Fuller v Department of Natural Resources and Mines

[2005] QLC 41

LAND COURT OF QUEENSLAND

CITATION:	Fuller v Department of Natural Resources and Mines [2005] QLC 0041
PARTIES:	Warren Phillip and Margaret Fuller (applicants)
v.
Chief Executive, Department of Natural Resources and Mines (respondent)
FILE NO.:	A2003/0825
DIVISION:	Land Court of Queensland
PROCEEDING:	An appeal against an internal review decision refusing an increase in the volume allocation under a water licence   (Water Act 2000).
DELIVERED ON:	22 July 2005
DELIVERED AT:	Brisbane
HEARD AT:	Brisbane
MEMBER	Mrs CAC MacDonald
ORDER:	The review decision is set aside and in substitution therefore the respondent is ordered to issue a water licence in the same terms as the draft licence attached to this decision.
CATCHWORDS:	Appeal against departmental decision on water licence – subsequent offer by respondent for increased licence allocation – accepted by appellant – formal licence not issued prior to moratorium – nature of appellants' rights at date of moratorium – power of Court to order licence issue subsequent to moratorium – Water Act ss.864(2)(b); s.211; s.26(2)(a), (3) Words and phrases – "dealt with" – no definition in Water Act – Macquarie Concise Dictionary definition of "deal" referred to.  Administrative law – exercise of administrative power – power to amend or repeal decision – reconsideration of review decision – when exercise of power complete – formal licence later required to issue – Acts Interpretation Act 1954 s.24AA(b).
APPEARANCES:	Mr D Turnbull for the appellants Ms K Watkins for the respondent
SOLICITORS	Ruddy Tomkins and Baxter for the appellants

1. The appellants, Warren Phillip and Margaret Fuller, are the owners of land described as Lot 7 on Plan HR 314, in the Parish of Marlow.  The land is situated at Mount Dangar Road, Bowen.

2. In April 2003, pursuant to the provisions of the Water Act 2000 (the Act), the appellants applied for the nominal water entitlement in their Water Licence 54128A to be increased from 63 megalitres per water year to 112 megalitres per water year.  That application was refused on 16 April 2003, and Water Licence 54128A issued which authorised "The taking of subartesian water from Mt Dangar Alluvium Section 630 under land described as 7/HR314".  The nominal entitlement granted was 63 megalitres per water year and the expiry date was 30 April 2004. 

3. Subsequently, under letter dated 18 September 2003, the appellants applied for an internal review of the decision to refuse to increase the water entitlement in the water licence.  The Court has been informed that the reviewer was taken to have made a decision confirming the original decision because the reviewer had not complied with s.864(2) of the Act (see s.864(5) of the Act).

4. The appellants then lodged an originating application in the Land Court on 17 December 2003 seeking orders –

   1.   That the original decision/review decision be set aside

   2.   That the Nominal Water Allocation on Licence No. 54128A be increased from 63 megalitres to 112 megalitres per water year.

   3.   In the alternative to 2, that the nominal water allocation for the said Licence be increased from 63 megalitres per water year to such other amount of megalitres per water year as this Honourable Court may consider appropriate in the circumstances. 

5. The parties entered into negotiations the result of which was that by letter from the Principal Legal Officer, Department of Natural Resources and Mines dated 15 March 2005, the appellants' solicitor was advised that the department was prepared to settle on the basis of granting the appellants the entire 114 megalitres they had applied for.  The offer was stated to be open until 5.00 pm, 18 March 2005.  The solicitor was asked to confirm that the appellants would settle on that basis.  The solicitor replied on 18 March 2005 that his clients agreed to the settlement of the appeal on the basis set forth in the department's letter of 15 March 2005.  The solicitor went on to advise that he was preparing a notice of withdrawal of the appeal and would attend to filing same in the Court.  He also requested that the department attend to the issue of the licence expeditiously.

6. It is noted that the appellants applied for a licence to take 112 megalitres per water year.  The respondent offered the appellants 114 megalitres and the appellants accepted that offer.  This decision therefore proceeds on the basis that the volume of water in issue is 114 megalitres.

7. On 22 March 2005, the principal legal officer of the department wrote to the appellants' solicitors enclosing a Land Court general application for consent orders for signature, and advising that when the Court had made the orders requested, the department would issue the amended water licence.  The consent orders sought were, inter alia, that

   -the determination of the Chief Executive be set aside;  and

   -the attached Draft Water Licence No. 54128A amended as agreed be approved;  and

   -the Chief Executive issue Amended Water Licence No. 54128A following approval by the Court.

   Relevantly, the draft licence described the activity authorised by the licence as "The taking of underground water from Mt Dangar Alluvium Section 630 under land described as Lot 7 on HR 314".

8. By letter dated 29 March 2005, the solicitors for the appellants wrote to the department requesting that the draft consent orders and the draft water licence be amended by deleting the words "Mt. Dangar Alluvium Section 630 under".  The authorised activity would then read "The taking of underground water from land described as Lot 7 on HR 314".  The reason for this request was that the appellants' previous licence had referred only to Lot 7 on HR 314.

