Knezovic v Shire of Swan-Guildford

[1968] HCA 38

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Kitto, Taylor and Owen JJ.

KNEZOVIC v. SHIRE OF SWAN-GUILDFORD

(1968) 118 CLR 468

21 June 1968

Watercourses

Watercourses—What constitute—Defined channel and defined margin but no banks—Intermittent flow—Local Government Act, 1960-1965 (W.A.), ss. 300, 301*—Rights in Water and Irrigation Act, 1914-1964 (W.A.), s. 2.*

Decisions

1968, June 21.
The following written judgments were delivered:-
BARWICK C.J. The plaintiff is a landholder at Caversham in the State of Western Australia. He owns the fee simple in the whole of the land in two certificates of title, each relating to approximately fourteen acres. A road, known as Benara Road, divides the two lots, the one to its north having a greater elevation than the land on the south of the road. The plaintiff uses his land for the cultivation of vines and melons and also mines on it for clay for the manufacture of porcelain. He complains in this suit that the defendant has for some years threatened to enter his land, as he says, in pretended exercise of a right to cleanse watercourses within the shire. The defendant desires to enter and to remove what it claims to be an obstruction in what it claims to be a watercourse on the plaintiff's land. (at p471)

2. The plaintiff in his suit asserts that there is no watercourse on his land and claims that what the defendant is seeking to do is to drain adjacent private land and by so doing bring a large volume of water on to his land with the result that the egress of water from the plaintiff's land may need to be improved by work proposed to be done on the plaintiff's land and that he will otherwise suffer injury. The plaintiff claims a declaration that there is no watercourse on his land within the meaning of the relevant legislation, that the defendant has no right to enter for any purpose connected with a watercourse or for the drainage of private land, and an injunction to restrain the defendant from trespassing on his land. (at p471)

3. The defendant, on the other hand, by its defence, asserts that running through the plaintiff's land is portion of a watercourse which is within its care, control and management pursuant to the provisions of s. 300 of the Local Government Act, 1960-1965, of the State of Western Australia ("the Act"). It further asserts that it is specifically empowered by s. 301 of the Act, inter alia, to improve, cleanse and keep watercourses, including that watercourse, in order. The defendant counterclaimed an injunction to restrain the plaintiff from obstructing the watercourse and from preventing the defendant, its servants and agents from entering the land for the purpose of clearing what the defendant claimed to be an obstruction to the watercourse on the plaintiff's land. (at p471)

4. The primary judge held that there was a watercourse on the plaintiff's land and refused the declaration which the plaintiff sought. But he was of opinion that, upon the proper construction of the relevant sections of the Act, having regard to the common law, the defendant did not have a right to enter the plaintiff's land as it sought to do. Consequently, he so declared and granted an injunction to restrain the defendant from any such entry. He therefore dismissed the defendant's counterclaim. (at p471)

5. The defendant appealed to the Full Court of the Supreme Court of Western Australia against the declaration and injunction, and the plaintiff cross-appealed against the primary judge's refusal to declare that there was no watercourse on his land. The Full Court endorsed the primary judge's finding that there was a watercourse on the plaintiff's land and held that the defendant had a statutory right to enter and do upon the plaintiff's land the work it proposed to do. Accordingly, the Full Court allowed the defendant's appeal, dismissed the cross appeal, and restrained the plaintiff from obstructing the watercourse running through his land, and from preventing the defendant, its servants and agents from entering his land for the purpose of clearing the watercourse which the Full Court held to exist on his land. (at p472)

6. From this judgment of the Full Court, the plaintiff appealed to this Court purporting to do so as of right on the footing that a sum greater than $3,000 had been ordered by the Full Court to be paid by way of costs. However, the defendant, the now respondent, objected to the competency of the appeal, and set down the objection for hearing, whereupon the plaintiff gave notice that he intended to seek special leave to appeal when the motion as to the competency of the appeal was before the Court. The plaintiff in applying for special leave claims that important questions of law are involved in the case in so far as the meaning of the word "watercourse" in the Act and the right of entry by local authority into private land in connexion with watercourses are matters of great public importance and that the judgments below, in so far as they reject the plaintiff's claims, are in error. (at p472)

7. This Court upon the motion for special leave, with the concurrence of the parties, took the course of hearing all that the parties wished to say on the substance of the case so that it is now in a position to dispose of the plaintiff's appeal if it is of opinion that the matter is one for special leave. (at p472)

