findings Of Fact Were Made
Section 56(1) of the 'Water Resource Plan (Barron) Plan 2002' applies to any application for or about a water licence that would have 1 or more of the following effects on subartesian water in Management Area A -(a) increase the volume of water taken or interfered with;
(b)change the location from which water may be taken or interfered with;
(c) change the conditions under which the water may be taken."
The Information Notice was headed "Application For Amendment to Water Licence 92975K: Reference 2310". That was the first occasion in the evidence before me in which the application, the subject of the present appeal, was referred to as one seeking an amendment. Such a description is inconsistent with the facts related in para [8] herein.
In reliance on the combined operation of s.851(1) and s.862 of the Water Act the appellants, on 25 February 2003, sought an internal review of the decision to refuse their application. Section 861 of the Act requires that an application for internal review be made before any appeal is pursued before this Court. That application for review was lodged by Braes Apel, Solicitors for the appellants and sought review of a decision described as "Application For Amendment to Water Licence 92975K: Reference 2310".
I should mention at this stage that Mr Albert Salvatore Ciranni, who gave evidence before me, has enjoyed very little education, is illiterate and has a limited command of the English language. Whilst there was no evidence on the point, I assume that his instructions to his solicitors were largely confined to the provision of the letter from the Chief Executive of 4 February 2003 and the Information Notice which described the Application Reference 2310 as being one to amend Water Licence 92975K.
The appellants were advised by letter from the Chief Executive dated 11 April 2003 and a Review Decision Notice that the original decision to refuse the application was confirmed. On 27 May 2003 the appellants filed an appeal in the Land Court against the refusal of the application.
It transpires that the officer who purported to undertake the internal review was not authorised in that respect. The decision was, therefore, ultra vires and void. Section 864 provides for the review process and in subsections (2) and (3) provides time limits within which certain actions must be undertaken. Given that the provided time limits had expired by the time it was discovered that the purported review was void, it was impossible to conduct a valid review which would satisfy the statutory time limits. In these circumstances s.864(5) comes into play:
"(5) If the reviewer does not comply with subsection (2) or (3), the reviewer is taken to have made a decision confirming the original decision."
Accordingly, the appellants modified their appeal formally to reflect the changed circumstances, however the substance of the appeal remained unaltered.
By letter dated 28 May 2003 the appellants were advised by the Chief Executive that the application to renew dated 25 June 2000 had been considered and a new Water Licence 45547K was issued to expire on 30 April 2008 with a nominal entitlement of 100 megalitres. The letter also advised:
"Please note that bores originally covered by licenses 45547K & 92975K, have now been combined under the one licence to take water number 45547K.
You currently hold valid development permits for the 2 bores on this property."
The second sentence in the above quotation relates to a change in the water licensing regime. Under the Water Resources Act 1989, which applied at the time of the granting of the relevant licences and their renewals prior to the latest renewal on 28 May 2003, a water licence applied to both the right to extract water and to construct the means of taking it, that is a bore in the present case. Under the Water Act 2000, which applied to the licence renewal of 28 May 2003, the licence was for the extraction of water only, whilst any operational works needed would be treated as a development under the Integrated Planning Act 1997.
On 23 June 2003 the appellants applied for an amendment of Licence 45547K by way of an increase of the nominal allocation from 100 megalitres to 447 megalitres. That application is not the subject of appeal, but mention of it is included for completeness.
Mr Ciranni gave evidence that the appellants extracted water from the bore when it was needed and that they have consistently done so for some years. From the evidence provided, it is clear that greater than 100 megalitres has been taken each year for a number of years. Between the date when water meters were first installed on 19 April 2000 and the date of reading on 15 October 2003, the usage has averaged about 230 megalitres per annum.
