G F Noye Pty Ltd v Resource Management and Planning Appeal Tribunal
[2007] TASSC 109
•19 December 2007
[2007] TASSC 109
CITATION:G F Noye Pty Ltd v Resource Management and Planning Appeal Tribunal [2007] TASSC 109
PARTIES: G F NOYE PTY LTD
v
RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL
and
BADHAM, Anthony J
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: 414/2007
DELIVERED ON: 19 December 2007
DELIVERED AT: Hobart
HEARING DATE: 7 November 2007
JUDGMENT OF: Crawford, Evans and Blow JJ
CATCHWORDS:
Energy and Resources – Water – Water management – Water usage rights – Controlled works – Permit for dam construction works – Discretion to refuse where adverse effect on person with right to take water from dam – Whether proposed commercial use of water required to be taken into account as a relevant consideration.
Water Management Act1999 (Tas), ss146, 158(1)(c).
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, applied.
Aust Dig Energy and Resources [1153]
REPRESENTATION:
Counsel:
Appellant: W A Ayliffe
First Respondent: No appearance
Second Respondent: C M Schokman
Solicitors:
Appellant: Chris Boland Lawyers
First Respondent: No appearance
Second Respondent: Ogilvie Jennings
Judgment Number: [2007] TASSC 109
Number of paragraphs: 30
Serial No 109/2007
File No 414/2007
G F NOYE PTY LTD v RESOURCE MANAGEMENT AND PLANNING
APPEAL TRIBUNAL and ANTHONY J BADHAM
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
EVANS J
BLOW J
19 December 2007
Order of the Court:
Appeal dismissed.
File No 414/2007
G F NOYE PTY LTD v RESOURCE MANAGEMENT AND PLANNING
APPEAL TRIBUNAL and ANTHONY J BADHAM
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
19 December 2007
I agree, for the reasons given by Blow J, that the appeal should be dismissed.
File No 414/2007
G F NOYE PTY LTD v RESOURCE MANAGEMENT AND PLANNING
APPEAL TRIBUNAL and ANTHONY J BADHAM
REASONS FOR JUDGMENT FULL COURT
EVANS J
19 December 2007
I have had the advantage of reading the reasons for judgment prepared by Blow J; I agree with them and likewise would dismiss the appeal.
File No 414/2007
G F NOYE PTY LTD v RESOURCE MANAGEMENT AND PLANNING
APPEAL TRIBUNAL and ANTHONY J BADHAM
REASONS FOR JUDGMENT FULL COURT
BLOW J
19 December 2007
This appeal concerns a dam at Premaydena. The dam straddles the boundary between two rural properties. Both properties have changed hands since it was built. The western side of the dam is on land owned by the appellant. The eastern side of the dam is on land owned by the second respondent, whom I will refer to as "the respondent". Much more than half of the dam is on the respondent's land. There have been difficulties between the appellant and the respondent. The respondent wishes to divide the dam by constructing a wall right through it, just to his side of the boundary, and parallel with the boundary. He proposes that there be a two-way spillway so that water can travel from one side of the divided dam to the other if one side is full and the other is not.
The proposed works constitute "dam works" for the purposes of the Water Management Act 1999 ("the Act"). Under the Act, s146(3), it is an offence to undertake dam works without a permit authorising those works. The respondent applied to the Assessment Committee for Dam Construction ("the ACDC") for such a permit pursuant to s146(1). The ACDC decided to grant the permit that he sought. The appellant was aggrieved by that decision, and appealed to the Resource Management and Planning Appeal Tribunal ("the tribunal") pursuant to the Act, s276. The tribunal conducted a hearing de novo, and dismissed that appeal. The appellant applied under the Judicial Review Act 2000 for the review of the tribunal's decision. That application was heard by a judge and dismissed: Noye v Resource Management and Planning Appeal Tribunal [2007] TASSC 47. This is an appeal from that decision. The tribunal has been named as a respondent to this appeal, but has elected to take no part in the proceedings.