8. The relevant provisions of the Western Australian legislation are:

"300. A council has the care, control, and management of public places, streets, ways, bridges, culverts, fords, ferries, jetties, drains and, subject to the Rights in Water and Irrigation Act, 1914, the Water Boards Act, 1904 and any direction in writing of the Minister for Works, water courses which are within the district, or, which although not within the district, are by this Act placed under the care, control and management, of the council, or are to be regarded as being within the district, except where and to the extent that under an Act, another authority has that care, control, and management." "301. A council - (a) may make, form, alter, level, grade, pave, improve, repair, maintain, light, water, cleanse, and keep in good order and condition the streets, ways, and other places, and bridges, culverts, fords, ferries, jetties, drains, water courses, and other things and places which are under the care, control, and management of the council, and do such acts and things as are necessary for or incidental to the proper care, control, and management of them." (at p473)

9. By the Rights in Water and Irrigation Act, 1914 (W.A.), (Rights in Water Act), s.4 (1), the right to the use and flow and to the control of the water at any time in any watercourse . . . shall, subject only to certain restrictions not presently relevant, and until appropriated under the sanction of an Act of Parliament be vested in the Crown, and, by s. 5, the bed of the watercourse shall be deemed not to have been alienated from the Crown. By s. 9 (1), it is provided that no person shall obstruct, destroy or interfere with any watercourse which was on alienated land at the time of its alienation. Section 9 (1) gives to the Crown the right in the exercise of its rights to the control of waters in watercourses to enter upon any land and amongst other things remove any obstruction to the bed of any watercourse upon such land. The Rights in Water Act in other sections provides for riparian rights and for the grant of special licences amongst other things to use water. (at p473)

10. By s. 2 a watercourse is defined for the purposes of the Rights in Water Act to mean

"a river, stream or creek in which water flows in a natural channel whether permanently or intermittently"

and "bed" with reference to any watercourse means

"the land over which normally flows or which is normally covered by the water thereof, whether permanently or intermittently but does not include land from time to time temporarily covered by the floodwaters of such watercourse . . ." .

I shall later consider the relationship of these provisions to the matter in hand. (at p473)

11. The first question is whether special leave should be granted, for it is quite plain that the appellant does not have an appeal as of right. The questions which are involved in the case are, first, the proper meaning of the word "watercourse" in ss. 300 and 301 of the Act and, secondly, the power of local government bodies under the Act to enter private land to make or effect changes to a watercourse on such land. That there are serious matters to be discussed in connexion with these questions is undoubted : that the questions raise matters of general public concern and interest, to my mind, goes without saying. Rights and enjoyment of property in land in local government areas throughout the State may be affected both by the definition given to the word "watercourse" and by a decision as to the extent of the power of the local government authorities throughout the State to enter and do work upon private property without payment of compensation for what they do within the statutory description of their powers and without negligence. Also, after hearing argument, there appeared to my mind to be, at the lowest, serious doubts as to the correctness of the Full Court's decision. With all these considerations present, in my opinion, the matter is properly one for the grant of special leave to appeal. (at p474)

12. I turn therefore to the questions raised by the appeal, treating it as having been made pursuant to special leave. The history of the acquisition of the lands in question by the plaintiff and of the efforts of adjoining owners, of the defendant and of the plaintiff to deal with the disposal of water flowing over the adjoining lands and the lands of the plaintiff as the result of heavy rainfall is set out in the judgments of the courts below. I find no occasion to repeat any of that recital: and, in any case, in my respectful opinion, none of it casts any real light upon the problems facing the Court in the plaintiff's suit. (at p474)

13. Section 300 gives to the defendant council as a local government body the care, control and management, inter alia, subject to the two Acts to which I have referred and to any written direction of the Minister for Works, of watercourses which are within the district, that is, within the shire. By s. 301 the council is empowered to "make . . . improve . . . and cleanse . . . watercourses". (at p474)

