Grams v Chief Executive, Department of Natural Resources and Mines
[2002] QLC 85
•29 October 2002
LAND COURT OF QUEENSLAND
CITATION: Grams v Chief Executive, Department of Natural Resources and Mines [2002] QLC 85
PARTIES: RH and MG Grams
(applicants)
vChief Executive, Department of Natural Resources and Mines
(respondent)
FILE NO: A2001/0183
DIVISION: Land Court of Queensland
PROCEEDING: Appeal under the Water Resources Act 1989
DELIVERED ON: 29 October 2002
DELIVERED AT: Brisbane
HEARD AT: Toowoomba
MEMBER: Mrs CAC MacDonald
ORDER: It is ordered that:
1.Licence Nos. 103489 and 103490 be amended by the respondent to provide
(a)that the licences do not permit any increase in the volume of water that may be taken, as compared with previous Licence Nos. 17078 and 17497; and
(b)that when pumping restrictions are in place which limit irrigation to a fixed number of hours per day, the licensee may not use either pump for longer than the prescribed period.
2. Within 14 days of the date hereof, the draft amended licences be returned to the Court for approval.
3.The appeal is dismissed on approval of the amendments.
4. The parties have liberty to apply.
CATCHWORDS: Statutory Interpretation – accrued rights – appeal lodged but not heard prior to repeal of Act – substantive right exists at appeal – repealed Act applied – Acts Interpretation Act (Qld) s.20.
Water Resources Act – appeal by objector against issue of new irrigation licences to landowner – “in conjunction” term added – could increase quantity of water taken compared to old licences – respondent’s assumption no additional water to be taken – new licences limited to no increase in current volume taken – Water Resources Act ss.43, 51.
COUNSEL: Mr K Fisher of Crown Law
APPEARANCES: Mr RH Grams for the appellants
Introduction
The appellants in this case, Mr RH and Mrs MG Grams are the owners of a property bordering Lockyer Creek near the town of Helidon in South East Queensland, being Lot 1 on RP 837780, County of Churchill, Parish of Terry. They have appealed, pursuant to s.51 of the Water Resources Act 1989 (the Act), against the issue of two licences under the Act to Mr GR Handley. Mr Handley is the owner of Lots 3, 4, 5 and 6 on CH 3133 and Lot 13 on CC 1297. He also owns Lots 14 and 19 on CH 3133 but those lots are not relevant to this dispute. Lots 3, 4 and 13 adjoin Lockyer Creek some 8 kilometres upstream from the appellants’ property. Lots 5 and 6 do not have a frontage to the Creek but do adjoin Lot 13 and Lot 5 also adjoins Lot 4.
The licences were issued by the Chief Executive, Department of Natural Resources and Mines (the respondent to this appeal), pursuant to s.43 of the Act. Licence No. 103489 was issued on 23 March 2001 with an expiry date of 30 April 2006. The licence authorises the licensee to take water from Lockyer Creek by use of a 40 mm centrifugal pump located on Lot 3 on CH 3133 for the purposes of domestic supply, irrigation and stock-watering. The maximum area to be irrigated is 4 hectares, but the licence may be used in conjunction with licence No. 103490 as described shortly. The land benefited by Licence No. 103489 is Lot 13 on CC 1297 and Lots 3, 4 5 and 6 on CH 3133.
Licence No. 103490 issued on 27 March 2001 with an expiry date of 30 April 2006. It authorises the taking of water from Lockyer Creek by use of a 50 mm centrifugal pump located at Lot 13 on CC 1297. The licence benefits Lot 13 on CC 1297 and Lots 3, 4, 5 and 6 on CH 3133. This licence otherwise has identical terms to Licence No. 103489 except that it licenses the irrigation of 8 hectares.
Both licences contain the same “In Conjunction Term” which provides that:
“The area irrigated under the licence(s) referenced by … [the licences] may be combined giving a total maximum combined area of 12 hectares. This total combined area may be taken as applying to the combined associated real properties. Such combined benefit of the individual licensed irrigated areas may be terminated or reduced upon disposal of any part of the combined associated real properties; upon cancellation, surrender, suspension, revocation or expiration of any one of the aforementioned licence(s) or this licence; or at any earlier time so determined by the chief executive.”
Licence Nos. 103489 and 103490 replaced Licence Nos. 17078 and 17497 respectively. Licence No. 17078 authorised the use of a 40 mm centrifugal pump for the irrigation of 4 hectares, domestic supply and stock-watering from Lockyer Creek with the pump located on and to supply Lot 3 on CH 3133. Licence No. 17497 authorised the use of a 50 mm centrifugal pump for the irrigation of 8 hectares from Lockyer Creek with the pump on Lot 13 on CC 1297 and to supply Lot 13 on CC 1297 and Lot 5 on plan CH 3133.
