Morland v Chief Executive, Department of Natural Resources
[1998] QLC 30
•13 March 1998
LAND COURT BRISBANE
[1998] QLC 30
13 MARCH 1998
Re:In the matter of six appeals under Section 51 of the Water Resources Act 1989 against the decision of the Chief Executive, Department of Natural Resources, with respect to the granting of Waterworks Licence No. G-0111185 to MA Kent in respect of Lot 41 on RP 835732, Parish of Cedar. The matters relate to the following appellants:
Geoffrey S and Jan Morland (A97-01) (Owners/Occupiers of Resub 1 of Sub 2 Portion 33 and Resub 1 of Sub 24 and Sub 3 Portion 41, Parish of Cedar, County of Ward) (Now Lot 2 on RP 101177) v. Chief Executive, Department of Natural Resources
AM and MA Jackson (A97-02) (Owners/Occupiers of Lot 141 on WD 5611, Parish of Cedar) v. Chief Executive, Department of Natural Resources
RC and CA Conrad (A97-03) (Owners/Occupiers of Lot 77 on RP 206220, Parish of Cedar) v. Chief Executive, Department of Natural Resources
H and MY Broersen (A97-05) (Owners/Occupiers of Lot 18 on RP 174653, Parish of Cedar) v. Chief Executive, Department of Natural Resources
Raymond E and Norma A Aston (A97-06) (Owners/Occupiers of Lot 17 on RP 174653, Parish of Cedar) v. Chief Executive, Department of Natural Resources
John K and Brenda M Powter (A97-07) (Owners/Occupiers of Lot 3 on RP 161313, Parish of Cedar) v. Chief Executive, Department of Natural Resources
(Hearing at Brisbane) D E C I S I O N
Introduction:
These matters came before the Court on 13 October 1997, and were heard concurrently with the approval of all parties. Each appellant conducted his own case and gave evidence on his behalf except for Mr Broersen, whose case was conducted by Mr Aston. It was agreed by the appellants and the respondent that, as the cases contained substantive issues impacting policy for the Department of Natural Resources, the Court would hear the whole of the evidence before making any decision in respect of whether jurisdiction existed in the matters of Jackson (A97-02) and Conrad (A97-03). In the spirit of that agreement, I will now consider all of the matters brought before the Court, before making any decision of a jurisdictional nature.
In preparing their cases, Messrs Aston and Broersen belatedly subpoenaed the appearance of Mr Mark Denman, Valuation Officer, Department of Natural Resources, to
confirm Mr Aston's evidence in respect of the valuations of riparian and non-riparian parcels in the Wongawallan Creek catchment area. Following discussions between the parties, as Mr Denman's evidence was only of a broad confirming nature, and as he is not a registered valuer, it was agreed to release Mr Denman who was subsequently not required to provide evidence in the matter.
Mr GS Morland, Mr AM Jackson, Mr RC Conrad, Mr RE Aston and Mr JK Powter appeared and gave evidence for the appellants, with Mr Aston also calling evidence from Mr H Broersen. Mr K Fisher, Counsel, appeared for the respondent, calling evidence from Mr BWT Brogan, the departmental officer responsible for recommending the approval of the licence by the Chief Executive.
Background:
These matters concern appeals against the granting of Waterworks Licence No. G- 0111185 for the use of works involving the establishment of a 50 mm pump on Wongawallan Creek for stock-watering and domestic purposes to MA Kent on his property, Lot 40 on RP 835732. Mr Kent's property is located at Lot 40, Gladrose Crescent, Wongawallan, has an area of 3.395 ha, and is a non-riparian property, separated from Wongawallan Creek by the property of Mr L Graham (Lot 41 on RP 835732).
Mr Kent had initially applied for a licence in 1994, which was subsequently issued as Licence No. G-0110794 on 28 September 1995. Appeals against that decision were lodged in the Land Court by RE and NA Aston (A95-73 and A95-86), GS and J Morland (A95-79 and A95-87), and JK and BM Powter (A95-74). The matters were listed for hearing by the Court on 31 May 1996, but were subsequently adjourned at the request of the Chief Executive, Department of Natural Resources, in order to allow a new licence to be issued to Mr Kent on 28 November 1996, in view of the failure by the appellants to lodge a copy of the appeal against the former licence with the Chief Executive, as required by the Act. This approach was suggested by the Chief Executive in order to afford the appellants some right of appeal, which might otherwise have not been available under the Act. The former appeals (A95-73, 74, 79, 86 and 87) were subsequently withdrawn by the appellants.