9. It is common ground that the letter arrived in the office of the department on 31 March 2005.  On 31 March 2005, a moratorium notice was issued under s.26 of the Act which applied to the Bowen Subartesian area which is where the appellants' land is located.  Section 26 of the Act provides, so far as is relevant:

"26  Moratorium notices

(1)  The Minister may publish a notice under this section, for a part of the State, (a moratorium notice) if the Minister is satisfied action should be taken in the part –

(a)to protect natural ecosystems;  or

(b)to protect existing water entitlements and other authorities under this Act to take or interfere with water.

(2)  The notice may state that an application under this Act, or the repealed Act, will not be accepted, or will be accepted but not dealt with, while the moratorium notice has effect if granting the application would have 1 or more of the following effects on the water to which the application relates –

(a)increase the amount of water that may be taken;

(b)change the location from which water may be taken;

(c) increase the rate at which water may be taken;

(d)change the flow conditions under which water may be taken;

(e)increase or change the interference with the water;

(f)change the purpose for which the water may be taken or interfered with.

(3)  Subsection (2) applies even if the application was made before the notice was published.

…

(7)  The notice has effect –

(a)  from the later of the following –
                 (i)  the day stated in the notice;
                 (ii) the day the notice is published;  and
           (b)  until –

(i)the Minister published a further notice ending the effect of the moratorium notice;  or

(ii) a water resource plan is approved for the water to which the moratorium notice applies.

…"

1. The moratorium notice took effect on and from 31 March 2005.  The notice stated that it applied, inter alia –

   ·    to subartesian water (clause 3(a)(ii));  and

   ·    to applications for or about water licences to take or interfere with water, whether made before or after the publication of the notice (clause 3(c));  and

·    to a water licence application if granting the application would have the effect of increasing the amount of water that may be taken (clause 5(a)). 

It also provided that such applications, if made before the notice was published, would not be dealt with (clause 6(a)).

1. The appellants' solicitor was subsequently advised by the department, by letter dated 22 April 2005, that the Chief Executive was of the opinion that the notice would bind both departmental staff and the Land Court, and that as the matter had not settled prior to 31 March 2005, the Chief Executive was unable to settle, as to do so would require that the Land Court make an order which would increase the amount of water that might be taken, which was prohibited by the notice.

2. On 3 June 2005, the appellants lodged a general application in the registry of this Court.  The application, as amended, sought the following orders or relief –

   "1.     A declaration that:

   (a)That there was a binding agreement between the appellants and the respondents in respect to the issue of the licence prior to the proclamation of the Moratorium which occurred on the 31 March, 2005. 

   (b)The nature of the agreement was such that the application had been dealt with for the purposes of the Moratorium Notice of 31 March 2005 and consequently was not caught by section 5 and section 6 of that Moratorium Notice.

   2.That Appeal A2003/0825 be determined by consent under Rule 44 of the Land Court Rules 2000 and Section 882(2) of the Water Act 2000 as follows:

   (a)     That the determination of the Chief Executive be set aside;  and

   (b)     That the attached Draft Water Licence No 54128A amended as agreed be approved.

   3.That, having regard to the facts and circumstances set out above, this application be decided under Rule 35 of the Land Court Rules 2000 without an oral hearing.

   4.That the Chief Executive issue Amended Water Licence No 54128A following the approval by the Court."

3. The application also stated that the parties had agreed that the matter be determined by consent without the need for an oral hearing.  In fact, the respondent's position is that he is not prepared to consent to the application but neither does he oppose it.

4. On 20 June 2005 at a directions hearing held by telephone, counsel for the appellant, Mr D Turnbull, read Appeal A2003/0825, the General Application filed on 3 June 2005, the affidavit of Kevin Francis Baxter filed 3 June 2005 and the affidavit of Warren Phillip Fuller and Margaret Fuller filed 3 June 2005.  I indicated that I would deal with the matter on those materials without the necessity for any further hearing.  I also indicated that I would order that the licence issue.  These are the reasons for that decision.

5. The evidence summarised above establishes that prior to the issue of the moratorium notice the respondent had decided to make an offer to grant the appellants a licence to take 114 megalitres on condition that the offer was accepted by the appellants within the specified time.  Accordingly the respondent offered the increased volume to the appellants.  That offer was accepted unconditionally by the appellants in the letter from their solicitor dated 18 March 2005.  I consider that the subsequent request by the solicitor for the appellants that the wording of one of the licence conditions be amended did not have the effect of altering or terminating the agreement between the parties.  Any alteration or termination of an agreement between two persons cannot be effected unilaterally, and the appellants' request must therefore be regarded as a request for an amendment which was not acceded to and which was, ultimately, withdrawn.

6. The question that then arises is whether the licence may now be issued given that the moratorium notice came into effect on 31 March 2005.  The moratorium notice stated that an application to increase the amount of water that might be taken made before the notice was published would not be dealt with (clauses 5(a) and 6(a) of the Notice and see also ss.26(2)(a) and 26(3) of the Act).  Would the issue of the licence after 31 March 2005 in the circumstances set out above, mean that the application is being 'dealt with' in contravention of the provisions of the moratorium notice and ss.26(2)(a) and 26(3) of the Act? 