The Act, s158(1), lists a number of situations in which the ACDC may refuse to grant a permit for proposed dam works. On the facts of this case, it was open to the ACDC and to the tribunal, standing in the shoes of the ACDC, to refuse a permit only on the basis referred to in s158(1)(c). Under that provision, a permit may be refused where the proposed dam works "may adversely affect persons with a right under Part 5 or a licence to take water from a relevant water resource". The dam is a "relevant water resource". The appellant company is a person with a right under the Act, Pt5, to take water from the dam. Under s48, it has the right to take water for various purposes including domestic purposes and stock watering. The tribunal addressed the question of whether the permit should be refused on the basis that the proposed dam works might adversely affect the appellant, but decided in favour of granting the permit. The appellant contends that it erred in two respects. It contends that the tribunal made findings of fact that were not open on the evidence before it, and it contends that the tribunal failed to take into account a relevant consideration.
Ground 1 – Impugned findings of fact
The tribunal had evidence that the dam does not fill unless there is heavy rain or wet weather. There was evidence as to how much of the water entering the dam after rain comes from the appellant's property. In a proof of evidence, the sole director and shareholder of the appellant company, Mr Noye, estimated that approximately 93 per cent of the run-off supplying the dam comes from the appellant's property. The previous owner of that property, a Mr Ridler, said in a proof of evidence that about 80 to 90 per cent of the water filling the dam comes from that property. However, there was evidence that only two streams flow into the dam; that those streams largely collect water from the appellant's property; and that they flow across the boundary onto the respondent's property and enter the dam on his side of the boundary. The tribunal appears to have overlooked the fact that the water flowing from the appellant's property into the divided dam via those streams would enter the respondent's side of the divided dam.
The tribunal's reasoning as to the effect of the proposed works on the appellant was set out in pars26 to 28 of its published reasons, which read as follows:
"26The evidence as to whether there may be any adverse affect [sic] upon the appellant's Part 5 rights was as follows. In Mr Shackcloth's opinion the appellant's side of the divided dam was only likely to fill during a heavy runoff, because the catchment was 'small and unreliable'. If there was limited rainfall the appellant's side of the dam was unlikely to fill. In flooding events water was likely to flow from the respondent's side to the appellant's side, and vice versa, depending upon which side filled first. The evidence of Mr Pryor was that in his opinion the appellant's side would receive sufficient runoff to fill the appellant's side of the dam after the proposed wall; the appellant's usage was relatively light; and that in those circumstances the dam on the appellant's side was unlikely to empty. The appellant's evidence was that almost 90 per cent of the supply into the existing dam was from his property, by way [of] dispersed surface runoff. That would on the evidence take it largely to the portion of the dam on his side of the proposed new dam wall. The opinion of the appellant was that the proposed dam would adversely affect him because the extent of his share of the storage would be considerably reduced, that is from equivalent to 50 per cent of the existing dam, to approximately 10 per cent. The respondent conceded that whether or not the appellant's water resource was affected, would depend upon the seasonal input.
27Upon the above evidence, the Tribunal. finds that on the one hand, approximately 90 per cent of the catchment which presently supplies the existing dam, is surface runoff from the appellant's property; and that therefore the new dam constituted by the existing wall on the appellant's side and the new wall parallel to the boundary with the appellant's property, would be likely to fill first; and to a greater extent, than the remainder of the dam on the respondent's property; and that in that sense the appellant would therefore be advantaged. The Tribunal notes that the appellant has the option of enlarging the capacity of the storage on his side of the proposed new works, by excavation, subject to any necessary approval.
28The question then arises as to whether the Tribunal should exercise the discretion to refuse to grant a permit for the proposed dam works, in the above circumstances. Upon the above findings, the Tribunal considers that although there may be some adverse effect upon. the appellant from the proposed dam works, that adverse effect is not sufficient to justify refusal of a permit."
Mr Shackcloth and Mr Pryor, both of whom were referred to in par26 of those reasons, were officers of the Department of Primary Industry, Water and Environment who gave evidence before the tribunal.
