Gorton v Department of Natural Resources and Mines
[2004] QLC 17
•8 April 2005
LAND COURT OF QUEENSLAND
CITATION: Gorton v Department of Natural Resources and Mines [2004] QLC 0017 PARTIES: Thomas Edgar and Robert Thomas Gorton
(appellants)v. Chief Executive, Department of Natural Resources and Mines
(respondent)FILE NO: A2003/0820 DIVISION: Land Court of Queensland PROCEEDING: An appeal against an internal review decision refusing water licence applications DELIVERED ON: 8 April 2005 DELIVERED AT: Brisbane HEARD AT: Bundaberg MEMBER: Mr JJ Trickett, President ORDERS: 1. The appeal is allowed and the review decision is set aside.
2. The matter is sent back to the reviewer to make a decision in accordance with s.864 of the Water Act 2000.
CATCHWORDS: Practice and procedure - Jurisdiction - Applications for water licences - Who may apply - Statutory interpretation - Procedure - Estoppel - Actions of Chief Executive - Validity of applications - Water Act 2000 APPEARANCES: Mr G Cunningham (Solicitor, Payne Butler Lang) for the appellants
Mr A Cradick (Principal Legal Officer, Department of Natural Resources and Mines) for the respondentSOLICITORS: Payne Butler Lang for the appellants
Legal Counsel, Legal Services, Department of Natural Resources and Mines for the respondent.
This is an appeal by Mr TE and Mr RT Gorton (the appellants), who were applicants for internal review, against the decision of the respondent confirming the original decision to refuse the appellants' applications for water licences.
Background
The appellants in this matter are landowners in the Littabella Creek area near Rosevale, north of Bundaberg. On 26 November 2002, they applied to the Chief Executive, Department of Natural Resources and Mines (the respondent) 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 therefrom in Possum Creek and Mullet Creek, which are tributaries of Littabella Creek. When the applications were refused at first instance, the appellants requested an internal review of the original decision. When that decision was upheld, the appellants appealed to the Land Court.
The original decision refused the applications based on their impact on the watercourses and catchment. Although not part of the reasons for refusing the applications, it was recognised by the original decision maker 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." On the other hand, the reviewer considered that the applications were invalid as they did not comply with the requirements of the Act. In this appeal against the review decision, the respondent contended that there were defects in the applications which were of such a nature as to invalidate them and thus disqualify the Court from hearing the matter on the merits
Both parties made detailed oral and written submissions on the issues relating to the validity of the applications and to the Land Court's jurisdiction.
In normal circumstances, if an application was defective, one solution would be for the appellants to withdraw the applications, wait until the alleged defects could be remedied and then make fresh applications. However, any fresh applications could not now be accepted and dealt with due to a moratorium, effective from July 2004, on the granting of further water licences in the relevant area. A moratorium has statutory force under the provisions of s.26 of the Act.
The proposed project for which the water licences are required is 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. Before the development application for construction of the dams can be considered, it is necessary for the appellants to obtain water licences to impound water in the dams to be constructed on Possum Creek and Mullet Creek, and to take water therefrom and use it for irrigation.
The Water Act 2000
The preamble to the Act describes it as "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."
The provisions relating to the granting of water licences are contained in Chapter 2, Part 6 of the Act. Section 10(1) provides that -
"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 204 states the purpose of Part 6 as follows:
"Under this part, the chief executive may grant -
(a)water licences for taking water and interfering with the flow of water, for example, by a weir; or
(b)water permits for taking water."
In order to implement those purposes, the Act provides that all rights to the use, flow and control of all water in Queensland vests in the State: s.19. A person may take water, and in limited circumstances interfere with water, for particular purposes, including an emergency situation, and for stock and domestic purposes, without a water licence: s.20.
Part 6 of Chapter 2 of the Act deals with the granting of water licences and permits. An owner of land, or the owners of contiguous parcels of land may apply for a water licence to take water and use the water on the land or to interfere with the flow of water on, under or adjoining any of the land: s.206(1). Such an application may be made only for taking water from, relevantly in this case, a watercourse, lake or spring on or adjoining any of the land: s.206(2). Water in a watercourse or lake includes water collected in a dam across the watercourse or lake: Schedule 4. However, the owner or owners of land that does not adjoin a watercourse, lake or spring may make an application for a water licence to take water from a watercourse, lake or spring, provided that all the owners of land between the source of the water and the applicant's land agree in writing to give the applicant a registrable lease or easement over those lands to enable water to be taken and delivered to the applicant's land: s.206(3).