The significant differences between the former licences and the current licences, and the major issues in this appeal, are the addition of the “in conjunction” term to each licence and the increased area from which the licensee may select the land to be irrigated.
The appellants’ grounds of appeal as set out in the Notice of Appeal are:
“We object to this increase in water and land. When he has lots 3, 4, 13, 14 & 19, he has a licence to irrigate lot 3. Licence for 5 and 13, and licence for 14 and 19. We also object to this application to be used in conjunction. History shows that reverse seasonal conditions can manifest themselves very quickly. We were on a total ban, and was since 13 Sep 2000 on garden and irrigation. The Q’ld Government is committed to ensuring the ecologically sustainable development of Q’ld’s water resources for present and future generations. We feel the use of water from locker creek needs to be more fully investigated and firmly controlled day and night.”
As the hearing progressed it became apparent that the matters which the appellants rely on in support of their appeal are:
·the general condition of Lockyer Creek and in particular the lack of regular water flow in the Creek in dry weather;
·allied with that, the number of licences that have been issued authorising water to be taken from the Creek; and
·against that background, the issue of the two current licences to Mr Handley which, the appellants consider, have authorised increases in both the areas of land able to be irrigated and the quantity of water able to be used by the licensee.
At the hearing of the appeal, the appellants were represented by Mr RA Grams who also gave evidence. Mr Grams also called Mr HG Castle of Helidon who owns a property bordering Lockyer Creek, downstream from the appellants’ property. The respondent was represented by Mr K Fisher of Crown Law. Mr DB Shoecraft, a Senior Technical Officer employed by the Department of Natural Resources and Mines at Gatton, gave evidence on behalf of the respondent.
Applicable Legislation
This appeal was commenced on 31 May 2001 when it was received in the registry of this Court. The appeal was lodged pursuant to s.51 of the Water Resources Act 1989. The hearing took place on 21 May 2002. On 19 April 2002, s.1137 of the Water Act 2000 came into operation. This had the consequence that the Water Resources Act, including s.51, was repealed. Although the Water Act 2000 contains transitional arrangements for licences issued under the Water Resources Act, there is nothing in the Water Act which provides for a case such as this, where the appeal was commenced under the Water Resources Act but not heard before the Water Resources Act was repealed. There is an issue, therefore, as to whether the appeal should be decided under the Water Resources Act or the Water Act.
In the absence of any relevant provision in the Water Act, it is appropriate to turn to the Acts Interpretation Act 1954. Section 20 of that Act provides, so far as relevant, that:
“(2) The repeal or amendment of an Act does not –
…
(c) affect a right, privilege or liability acquired, accrued or incurred under the Act; or
…
(e)affect an investigation, proceeding or remedy in relation to a right, privilege, liability or penalty mentioned in paragraph (c) or (d).
(3) The investigation, proceeding or remedy may be started, continued or completed, and the right, privilege or liability may be enforced and the penalty imposed, as if the repeal or amendment had not happened.”
It is considered that provision is applicable here, as there is no intention to the contrary to be found in the Water Act (see s.4, Acts Interpretation Act).
It is necessary to determine, therefore, whether the appellants had an acquired or accrued right in terms of s.20(2)(c) of the Acts Interpretation Act to have the appeal determined in accordance with the provisions of the Water Resources Act at the time of the repeal of the Water Resources Act. In Esber v The Commonwealth (1992) 174 CLR 430, the appellant had been receiving compensation, paid by way of a weekly amount, in respect of injuries received while a member of the Defence Forces. He applied, pursuant to s.89 of the Compensation (Commonwealth Government Employees) Act 1971, to redeem the weekly payments by payment of a lump sum. That application was rejected by the responsible officer. The applicant then applied to the Commonwealth Administrative Appeals Tribunal (the AAT) for a review of that decision. Before the matter was heard by the AAT, the Compensation Act was repealed. New legislation provided that such weekly payments were not redeemable. The AAT decided that the Compensation Act continued to apply in the case before it and the redemption was granted. On appeal, the High Court applied ss.8(c) and 8(e) of the Acts Interpretation Act 1901 (Cth) which are very similar to s.20(2)(c) and (e) of the Queensland Acts Interpretation Act. The Court held (by a majority, at 440) that once the appellant had lodged an application with the AAT to review the delegate’s decision, he had a right to have the decision of the delegate reconsidered and determined by the AAT in accordance with the provisions of the legislation as they stood before amendment. This was a substantive right, not merely a procedural matter.