14. There is no statutory definition of the word "watercourse" in the Act. But the nature of the powers given in respect of watercourses must have a bearing on the meaning to be assigned to it. Those powers are given expressly subject, inter alia, to the provisions of the Rights in Water Act. It seems to me therefore clear that the watercourses which are the subject of s. 300 of the Act must be watercourses which fall also within the scope of the Rights in Water Act. There could be no point, in my opinion, in conditioning the powers given by s. 300 by the terms of the Rights in Water Act unless both Acts were dealing in that respect with the same subject matter. I do not think that the influence of the Rights in Water Act upon s. 300 of the Act is merely to make the provisions of the former Act paramount in relation to such of the watercourses as fall within the operation of both Acts, thus leaving a possible residuum of watercourses which fall only within the Act. Each Act is concerned with the public interest in the flow of water in watercourses. They obviously overlap in relation to the powers they create, and are accommodated to each other by the paramountcy given to the Rights in Water Act. (at p475)

15. I have referred to the provisions of the Rights in Water Act sufficiently to show that a watercourse within the meaning of that Act is such a stream as may involve riparian rights and a flow of water, whether permanent or intermittent, over a defined bed and that Crown rights to its flow may also be involved. (at p475)

16. Apart from these, in my opinion, compelling considerations, the ordinary meaning of "watercourse" would, in my opinion, induce the same conclusion. (at p475)

17. In Gartner v. Kidman (1962) 108 CLR 12 , the majority of the Justices participating adopted a passage from Angell on Watercourses, 5th ed. (1854), p. 3, as stating the meaning at common law of a watercourse, namely:

". . . a watercourse consists of bed, banks and water: yet the water need not flow continuously and there are many watercourses which are sometimes dry. There is, however, a distinction to be taken between a regular flowing stream of water which at certain seasons is dried up and those occasional bursts of water which at times of freshet or melting of ice and snow descend from the hills and inundate the country." (at p475)

18. It seems to me, on an examination of such authorities as exist and of the work of recognized writers on this subject, as well as the decision of the Court, that it is settled that a watercourse consists of a stream with a bed, with banks, and water. That the flow of the water in the stream is intermittent or seasonal will not prevent what would otherwise be a watercourse from being accounted such: but though it is quite true that a watercourse may exist though its bed be dry for some periods, the watercourse, in my opinion, must exhibit features of continuity, permanence and unity, best seen, of course, in the existence of a defined bed and banks with flowing water. It must, in my opinion, essentially be a stream and be sharply distinguished from a mere drain, or a drainage depression in the contours of the land which serves to relieve upper land of excess water in times of major precipitation. It is not enough that the water, when it does flow, does so in what may be seen as a defined course or channel. In the case of a drainage depression, the water being drained off can be expected to flow in the lowest portion of the contours confined by the rising levels of the adjacent land: thus water can be seen when flowing to do so in what could be called a defined channel. If the seasonal rainfall is within an average tolerance in amount and timetable, the flow in the depression may well exhibit some regularity in the depth of water flowing in the contour depression and in the extent to which it spreads as it flows. If there is some such normality in the volume flowing, the impression of a defined channel with limiting margins will be enhanced. If, as I would expect to be the case, there is considerable variation in the rainfall and in the volume and velocity of the water flowing in the depression, the impression of a defined channel may be considerably less. But, in any event, the existence of such a defined channel will not make the drainage depression a watercourse nor the limiting margins of the water's flow in a rainy season or period "banks" of a stream. Thus, though water when it flows in such a period flows in what can be called a defined channel, such a drainage depression will lack banks and a bed in the proper sense of that term, that is to say, identifiable margins of a continuous and permanent stream which contribute to its unity whether or not water is in fact continuously flowing over the bed. The word "occasional" in the quotation from Angell on Watercourses will here, in my opinion, embrace seasonal events, even if they occur with some regularity from season to season. (at p476)

19. Reliance was placed in argument and in the Court below upon a passage in Gartner v. Kidman (1962) 108 CLR, at p 27 . It was suggested that that passage supported the view that, when riparian rights were not directly in question, the word "watercourse" ought to be given a less stringent connotation and be satisfied by a depression which in time of surface inundation by rainfall provided the natural course or outlet for the surface water. But in truth that passage of my brother Windeyer's reasons for judgment, as I understand them, does not in the least give countenance to any such notion. Perhaps his quotation from Thompson v. Andrews (1917) 39 SD 477; 165 NW 9 quoted in 81 Am.L.R. 263 in that passage best indicates that the looser use of the word "watercourse", of which an example may be seen in the evidence of the engineer in this case, has no place when reference is made to a watercourse in a statutory setting where powers over and with respect to it are being created. In my opinion, nothing in the reasons of the majority in Gartner v. Kidman (1962) 108 CLR 12 justifies the conclusion that the word "watercourse" as found in the Act is satisfied by a contour depression carrying off surface water in times of seasonal rainfall even when the water at such times flows in what might fairly be described by laymen as a defined channel with identifiable margins within the contour depression. (at p477)