The appellants (and certain other owners of land) were applicants as required by s.206 of the Act, which relevantly reads:
"206 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 adjoining 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 -
...(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."
For the purposes of Chapter 2, Part 6 of the Act (including s.206) "owner" is defined more narrowly than it is defined in the dictionary in Schedule 4 of the Act.
"Owner" is defined in s.203 as:
"(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)an applicant for, or the holder of, a mineral development licence or mining lease under the Mineral Resources Act 1989."
However, in the Dictionary in Schedule 4: "owner", of land, means any of the following, and includes the occupier of the land -
"(a) the registered proprietor of the land;
(b)the lessee or licensee under the Land Act 1994 of the land;
(c)the holder of a mineral development licence or mining lease under the Mineral Resources Act 1989;
(d)the person or body of persons who, for the time being, has lawful control of the land, on trust or otherwise;
(e)the person who is entitled to receive the rents and profits of the land."
The History of the Applications
Not all the land involved in the project was owned by the appellants at the date of the applications, although there seems to be no dispute that at the time the relevant privately owned land was under contract of sale to them. However, two parcels of State land were not. These were Lot 898 on FTY 1707 (State Forest Land) and Lot 18 on USL 43011 (Unallocated State Land ).
Mr Cunningham, solicitor for the appellants, provided the following background to this matter, which was not challenged by the respondent. The Department of Natural Resources and Mines was first consulted on 22 May 2002 in relation to the requirements for the application for this dam development project, which involved the amalgamation of a number of parcels of land, including some State land. The issue in relation to the State Forest Land, Lot 898, was raised from the beginning. Negotiations for part of that land were commenced with the Environmental Protection Agency, which was entrusted with the management of State Forests. The Primary Industries Corporation was gazetted as trustees for Lot 898, but the agency which exercises control over State Forest Land is the Environmental Protection Agency Forestry (EPA Forestry).
EPA Forestry advised that it was not Government policy to sell State Forest Land, but an application could be made for a land exchange, if the appellants provided land of similar forestry and environmental values in exchange for part of the State Forest Land required for the dam project. That land could then be freeholded and transferred to
the appellants as part of the land exchange proposal.
EPA Forestry further advised that it could not be an applicant for the water licences, but could provide an "in principle" agreement from the Minister for Environment to the land exchange for inclusion in the water licence applications. A detailed outline of the dam project was forwarded to both the Minister for the Department of Natural Resources and Mines and the Minister for Environment on 8 August 2002, clearly specifying the State Forest Land involved in the dam project. A formal application for the land exchange went to the Minister for Environment on 10 September 2002 and the Minister granted approval in principle on 9 October 2002. A letter dated 16 October 2002 from Mr Tim Ellis, Manager, Tenure Actions Group, Environmental Protection Agency, confirmed the Minister's approval in principle for the revocation of approximately 300 ha from State Forest 898 for the land exchange. The applications for the four licences to interfere with the flow of water, and to take water, together with a development application for the dam project, were lodged with the Department of Natural Resources and Mines on 26 November 2002.
An information notice issued by the Department of Natural Resources and Mines on 31 July 2003, contained the decision of the delegate of the respondent, refusing all the water licences. However, the reasons for that decision did not include any reference to the applications not being properly made due to non-compliance with s.206. Following an application by the appellants for an internal review, an internal review decision was made on 30 October 2003, confirming the original decision to refuse the water licence applications, on the grounds that the applications did not comply with s.206.
In relation to Lot 18 USL 43011, which is a small island of Unallocated State Land of 0.689 ha within the banks of Mullet Creek, Mr Cunningham contended that during the preparation of the application for water licences, he sought advice from the Department of Natural Resources and Mines. A Mr John Gallagher, a Senior Land Officer, advised him that no separate consent was required from the Department, because it administers Unallocated State Land and is also the assessment manager for water licences. According to Mr Cunningham, Mr Gallagher told him that any issues regarding Unallocated State Land could be dealt with when assessing the water licence applications.