By way of contrast, in Kentlee Pty Ltd v Prince Consort Pty Ltd [1998] 1 QdR 162, the Court of Appeal dealt with a case where the respondent had applied to the Chief Executive, Department of Tourism, Sport and Racing for approval under s.153(1) of the Liquor Act 1992 to its subletting part of a licensed hotel to the appellant. After the application was lodged but before the decision was made, s.153 was replaced by a provision which prohibited subletting. The application was refused by the Chief Executive on the basis that the Chief Executive had no power to grant the approval sought because of the alteration to s.153. The Court of Appeal held (by majority) that where, as in that case, the decision maker had a broad unfettered discretion to grant or refuse the application at the time the law was changed, the applicant did not have an acquired or accrued right, within the meaning of s.20(2)(c) of the Acts Interpretation Act 1954 (Qld), to have the discretion exercised in its favour, and, therefore, the law to be applied was the “new” s.153.
In the matter before this Court, the application for the licences, the objection lodged by the appellants, the decision to grant the licences and the lodging of the appeal in this Court took place pursuant to the Water Resources Act. The case is, in my opinion, indistinguishable from Esber v The Commonwealth, and, therefore, I consider that the appellants have an accrued right to have the appeal determined by this Court in accordance with the law applicable as at the date the decision to issue the licences was made, that is in accordance with the relevant provisions of the Water Resources Act.
Factual Background
A statement by Mr Shoecraft was tendered at the hearing. In this statement, Mr Shoecraft described Lockyer Creek as a major tributary of the Brisbane River. The section of Lockyer Creek from Gatton upstream to the township of Helidon is unsupplemented by water releases from storages and therefore operates as a natural system. The system relies on rainfall to provide flow, either as surface supply or as leakage from recharged adjacent groundwater aquifers. Mr Shoecraft said that flows in the stream are intermittent and discontinue soon after rainfall such that base flow is not usually evident. There is a weir, Carpendale Weir, located downstream from Helidon at Adopted Mean Thread Distance (AMTD) 92.1 kilometres. The licensee’s property is located between AMTD 105.9 and 107.0 kilometres, some 13-15 kilometres upstream of Carpendale Weir. The appellants’ property is located at AMTD 98 kilometres.
The section of Lockyer Creek upstream of the Carpendale Weir is also unsupplemented and operates also as a natural rainfall and groundwater leakage system that produces a variable water flow which is used for stock, domestic and irrigation purposes. During dry periods this flow is dependent on springs in the upper reaches of the watercourse.
Mr Shoecraft reported that there are 39 licences enabling irrigation of 287 hectares current for the section of Lockyer Creek upstream from the Carpendale Weir. There have been no approvals for the irrigation of additional areas in that section since 1991, because of the poor reliability of the available water supply to meet the requirements of existing licence holders.
In the course of their evidence, both Mr Grams and Mr Castle expressed serious concern for the general well being of Lockyer Creek. In their opinion, there is too much water being extracted from the Creek, with the result that there is no water flowing in the Creek where it adjoins their properties, in dry weather. It appears that there has been a general decrease in the water flow over the last ten to fifteen years, caused largely by a decrease in rainfall over that period. The lack of water flow is most apparent downstream of the confluence of Rocky Creek with Lockyer Creek. The confluence lies at AMTD 100 kilometres between the licensee’s and the appellants’ properties. Mr Shoecraft said that the reason that Lockyer Creek dries out downstream of the confluence is that the Creek goes underground at that point. Mr Grams and Mr Castle were adamant that this was not the case, and that the reason is that there is too much water being extracted from the Creek, upstream of the confluence.
A number of the owners of properties adjoining the creek have sunk bores to obtain a supply of water, other than from the Creek. It is not clear whether the extraction of underground water affects the flow of water in Lockyer Creek but there was some suggestion that it may do so because the bores may adversely affect the supply of water to the springs which feed the Creek.
When necessary because of dry weather, restrictions are imposed by the respondent on pumping for irrigation purposes from Lockyer Creek. Although there was no detailed evidence as to precisely when and how often restrictions have been imposed on licence holders in recent years, it seems that they have been in place on a fairly regular basis. The effect of the restrictions is that licensees are limited as to the time during which they may irrigate. Initially the number of days per week is reduced and, if the dry conditions continue, the number of hours per day is limited. Mr Grams produced a selection of letters from the Department of Natural Resources and Mines demonstrating this process. It appears that there has been one total ban on irrigation in recent times – for a period of two weeks in 1995.