20. With these considerations in mind, I have examined and re-examined the evidence given before the primary judge and the reasons for judgment in the courts below. In my respectful opinion, the evidence did not warrant the conclusion that there is a watercourse upon the plaintiff's land. It seems to me, with every respect, that the Supreme Court, both at first instance and on appeal, did not apply the right criteria in deciding that there was such a watercourse, and in particular did not give due weight to the decision of this Court in Gartner v. Kidman (1962) 108 CLR 12 . (at p477)

21. I should like to refer to the evidence in some detail in order to indicate the basis for my own conclusion that the contour depression on the plaintiff's land in which water flowed following heavy winter rainfall was neither a watercourse nor part of a watercourse as that phenomenon ought to be understood. (at p477)

22. The trial judge believed the evidence of a witness named Kerruish and the Full Court relied heavily upon it in reaching its conclusion. It is therefore as well that I begin my examination of the relevant evidence with some observations upon that witness' account of what he had observed on the plaintiff's land. He had long been familiar with the general area in which the plaintiff's land is to be found. He said that water flowed in what he referred to as "the creek" while the rains were on, drying up very quickly once the rain had finished. He said the water, when flowing, flowed in a defined channel which had defined sides for "most of the way" though in one part it was a flat basin. He said that there was a fairly deep defined channel through the vineyards which was kept fairly clean. The flow of water was generally confined to the period from the end of June or early July till late in September or early in October varying from year to year. Though he did not expressly say so, it would seem from his evidence as a whole that the water overflowing some swamps on higher ground in a time of winter rains came into the channel of which the witness spoke and provided at least some of the flow of water. (at p477)

23. The other evidence, apart from that of the plaintiff and the shire clerk of the defendant, which dealt with the physical features of the land, was the evidence of a consulting engineer who had inspected the area. I will extract some passages of his evidence :

"Can you tell his Honour what you observed when you inspected the property in 1959? - A low depression running in general from north to south. There had been some digging in what appeared to be the normal surface of the ground in the depression at the northern end. There was kikuyu grass growing in the area. You are still referring to Knezovic's property? - Entirely Knezovic's property. The width over which kikuyu grass was growing was approximately fifteen feet. I could walk on either side of that on comparatively dry ground. Did you notice anything else? - Not on Mr Knezovic's property, sir. On the land to the north there had been dug a drain which did not appear to be in the centre of, or near of what one might call a natural watercourse. That is all I noticed about it. With reference to the Knezovic property, is that a flat piece of land, or otherwise? - It is not flat. From the eastern and the western boundaries the land slopes fairly gently towards a north-and-south approximate line forming the depression, from this northern boundary to the boundary on Benara Road. It is shown on the contours on the drawing, of course. MR MARIAN : The land on lot 2 - which is the adjoining property - is that a higher level than Knezovic's land? - In general it is approximately the same level for the depression that passes through it and for the sloping banks, but it does not run in a north-south direction ; it runs more in a northeast to south-west direction for the depression. Do I understand you to say that there is a depression running east to south on lot No. 2 and the adjoining block? - On the block north of Mr Knezovic's the depression runs generally from the north-east to the south-west and the depression then changes direction at approximately the fence denoting the boundary. Is that visible? - Oh, completely visible. If there were any accumulation of water in the depression on lot 2 would that stay there, or would it flow anywhere? - It would depend on the amount of rain which had fallen. It is not a watercourse in the sense of a stream running down a hill. It is a series of shallow depressions, not necessarily at the same levels, but when sufficient rain has fallen the water would run in this direction defined in the discussion to date, and this depression down the area of lot 2 into Mr Knezovic's property. But the level of the centre of the depression is not constantly falling; it can rise a small amount, fall again and so forth. When it reaches this ridge which happens to be practically on the boundary, when it is full, what happens to the water then? - It flows over on to Mr Knezovic's property, down to the southern end of it, through this depression, where it runs against kikuyu and obstructions adjacent to his southern fence, and thence under a culvert beneath Benara Road." . . . .