Location:
Wongawallan Creek is located in the Gold Coast hinterland, approximately 10 km inland from Oxenford. Tributaries of Wongawallan Creek include Howard and Tamborine Creeks. With the exception of the Powter property, which is on the eastern side of Wongawallan Creek opposite the Graham property, all other appellants are located in a direct line upstream of the Graham property at distances approximately:
Morland - 1.1 km;
Jackson - 2.2 km;
Broersen - 2.3 km;Aston - 2.4 km;
Conrad - 3.6 km.
The Conrads are near the intersection of Howard and Wongawallan Creek, and the
Jacksons, Astons, Broersens and Morlands are all upstream of the confluence of Tamborine and Wongawallan Creeks. Both the Astons and Broersons are bisected by an unnamed tributary of Wongawallan Creek.
The Licence:
The Kent property (Lot 40 on RP 835732) is not connected to any town-water supply, and the property relies on a 32,000 litre tank filled from roof water, and a small dam for stock- watering purposes. On 10 May 1996, following discussions with the Chief Executive's representative, Mr Brogan, Mr Kent reapplied for a licence for a 50 mm pump for stock- watering and domestic purposes under s.39(1), s.39(2) and s.39(3) of the Water Resources Act 1989 (the Act). The application was supported by the written authority of 3 October 1994 from the adjoining riparian owner (L Graham) as required under s.4.14 of the Act, in order to locate the proposed pump upon Mr Graham's land.
The application was advertised in the "Gold Coast Bulletin" on 12 June 1996, in accordance with s.42 of the Act and was also referred to the secretary of the Wongawallan Creek and Tributaries Water Advisory Committee (WAC) on 3 June 1996 for comment. Objections to the application closed on 5 July 1996.
At the close of objections a total of 30 objections were received, 20 of which, unfortunately, had incomplete property descriptions and illegible signatures, thus making further communication with the parties difficult for the Chief Executive. While some personal effort was undertaken to clarify the matters, because of a breakdown in communication, only 10 objection were acknowledged (including five of the appellants). Offers for further personal representations were not followed up by any of those five objectors.
In considering the objections, the Chief Executive made inquiries into the effect of granting the licence on the supply of water for the requirements of:
(i) riparian owners;
(ii) licensees;
(iii) permittees;
(iv) the applicant;
(v) persons under s.4(a) of the Act and,
any likely effect upon the entitlements of riparian owners, licensees and permittees.
The likely annual water needs of the Kent property were based upon agreed departmental standards. The "Farm Advisory Manual" standards estimate that annual usage is approximately:
· domestic - 65,000 litres per person
· gardens - 4 megalitres per ha (similar to irrigation)
· stock - 50 litres per head per day (20,000 litres per head).
Mr Kent's licence requirements therefore were estimated, based upon four persons, six large animals (horses or cattle) and a large garden of about 0.25 ha, to be:
· stock watering - 0.12 megalitres
· domestic - 0.26 megalitres
· garden - 1 megalitre
· Total - 2 megalitres annually.
These requirements were then considered within the context of the anticipated water catchment resource of the Wongawallan Creek and its tributaries. While there is no departmental gauging station within the catchment, from his extensive experience in south-east Queensland, Mr Brogan estimated that Wongawallan Creek has a better-than-average water supply, compared to other streams in the region, a matter later challenged by the appellants.
In order to provide some quantification of the water resource, Mr Brogan determined an hydraulic assessment of catchment yield for the catchment area above the Kent property (estimated at 3,520 ha). He used a prediction methodology of the Soil Conservation Service of the United States Department of Agriculture, which considers soil type, vegetation, condition and land use, and assesses anticipated "run-off" over a 30-year period of daily annual rainfall figures. Based upon these calculations, he estimated that in 75% of the years, the run-off is expected to be 117.4 millimetres, giving an expected catchment yield of 4,118 megalitres. Mr Brogan further concluded that, as the modelling excluded any "spring flows" within the catchment, because of their unpredictability, then the predicted yield was likely to be more of a minimum determination, where low flow springs in the watercourses are known to occur, such as in the Wongawallan Creek system. Mr Brogan based his rainfall figures on the 30-year records of a gauge at Oxenford between the period 1920 and 1949.
In considering the then anticipated authorised use of water in that catchment, Mr Brogan was aware that, from departmental records, there were 70 authorisations to take water, including 26 megalitres under permits and 97 ha for irrigation under licences. None of these users have metered pumps, so that estimates only were available. In addition, many of the licensees have authorities for stock-watering purposes. The anticipated known authorised uses per annum were:
· stock and domestic supplies - 59 megalitres
· irrigation (97 ha x 4 megalitres per ha) - 388 megalitres
· other (aquiculture) - 20 megalitres
· Total - 467 megalitres
Based upon this assessment, Mr Brogan concluded that the anticipated 2 megalitres for Kent would have no deleterious impact upon the current users, and recommended approval of the licence, which issued on 28 November 1996. The licence authorises the use of a 50 mm centrifugal pump for domestic and stock-watering purposes, and is subject to the special condition:
"Diversion of water under the authority of this Licence is prohibited whenever
restrictions are imposed by the Chief Executive on diversion from the watercourse, lake or spring on which the licensed work is authorised to be
installed."