The Issue of Licence Nos. 103489 and 103490
Following the advertising of Mr Handley’s application for the licences, the appellants lodged an objection to their issue. The objection was in similar terms to the Grounds of Appeal set out above.
The Upper Lockyer Creek Water Advisory Committee also met to discuss Mr Handley’s applications. Mrs MG Grams (one of the appellants) who is the Secretary to the Committee, advised the respondent on behalf of the Committee, that –
“Concern was shown by half of the committee as to the availability of water and the effect on the stream flow for other downstream water users.
Even though the area to be irrigated is not increased there is an increased potential for future development. This could seriously affect the viability of farms in the Upper Lockyer Creek area.”
Because the members of the Committee were divided evenly as to the effect of the applications, no recommendation was provided by the Committee. At the hearing, Mr Grams expressed some dissatisfaction with the fact that he and his wife, who are joint owners of their property, were not allowed two votes at this meeting. Availability of another vote would, of course, have broken the deadlock at the meeting. It appears, however, that joint owners are allowed one vote only and that therefore, the appropriate procedure was followed.
Under s.43 of the Act, the Chief Executive must, on application for a licence to construct or use works to take water from a watercourse, cause enquiry to be made into anything the Chief Executive considers appropriate including, if relevant,
·the availability and sufficiency of water to supply the requirements of riparian owners, licensees, permitees, the applicant and certain others specified in s.4(a) of the Act (s.43(1)(a)(i));
·the effect that the granting of the application will have or is likely to have on entitlements of riparian owners, licensees and permitees (s.43(1)(a)(ii)).
Mr Shoecraft conducted an enquiry as required by s.43 of the Act. He reported that the licensee is a beef cattle grazier who grows irrigated pasture crops for his stock. Over recent years he had been irrigating on all of the lands the subject of the applications, that is, including land not included in his previous licences, but he had restricted the area of irrigated crop in any one season to the authorised 12 hectares. The licensee wanted the flexibility of using either one of the two pumps to irrigate the total licensed area, as this would allow for efficient use of the pumps and also for rotation of the cropping lands. The land titles subject to the licence applications total 58.7 hectares of which approximately 30 hectares is cropped at various times.
Mr Shoecraft said that the effect of the “in conjunction” term was that the licensee could choose to use one pump to irrigate the 12 hectares or use two pumps simultaneously to irrigate the 12 hectares. He also said in his report that the use of the two existing licences in conjunction, with no increase in irrigation area above the aggregate of the areas available under the existing licences (i.e. 12 hectares), and with no increase in pump sizes, would mean that neither the volume of water taken nor the rate at which water would be extracted from the Creek would increase. It would be expected that the “in conjunction” arrangements would often result in a reduction in the rate at which water would be extracted from the Creek given that one or other of the pumps, but not both, might be operated to irrigate the aggregate area. Consequently, Mr Shoecraft issued the licences, as applied for.
The effect of Licences Nos. 103489 and 103490
The Notice of Appeal states that one of the grounds on which the licences are challenged is the increase in the area of land benefited by the licences. It is clear from the terms of the licences that although the licensee has a much greater area from which he may select the section(s) to be irrigated, the total area which he is licensed to irrigate remains at 12 hectares. The effect of the “in conjunction” term is therefore to increase the licensee’s operational flexibility. Since that aspect of the licences does not affect the availability of water to, nor the entitlements of the relevant persons identified in s.43 of the Act, there is no reason why that aspect of the licences should not stand.
Mr Shoecraft said that when restrictions are imposed which specify the number of hours per day for nominated days of the week in which pumping for irrigation purposes is allowed, a licensee with two water licences would be allowed to take water under each licence for the period specified. Whether the licensee operated two pumps or one during periods of restriction would depend on the location and configuration of his irrigated crop area at the time. If the area were located and configured to be supplied from one of the pumps, it would be expected that only one pump would be operated, although the operation of two pumps would not be precluded. In oral evidence, Mr Shoecraft also said that if one pump only is operated then it was intended that the licensee could operate that pump for twice the number of hours per day specified. It seems that the rationale for that is that operating one pump for double the length of time specified equates with operating two pumps for the period prescribed.
It is, in my opinion, incorrect to say that the terms of the new licences, and, in particular, the “in conjunction” term, can be interpreted to allow the licensee to use one pump for double the time in the circumstances described in the previous paragraph. On their face, the licences permit the irrigable areas to be amalgamated and either or both of the two pumps to be used to irrigate the 12 hectares. This would allow one pump only to be used, at the licensee’s discretion while pumping is unrestricted. However, when irrigation is limited to a specified number of hours per day, there is nothing in the licences which allows that period of time to be doubled when one pump only is in use. Similarly, the letters from the Department of Natural Resources and Mines imposing such restrictions (which were tendered by Mr Grams as examples of the types of restrictions imposed) do not allow such an inference to be drawn.