"MR DOWNING : This depression of which you have spoken is clearly defined both on Knezovic's land and on lot 2 to the north of Knezovic's land? - Yes, and further on again. Yes - I was coming to that. You told us, I think, that it could be described as a natural watercourse? - From an engineering point of view, yes. You explained that the bottom of it was not a continuous fall; it had variations in the levels, but the general flow of water (assuming there was sufficient water to flow) would be from the north-eastern corner of lot 2 in an almost westerly direction through lot 2, turning south and down through lot 4 - is that correct? - South-westerly through lot 2 and then almost south through lot 4. You said to me a moment ago that it went further back than the north-eastern boundary of lot 2. At that point I think there is a culvert under Arthur Road, is there not? - Yes. Then could you follow this depression back on the eastern side of Arthur Road? - Yes, quite easily. How far? - Across West Swan Road - generally north on the east side of West Swan Road - then crossing to the west of West Swan Road and up in a general north-north-westerly direction to the swamp shown on your drawing. When you inspected the land in 1959 what time of the year was it? - I think it was June. The date is in the file." . . . .

"MR DOWNING: It is not important. I was going to ask you : Was there water flowing? - No - not water flowing. It was moist. As I recall it, there was no water even in the drain on lot 2. Your inspection on 21st August - did that reveal there was any water flowing then? - There was no water flowing. So you have never actually seen the depression with water flowing through it? - Not that depression, no." . . . .

"It shows as a line, does it? - Yes, and it follows the course of drains which are not in the natural depression. This is the course the water actually flows at the moment. MR DOWNING: The drains you say are not in the natural depression? - Well, along the line of West Swan Road they are not in the natural depression. That goes a chain or two to the east of West Swan Road. Anywhere else? That the water does not flow in the natural channel? - Yes; I should think in probably half a dozen places but the divergence would only be perhaps twenty feet. This has been occasioned by the digging of the drain which in my opinion is not on the centre line of the original depression." . . . .

"Could you tell his Honour generally where the water originates and flows down this watercourse? - The beginning of it is the swamp shown on the drawing - 'north-north-west of Mr Knezovic's property'. For a distance of about how far? - About 2 1/2 to 3 miles I suppose. I haven't scaled it off. I worked out areas of run-off not distances, and they are shown on that drawing. It picks up water, of course, from the natural slopes for the whole of its distance from the swamp to the north-north-west down to Mr Knezovic's and in fact beyond - south of Mr Knezovic's property - before it reaches the Swan River. MR DOWNING: Throughout its course it flows in a depression which would naturally pick up water from the higher land on each side of it? - Yes." . . . .

"MR SEATON: You refer to a watercourse. Do you know the legal requirements which constitute a watercourse? - No. I did say 'from an engineering point of view'. I notice you use the terms interchangeably. You refer to a depression and sometimes you refer to a watercourse? - In this case, yes. From your observation are you able to say what was the nature of the water which would flow along that depression - what was its origin? Was it from springs? - I do not believe it is from springs at all, but I have not been instructed to - nor had the right - to go onto properties to determine whether there are springs. From observation, the head water or source of this particular path of possible water is in the swamp shown on the drawing - north, north-west of the subject land. At neither of the times you examined the premises was there water flowing? - No. So that would indicate, would it or would it not, that any water flowing there did not have its source in the spring or springs? - I don't believe that it has any source in springs at all, but it is entirely rainfall causing the depression, I believe. In other words surface water? - Yes. Precipitated on surrounding country, it naturally flows to the lowest level? - Yes, and in a relatively dry season I don't think you would have a stream flow at all; but from an engineering point of view the watercourse would be where the water flowed because of levels and so on shown on those contour drawings. Of course, that applies to the swamp; you say the depression has its origin at a swamp and so there would be no overflow into the depression until rainfall raised the height of the water? - Yes." (at p480)

24. The defendant apparently relied upon this evidence of the engineer, deciding not to call an engineer at its disposal because, as I understand the matter, his evidence would only be confirmatory of the evidence to which I have referred. (at p481)

25. The trial judge gave no emphasis to the need for banks marking the margins of the bed of a stream nor to the elements of permanence, continuity, and unity of the stream itself; he accepted the plain and ordinary meaning of the term "watercourse" to be the bed or channel of a stream; but accepted evidence that the surface water of the immediate locality in times of winter rains flowed in a defined channel with defined margins as satisfying the requirements of banks, bed and stream. (at p481)