When approving the licence, Mr Brogan was aware that three previous licences (two still current), had been issued to non-riparian land owners, and there was no previous record of any refusal of a non-riparian owner application in the catchment.
The Appeals:
In the context of this matter it is noted that all six appellants agree that the licence to the Kent property will have a negligible, or no impact, upon their personal properties. They accept that on its merits there is little argument with issuing the licence to Mr Kent. All except the Powters are upstream of the intake point for Kent's licence. Each appellant, however, argues that the Kent licence will create some precedent for possible non-riparian users in the catchment, which will eventually impact current riparian rights, and the overall environmental health of the stream. Each appellant challenges the current stream management practices of the Department. In seeking to fully understand their concerns, I will deal with each appeal separately:
(1)Morland - The Morland property is part of three former separate parcels with a
total area of 33.443 ha, located more than 1 km upstream of the Graham property. It has a current water licence for a 40 mm pump for stock watering, and 5 ha of irrigation, providing a possible annual usage of 21 megalitres of water. Mr Morland has two nurseries, one riparian and one non-riparian, and has several dams on his property. He argues that excessive depletion of water will have a detrimental impact upon marine life in the creek. He also argues that as riparian owners have had to pay considerably higher prices for their land than non-riparian owners, the granting of water licences to non-riparian land is likely to impact the overall market value of the riparian land. He claims that non-riparian users of water should seek their supplies from dams and bores upon their land.
(2)Jackson - The Jackson property has an area of 3.058 ha and is located more than 2 km upstream of the Graham property, with a frontage to Wongawallan Creek of about 1 km. They have a bore upon the property and choose not to pump water from the creek in order to assist in maintaining the environment of the waterway. In choosing not to exercise their riparian rights for water, they seek to preserve the pleasant environment of their home, and the natural wildlife and flora of the area, and native strips along the creek banks. Their concerns are primarily with the possible precedent that the licence to a non-riparian owner might create, and any resulting consequential deleterious impact upon the environment, and the future market value of their property, as a consequence of ill-planned management of the stream.
(3)Conrad - The Conrad property is more than 3 km upstream of the Graham property, near the confluence of Howard Creek, has an area of 3.706 ha, and has a licence for a 40 mm pump and an annual usage of about 1 megalitre of water. As conservative users of water from the creek, they estimate their annual usage is likely to fall well within that authorisation.
Their major concern is that the Kent licence may set a dangerous precedent for other non-riparian users of water in the catchment. Mr Conrad provided maps of the catchment which he claims support his concerns of the extent of additional potential impact upon the water reserves as a consequence of other non-riparian lands in the catchment. There was no evidence, however, of the existence of any further applications from non-riparian properties at this time. He also raised the matter of the possible impact upon the values of riparian lands as a consequence of the granting of water rights to non-riparian lands. Mr Conrad cites serious depletion of water in the creek over recent years.
MrConrad argues that the Kent licence is really a test case to challenge the precedent which would be established for non-riparian properties. He argues that any further proliferation of water licences to non-riparian owners would, in his opinion, have a major impact upon the livelihood of various current users of water from the creek, who depend upon the creek for water. While the current appellants have no intentions of further subdividing their properties, Mr Conrad believes others do, which would further exacerbate the problem.
(4)Aston and Broersen - These two properties are contiguous, and are located about 2.5 km upstream of the Graham property. The properties have areas of 3.783 ha (Aston) and 3.17 ha (Broersen), and both have an unnamed tributary to Wongawallan Creek which bisects the properties, part of which has been fenced off to protect native wildlife and native trees. These wildlife corridors are aimed at protecting the environmentally sensitive land from erosion and degradation from cattle, which has been significant upstream of Tamborine Creek.
Theirgrounds of appeal are based upon the adverse impact upon the flora and fauna as a consequence of bad stream management practices by the Department. They claim these bad practices involve:
·not encouraging non-riparian owners to store water on their own properties;
·encouraging other non-riparian owners to apply for water licences, thus further depleting the available water resource;
·imposing conditions in licences which are difficult, if not impossible, to regulate;
·providing licences to non-riparian owners which are likely to severely impact marketplace valuations of properties;
·using licences which create additional demands on a finite resource upon which the local plant and fauna depend.
