Department of Natural Resources and Mines v Gorton

[2006] QLAC 12

LAND APPEAL COURT OF QUEENSLAND

CITATION:

Department of Natural Resources and Mines v Gorton & Anor  [2006] QLAC 12

PARTIES:

Chief Executive, Department of Natural Resources and Mines
(appellant)

v.

Thomas E and Robert T Gorton
(respondents)

FILE NO:

LAC2005/0256

DIVISION:

Land Appeal Court of Queensland

PROCEEDING:

An appeal from a decision of the Land Court allowing an appeal against an internal review decision under the Water Act 2000

ORIGINATING COURT:

Land Court of Queensland

DELIVERED ON:

28 March 2006

DELIVERED AT:

Brisbane

HEARD AT:

Brisbane

JUDGE
MEMBERS:

Justice Dutney
Mrs CAC MacDonald
Mr RS Jones

ORDER:

1. The appeal is dismissed.

2.  The appellant is to pay the respondents' costs of and incidental to this appeal such costs to be assessed on the standard basis.

CATCHWORDS:

Requirements of s.206(3) of Water Act 2000 considered where applicants for a water licence had entered into a contract to purchase relevant land – Consideration of whether or not the State was the "owner" of Unallocated State Land for the purposes of s.203 of the Water Act 2000.

APPEARANCES:

Mr M Plunkett for the appellant
No appearance for the respondents

SOLICITORS:

Legal Counsel, Legal Services, Department of Natural Resources and Mines for the appellant

1. The Department of Natural Resources and Mines (the appellant) has appealed against a decision of the President of the Land Court setting aside a decision of the appellant confirming an original decision to refuse applications for water licences by Thomas E and Robert T Gorton (the respondents).

2. The respondents did not appear on the hearing of the appeal, having indicated that they were content to rely on the written submissions placed before the President at the previous hearing.

3. The reason for this might well be the existence of a Moratorium Notice under s.26 of the Water Act 2000, which came into effect from July 2004 and prevents the appellant dealing with water licences while the moratorium is in place.  Where licences have already been granted the moratorium prevents the commencement or completion of any works pursuant to the licences.  In view of this, the appellant's counsel was asked whether the continuance of the appeal served any useful purpose.  The appellant pressed the appeal on grounds which included, inter alia, that the moratorium was not a permanent stay on the issue of licences or the performance of work under them and might, in due course, be lifted. 

The history of the appeal

1. The respondents in this matter are landowners in the Littabella Creek area near Rosedale, north of Bundaberg. On 26 November 2002, they applied to the Chief Executive, Department of Natural Resources and Mines under s.206 of the Water Act 2000 (the Act) for four water licences to interfere with the flow by impounding water and to take water from Possum Creek and Mullet Creek, which are tributaries of Littabella Creek.  When the applications were refused at first instance, the respondents requested an internal review of the original decision.  When that decision was upheld, the respondents appealed to the Land Court.

2. The project for which the water licences were required was an integrated development involving the construction of two dams, one on Mullet Creek and one on Possum Creek, with a maximum combined capacity of approximately 15,500 megalitres to irrigate a maximum of 500 ha.  

3. The original decision maker refused the applications because of the impact of the proposals on the watercourses and catchment area.  Although not part of the reasons for refusing the applications, the original decision maker noted that, "Ownership of land inundated, traversed by pipelines or supplied would need to be confirmed before a water licence could be issued.  It is believed the applicant has been negotiating, formed some contracts and made applications for this purpose."

4. When the initial refusal was subsequently reconsidered the reviewer considered that the applications were invalid for failure to comply with the requirements of the Act. In particular the reviewer found that the respondents did not have an agreement with the owners of all the land between the point at which the water was to be impounded or taken and the point to which it was to be taken to grant a registrable lease or easement over the owners' land and that therefore the respondents could not satisfy the requirements of s.206(3) of the Act. In the appeal to the Land Court against the review decision, the present appellant argued that the defect in the applications identified by the reviewer was of such a nature as to invalidate the applications and disqualify the Land Court from hearing the matter on the merits. That submission was rejected and the applications referred back to the reviewer for further consideration. It is against that decision that the appellant appeals to this court.

The Applications

1. Four applications were lodged.

2. Application 69478 was lodged by TE Gorton and RT Gorton for a licence to take water from Possum Creek on or adjoining land described as Lot 898 on FTY 1707.  This Lot was Crown land held as a State forest.

3. A schedule attached to the application identified the associated land.  That schedule identified nine parcels held in the name of TE Gorton and four parcels in the name of RT Gorton.  However, the schedule also identified five parcels of land described as "under contract" to TE and RT Gorton.  Those lands comprised Lot 2 on RP 613338, Lot 4 on CPFL 407, Lot 6 on CPFL 408, Lot 1165 on FL 40115 and Lot 3 on SP 147694. 