26. The submission of the now respondent which the Chief Justice accepted was that "the line of the fold of the land referred to forms the bed of a watercourse". His Honour says that the evidence of the consulting engineer "establishes that there was a north and south longitudinal line of depression from the northern boundary of the plaintiff's land" down to the Benara Road frontage. The contours point to this conclusion. (at p481)

27. The question of fact may not, in any case, be easy to resolve. In this it is made more difficult by the unsatisfactory way in which the evidence was led and by the failure of both parties to sufficiently address themselves to what, in my opinion, are the basic elements of a watercourse. If I thought that the courts below had applied right criteria, I would hesitate to disturb their resultant finding of fact. But as I have said, in my opinion, they did not. Consequently, this Court must decide for itself whether or not upon the evidence, there is a watercourse on the plaintiff's land. (at p481)

28. The picture I obtain from the evidence and from the contour plan in evidence is one of a drainage depression lacking the essential elements of a watercourse. It seems to me to have had no bed, no banks as of a permanent and continuous stream, and no more flow of water than a surface discharge during a period of heavy rainfall could provide. It was not, in my opinion, a watercourse within the meaning of the Act. (at p481)

29. It was submitted that because the council by virtue of s. 301 could form a watercourse, the limitation which I have expressed in relation to the meaning of the word "watercourse" could not properly be made. However, I am by no means convinced that s. 301 (a) properly construed does authorize the making or formation of a watercourse. It may well be that the collocation of verbs should be distributed to those nouns to which they are in truth appropriate and applicable and that only some of them can properly be related to watercourses. But, however that may be, I find no difficulty in the view that, if the council may make or form a watercourse, what it makes must result in a stream with bed, banks and a flow of water of such permanence and continuity that riparian rights will be attracted, the use and flow of the water therein being vested in the Crown. Of course, in practice I should imagine that what a council will construct will be drains: it would, in my opinion, have great difficulty in making a watercourse, though, I grant, such an exercise is not impossible. The diversion of a stream may be an example. In any case, I do not think that the power, if it exists, and can be exercised, to make and form a watercourse, in any wise prevents or impairs the conclusion I have drawn as to the proper meaning of the word "watercourse" in ss. 300 and 301 of the Act. (at p482)

30. Being of this opinion, I find no need to decide the second question which the appeal would raise if I thought that there was a watercourse upon the plaintiff's land. But it may be that where a watercourse such as I have described runs through private land, the vesting of the use and flow of the water thereon in the Crown, and of the power of entry by the Rights in Water Act, may assist the conclusion that ss. 300 and 301 do, by implication, give the local authority a right to enter for the purpose of clearing such a watercourse. However, as I have said, I have no present need to reach a conclusion in the point. (at p482)

31. In my opinion, the appeal should be allowed. The declaration sought by the plaintiff in par. 1 (a) should be made and an injunction granted to restrain the defendant, its servants and agents from entering the plaintiff's land in order to do any work upon the plaintiff's land by way of removing any obstruction to the flow of water through or away from the plaintiff's land. (at p482)

McTIERNAN J. I agree in the judgment of the learned Chief Justice. (at p482)

KITTO J. I desire to reserve my opinion as to the difference if any between a drain and a watercourse; but subject to that I agree entirely in the judgment of the Chief Justice which I have had an opportunity of reading. (at p482)

TAYLOR J. I have had the advantage of considering the reasons prepared by Owen J. in this matter and I agree that special leave to appeal should be refused. But I do not agree that any attack was made on the Full Court's reasons on the ground that there had been any misapprehension of relevant principle. Indeed any such contention seems to have been expressly disavowed. As I understood the argument it was that the evidence was not capable of supporting the conclusions reached by the Full Court and that those conclusions were against the weight of evidence. I should, perhaps, add that, in my view, the Full Court did not misdirect itself and that, for the reasons given by my brother Owen, special leave should be refused. (at p483)

OWEN J. The plaintiff, who owned a block of land in the district of the Shire of Swan-Guildford, took proceedings in the Supreme Court against the shire alleging that the defendant threatened to enter his land "in pretended exercise of its right to clear an alleged watercourse on the land" and seeking a declaration that there was no watercourse on the land and an injunction to restrain the defendant from entering. (at p483)