MrAston provided evidence of riparian and non riparian properties in the area which, he claims, supports the difference in marketplace values of properties associated with direct access to the waterway (Annexure B). He also gave evidence of the history of previous restrictions on water usage from the creek and the growth in the number of water licences issued as follows:
Prior to 1981 - 5 Licences - 21 ha irrigated Prior to 1986 - 6 Licences - 21 ha irrigated Prior to 1991 - 17 Licences - 41.2 ha irrigated Prior to 1996 - 54 Licences - 87 ha irrigated Currently - 61 Licences - 92.7 ha irrigated.
Henoted the large increase in 1996 resulted from a monitoring of unlicensed users by the Department who then, sought retrospective registration of the illegal operations.
MrAston argues that excessive prolonged pumping from the river by major water users, mainly for irrigation, in periods of low flow, has resulted in an ongoing "lowering of the water table and the disappearance of surface flows". To support this claim, he cites an environmental impact statement prepared by consultant town planners in December 1991 to support an application to the Albert Shire Council for a temporary quarry permit.
TheBroersens have a licence for a 40 mm pump and a 2.5 metre high dam on their property. The licence is for environmental enhancement, domestic, stock watering and for 1 ha of irrigation, although the irrigation is currently not used. They have an entitlement of 5 megalitres of water annually, and have generally an adequate water supply, only once seeking restrictions to be imposed during one very dry period.
BothMr Aston and Mr Broersen have a realistic acceptance of further development in the catchment from urbanisation, but reject unreasonable and ill-managed intrusion into the environment. Both were members of a local action group that successfully lobbied the Albert Shire Council to prevent the establishment of a temporary quarry on Wongawallan Creek (the Currey's property which is well upstream of the Graham property).
(5)Powter - The Powter property is the nearest to the Graham land and is opposite the likely intake point for the Kent licence. Mr Powter is a long-term resident of the area (18 years) and is particularly concerned with recent approvals of licences granted to non-riparian users, particularly a commercial nursery (Tropicana Nursery) downstream of his property. That nursery apparently has approval to pump from the creek (near Audrey's Crossing), for three days each week, which has an adverse impact upon the waterhole upstream, from which Mr Powter draws his water. To Mr Powter's knowledge, he believes Mr Kent has not yet installed his pump, but he anticipates that when he does so, it will be in the same waterhole as Mr Powter's pump, either slightly upstream or downstream.
MrPowter has seen the creek "bone dry" during recent dry periods, and he is concerned that extra licences will further impact the supply of water. He believes the condition of the creek is not as good as the Department believes, although he has no records to prove that. Mr Powter notes that nurseries are located both upstream and downstream of his land, but it is the downstream nursery (Tropicana) that causes the depletion of water.
That nursery pumps the waterhole dry below Audrey's Crossing, and then shifts, with departmental permission, to pump from the waterhole upstream of the crossing. It is the depletion of this second site, while still downstream of the Powters' land, that causes impact upon the waterhole used by Powter and possibly Kent in the future.
MrPowter acknowledged the possible impact of the Morlands' two nurseries upstream of him, but felt he could also be impacted by further pumping downstream by the Tropicana Nursery. However, he felt that, as riparian owners, the Morlands had greater rights to the water than did the non-riparian Tropicana Nursery. When the Morlands' licence was approved, Mr Powter did not appeal because he felt, as riparian owners, the Morlands had certain rights to the water.
MrPowter sought a personal on-site meeting with a departmental representative in January 1995, an offer he claims was so far not acknowledged or agreed to by the Department. A response to that letter from the Department of 6 February 1995 would appear to have not been received by Mr Powter, to the best of his recollection. This apparent failure by the Department to communicate more closely on this matter would appear to be at the very heart of some of the current feelings in these appeals.
MrPowter currently has a licence for a 40 mm pump for domestic, stock- watering, acquiculture and irrigation purposes with a maximum usage of 14 megalitres per annum. Although a potentially significant user of water, Mr Powter currently is not irrigating, and is possibly only using about 1 megalitre of water for domestic and stock-watering purposes. He is aware that under the Act his allocations could be reduced to ensure "beneficial use of the water". However, he refrains from greater use of water in the interests of conserving a valuable resource.
The Water Advisory Committee (WAC)
At the heart of this matter is an obvious tension between the Wongawallan Creek and Tributaries Water Advisory Committee and the departmental representatives in respect of the current policy of issuing licences for water usage to other than riparian owners. In seeking to understand this disparate view, one needs to examine the history and purpose of the Committee. Mr Brogan gave evidence that WACs are important facets of catchment management strategy for the Department, in the interests of fostering community involvement, and in monitoring the need for restrictions upon, and the issuing of water licences and permits to take water. There are currently 30 WACs throughout the State, and this Committee was established on 6 December 1993. The chairman is the departmental representative, Mr Brogan, and the deputy chairman is currently Mr GS Morland. The initial WAC was replaced by elections on 2 November 1995, with only Mr Morland remaining, and there has been an apparent change of direction by the new committee in respect of the issuing of water licences. Previously, the initial committee represented certain long-term residents who reflected satisfaction with the
general thrust of departmental policies. The new Committee now seeks to take a more proactive approach to the management of the stream and has proposed its initial policy on excluding non-riparian users from water licences. While that policy has not been ratified by the Department, at its meeting on 1 July 1996, the WAC (in the absence of Mr Brogan) passed the following motion:
"That from 1 June 1996 Wongawallan Creek and Tributaries Water Advisory
Committee recommends no further consideration be given to any future non- riparian licence applications being granted in the Committee's area."