The appellant seeks to impugn three findings of fact that appear in par27 of those reasons:
·the finding that the appellant's side of the divided dam "would be likely to fill first";
·the finding that the appellant's side of the divided dam would be likely to fill "to a greater extent" than the respondent's side of the dam; and
·the finding that "in that sense the appellant would therefore be advantaged".
It contends that those facts did not exist; that those findings were wrong; and that there was no evidence to support any of those findings.
The two parts of the proposed divided dam would not hold equal volumes of water. Mr Pryor gave evidence before the tribunal, which was neither challenged nor contradicted, to the effect that the estimated capacity of both parts of the divided dam was 67 megalitres; and that the estimated capacity of the respondent's side of the divided dam was about 59 to 60 megalitres. It follows that the capacity of the appellant's side of the divided dam would be about 7 or 8 megalitres, or about 10 to 12 per cent of the total capacity of the divided dam.
The tribunal received a report from an engineer engaged by the appellant, to which was attached a contour map showing property boundaries, the dam, the two streams, and the approximate boundary of the dam's catchment area. It is apparent from that map that not all of the appellant's part of the catchment area drains into the streams that flow to the respondent's side of the dam. The tribunal also received as an exhibit a diagram prepared by Mr Noye which showed that part of the catchment area drained directly into the appellant's side of the dam. It was open to the tribunal to conclude that run-off from a part of the catchment area adjacent to the appellant's side of the dam would enter the appellant's side of the divided dam.
If more than about 10 or 12 per cent of the water entering the divided dam arrived on the appellant's side, the appellant's side would fill first. Certainly some of the water entering the dam would arrive on the appellant's side, draining directly into that side of the divided dam rather than into the respondent's side via the streams. The tribunal did not have any estimate or opinion evidence as to what proportion of the water entering the dam would arrive on the appellant's side. From the contour map, one could make some estimate as to what proportion of the catchment area would drain into the appellant's side. However that is not the end of the matter. There was evidence in the appellant's engineer's report that the percentage of the rainfall captured by the dam would depend on the nature of the vegetation cover; that about 80 per cent of the catchment was a eucalyptus plantation; and that the balance was pasture. Aerial photographs tendered appear to show that most of the land that would drain to the appellant's side of the dam was pasture. In order to estimate the proportion of the water entering the divided dam on the appellant's side, one would need to know roughly what percentage of the rainfall falling on pasture would be captured by the dam, and roughly what percentage of the rainfall falling on the eucalyptus plantation would be captured by the dam.
At the hearing before the tribunal, Mr Pryor was cross-examined by counsel for the appellant. It was put to him that he expected the dam to fill on the respondent's side, but he disagreed. He was asked how he expected the appellant's side of the dam to fill, and replied, "… from the natural catchment that feeds into that side of the dam." In giving that answer, he might not have intended to suggest that the appellant's side would fill before the respondent's side started to overflow into it, but that might have been his opinion. He also said there was sufficient catchment to refill the appellant's side.
On the basis of that evidence, it could well be a fact that, all other things being equal, the appellant's side of the dam would fill first after rainfall. It has therefore not been demonstrated that any of the impugned findings of fact were incorrect.
The appellant contends that, within the meaning of the Judicial Review Act, s17(2)(h), "there was no evidence or other material to justify the making of the decision", ie the decision of the tribunal. The scope of that provision is limited by the Judicial Review Act, s21, which reads as follows:
"21 The ground mentioned in section 17(2)(h) and section 18(2)(h) is taken not to be made out –
(a) unless –
(i) the person who made, or proposed to make, the decision was required by law to reach the decision only if a particular matter was or is established; and
(ii) there was no evidence or other material (including facts of which the person was or is entitled to take notice) from which the person could or can reasonably be satisfied that the matter was or is established; or
(b) unless –
(i) the person who made, or proposes to make, the decision based, or proposes to base, the decision on the existence of a particular fact; and
(ii) the fact did not or does not exist."