2. Two questions arose for decision. First, whether a "watercourse", within the meaning of the Local Government Act, ran through the plaintiff's land; and, next whether, if there was such a watercourse, the defendant was entitled to enter upon the land for the purpose of cleaning out the watercourse and removing obstructions to the flow of water in it. Under s. 300 of the Act the council of a shire is given the care, control and management of (inter alia) drains and watercourses within its district subject, in the case of watercourses, to the Rights in Water and Irrigation Act, 1914, the Water Boards Act, 1904, and any direction in writing of the Minister of Works except where and to the extent that under an Act another authority has that care, control and management. By s. 301 (a) the council is empowered to maintain and keep in good order and condition drains and watercourses which are under its care, control and management and do all such acts and things as are necessary for or incidental to the proper care, control and management of them. Section 338 (1) makes it an offence to obstruct a drain or watercourse which is under the care, control or management of a council and, by s. 338 (3) it may require the person who has created or caused such an obstruction to remove it and repair and make good the drain or watercourse and, if he does not comply with the requirement, it is authorized to enter upon the land and carry out the necessary work. (at p483)

3. The judge of first instance, D'Arcy J., held that the word "watercourse" as used in the Local Government Act meant "the bed or channel of a stream" and that a depression - to use a neutral word - which ran through the plaintiff's land complied with that description. His Honour based that finding upon the evidence of a Mr Kerruish who had lived on the land in question for many years before the plaintiff's occupation of it. His evidence was to the following effect. As a child he had played in the "depression" which, he said, he and his playmates used to call the "creek". During the rainy season water flowed down it but it would dry up quickly once the rains had finished. It had, he said, defined sides "for most of the way" although "in one part it was a flat basin". It flowed in a "defined channel" and at times the water in it would reach a depth of about three feet. The flow of water would generally begin about the end of June or early in July and finish in late September or early in October, varying from year to year according to the amount of rainfall in the winter months. From other evidence which was given it seems that most of the water which came down the "depression" in the wet season consisted of the overflow from an area of swamp some two and one-half miles north of the plaintiff's land and that after passing through the plaintiff's land it ultimately flowed into the Swan River. At places where the "depression" crossed roads, culverts were made to carry the water under them. (at p484)

4. Having found that the "depression" was a watercourse, D'Arcy J. went on to consider whether the defendant had the right to enter the plaintiff's land to clear away obstructions to the flow of water. He seems to have taken the view that the council was claiming to enter under s. 301 (a) and to have considered that no such right was conferred by that provision. The defendant's claim to enter the land was based, however, upon s. 338 (3) since the plaintiff had obstructed the flow of water by ploughing and cultivating the land and to some extent filling in the "depression" and, having been required by the defendant to remove the obstruction, had failed to comply with that requirement. (at p484)

5. In the result his Honour made a declaration that there was a watercourse on the plaintiff's land but, holding that the defendant had no right to enter the land to clear obstructions in the watercourse, he granted an injunction restraining the defendant from making any such entry. (at p484)

6. The defendant appealed to the Full Court against the finding that it had no right to enter the land and the plaintiff cross-appealed against the declaration that the "depression" was a watercourse. The Full Court dismissed the cross appeal and allowed the appeal. (at p484)

7. The plaintiff thereupon purported to appeal as of right to this Court and an objection to the competency of the appeal was made by the defendant. This was followed by the lodging by the plaintiff of an application for special leave to appeal. When the matter came on before us, counsel for the plaintiff at first contended that an appeal lay as of right but it at once became apparent that there was no material upon which it could be found that the judgment appealed from was one given in respect of a sum or matter at issue amounting to or of the value of $3,000. Counsel thereupon applied for special leave to appeal and on that application we heard everything that the parties wished to submit by way of argument as to the correctness or otherwise of the Full Court's decision. (at p485)