Jurisdiction
The respondent's concern with respect to the matter of jurisdiction arises from the understanding that the water licence which is the subject of the appeal was "renewed" on 28 May 2003 in response to the application of 25 June 2000. The respondent submits that the action of renewal has the effect of creating a new water licence different from the licence which preceded it. As such, the respondent argues that there can be no practical benefit in this Court considering the issues raised in the appeal as any rights the appellants had under the previous licence would have expired with it. Any order the Court may make would therefore be of no practical effect.
The respondent reinforced its submissions by reference to s.880(2) of the Water Act which provides:
"(2) An appeal is by way of rehearing, unaffected by the reviewer's decision."
It is clear from each of the judgments in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 that the question of whether a rehearing is de novo or is to be based on evidence already taken, is initially dependent on an examination of the legislation. In the present case it is quite clear that a de novo hearing is indicated. This involves both the receipt of any relevant evidence that exists up to the date of rehearing and the application of the law that applies as at that date, there being no earlier statutory date.
In reliance on this view of the law, the respondent submitted that one of the facts relevant at today's date is the expiry of the licence which, it was said, is the subject of the appeal given that the appeal is concerned with a failure to approve an application to amend that licence. It follows from that, according to the respondent, that either the Court no longer has jurisdiction or the appeal has become pointless, so should be struck out.
That understanding is, however, at odds with the facts. The application which is the subject of appeal was not an application to amend an existing licence, but was an application for a nominal allocation of 300 megalitres. Such an application is, therefore, not tied to a licence which has expired as an application to amend might be - see, for example Timm v The Commissioner of Water Resources (unreported 11 August 1989).
The Water Resources Act was repealed by s.1137 of the Water Act which commenced on 19 April 2002. The application is to be dealt with in accordance with s.1048(1) and (2)(a) of the Water Act:
"1048 Existing applications
(1) Subsection (2) applies to an application for or about a licence or permit, made under the repealed Act but not decided before the commencement of this section.
(2) On the commencement -
(a)an application under section 42 of the repealed Act for a licence to take or use water, is taken to be an application under section 206 for a licence to take or interfere with the flow of water; and"
Section 42 of the Water Resources Act is headed "Application for licence". It is a lengthy provision which I will not set out in full. I am satisfied that its provisions are apt to describe the application under consideration and identified by the respondent as application 2310.
An application under s.206 of the Water Act is to be the subject of a public notice published in a newspaper or newspapers (s.208(2)) unless the application is one to which s.209(1) applies:
"209 Applications that may be decided without public notice
(1) If the granting of the application would be inconsistent with a water resource plan or a resource operations plan, the chief executive must refuse the application without notice of the application being published."
The evidence before me indicates that the application was dealt with in accordance with s.209(1). It matters not that in fact the application may have been dealt with as an application to amend an existing licence as s.216 of the Water Act provides:
"216 Amending water licence on application of licensee
(1) The licensee may apply to amend a water licence.
(2) The application to amend the licence must be dealt with under division 2, subdivisions 1 and 2, as if it were an application for a licence."I think it also a matter of no concern that the notice of appeal to this Court is described as an appeal against an application to amend the licence. Such a description is a mistake of form and not substance and in no way erodes the validity of the notice of appeal.
It follows that I conclude that the respondent has not made out a case that this Court does not have jurisdiction to hear the appeal.
Section 56 Issue
The primary driver of the contest between the parties arose out of a request by them that I determine what the parties saw to be a preliminary question of law. They did not seek a declaration, but sought to have this question dealt with under the appeal now before me.
This preliminary question of law is concerned with the construction of s.56 of the Barron Plan which relevantly provides:
"56 Licences to increase taking etc. in Management Area A
(1) This section applies to an application for or about a water licence if granting the application would have 1 or more of the following effects on subartesian water in Management Area A -
(a) increase the volume of water taken or interfered with;
(b)change the location from which water may be taken or interfered with;
(c)change the conditions under which water may be taken.
(2) The chief executive may grant the application only if -
(a)the annual volumetric limit for the licence does not result in the total annual volumetric limits for licences in the Area being more than 14 500 ML; and
(b)the resource operations plan includes a process for granting the water."