Because that recommendation contravenes the current departmental policy on water resource management principles, the departmental officers, including the delegated officer Mr Brogan, cannot support its adoption by the Chief Executive. It was clarified for the appellants that s.39 of the Act makes provision for the approval of non-riparian licences. The WAC includes Messrs Brogan, Morland, Conrad, Hollindale, Ardell, Leach and Caroline McDougall.
This recommendation of the WAC followed a strengthening from the approach of the former WAC's motion adopted by the WAC (less the chairman) on 15 June 1995, which said:
"That from 15 June 1995 all licences issued to non-riparian land owners will
have a special condition imposed which allows pumping only during times of no pumping restrictions on the watercourses within the Wongawallan Creek and Tributaries Water Advisory Committee area."
In respect of the general level of co-operation between WACs and the Department across the State, Mr Brogan gave evidence that there is good rapport with all other Committees. The members of those committees provide the "eyes on the ground", and quickly and efficiently recommend and implement water restriction strategies as necessary. Unfortunately, according to Mr Brogan, the Wongawallan WAC has created an impasse with its current policy on non-riparian usage of water, thus seriously impeding the free flow of co-operation and information.
Mr Brogan gave evidence that any suggestion by him to assist the WAC, by following policies of other catchment groups, had been ignored. There had also been, in his opinion, a definite policy of excluding departmental officers from WAC meetings, resulting in a debilitating breakdown in communication. From the WAC's perspective, they see the breakdown in co-operation emanating from, in their view, a lack of willingness by Mr Brogan to communicate information, a proposition rejected by Mr Brogan. Mr Brogan supported his claim that he had sought to co-operate, by noting that he had implemented every request from the WAC for the imposition of restrictions.
In seeking to emphasise that the Department generally co-operates very well with WACs in other areas, he noted that restrictions in those areas are usually applied, and withdrawn, easily and quickly by telephone, through the WAC, without the need for formal letters. In the case of Wongawallan WAC this has not been adopted, and the current process is quite inflexible. It would appear that the current committee may not be entirely happy with the
chairman being a departmental officer which is, however, part of the constitution of advisory committees for the Chief Executive, in the interests of ensuring public openness and accountability.
Mr Aston suggested that it is essential for the WAC recommendations to be seriously considered. In seeking to understand why Mr Brogan appeared to only accept advice from the WAC with which he agrees, Mr Conrad sought clarification about the criterion adopted by the decision maker in deciding a water licence application. In this respect, Mr Brogan referred to the lack of any disparity in how riparian or non-riparian licence application should be assessed. (See s.34, s.35, s.36 and s.39 of the Act). Matters which are also to be considered by the Chief Executive (or his delegate) in approving a licence are established in s.43(1) of the Act.
The Availability of Water:
Fundamental to all parties is the future availability of water in the streams of the catchment. There is agreement by all that there has been a significant growth in water users in the last few years, and there is a small number of major irrigators who have been the major users in the last decade. Because of a lack of official measurements in the catchment, both the respondent and the appellants have all tended to rely on estimates from other sources. The appellants have interpreted their personal experience of their part of the stream, some extending back over 18 years, while the Department has sought to rely on catchment modelling based upon an internationally accepted strategy, and rainfall figures from the nearest official rain gauge at Oxenford. There is still some disagreement between the parties in respect of the potential future capacity of the streams.
Let me first consider the evidence of Mr Brogan for the respondent. In adopting the modelling technique to determine the KII index, he has tended to rely upon his personal assessment of the "hardness" of the catchment as "medium", which is a balance of soil types, vegetation coverage, condition and use of the land. Accepting Mr Brogan's extensive experience in this activity (30 years), his opinion is considered likely to be appropriate. That then leaves his use of the Oxenford rain gauge figures as a possible source of inaccuracy.
However, in selecting the Oxenford record, Mr Brogan has sought to adopt a record of at least 30 years' duration from the nearest most applicable gauge. By his evidence, he adopted Oxenford because the isohyet passing through Oxenford also passes through the lower end of the Wongawallan Creek Valley. There is another isohyet passing through the high catchment area of Wongawallan Creek, which has a higher rainfall average, but he has selected the lower isohyet in order to determine a conservative value.