8. The Local Government Act contains no definition of the word "watercourse" and counsel for the plaintiff submitted that the definition of that word appearing in the Rights in Water and Irrigation Act should be applied. The last-mentioned Act defines "watercourse" to mean "a river, stream, or creek in which water flows in a natural channel, whether permanently or intermittently". I can see no reason why that definition should be imported into the Local Government Act and there is at least one good reason why it should not since it is plain that, for the purposes of the Local Government Act, there need not be a natural channel to constitute a watercourse, the channel may be an artificial one (see, for example, ss. 301 (a) and 315 (a)). Next it was submitted that, if there was a watercourse on the plaintiff's land, s. 4 of the Rights in Water and Irrigation Act vested the right to the use and flow of the water in it in the Crown and that because s. 300 of the Local Government Act was expressed to be subject to the Rights in Water and Irrigation Act, the watercourse could not be under the care, control and management of the defendant. This point had not been taken before D'Arcy J. or in the Full Court and our attention was drawn by counsel for the defendant to s. 27 (3) of the Rights in Water and Irrigation Act, the effect of which is to declare that Pt III of that Act - and s. 4 is in that Part - shall not apply to any watercourse if the water therefrom is not required for irrigation under Pt IV of the Act unless and until a proclamation is made declaring that Pt III does apply to such watercourse. If the point had been raised at the trial, the matters to which s. 27 (3) refers could have been investigated and, from what we were told by counsel for the defendant from the bar table, it seems unlikely - to say the least of it - that the investigation would have assisted the plaintiff. In my opinion we should not allow this contention to be raised at this late stage of the proceedings. (at p485)

9. Finally it was submitted that their Honours in the Full Court had misdirected themselves as to the meaning of the word "watercourse" in the Local Government Act and that, had they given the word its correct meaning, the "depression" in question could not have been found to be a watercourse. In the Full Court Wolff C.J. after referring to the meaning given to the word in the Shorter Oxford English Dictionary, went on to quote a passage from Angell on Watercourses, which was cited with approval by Windeyer J. in Gartner v. Kidman (1962) 108 CLR 12, at p 26 . The passage is as follows:

"A watercourse consists of bed, banks and water; yet the water need not flow continuously; and there are many watercourses which are sometimes dry. There is, however, a distinction to be taken between a regular flowing stream of water, which, at certain seasons is dried up, and those occasional bursts of water which in times of freshet or melting of ice and snow descend from the hills and inundate the country."

Applying that definition the learned Chief Justice considered that D'Arcy J. had rightly found that the "depression" was a watercourse. Nevile and Negus JJ. were of the same opinion. (at p486)

10. Apart from the contention which I already have mentioned and rejected that the definition in the Rights in Water and Irrigation Act should be applied, I have found it difficult to ascertain what exactly is the meaning which counsel for the plaintiff sought to place upon the word "watercourse". The substance of his complaint seems to be, however, that since water flowed in this "depression" only during the rainy period of the year and, during the summer months, the flow of water ceased, a finding that the "depression" was a watercourse was not open on the evidence. The evidence of Mr Kerruish points, however, to the fact that the "depression", throughout most of its length, consisted of a defined channel with a bed and banks and, in these circumstances, the question whether the flow of water in it was sufficient to enable it to be described as a "watercourse" seems to me to be one of degree and therefore of fact. In deciding that question the climatic conditions which prevail in the district must be taken into account as must the fact that the relevant provisions of the Local Government Act are concerned not so much with watercourses in respect of which riparian rights may exist but rather with the provision and maintenance of drainage in areas which are under the control of a local governing authority. (at p486)

11. In the course of his argument counsel referred to Gartner v. Kidman (1962) 108 CLR 12 but I have found nothing in that case which throws light on the meaning of the word "watercourse" as used in the Local Government Act. In my opinion the conclusion that the "depression" which traversed the plaintiff's land was a "watercourse" within the meaning of that Act was one which might properly have been reached and I do not find in the judgments of their Honours in the Supreme Court any sound reason for thinking that their decision was based upon a wrong principle. (at p487)

12. Special leave to appeal should, in my opinion, be refused. (at p487)

Orders

Special leave granted. Appeal allowed with costs. Order of the Supreme Court of Western Australia (Full Court) set aside and in lieu thereof order that the judgment of Mr Justice D'Arcy given on 19th September 1966 be varied by adding a declaration that there is no watercourse within the meaning of ss. 300 and 301 (a) of the Local Government Act, 1960 of the State of Western Australia within the lands of the appellant described in the statement of claim as the whole of the land comprised within certificates of title vol. 1079 folio 598 and vol. 450 folio 83. Otherwise dismiss the appeal to the Full Court with costs and allow the cross appeal with costs.