Under s.38 of the Water Act the Minister may prepare a water resources plan for any part of the State. The Barron Plan was, as I understand, prepared in reliance on that power and in accordance with related provisions of the Act. Section 50(3) of the Act provides:
" (3) A final water resource plan is -
(a)subordinate legislation for the Statutory Instruments Act 1992; and
(b)a water resource plan for the plan area."
I draw particular attention to s.50(3)(a).
The legal issue which separated the parties was concerned with the construction in particular of s.56(2)(a) of the Barron Plan. Before I turn to consider that question, I should first focus on the requirement in s.56(1) to the effect that s.56(2)(a) applies only if either s.56(1)(a), (b) or (c) is applicable.
The land, the subject of the appeal, is in Management Area A so, presumably, the subartesian water is also there. Subartesian water is not defined in the plan, however s.10 provides:
"10 Water to which plan applies
This plan applies to the following water in the plan area -
(a)water in a watercourse, lake or spring ("surface water");
(b)water collected in a weir or dam constructed across a watercourse, lake or spring (also "surface water";
(c)subartesian water."
Clearly, subartesian water is other than surface water of the types referred to in s.10(a) and (b) and I take judicial notice that it is not part of the Great Artesian Basin which contains water held under pressure.
The application, the subject of the appeal, is "an application for … a water licence"; specifically, for a licence with a nominal allocation of 300 megalitres.
Each of s.56(1)(b) and (c) is different from (a) in that each speaks of "the location" (b) and "the conditions" (c) and it is concerned with water that "may be taken …". The word "may" is, in a statutory context, usually associated with permission, not with a possibility as one might use it in common parlance. In Massy v Council of the Municipality of Yass (1922) 22 SR (NSW) 494 at p.499 Cullen CJ said:
"The use of the word 'may' prima facie conveys that the authority which has power to do such an act has an option either to do it or not to do it …"
It seems to me then that s.56(1)(b) and (c) are concerned with the location or the conditions applicable to an existing licence, so apply to an application "about a water licence". That understanding is reinforced by an observation that an application "for … a water licence" would not factually be concerned with s.56(1)(b) or (c).
The language of s.56(1)(a) is different from clauses (b) and (c) in that it does not speak of the volume of water that may be taken or interfered with, but the volume of water taken or interfered with. The language is such that it may apply to both an application "for" and an application "about" a water licence. Indeed, if it did not potentially apply to an application for a licence, then the first paragraph in s.56(1) contains a redundancy, as neither s.56(1)(b) or (c) can apply to an application for a licence.
Under s.14(1) and (2) of the Acts Interpretation Act 1954, headings of sections and other parts of an Act are part of the Act. The Barron Plan is an Act for the purposes of the Acts Interpretation Act (s.7). Reference to the plural "licences" in the heading to s.56 of the Barron Plan indicates that s.56(1)(a) is concerned with both applications for and about a water licence. More importantly, since the section is concerned with "effects on subartesian water in Management Area A", there is no sensible reason why it would be appropriate to consider an increase in the volume taken or interfered with in the case of an application for a licence and not in the case of one about a licence.
There is no mention in the Barron Plan of a date as at which the volume of water taken or interfered with is to be considered. I have formed the view that the relevant date would be either the date of application or the date of the decision with respect to the application. Given that the provision is concerned with an actual increase in volume, I think that the date would be the date of the decision as changes could take place in the Management Area between the date of application and the date of the decision. For example, licences could be surrendered or applications lodged earlier in time could have been granted by the time the decision is made.
The date of the decision would either be that of the Chief Executive, if there was no appeal, or the date of the closing of evidence if the Court is required by an appeal to make a decision in the matter. My adoption of the later date in the case of an appeal arises from the nature of an appeal discussed at para [22] above and from the construction I place on s.56(2)(a) below.