In his opinion, the "applied" rainfall is likely to be higher even than the value he adopted. While several appellants challenged his conclusions, I can find no reason to reject his logic. On balance, I believe he has estimated a conservative view of the likely run-off in the catchment, even allowing a considerable margin for loss by evaporation from the streams. The
impact of natural springs in the watercourse has also been ignored. The formula adopts the 75th percentile, a dormant season (May to August), and a KII factor for hardness of 75. By this calculation, in 75% of the years the average annual rainfall is estimated to be 4,118 megalitres.
In comparing this expected run-off with the estimated current demand, or use of water by licensed users, I note Mr Brogan's determination at 467 megalitres, suggests only an 11.3% of the total catchment water available is likely to be diverted from the normal stream flow for licence purposes. It is also noted that Wongawallan Creek falls within the Coomera River waterways area depicted on Regulation Map 3 outlined in s.13.4 of the Albert Shire Planning Scheme of February 1995, which recognises the sensitive nature of the environment as part of the planning controls for the area.
In seeking to understand the relevance of what may constitute a sustainable stream flow in Wongawallan Creek, a matter of some concern to the appellants, I note that Mr Brogan has compared that catchment with recent records of restrictions in the Albert and Logan Rivers, in Palen Creek, Christmas Creek and Running Creek, all of which have had restrictions in place in recent months. By comparison, Wongawallan Creek has had no such restriction in force. The only official records of restrictions in Wongawallan Creek in recent years were:
· severe restrictions - 11 November 1991 to 13 December 1991;
· very light restrictions - 5 May 1993 to 28 January 1994;
however, Mr Aston also provided further personal records suggesting that partial restrictions had also occurred in the period 4 November 1994 to an unspecified date.
The apparent paucity of restrictions would appear to indicate that, except for the above periods, stream flows were acceptable. There was no official record of the stream being "bone dry" as noted by Mr Powter. However, Mr Conrad clarified his concerns that, because of the current nature of the creek bed, with the existence of intermittent waterholes in dry periods from which certain users are able to pump, the problem is not the total amount of water available, but really the amount of available water that is accessible to some owners.
Environmental Health of the Riparian Zone:
Apart from the actual water flows within the streams, the matter of the environmental health of the stream is clearly of concern to the appellants. Possible diminution of the marine environment and its consequential deleterious impact upon fish and other wildlife in the stream, were cited as likely consequences of the proliferation of water licences as a general policy. The appellants believe that the Department is not effectively undertaking sound stream management practices in the Wongawallan catchment, particularly in respect of managing the stream environment, rather than merely just the volume of water available. Examples of the disappearance of platypus from the creek were noted and also the build-up of stream gravel deposits which hindered access to water for stock in several places.
The evidence suggests that some property owners are currently imposing self- restrictions in order to conserve the current water flows, presumably reflecting their concerns with a declining flora and fauna environment, although Mr Brogan disagrees that the flora and
fauna are under threat at present. However, Mr Brogan would appear to be merely relying upon the level of water restrictions as a measure of stream health, apparently unaware of the self- imposed restraints being imposed by owners. As a management strategy, it would appear that, because of the current breakdown in communication between the WAC and the Department, many of the newly developing innovative strategies in riparian zone management being piloted in other catchments, have yet to be experienced in the Wongawallan catchment. I refer to experience in the Condamine River, and the recent land care program on integrated catchment management, as evidenced in the departmental publication "Riparian Zone - Management Manual", November 1996.
Strategies for sustained environmental management of the riparian zone noted in that report are focussed upon water quality, species habitat and water integrity. The report concludes at page 11 that:
"The most important environmental issue relating to riparian zones is
fragmentation caused by changes in land use and flow regulation."
The evidence further supports that Mr Brogan fully understands that an environmental flow is needed in the streams and his indications that the Department is soon to embark upon some in-depth quantified research in Wongawallan Creek, is evidence of the Department's desire to better understand its problems. Hopefully, with the airing of concerns in this case, improved communications between the parties will result in a co-operative approach to future management.
Riparian and Non-riparian Users:
The key issue is whether the rights of riparian owners to available stream water should be protected at the expense of non-riparian owners. In the eyes of one of the appellants (Mr Morland), access to stream water should be preserved entirely for riparian users and non- riparian users should seek other methods of obtaining water, such as dams or bores. It is argued that such access to available water is reflected in the value of riparian land, a matter discussed later.