4. It was accepted that at the time the application was submitted, the first four parcels were held by various members of the Neubecker family as registered proprietors.  The respondents were registered as proprietors of those parcels on 23 July 2004.  At the date of application Lot 3 on SP 147694 was owned by ET Scotney, but the respondents became registered proprietors on 3 March 2003.  Lot 898 on FTY 1707, the State Forest Land, was not part of that application, but Plan D208SK05 shows that part of that land was required and that the site from which water was proposed to be taken was on Lot 898.

5. Application 69480 was lodged by TE Gorton and RT Gorton for a licence to take water from Mullett Creek on or adjoining land described as Lot 6 on FL 408.  This land was owned by MW and RA Neubecker but under contract for sale to the respondents.

6. Application 69482 was lodged by TE Gorton, RT Gorton, GA Neubecker, OE Neubecker, Mervyn W Neubecker, RA Neubecker, Mark W Neubecker and FN Neubecker for a licence to interfere with the flow of water in Mullett Creek by impounding water on or adjoining land described as Lot 6 on CPFL 408, Lot 898 and FTY 1707, Lot 2 on RP 613338, Lot 4 on CPFL 407, Lot 1165 on FL 40115 and Lot 18 on USL 43011 (unallocated State land).

7. At the time the application was submitted, the respondents were not the owners of any of the lands associated with the application.  Those were the four parcels owned by the Neubeckers, as well as Lot 18 on USL 43011 and Lot 898 on FTY 1707. 

8. Application 69484 was lodged by TE Gorton, RT Gorton, C Eiser, PG Eiser, VJ Bidlake, SE Bidlake, KE Dryden, RL Griffin, EG Crawford, SK Crawford, RG Slump, D Selir, D Clish, DM Hansen, FJ Hansen and Sunny Bluff Product Pty Ltd for a licence to interfere with the flow of water in Possum Creek by impounding water on or adjoining land described as Lot 1on RP 807574, Lot 898 on FTY 1707, Lot 5 on RP 620549, Lot 4 on SP 109774, Lot 7 on RP 802686, Lot 62 on FD 312 and Lot 64 on FD 354. 

9. At the time application 69484 was submitted, the ownership of the relevant land was as follows:  

   Lot 1 on RP 807474, C and PG Eiser

   Lot 898 on FTY 1707, Primary Industries Corporation

   Lot 5 on RP 620549, VJ and SE Bidlake, K Dryden and RL Griffin

   Lot 4 on SP 109774, EG and SK Crawford

   Lot 7 on RP 802686, RG Slump and D Selir

   Lot 62 on FD 312, DM Hansen, D Clish and FJ Hansen

   Lot 64 on FD 354, Sunny Bluff Produce Pty Ltd

10. At the date of the applications, all the land not owned by the Gortons except the State land was under contract to TE and RT Gorton.  The Gortons have since settled those contracts and are now registered proprietors or lessees of that land under the provisions of the Land Act 1994. 

Statutory provisions

1. The provisions relating to the granting of water licences are contained in Chapter 2, Part 6 of the Act.

2. At the time of the applications, s.203 of the Act provided as follows:

   "In this part –

   owner, of land, means any of the following –

   (a)   the registered proprietor of the land;
   (b)   the lessee or licensee of the land under the Land Act 1994; 

   (c)the lessee of the land under a registered lease under the Land Title Act 1994; 

   (d)the holder of, a mineral development licence or mining lease under the Mineral Resources Act 1989."

3. Section 206 of the Act provided:

   "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 –

   (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.

   (2)An application under subsection (1)(a) may be only for taking water from any of the following –

   (a)a watercourse, lake or spring on or adjoining any of the land;

   (b)an aquifer under any of the land;

   (c)water flowing across any of the land.

   (3)Also, an application under subsection (1)(a) may be for taking water from a watercourse, lake, spring or aquifer if –

   (a)the watercourse, lake or spring or land above the aquifer does not adjoin any of the applicant's land;  but

   (b)all the owners of land between the proposed point of taking the water and the applicant's land agree in writing to give the applicant a registrable lease or easement over the owner's land for the purpose of taking the water and delivering it to the applicant's land.

   (4)The following entities may also apply for a water licence for taking water or interfering with the flow of water –

   (a)a local government;

   (b)a water authority;

   (c)a resource operations licence holder;

   (d)an interim resource operations licence holder;

   (e)an entity prescribed under a regulation.

   (5)…".

The appellant's arguments

1. The appellant's argument on the appeal may be summarised as follows. The applications were invalid because they failed to comply with the provisions of s.206(3)(b) of the Act. The respondents failed to comply with the provision because, not being the owners of the land contiguous to the point where the water was intended to be taken, they did not have an agreement in writing from the owners of all the land between the point of taking the water and their land to grant them a registrable lease or easement over the intervening owner's land for the purpose of taking the water and delivering it to the respondents' land.