The next question to consider is what comprises an increase in the volume of water taken or interfered with. Or to put it another way: "an increase from what"?
Whilst s.56(1)(a) is concerned with an increase in the volume of subartesian water in Management Area A taken or interfered with, I see no need to inquire as to the actual volume of water taken throughout Management Area A. This is because, subject to one qualification suggested by the appellants , any application for a water licence would, if granted, increase the volume taken or interfered within the Management Area as at the date of decision, whatever the volume taken or interfered within the Management Area might have been.
The suggested qualification referred to in the above para is: if the applicant has historically been taking or interfering with subartesian water in the Management Area without the benefit of a water licence, that is illegally, then the application would not increase the actual volume taken if it is an application for the same volume that has illegally been taken.
Section 7 of the Land Court Act 2000 provides:
"Land Court to be guided by equity and good conscience
7. In the exercise of its jurisdiction, the Land Court -
(a)is not bound by the rules of evidence and may inform itself in the way it considers appropriate; and
(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."
The respondent submits that it is not appropriate that an applicant who has been taking water illegally should gain from such unlawful conduct or that a court exercising a jurisdiction, according to "equity, good conscience and the substantial merits of the case", should countenance such an outcome.
I will not canvass the various implications on the gloss placed on the Court's exercise of jurisdiction by s.7. What is clear, however, is that in the present case I am concerned with an exercise in statutory interpretation. That is, I am asked to discern the meaning of s.56 of the Barron Plan from its language, then its application to the evidence in the appeal as it presently stands. Such an exercise in jurisdiction is one that requires me to employ the principles of statutory interpretation as has been utilised by the Courts, and in accordance with the Acts Interpretation Act 1954. There is no room in the application of such principles and the Act to modify my approach in reliance on s.7 of the Land Court Act.
If s.56(1)(a) of the Barron Plan is construed in such a way that an application for a water licence to take water at a volume that had been illegally taken in the past is not caught by the section, the result would be at odds with the purposes of the plan provided for in s.2, which relevantly provides:
"2 Purposes of Plan
The purposes of this plan are -
(a) for both surface and subartesian water, the following -
(i) to define the availability of water in the plan area;
(ii)to provide a framework for substainably managing water and the taking of water;
(iii)to identify priorities and mechanisms for dealing with future water requirements;
(iv)to provide a framework for reversing, where practicable, degradation that has occurred in natural ecosystems; and"
The outcome of an illegal user escaping the effect of s.56(1)(a) would also be at odds with common sense as it would mean that an applicant who had acted within the law would be caught by that provision, whilst one who acted illegally would not. That is a legislative outcome that would not have been intended. It would, for example, allow an applicant who had been caught by s.56(1)(a) owing to his not having taken any water in the past, to proceed to take water illegally then reapply and escape the operation of s.56(1)(a).
Apart from that, the construction suggested by the appellants is one which involves substantial, if not insurmountable practical difficulty. The main difficulty is that of identifying the base from which any potential increase might be considered. How does one ascertain the actual volume taken, including illegal taking as well as those licensees who take less or more than the volume allowed? Would the Barron Plan be seriously understood as suggesting that an inquiry into such matters should be undertaken for each application and if it were, who would be responsible for undertaking that inquiry?
Whilst it is not essential for my reasons, I will also address the question of whether the Barron Plan envisages that an applicant about a water licence, such as to increase the volume that may be taken, should be treated differently on the question of illegal taking of water from an application for a licence? I think not, both because the logic applied above would equally apply to an application about a licence and because of what is provided in s.55(3) and (4) of the Barron Plan.
"(3) In deciding the annual volumetric limit for a licence being amended, renewed or reinstated, the chief executive must have regard to -
(a) the volume stated on the licence; and
(b)the water taking capacity of any existing works for taking water under the licence; and
(c)the annual volume of water estimated by the chief executive to have been taken under the licence during the period, of not more than 10 years, immediately before the commencement; and
(d)the efficiency of the use of the water mentioned in paragraph (c); and
(e)if, under the licence, bore pumping tests are required for the bore or bores to which the licence relates - the results of the tests.