The tribunal was not required to reach the decision that it did only if a particular matter was established. It follows that s21(a) does not apply. Counsel for the appellant relied on s21(b). He submitted that the tribunal based its decision on the existence of three particular facts — the fact that the appellant's side of the dam would fill first, the fact that it would fill to a greater extent, and the fact that the appellant would therefore be advantaged — and that those facts did not exist. However, for the reasons set out above, I think the non-existence of those facts has not been established. Those three matters could well be facts. The submission based on s17(2)(h) must therefore fail.
However there is a more fundamental flaw in the appellant's argument as to this ground. When s17(2)(h) permits an application to be made for the review of a decision on the ground "that there was no evidence or other material to justify the making of the decision", the decision that it refers to is the ultimate decision, as distinct from a finding of fact made as part of the decision-maker's reasoning. The right to apply for judicial review is conferred by s17(1) only in relation to "a decision to which this Act applies". That term is defined in s4(1) to mean "a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion)". The decision of the tribunal to uphold the decision of the ACDC, and dismiss the appeal from it, is such a decision. Although faulty fact-finding may, in certain circumstances, make such a decision impeachable, a finding of fact is not such a decision. It is no more than "a step along the way in a course of reasoning leading to an ultimate decision". See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337.
In this case, the question that needs to be addressed in relation to s17(2)(h) is therefore whether there was any evidence or other material to justify the granting of the permit. The tribunal had evidence of a shared dam, and of a dispute between its owners. It had evidence from Mr Pryor suggesting that, if the dam were divided as proposed, the appellant would probably be able to divert water from the streams so as to enter its side of the divided dam. In my view all of that evidence was sufficient to justify the making of a decision that the respondent should have the permit he had applied for. It is not to the point that the tribunal had a discretion under s158(1)(c) to refuse a permit on the basis that the proposed works might adversely affect the appellant. It was open to the tribunal to refuse the permit on that basis, but it by no means follows that the tribunal lacked evidence or other material justifying the making of a decision that the respondent should have his permit.
In his submissions relating to this ground, counsel for the appellant sought to rely, in the alternative, on the Judicial Review Act, s17(2)(i), which permits an application for review to be made on the ground "that the decision was otherwise contrary to law". By seeking to rely on that provision, counsel strayed outside the scope of the grounds of appeal. The relevant ground, ground 1, as amended, reads as follows:
"1that the learned judge erred in failing to hold in her consideration of ground 4 (at pages 11 and 12 of her decision) that there was no or no sufficient evidence to support the finding of the Resource Management and Planning Appeal Tribunal that the dam 'would be likely to fill first on the appellant's side and, to a greater extent, than the remainder of the dam on the respondent's property' and consequently such a finding could not be used as a justification for the exercise of the discretion pursuant to S158(1) of the Water Management Act 1999."
That ground refers to ground 4 of the originating application that was dismissed by the learned primary judge. That ground read as follows:
"4There was no evidence or other material to justify the making of a decision (Section 17(2)(h) of the Judicial Review 2000)
FURTHER AND BETTER PARTICULARS
(a)There was no evidence to justify the finding of fact referred to in clause 27 of the Tribunal's decision and accordingly, no evidence to justify the making of the decision sought to be reviewed.
(b)Further and/or in the alternative, the findings of fact referred to in clause 27 of the Tribunal's decision and the evidence are in conflict with and inconsistent [sic] the Tribunal's decision, particularly clause 26 and accordingly provide no basis to justify the making of the decision sought to be reviewed."
The argument based on s17(2)(i) was not only irrelevant to the grounds of appeal. It was misconceived. The word "otherwise" in s17(2)(i) indicates that that provision can apply only on some basis that is not covered by any of the preceding paragraphs in s17(2). The "no evidence" situation is covered by s17(2)(h). Decisions involving errors of law are covered by s17(2)(f). There are circumstances in which faulty fact-finding can involve an error of law: Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 481, 483; Australian Broadcasting Tribunal v Bond (supra) at 355. If fact-finding involves an error of law, it follows that s17(2)(f) applies, and it must further follow that s17(2)(i) does not.