The Applications
Application 69478, TE & RT Gorton, application for licence to take water from Possum Creek for irrigation of 100 ha.
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 & 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.
There is no issue that at the time the application was submitted, the first four parcels were held by various members of the Neubecker family as registered proprietors. However, at the date of application Lot 3 on SP 147694 was owned by ET Scotney, but the appellants 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.
The reviewer contended that the appellants were not the owners of those parcels of land. Furthermore, the review decision stated that the applicants did not provide evidence of an agreement in writing with the owners of the land between the proposed point of taking water and the applicants' land, to give the applicants a registered lease or easement for the purpose of taking water and delivering it to the applicants' land, which was a mandatory requirement under s.206(3) of the Act.
Application 69480, TE & RT Gorton, application for licence to take water from Mullet Creek for irrigation of 400 ha.
The review decision was similar to that in respect of Application 69478. The reviewer contended that the applicants were not the owners of Lot 898 nor the other four parcels of land owned by the Neubeckers. Plan D208SK07 shows the site from which water was proposed to be taken is on Lot 6 FL408, owned by MW & RA Neubecker.
Application 69482, TE Gorton, RT Gorton, GA Neubecker, OE Neubecker, MW Neubecker, RA Neubecker, MW Neubecker and FN Neubecker, an application for a licence to interfere with the flow of water in Mullet Creek, by impounding up to 12,000 megalitres of water.
According to the review decision, at the time the application was submitted, the applicants 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.
Application 69484, 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, JF Hansen and Sunny Bluff Produce Pty Ltd, an application for licence to interfere with the flow of water in Possum Creek by impounding up to 3,500 megalitres of water.
The review decision stated that at the time the application was submitted, the ownership of the relevant land was as follows:
Lot 1 on RP 807574, C & PG Eiser
Lot 898 on FTY 1707, Primary Industries Corporation
Lot 5 on RP 620549, VJ & SE Bidlake, K Dryden and RL Griffin
Lot 4 on SP 109774, EG & 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
The reviewer contended that the appellants were not the owners of any of the lands associated with the application. Therefore, the reviewer concluded that they were ineligible to submit an application in respect of lands they did not own.
Furthermore, the reviewer asserted that some of the land, the subject of the application, was not contiguous with the adjoining watercourse and did not comply with s.206(3), as the applicants had not provided evidence that at the time of making the application, the intervening landowners agreed to give the applicants a registered lease over the intervening lands.
The reviewer concluded that the applicants were not entitled to make an application in the first instance.
The Respondent's Attitude
The respondent's contention was that the appellants were the owners of some but not all of the lands identified in the "Irrigated Land Schedule" attached to the applications. In addition, Lot 898 the State Forest Land, owned by the Primary Industries Corporation lies between the appellants' lands and the point from which water is proposed to be taken. Section 206(3)(b) of the Act requires the appellants to produce written agreements with the owners of the intervening land for registrable leases or easements and no such agreements in respect of Lot 898 have been produced. Nor were the appellants the owners of the Unallocated State Land, Lot 18 USL 43011, at the date of application. The applications are therefore invalid for non-compliance with s.206.
Furthermore, the appellants propose to take water from Mullet Creek on land identified as Lot 6 on Plan FL 408, but Lot 6 was owned by MW & RA Neubecker.
Mr A Cradick, Principal Legal Officer for the respondent, contended that even if the lands so designated in the schedules to the applications were under contract at the time the application was made, they do not comply with the requirements of s.206, as the appellants do not constitute an "owner" as defined in s.203. Furthermore, in relation to Lot 898 (the State Forest Land), there was nothing more than an approval in principle by the Minister for Environment for a land exchange. That does not comply with s.206(3)(b), which requires a written agreement to give the applicant a registrable lease or easement over the land and does not contemplate any other type of arrangement, such as an unenforceable approval in principle. In this respect, the present Act has tightened up on the previous requirements under the Water Resources Act 1989 which required only an agreement.
The Argument for the Appellants
In his oral submissions, Mr G Cunningham, solicitor for the appellants, argued that the appellants had substantially complied with the requirements of s.206. He contended that all the freehold land the subject of the applications, had now been purchased by the appellants. The only land not in their ownership was Lot 898, the State Forest Land, and Lot 18 on USL 43011, the Unallocated State Land.