7. There is no definition of the phrase 'dealt with' in the Act.  The definitions of 'deal' in the Macquarie Concise Dictionary (2^nd edition) include – "to take action with respect to a thing or person".  In this case, the respondent had taken action with respect to the application and, before the 31 March 2005, had decided to issue an amended licence if the new terms were acceptable to the appellants.  The respondent offered the new terms to the appellants who had accepted the offer before 31 March 2005.  The respondent had also proposed that the parties seek consent orders from this Court as set out in [7] above.  Those orders contemplated that the licence be issued following approval by this Court.  That plan was not implemented because of the issue of the moratorium notice. 

8. I consider that, the respondent having made the decision to offer the increased volume of water to the applicants on condition that they accept as specified, the application was 'dealt with' once that offer was accepted by the appellants.  This is because of the operation of s.211 of the Act which provides: 

   "211  Deciding application for water licence

   (1)  If the chief executive is satisfied the application should be granted, or granted in part, the chief executive must grant all or part of the application for a stated period, with or without conditions. 
   …
   (3)  Within 30 business days after deciding the application, the chief executive must give the applicant and any person who gave a properly made submission about the application an information notice.

   (4)  If the chief executive grants all or part of the application, with or without conditions, the chief executive must, within 30 business days after granting the application, give a water licence in the approved form to –
        (a)  the applicant;  or
   …

   (5)  The licence has effect from the day the information notice is given to the applicant."

9. Although the decision by the Chief Executive to offer the amended licence was made in the course of a reconsideration of the review decision, it is my view that s.211 applies to the amended decision. Section 24AA(b) of the Acts Interpretation Act 1954 provides that if an Act authorises or requires the making of a decision, the power to amend or repeal the decision is exercisable in the same way, and subject to the same conditions, as the power to make the decision. Although s.4 of the Acts Interpretation Act provides that the application of the Act may be displaced by a contrary intention appearing in any other Act, there is nothing in the Water Act to indicate an intention to preclude the operation of s.24AA in relation to the review decision deemed to have been made in this matter.  Specifically, I do not consider that the procedures established by ss.861-865 of the Act, which enable certain persons to apply for the internal review of a decision, indicate an intention that the review decision may not be reconsidered. 

10. The Chief Executive reconsidered the review decision in this case and, it may be inferred, was satisfied that the application to increase the water entitlement should be granted. Section 211 therefore came into operation because the power to amend the review decision was, by virtue of the operation of s.24AA(b) of the Acts Interpretation Act, subject to the same conditions as the power to make and review the original decision.

11. The effect of s.211 is that once the Chief Executive was satisfied that the application should be granted (and the appellants had accepted the offer), there was a binding obligation on the Chief Executive to grant the licence (subs(1)) and to give the licence in the approved form to the applicant (subs (4)).  As there was no room for any further exercise of administrative power, such exercise was complete before 31 March 2005, although it was necessary that the formal licence issue authorising the appellants to take the increased volume of water (see Minister for Immigration v Kurtovic (1990) 92 ALR 93 at 112). I consider, therefore, that the application had been 'dealt with', within the meaning of ss.26(2) and 26(3) of the Act.

12. This conclusion is not inconsistent with the stated purpose of moratorium notices.  The Explanatory Notes to the Water and Other Legislation Amendment Bill 2003 state, in relation to clause 26, that "The purpose of a moratorium notice remains as a means for the preservation of the status quo in relation to any increased taking of or interfering with water."  By the time the moratorium notice in the Bowen subartesian area came into force, I consider that the appellants were entitled to the increased volume of water and, therefore, that the status quo will be maintained.

13. It was suggested by the respondent's legal officer, in the letter of 22 April 2005, that the moratorium notice would bind the Land Court and that the Land Court could not make an order which would increase the amount of water that might be taken. 

14. For the reasons set out above, I do not accept that analysis.  In this case, the respondent was bound, prior to 31 March 2005, to issue the licence allowing the appellants to take the increased volume of water.  The Court is adjudicating on the rights of the parties which arose from their conduct prior to 31 March 2005 (see Cameron v Noosa Shire Council (1997) 93 LGERA 407 at 415), and therefore, the order of the Court does not create the right to take an increased volume of water.

15. Section 882(1) of the Act provides, inter alia, that in deciding an appeal, the Court may

    "(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."

    In this case, a draft licence had been prepared by the department prior to 31 March 2005 as a result of the appellants agreeing to accept the respondent's offer to amend the licence.  In the circumstances it is appropriate to set aside the review decision and, in substitution for that decision, to order that a licence issue in the terms of the draft attached to this decision.

16. The parties have indicated that there is no issue between them as to costs, and therefore there will be no order as to costs. 

ORDER

The review decision is set aside and in substitution therefore the respondent is ordered to issue a water licence in the same terms as the draft licence attached to this decision.

CAC MacDonald

Member of the Land Court