Counsel for the appellant did not rely on s17(2)(f), nor was it contended in either of the amended grounds of appeal that the learned primary judge made any error to which that provision could apply. In any event, I do not think it has been demonstrated that there was no evidentiary basis for the impugned findings of fact. Since Mr Pryor said that he expected the appellant's side of the dam to fill "from the natural catchment that feeds into that side of the dam", and that there was sufficient catchment there to refill the appellant's side, I think it was open to the tribunal to take him literally, and to infer that he believed that run-off from the appellant's property, rather than overflowing water from the respondent's side of the divided dam, would fill the appellant's side. If that were the situation, the appellant's side would fill first. The reasoning of the tribunal may have been faulty, but it has not been demonstrated that the impugned findings of fact were not open to it.
Ground 2 – Failure to take into account a relevant consideration
This ground, as amended, reads as follows:
"2that the learned judge erred in holding expressly or by implication that the commercial usage of the water by Mr Badham was not a relevant consideration to the discretion exercised by the Assessment Committee for Dam Construction and the Resource Management and Planning Appeal Tribunal."
There was evidence before the tribunal that the respondent proposed to use water from his side of the divided dam commercially, and that he had been selling water to a company involved in the fish industry. The tribunal made no mention of that evidence in its decision. The appellant contends that that evidence was relevant, and weighed in its favour. It relies on the Judicial Review Act, s17(2)(e), which permits an application for judicial review to the made on the ground "that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made". By virtue of s20(b), a reference to an improper exercise of power is taken to include "failing to take a relevant consideration into account in the exercise of a power".
The effect of similar provisions in the Administrative Decisions (Judicial Review) Act 1977 (Cth) was authoritatively explained by Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. In that case, at 39 to 40, in reasons that Gibbs CJ, Deane and Dawson JJ agreed with, his Honour set out a number of propositions established by case law, beginning as follows:
"(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision … .
(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard …".
Counsel for the appellant submitted that, having regard to the subject-matter, scope and purpose of the Act, the fact that the respondent proposed that water from his side of the divided dam be used commercially was, by implication, a consideration that the ACDC and the tribunal were bound to take into account in deciding whether a permit should be granted or refused.
I reject that submission. It was no doubt open to the tribunal to take each party's plans for the use of water from the divided dam into account, but I do not think it was implicit in the legislation that it was obliged to do so. The objectives of the Act are listed in s6(1), which reads as follows:
"6 (1) The objectives of this Act are to further the objectives of the resource management and planning system of Tasmania as specified in Schedule 1 and in particular to provide for the use and management of the freshwater resources of Tasmania having regard to the need to –
(a) promote sustainable use and facilitate economic development of water resources; and
(b) recognise and foster the significant social and economic benefits resulting from the sustainable use and development of water resources for the generation of hydro-electricity and for the supply of water for human consumption and commercial activities dependent on water; and
(c) maintain ecological processes and genetic diversity for aquatic and riparian ecosystems; and
(d) provide for the fair, orderly and efficient allocation of water resources to meet the community's needs; and
(e) increase the community's understanding of aquatic ecosystems and the need to use and manage water in a sustainable and cost-efficient manner; and
(f) encourage community involvement in water resource management."
The discretion under s158(1)(c) to refuse a permit for dam works that might adversely affect a person with a right or licence to take water from a relevant water resource was no doubt conferred in order to provide for the fair allocation of water resources to meet the community's needs, in accordance with s6(d). However the primary focus of a decision-maker considering s158(1)(c) must be the nature and extent of the disadvantage to the person adversely affected.
The dam falls within the definition of "watercourse" in s3. Under s48(2), the appellant has the right to take water from the dam for a "specified purpose", as defined in s48(1). The sale or provision of water to a fish company is not a "specified purpose". Any such use of water from the dam would therefore require a licence under the Act, Pt6. Since any such commercial use of water from such a dam is a matter to be considered in a separate decision-making process in relation to the granting, refusal or variation of a licence, I think it must follow that it is not a matter that the ACDC is, by necessary implication, bound to consider when it makes a decision on an application for a permit for dam works. Ground 2 must fail.
Conclusion
I would dismiss the appeal.
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