Mr Cunningham went on to submit that the State Forest Land and the Unallocated State Land are not required to comply with of s.206. He argued that for the purposes of Chapter 2, Part 6 of the Act, s.203 defines "owner" to mean:
· the registered proprietor of the land;
· the lessee or licensee of the land under the Land Act 1994;
· the lessee of the land under a registered lease under the Land Title Act 1994; or
· an applicant for, or the holder of, a mineral development licence or mining lease under the Mineral Resources Act 1989.
The Primary Industries Corporation as trustee (now exercised by EPA Forestry) holds Lot 898 and is not included in the definition of "owner" under s.203. Clearly, he submitted, the Act does not contemplate that the trustees of State Forest Land would be applicants for a water licence. Similarly with the State controlled Unallocated State Land.
Mr Cunningham submitted that the intent of s.206 is to ensure that an applicant for a water licence has a sufficient interest in or control over the land which is the subject of the water licence, to ensure that the water licence can be utilised by the applicant. In this case, the Minister responsible for the EPA which administers State Forest Land has provided an in principle agreement to the land exchange for the dam project. According to Mr Cunningham, the transfer of that part of Lot 898 to the appellants is currently stayed awaiting the issue of the water licences and the relevant Minister's consent will be required for the transfer of part of that land to the appellants.
It is for these reasons that the appellants contend that the applications substantially comply with s.206 of the Act and that the applications were properly made.
In addition, Mr Cunningham submitted that the respondent is now effectively estopped from relying on the issue of non-compliance with s.206 of the Act. He argued that s.208(1) requires the respondent to be satisfied that an application has been properly made before giving the applicant a notice for publication in a newspaper. The notice must identify the proposed undertaking and indicate that written submissions may be made about the application. On 17 December 2002, the public notices for the dam project were issued by the respondent and were published in the Bundaberg News Mail on 18 December 2002. Copies were provided to the respondent on that date.
Mr Cunningham submitted that on a proper interpretation of s.208, these steps could only have been taken "when the Chief Executive (was) satisfied the application (had) been properly made." The respondent had opportunities to raise the issue of compliance with s.206, but did not do so. Therefore, he submitted, the respondent should not be able to rely on the argument in relation to non-compliance with s.206 and to raise that argument at such a late stage in the decision-making process. He contended that the appellants have acted to their detriment in reliance upon the respondent's actions in December 2002.
Mr Cunningham argued that in relation to the State Forest Land and the Unallocated State Land, it was open to the respondent to impose conditions on a water licence so that such matters could be finalised prior to the water licences being used by the appellants. Such licences could be cancelled if those conditions were not satisfied.
The Arguments
In summary, Mr Cunningham's argument for the appellants was that s.206 of the Act had been substantially complied with, even if s.206 was interpreted to apply to the State land and not simply freehold land. In addition, he argued that s.208 deems that the water licence applications were properly made when the respondent issued the appropriate notice for public advertising. He also relied on the assurances given by Mr Gallagher. He submitted that the respondent should not be allowed to rely on the argument of non-compliance with s.206 when he had the opportunity to raise the issue in the initial decision-making process for the water licence applications.
On the other hand, the respondent argued that the applications were invalid as they did not comply with s.206, notwithstanding that the land transfers may have been effected. It was submitted that the appellants could not rectify the material flaw in the original application by subsequent actions. Strict compliance with s.206 was required at the time the applications were made and at that time not all the land was in the ownership of the appellants.
However, the appellants argued that at the time, the relevant licence applications were made in the collective names of the appellants and the owners of those other lands. In other words, there was no issue of those other owners providing any consents, leases, easements or otherwise, because they were co-applicants with the appellants. In addition, the land in question was at the time under contract for sale to the appellants.
With regard to the requirement of s.206(3) for written agreement by the owners of land between the point of taking water and the appellants' land, the only intervening land is Lot 898, the State Forest Land. The appellants argued that the agreement in principle with the Minister for Environment would take care of that matter. However, they conceded that there remained some issues in relation to the pipeline crossing roads and railway land which remained to be dealt with. One of these can clearly be seen on Plan D208SK05 in relation to the Possum Creek dam where the pipeline is shown to cross Boaga Road.