However, Mr Jackson concedes that riparian ownership conveys more than just access to water, but also includes the environment surrounding the creek, which enhances the quality of the surrounding paddocks. Mr Brogan concedes that riparian owners are afforded special recognition under s.36(1) of the Act, but also notes that non-riparian owners are also afforded opportunity to apply for a licence under s.39 of the Act. While the appellants concede that authority, they note that the Chief Executive, in making his decision on non-riparian user applications, is not bound to approve any such licence. In the context of an inadequate water supply in the stream, the appellants argue that the rights of the riparian users must prevail.
The Value of Land:
The matter of impacts upon the value of riparian land, as a consequence of expanded extension of non-riparian licences, was raised by most of the appellants. They argue that in
acquiring their riparian land they have paid much more for their position than surrounding non- riparian users. As a consequence of those prices, the value of their land and its resulting liability to higher rate charges and taxes, is an increased burden not shared by non-riparian users.
Because of the elastic nature of the property market, the appellants conclude that, any resulting increase in the value of such non-riparian land receiving the benefit of the water licence, is likely to be at the expense of the value of surrounding riparian land. Mr Fisher argues that such a conclusion is fallacious and, in any case, the possible impact upon valuations is not a matter for consideration by the Chief Executive when approving an application for a water licence. It was noted that whether the land value was admissible depends upon how the "good management of the natural resource" is interpreted.
However, to draw an oversimplified relationship between the value of the land and the use of the water, tends to ignore other features of riparian land such as its visual impact, privacy, position and general nature of the land. It is also noted that in considering the impact of a water licence upon non-riparian land, any consideration in its resulting value would need to consider the relative insecure nature of the rights under licence, which depend entirely upon the decision of the Chief Executive. With riparian land there are certain inalienable rights which attach to the land in respect of the use of water as clarified in s.36(1) of the Act, which do not relate to non-riparian land.
Discussion:
(1)The Legislation:
In considering this matter I turn first to the legislation in respect of the approval of a water licence under the Act. I note that Mr Brogan, as the delegated approving officer of the Chief Executive, has sought direction in considering the application by Mr Kent under s.39(1) which states:
"39.(1) Subject to this section, an owner of land that does not abut a
watercourse, lake or spring or water contained in or conserved by a weir, barrage or dam constructed by the Crown, the corporation, any local government, other statutory body or person may make application as prescribed for a licence to construct and use works or to use works already constructed as specified in section 38".
Section 38 sets out the "requirements as to licence", whether the application is from a riparian or non-riparian owner of land and provides no differentiation in respect of the riparian rights of the applicant. However, there is a further condition placed upon non-riparian owners in s.39(2) which requires a non-riparian applicant to:
"39.(2) The applicant may make, with owners or occupiers of land intervening
between the subject land and the watercourse, lake or spring, or the water contained in or conserved by a weir, barrage or dam, in respect of which the application is proposed to be made, arrangements in writing signed by all parties with respect to the construction, use and maintenance on, in, over or under those intervening lands of works necessary to carry out the purposes for which the
application is made."
In these matters Mr Kent has satisfied the above requirements. However, in comparing the requirements of the Act in respect of riparian owners, I note that the Act defines certain inalienable rights for the use of water:
"36.(1) Subject to section 57, an owner or occupier of land abutting a
watercourse, lake or spring or a weir, barrage or dam vested in the corporation or under the control of the corporation or chief executive may, without applying for or obtaining a licence or permit in that behalf, use for -
(a)domestic purposes;
(b)watering stock;
the water, at the material time, in that watercourse, lake or spring or weir, barrage or dam.
(2) For the purpose of this section - 'stock' means stock of a number not exceeding the number depastured ordinarily on the land having regard to seasonal fluctuations in the carrying capacity of the land and not held in close concentration for a purpose other than grazing."
Powers to issue a permit to construct or use works in the exercise of the right to use water under s.36 is exercised by the Chief Executive under s.57. The meaning of "works" under the Act is defined under s.2(1), which includes a pump for the pumping of water from the watercourse. A watercourse is defined under s.2(1) as a "river, creek or stream in which water flows permanently or intermittently". The meaning of "to use works" is defined in s.38(10):
"38.(10) For the purpose of this section - 'to use works' includes to take and
use water contained in works or obtained by means of works whether for the use of -
(a)the owner of the land on which the works are constructed; or
(b)the person who constructed or is using the works; or
(c)an owner of land in the vicinity of the site of the works."
In seeking to understand the intentions of the Act in respect of "non-riparian owners", I note the Second Reading Speech of the Minister in the Queensland Parliament when introducing the legislation on 6 September 1989. While the Minister made no specific reference to why non-riparian owners were to be considered for a licence to pump water, he did draw attention to the new provisions covering the requirement to seek the consent of adjoining riparian owners, and their right to object:
"A non-riparian land owner who intends to apply for a licence to pump water
from a river or creek will have to satisfy the Water Resources Commission that he has informed the owners of land on which he may wish to construct his pump and pipeline of his intentions. The owners of the lands will be alerted to watch for advertisements concerning the proposal and may, should they wish, lodge an objection within the time prescribed. If they do not object, they cannot later appeal to the Land Court if they are dissatisfied with the commission's decision
on the proposal." (Hansard, 6 September 1989, p.457).
