Dowling v The Commissioner of Water Resources

The case of Dowling v The Commissioner of Water Resources involves an appeal against the Commissioner's refusal to grant a water allocation from Thuraggi Lagoon to the applicants, Phillip John Dowling and Sally Rosemary Dowling. The applicants sought a 1,000 megalitre water allocation from the lagoon for irrigation purposes on their property known as The Bore. The Commissioner rejected the application on the ground that Phillip John Dowling already owned an irrigation holding with an allocation of 960Ml, exceeding the maximum limit of 470Ml available for a waterworks licence. The applicants argued that it was inequitable for them to be refused a water allocation when others had obtained allocations through leasing arrangements.

The primary legal issue was whether the Commissioner's decision to deny the applicants a water allocation was just and equitable under the Water Act 1926. The court had to determine whether the Commissioner correctly exercised his discretion in refusing the application and whether the applicants were being treated unfairly compared to others who had obtained allocations through indirect means.

The court found that the Commissioner's decision was not exercised according to the rules of reason and justice. The court agreed that it was proper for the Commissioner to fairly and equitably distribute water allocations, but the refusal of the applicants' application was unjust as it disadvantaged them compared to others who had obtained allocations through leasing arrangements. The court concluded that the applicants should not be penalised for presenting a truthful application and that they were entitled to an allocation of 470Ml, the amount that would have been granted had a lessee applied for it.

The appeal was allowed, and the Commissioner's decision was revoked. The court ordered that Waterworks Licence No. 49130 be amended to provide for an annual allocation of 470Ml, subject to the usual conditions in the area.