The respondent conceded that the combined applications by the contiguous landowners may have cured the defect in relation to non-compliance with s.206 as far as the two applications to impound water were concerned. However, in respect of the applications to take water from either impoundment, the only applicants were the appellants.
In relation to the alleged assurance by Mr Gallagher in relation to Lot 18, the Unallocated State Land, it was submitted that it was highly unlikely that Mr Gallagher would have made such representations, or if he did, whether he had the authority to do so. Even if such an assurance was made, it was submitted that it would not amount to estoppel.
The Issues
The four water licence applications by the appellants were refused at first instance because the delegated officer considered that the appellants had not given evidence that the proposals would not have long-term impacts on the Littabella Catchment; other recognised scientific information suggested that there would be significant long-term impacts. The appellants applied for an internal review of that decision. Following that internal review, the reviewing officer decided to confirm the original decision to refuse the applications, not for the reasons stated in the original decision, but because the reviewer decided that the applications did not comply with the requirements of s.206 of the Act.
The issues that have been raised in this matter seem to me to fall into four categories:
1.Did the applications fail to comply with the requirements of s.206 because the appellants were not the owners of all lands involved in the applications at the date the applications were made, or did not have agreements in writing from the owners of those lands to give the appellants registrable leases or easement over intervening lands?
2.Does the fact that the State was not a joint applicant for the water licences result in the applications being invalid?
3.Is the respondent estopped from raising the non-compliance issue by his actions under s.208 of the Act?
4.Is the respondent estopped from raising the issue of the Unallocated State Land because of an alleged statement by an officer of the respondent's Department?
Issue No. 1 - The Non-Compliance Issue - Privately held Land
The respondent pointed out that the land owned by the Neubeckers at the date of application was not contiguous to land on Possum Creek, but was in the Mullet Creek area. Although the schedules attached to application 69484 (application for impoundment of water on Possum Creek) contained reference to the Neubecker lands, I accept that those schedules were prepared to reflect the overall project, including both the Possum Creek dam and the Mullet Creek dam. It would be absurd to suggest there was any intention to impound water on the Neubecker lands as part of the Possum Creek land. It was common ground that the Neubecker lands (or the relevant parts thereof) were transferred to the appellants, who became the registered owners of those parcels on 23 July 2004.
However, the schedule includes Lot 3 on SP 147694, which at the date of application was owned by ET Scotney. That land is well removed from any of the proposed impoundment of water on either dam and would seem to be land which was proposed to that the water was to be used for irrigation. That land has since been purchased by the appellants, who became the registered owners on 3 March 2003. However, the respondent contended that because ET Scotney was not an applicant, s.206 of the Act has not been complied with. However, in respect of that parcel, it was argued for the appellants that the land was under contract and that the appellants were the equitable owners.
It seems to me that the purpose of s.206(1) is to ensure that the owners of all land which is to be involved in a water scheme are applicants for water licences. The applications show that all such owners are co-applicants with the appellants, except for ET Scotney. I exclude here the "owners" of the State Forest Land and the Unallocated State Land which I will deal with separately.
As all the other owners are co-applicants with the appellants that, in my view, is sufficient to comply with s.206(1) as far as those lands are concerned. At the date of application all the land, including the land held by ET Scotney, was under contract for sale to the appellants.
The issue of whether or not the fact that the land was under contract at the date of application is sufficient to comply with the requirements of s.206(1), is only relevant in relation to Lot 3 on SP 147694, the land owned by ET Scotney. That land was included in the irrigation schedule attached to the applications, but ET Scotney was not a co-applicant with the appellants and the other owners. Lot 3 on SP 147694 was under contract at the date the applications were made and the appellants became registered owners on 3 March 2003.
Section 206 is intended to ensure that an applicant or applicants for a water licence to take and use water from a watercourse, (including a dam), is either the owner or owners of the land involved in such a scheme, or where the water is to be conveyed over land held by other owners, those owners have agreed in writing to give the applicant or applicants a registrable lease or easement over that intervening land. In the present case, putting aside for the moment the State Forest Land and the Unallocated State Land, the applications have complied with s.206, except for the land held by ET Scotney. However, by the time the decisions on the applications were made on 31 July 2003, that land was owned by the appellants.