(4) Subsection (3) does not limit the matters the chief executive may consider."
The above provision applies to the Atherton Subartesian Area only, which includes Management Area A (s.6).
Whilst s.55(4) does not limit the matters that the Chief Executive may consider, it would be repugnant to s.55(3)(c) which makes reference to water taken "under the licence" and render it without effect if the Chief Executive could also take into account illegal taking of water.
It follows that if illegal water extraction may not be taken into account in s.56(1)(a) then the increase referred to in that provision is the increase from lawful use, therefore the volume permitted under a licence in the case of an application about a water licence. That is because any increase from the volume permitted under a licence would be an increase in the volume taken or interfered with in Management Area A.
In the result, the application which is the subject of the appeal satisfies s.56(1)(a) thus brings s.56(2)(a) into consideration. I should add that this would be the result whether the application was treated as an application for a licence of 300 megalitres or one for 200 megalitres. I say this because I understood from Mr Ciranni's evidence that the application under consideration was intended by him to result in a total allocation for the subject property of 300 megalitres.
The first thing to notice about s.56(2) is that both (a) and (b) must be satisfied before the Chief Executive can direct his mind to those matters that are relevant to the consideration of an application for or about a water licence. Those matters are set out in s.210 of the Water Act which I need not detail here.
Section 206 of the Water Act provides for the application for a water licence and s.207 empowers the Chief Executive to require that the applicant provide further information. Section 208 provides for a public notice of the application to be published by the applicant though, as I have pointed out at para [29], s.209(1) provides a process for decision which obviates the need for public notice.
The Barron Plan is a Water Resource plan for the purposes of s.209 and in that respect s.56(2) of the Barron Plan has a particular significance. If, pursuant to s.56(2)(a), the Chief Executive may not grant the application, s.209(1) of the Act provides that the Chief Executive must refuse it.
It is agreed between the parties that the total annual volumetric limit for licences in Management Area A presently exceeds 14,500 megalitres. It was submitted for the appellants that that being the case, the granting of the application would "not result in" that total annual volumetric limit of 14,500 megalitres being exceeded. That is, the granting of an increase in the volume of water that may be taken could not result in the volume being "more than 14,500 megalitres" because the volume is already beyond that level. On that submission, no application for an increase in the volume in Management Area A, be it for a new licence or an increase to the allocation for an existing licence, would be caught by s.56(2)(a).
There was also a second limb to the appellants' submission, that being dependent on the fact that the appellants have for some years consistently exceeded the 100 megalitre nominal allocation allowed in the various sequential licences. On that basis the submission is that the volumetric limit which presently exceeds 14,500 megalitres includes both the nominal allocation of 100 megalitres and the excess beyond that taken regularly by the appellants. I immediately reject that submission as suffering the same flaw that I observed in the case of an illegal taking of water in my discussion of s.56(1)(a) of the Barron Plan.
The respondent submits that the first submission of the appellants which is founded on a literal interpretation of s.56(2)(a) is in error. The submission is that the provision is better understood as providing that were this application to be granted "the total annual volumetric limits" would be more than 14,500 megalitres. That would be the result, even though it was greater than 14,500 megalitres before the application. Although it was not put quite this way, I understand this submission to be based not on the proposition that the volumetric limits before the application under consideration was greater than 14,500 megalitres, but on the proposition that the application may be granted only if the result would be that the total volumetric limit was 14,500 megalitres or less. I accept that view of the construction of s.56(2)(a)
I notice that such construction is consistent with the "explanatory notes" to the Barron Plan which say with respect to the provision under discussion:
"Currently, the total licensed volume is greater than 14,500 megalitres per annum and accordingly existing licence applications for this area will be refused."