However, assuming for the moment that the licences do bear such an interpretation, the question remains whether the effect of the “in conjunction” term, so read, is that the volume of water able to be used by the licensee is increased. Contrary to Mr Shoecraft’s assertion, it seems that in certain circumstances there may be an increase in the quantity of water taken.
There does not appear to be a problem when there are no water restrictions in place, because the licences allow the irrigation of 12 hectares and the amount of water needed to do this is not affected by the size of the pumps in use.
Similarly, if the first level of restrictions were in place, that is pumping were allowed on, say, three nominated days per week, the licensee could use either one or both of the pumps for the full period allowed and the “in conjunction” term would not affect the volume of water taken. It is noted that there was no suggestion that while restrictions of that nature are in place, the licensee would be entitled to use one pump for twice the number of days specified.
If, however, and by way of example only, there are restrictions in place limiting irrigation to six hours a day, then the effect of the “in conjunction” term is, said Mr Shoecraft, that the licensee could use each pump for 6 hours per day or one pump for 12 hours per day. Evidence was given by Mr Shoecraft that if the pumps were installed and configured to operate at the best efficiency for consumption of power, the 40 mm pump would deliver 175 gallons per minute and the 50 mm pump would deliver 250 gallons per minute. Mr Shoecraft said that this was a hypothetical exercise in that it assumes that the pumps have been set up to operate most efficiently, and there are a number of other factors which could affect the quantity of water actually delivered. If, therefore, the licensee chose to use the 50 mm pump (the larger one) for 12 hours, then, assuming the pump were installed and configured as described above, 27,000 gallons more water would be used in the “extra” 6 hour period (75 gallons extra per minute, x 6 hours x 60 minutes per hour) than if the 40 mm pump were used for that 6 hour period. That amounts to approximately 43% more water per day.
Despite the theoretical nature of this exercise, I am satisfied that, in circumstances such as those outlined, there is a real likelihood that the quantity of water capable of being used by the licensee is significantly increased under the new licences as compared with the previous licences. This increase will only occur when restrictions of the type used in the example above are in place, but that is, of course, the time when water is most scarce. That being so, Mr Shoecraft’s decision to issue the licences with an “in conjunction” term, interpreted as he has done, was based on an incorrect premise, namely that there would be no increase in the water taken under the licences. Mr Shoecraft said, as noted earlier, that no new licences have been issued in respect of this section of Lockyer Creek, since 1991, because of the unreliability of water flow. To allow a licensee to take a significantly increased volume of water at a time when comparatively severe restrictions are in place, is not consistent with the policy not to issue new licences, and more importantly, indicates that the respondent’s consideration of the requirements of s.43 was flawed by the incorrect assumption that no additional water would be taken. For those reasons, the licences should be varied, if they were to be interpreted as Mr Shoecraft has done.
However, I have come to the conclusion, as stated above, that when restrictions limiting irrigation to a fixed number of hours per day are in force, the licences do not permit the licensee to use one pump for double that fixed time per day. On that basis, the appeal could be dismissed. Nevertheless, doubts have arisen as to the correct interpretation of the licences, and I am satisfied that if the licensee is permitted to use the larger pump for double the fixed time, there would probably be a significant increase in the quantity of water taken, when such restrictions are in place. Therefore, to ensure that the status quo prior to the issue of the new licences is maintained, I have decided that additional terms should be inserted into the licences making it clear that the licences do not permit any increase in the volume of water that may be taken, and in particular that when restrictions are in place which limit irrigation to a fixed number of hours per day, the licensee is to use each pump for up to the prescribed period only. It is preferable that such amendments be drafted by the respondent in accordance with departmental practice.
Orders
It is ordered that:
1.Licence Nos. 103489 and 103490 be amended by the respondent to provide
(a)that the licences do not permit any increase in the volume of water that may be taken, as compared with previous Licence Nos. 17078 and 17497; and
(b)that when pumping restrictions are in place which limit irrigation to a fixed number of hours per day, the licensee may not use either pump for longer than the prescribed period.
2. Within 14 days of the date hereof, the draft amended licences be returned to the Court for approval.
3.The appeal is dismissed on approval of the amendments.
4. The parties have liberty to apply.
CAC MACDONALD
MEMBER OF THE LAND COURT
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