In my opinion, the fact that Lot 3 on SP 147694 was not owned by the appellants at the date of the applications does not invalidate those applications. If I have correctly interpreted the purpose of s.206, the intention is that the applicants have the control over the affected land. This seems to be clear from the fact that s.206(3)(b) requires that the applicants need only have the agreement in writing from the owners of intervening land for a registrable lease or easement, but that the instrument of lease or easement be registered within 40 business days after receiving the water licence: s.214(3).
The question of whether lack of strict compliance with a statutory requirement renders an act invalid was considered by the High Court in Project Blue Sky v Australian Broadcasting Authority [1998] 72 ALJR 841. The joint judgment of the majority provides an indication of the relevant tests to be applied. Key observations include:
· "… the Court of Appeal of New South Wales was correct in Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24 in criticising the continued use of the 'elusive distinction between directory and mandatory requirements' and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid … In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'." [93]
· "… a court determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. … In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'." [93]
· "The fact that s.160 [of the Broadcasting Services Act 1990] regulates the exercise of functions already conferred on the ABA rather than imposes essential preliminaries to the exercise of its functions strongly indicates that it was not a purpose of the act that a breach of s.160 was intended to invalidate an act done in breach of that section." [94]
[Citations omitted]
Having regard to those tests and the purpose of the Act discussed previously, it seems to me that the requirement in the instant case that the applicants be an "owner" as defined in s.203 of the Act does not seem to "impose essential preliminaries in the exercise of the function", indicating strict compliance is necessary at the date the applications were made, in the particular circumstances of this case.
However, being legally entitled to become a registered proprietor (eg with an executed unconditional contract awaiting registration under the Land Titles Act) would seem to me to satisfy the section and the scheme of Chapter 2, Part 6 of the Act, particularly as the appellants became the registered proprietors of the offending land prior to the original decision.
Issue No. 2 - The State was not a Joint Applicant
The issue was whether the applications are invalid for failure to comply with s.206(1) because the "owners" of the State Forest Land (Lot 898) and the Unallocated State Land (Lot 18), were not joint applicants for the water licences. The respondent contended that the Primary Industries Corporation was the owner of State Forest Land and the State was the owner of the Unallocated State Land. They were not applicants, therefore s.206(1) of the Act had not been complied with, nor had s.206(3) been complied with. It was contended that the approval in principle for the land exchange by the Minister for Environment upon which the appellants rely, does not satisfy s.206(3) of the Act.
In my view, the Act does not contemplate either the Primary Industries Corporation or the State being "owners" of parcels of land for the purpose of s.206. Neither of them comes within the definition of "owner" in s.203.
It seems to me that the restricted definition of "owner" was intended to apply only to land privately held, either by a registered proprietor under the Land Title Act 1994, or by a lessee under that Act or under the Land Act 1994, or by a licensee under the Land Act or the Mineral Resources Act 1989. In other words, s.206 was intended to ensure that an applicant for the licence had the control over, or at least an agreement for the control over, all the relevant privately held land affected by the licence. If the Legislature had intended the Primary Industries Corporation or the State be included as "owners" under s.206, then "owner" could have been given the extended definition as in Schedule 4 to the Act, or the even more extended definition in s.579 of the Environmental Protection Act 1994.
Therefore, in my opinion, there is no validity in the argument that the applications did not comply with the requirements of s.206(1) and (3) because neither the Primary Industries Corporation nor the State were co-applicants for the water licences. As was pointed out by Mr Cunningham, there are still many arrangements that have to be made in respect of crossing roads and the railway line. No doubt those matters would have to be considered together with the matters which the respondent must consider in deciding whether to grant or refuse the applications under s.210 of the Act. However, they do not affect the validity of the applications as submitted.
Issue No. 3 - The s.208 Estoppel issue
The appellants contend that the respondent is estopped from raising non-compliance with s.206 because of conduct and representations by the respondent to the appellants leading up to the appellants lodging the applications. They contend that by giving the appellants a notice under s.208, the respondent has indicated that he was satisfied that the applications were properly made.
Section 208 relevantly provides:
"(1) Subsection (2) applies where the chief executive is satisfied the application has been property made and the applicant has given the chief executive any additional information requested about the application.
(2) The chief executive must give the applicant a notice and the applicant must publish within the time and in the newspaper or newspapers stated by the chief executive.