The appellants' suggested construction would result in an application for 300 megalitres escaping the effect of s.56(2)(a) in circumstances where the pre-application volumetric limit was, for example, 14,501 megalitres, but being caught if the limit had been 14,201 megalitres. Such a result is not intended by the Barron Plan and would be in direct conflict with those provisions mentioned earlier in para [52].
It would also be at odds with various provisions of the Water Act, including the short title:
"An Act to provide for the sustainable management of water and other resources, a regulatory framework for providing water and sewerage services and the establishment and operation of water authorities, and for other purposes."
I notice Chapter 2 is headed "Allocation and Sustainable Management" and s.10(1) provides:
"10 Purpose of ch 2
(1) The purpose of this chapter 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 10(2) sets out what is sustainable management and includes:
"(2) For subsection (1), "sustainable management" is management that -
(c) contributes to the following -
(i)improving planning confidence of water users now and in the future regarding the availability and security of water entitlements:
(iv)protecting water, watercourses, lakes, springs, aquifers, natural ecosystems and other resources from degradation and, if practicable, reversing degradation that has occurred;
(vi)providing for the fair, orderly and efficient allocation of water to meet community needs;
(vii)increasing community understanding of the need to use and manage water in a sustainable and cost efficient way;"
Section 10(3)(a) provides:
"(3) For subsection (1), "efficient use" of water -
(a)incorporates demand management measures that achieve permanent and reliable reductions in the demand for water; and"
Section 38(1) provides:
"38 Minister may prepare water resource plans
(1) The Minister may prepare a water resource plan for any part of Queensland to advance the sustainable management of water."
Section 38(3)(b) and (d) provide:
"(3) The plan may be prepared for, but is not limited to, the following purposes -
(b)to provide a framework for substainably managing water and the taking of water;
(d)to provide a framework for establishing water allocations;"
Section 205 of the Water Act enshrines the importance of water resource plans, as does s.209(1) referred to earlier. Section 205 provides:
"205 Decisions to be in accordance with plans
If a water resource plan or resource operations plan has been approved for an area, the chief executive must make decisions under this part in accordance with the plan."
The importance of sustainable water management to the Act evinces a purpose with which the appellants' suggested construction of s.56(2)(a) clearly conflicts. Section 14A(1) of the Acts Interpretation Act provides:
"14A.(1) In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation."
As a matter then of textual analysis and purposive construction, I conclude that the appellants' submissions on the question of the construction of s.56(2)(a) of the Barron Plan must be rejected.
My conclusion is, therefore, that the decision of the Chief Executive to follow s.56(2)(a) of the Barron Plan and, in accordance with s.209(1) of the Water Act to refuse the application under appeal, was a valid decision consistent with the evidence.
Section 882(1) of the Water Act provides:
"882 Powers of court on appeal
(1) In deciding an appeal, the court may -
(a)confirm the review decision; or
(b)set aside the review decision; or
(c)amend the review decision in the way the court considers appropriate; or
(d)send the matter back to the reviewer and give the directions the court considers appropriate; or
(e)set aside the review decision and substitute it with a decision the court considers appropriate."
As, pursuant to s.864(5), the reviewer is taken to have made a decision confirming the original decision, I understand the jurisdiction of the Court under s.882(1)(a) to be a jurisdiction which allows the confirmation of an actual review decision that was intra vires and the confirmation of a deemed review decision provided for in s.864(5).
Apart from s.880(2) which provides that "an appeal is by way of rehearing, unaffected by the reviewer's decision", I can find no guidance in the Water Act as to the matters that are to be taken into account in an appeal of this nature. Nevertheless, it is quite clear to me that it would inappropriate for this Court on appeal to disregard the Barron Plan, in particular s.56(2)(a) and the policy represented in s.209(1) of the Water Act.
Accordingly, I confirm the review decision and dismiss the appeal.
RP SCOTT
MEMBER OF THE LAND COURT
0