2. The argument was twofold. First, in relation to the privately owned land, it was not sufficient to satisfy the requirements of s.206(3)(b) that the land was under contract of sale to the applicants. The statute required a written agreement to provide a registrable lease or easement. Second, in any event the State "owned" some of the affected land and had neither been asked for, nor consented to give a lease or easement over its land.

3. In our opinion, neither argument is sustainable.

The State is an "owner"

1. The State does not fall within the definition of "owner" in s.203 of the Act in relation to the land affected by these applications. It was conceded by counsel for the appellant that the State land was unregistered. The State is neither registered as proprietor of the State owned land under the Land Titles Act 1994, nor is it a lessee of the land under either the Land Act 1994 or the Land Titles Act 1994. 

2. The dictionary in Schedule 4 of the Act contains a number of definitions of "owner". The general definition includes as an owner "the person or body of persons who, for the time being, has lawful control of the land, on trust or otherwise." This is wide enough to include the State land in issue here. However that definition has no application in relation to chapter 2, Part 6 for which the dictionary refers expressly to s.203, which has been set out above.

3. If the State is not an "owner" of the relevant land in the circumstances of this case, the provisions of s.206(3)(b) of the Act need not be satisfied in relation to that land.

4. It was submitted by counsel for the appellant that to apply the definition of "owner" in s.203 to the State land here would lead to an absurd result. It was argued that such a construction would mean that the State could not prevent an owner of land from taking water across State land. We disagree that such a consequence follows from the application of the definition of "owner" in s.203.

5. Any licence is granted by the State acting through the appellant. Consideration of whether the taking of water would adversely affect land administered by the State would be a matter that could be taken into account in the decision whether or not to grant the licence on its merits.  The provisions of s.210 of the Act, which sets out matters that must be taken into account in determining an application for a licence, are wide enough to encompass the appropriateness of taking the water across public land.

6. In any event, it appears to us that merely to be granted a licence to take water from a watercourse to a block of land remote from that watercourse would not entitle the licensee to act inconsistently with the property rights of intervening landholders. 

7. Having regard to a submission by the appellant that it is concerned by the precedent created by the decision below, it is worth noting that s.206(3)(b) of the Act, on which the reviewer relied in determining that the applications were invalid, has been repealed by s.79 of the Water and Other Legislation Amendment Act 2005 and substituted by a materially different provision. As it is presently constituted, s.206(3)(b) still requires an applicant for a water licence for taking water and delivering it to the applicant's land across freehold land to have an agreement in writing for a registrable lease or easement. Where the land across which the water is to be taken is unallocated State land the applicant must now hold or have applied for a permit under s.177 of the Land Act 1994 to occupy that land. Where the intervening land is a State-controlled road under the provisions of the Transport Infrastructure Act 1994 the applicant must satisfy the requirements of s.50 of that Act. Where the intervening land is a road controlled by a local authority there must be compliance with the requirements of the Local Government Act 1993. In relation to any other land the applicant must hold or have applied for permission from either the owner or the authority administering the land.

8. It seems therefore that whatever precedent value exists in this decision in relation to this point has been removed by statute.

No agreement in writing for a lease or easement

1. The alternative argument advanced by the appellant was that the applications were invalid because the respondents did not have an agreement in writing to give the applicant a registrable lease or easement over the privately owned land between the respondents' land and the watercourse.  Rather than an agreement to grant a lease or easement the relevant landowners had contracted to convey the land or the landholder's interest in the land to the respondents.  The owner of land is able to exercise all the rights the grantee of an easement or a lessee of that land might exercise in relation to the land. 

2. The interest each owner of affected land had agreed in writing to give to the respondents was an interest that incorporated all rights that might have been exercised by a lessee or grantee of an easement of the type the legislation required.  It seems to us to be artificial to conclude that merely because the interest the owners had agreed in writing to give to the respondents is not described as an easement or lease the application is therefore void.  The respondents have an agreement in writing to acquire an interest which incorporates all the required interests.  To accept an agreement in writing to confer a right incorporating the rights of a lessee or grantee of an easement satisfies any discernable objectives of the legislation.

3. To construe the legislation in this way does not seem to us to do violence to any of the provisions of Part 2, Division 6.  Section 214(3) (now s.214(4)) would still operate to require the respondents to register the larger interest incorporating the interest of a lessee or grantee within 40 business days of any licence being granted.

Disposition of the appeal

1. In the circumstances we are of the opinion that the defects identified by the reviewer are not such as to render the applications invalid and the appeal should be dismissed with costs to be assessed on the standard basis.

ORDERS

1.The appeal is dismissed.

2.The appellant is to pay the respondents' costs of and incidental to this appeal such costs to be assessed on the standard basis.

DUTNEY J

JUSTICE OF THE SUPREME COURT

CAC MacDONALD

MEMBER OF THE LAND COURT

RS JONES

MEMBER OF THE LAND COURT