(3) …"
The respondent gave the appellants a notice under s.208 and that the appellants published that notice in the Bundaberg News Mail as required by the respondent. Mr Cunningham contended that by giving the appellants a notice under s.208, the respondent demonstrated that he was satisfied that the applications were properly made. Mr Cunningham submitted that it is not a hollow step, it is a fundamental step that goes to the very heart of the approval process under the Act. He submitted that the respondent is estopped from now raising the non-compliance issue.
By analogy, Mr Cunningham referred to a similar procedure under the Integrated Planning Act 1997 (IPA) where, after receipt of an application, the assessment manager must decide whether the application is properly made. Section 3.2.1 of the IPA states as follows:
"3.2.1 Applying for development approval
(1)Each application must be made to the assessment manager in the approved form.
(2)…
(8)The assessment manager may refuse to receive an application that is not a properly made application.
(9)If the assessment manager receives, and after consideration accepts, an application that is not a properly made application, the application is taken to be a properly made application.
(10)…"
I do not accept that analogy. Under s.3.2.1. of the IPA, where the assessment manager receives and accepts an application it is deemed to be a properly made application. However, there is no such deeming provision in s.208 of the Act.
Issue No 4 - The second estoppel issue - Whether the alleged representation by Mr Gallagher raises an estoppel against the Respondent
The appellants relied on a conversation which their solicitor, Mr Cunningham, had with a Mr John Gallagher, an officer of the Department of Natural Resources and Mines. They claim that the respondent is estopped from asserting the invalidity of the applications relating to the Unallocated State Land. However, the respondent denied that any conversation that took place between Mr Cunningham and Mr Gallagher resulted in any representation being made, let alone one which would create an estoppel. Furthermore, the respondent argued that if a representation was made, it was beyond the power of the officer making it and that cannot be validated by the process of raising an estoppel.
The alleged representation was that Mr Gallagher advised Mr Cunningham that it would not be necessary for the appellants to make separate provision for the Unallocated State Land in their applications, because it would be dealt with by the Department in the overall project, as the Department was responsible not only for the administration of the Water Act, but also for the administration of State land.
Despite Mr Cunningham's affidavit concerning his conversation with Mr Gallagher, the respondent has challenged whether the assurances were given, or if they were, whether Mr Gallagher had the authority to give them. There is not sufficient conclusive evidence regarding Mr Gallagher's assurances to the appellants. However, even if there was, such assurances could not create an estoppel to oust the requirement of a statutory scheme. Estoppel cannot operate against the Crown so as to mitigate or alter the effects of a statutory provision: see New South Wales Court of Appeal decision in Attorney-General v Gray [1977] 1 NSWLR 406 at 413 and the Privy Council decision in Kok Hoong v Leong Cheong Kweng Mines Limited [1964] AC 993 at 1015. The High Court decision of Attorney-General for New South Wales v Quin (1990) 64 ALJR 327 is also relevant. In that decision Mason CJ said at 333:
"The Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory discretion to be performed or exercised in the public interest, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the power: ..."
In my view, there is no merit in either of the estoppel issues. It is unfortunate that the respondent gave the appellants a s.208 notice and gave the impression that he was satisfied that the applications were properly made, then later alleged non-compliance. It is also unfortunate that the original decision refusing the applications was made on grounds other than non-compliance with s.206, while the decision on internal review was based entirely on non-compliance. However, these actions do not raise estoppel against the respondent any more than the alleged assurances by Mr Gallagher.
In any event, for the reasons which I have set out in respect of the first two issues, I am of the opinion that the applications were validly made and that the reviewer was in error in refusing them on the basis of non-compliance with s.206.
Of course, that does not mean that the licences must be granted. It simply means that it was not open to the reviewer to refuse them for that reason. In my view, the matter should be sent back to the reviewer to make a decision in accordance with s.864 of the Act.
Mr Cunningham referred to s.27 of the Water Act which allows an owner of land to make application to vary a moratorium notice. However, that is a matter for the appellants and the Minister. It is outside the scope of the present issue before this Court.
Orders
1.The appeal is allowed and the review decision is set aside.
2.The matter is sent back to the reviewer to make a decision in accordance with s.864 of the Water Act 2000.
JJ TRICKETT
PRESIDENT OF THE LAND COURT
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