In the context of the overall management and use of the water supply, clearly all land owners in catchment areas were seen as possible users under the Act. However, the Minister went on to inform the Parliament at p.458 that "permits may be refused if water is limited and alternative supplies are available".
In the event that a non-riparian applicant is unable to make arrangements with an intervening riparian owner, then the Chief Executive may authorise the construction, use and maintenance of a licensed pump under s.39(4). In the current matter the intervening riparian owner (Mr Graham) has given his written authority in accordance with the Act.
Powers controlling the application for the licence are contained in s.42, which, includes the requirement to publicise a notice in a local newspaper (s.42(6)), and the rights of appellants to object (s.42 ss.(9) to (12)). In the current matter all conditions have been complied with.
Following receipt of the objections, the Chief Executive was then required to inquire into the following matters:
"43(1) Upon an application under section 42 and an objection thereto, the
chief executive must cause inquiry to be made -
(a)where the application relates to water other than underground water - into -
(i) the availability and sufficiency of water to supply the requirements of -
(A)riparian owners; and
(B)licensees; and
(C)permittees; and
(D)the applicant; and
(E)persons specified in section 4(a); and
(ii) the effect that the granting of the application will have or is likely to have on entitlements of riparian owners, licensees and permittees;
...
(c)in a case to which paragraph (a) applies - into any other matter or things the chief executive thinks fit."
Following any inquiry, the Chief Executive may either grant or reduce the licence under s.43(2), including any further variations that he feels is appropriate under s.43(2)(a)(ii).
Clearly, there is no inherent right to require the approval of the Chief Executive in these matters, and approval is entirely at the discretion of the Chief Executive. However, there is clearly an implied suggestion from the existence of the special provisions of the Act, giving land owners the right to apply for a licence under the Act, that the Chief Executive will exercise his discretion in good faith. This may be inferred from the short preamble description of the
Act, which states:
"An Act to consolidate and amend the law relating to rights in water, the measurement of water, the construction, control and management of works with respect to water conservation and protection, irrigation, water supply, drainage, flood control and prevention, improvement of the flow in or changes to the courses of watercourses; protecting and improving the physical integrity of watercourses; the safety and surveillance of dams; and for purposes incidental thereto and consequential thereon."
This was subsequently further strengthened by the amendment to the preamble assented to on 9 December 1996, which added the words "and management" to the measurement of water.
In seeking to understand the meaning of "good faith" in respect of exercising a discretion under the Act, I note that "Words and Phrases Legally Defined", Third Edition, by Butterworths, sees the term "in good faith" as meaning that it is exercised in the absence of bad faith (Mogridge v. Clapp (1892) 3 Ch 382 at p.391, C.A.. per Kekewich J); or perhaps more clearly defined as "when it is made honestly and with no ulterior motive" (Central Estates (Belgravia) Ltd v. Woolgar (1971) 3 All ER 647 at 649, C.A., per Lord Denning MR).
The word "discretion" in the Australian context was perhaps best explained by the High Court of Australia in Shrimpton v. The Commonwealth (1945) 69 CLR 613, where Leighton CJ said at p.620
"It has been held in this Court, in a series of cases, that a discretion, or a power
to grant a licence, though conferred in very general terms, does not entitle the authority to which the discretion is granted, or upon which the power is conferred, to take into account what have been described as extraneous conditions. The discretion must be used and the power exercised bona fide and with the view of achieving ends or objects not outside the purpose for which the direction or power is conferred."
(2) Policy and Procedures:
Having then considered the powers under which the awarding of the licence to Mr Kent was authorised, we need to understand the policies and procedures of the Chief Executive which directed Mr Brogan in his implementing of the statutes.
The evidence of Mr Brogan confirmed that in deciding to approve the licence he had taken into account all matters specified under s.43. He also gave evidence of the detailed administrative procedures undertaken involving the receipt, handling and advertising of the application for a licence. There was no suggestion that there was any inconsistency between those proceedings and the intentions of the Act. Evidence was also given that those procedures are consistently applied in other catchment areas of the State, and, except for the additional requirement for non-riparian owners, both riparian and non-riparian applications are treated similarly.
As part of the procedures, the respondent had difficulty in interpreting some of the particulars of many of the original objections, and had, accordingly, rejected those which had either an incorrect property description, or were otherwise unintelligible. Some concern was
expressed by some of the appellants that the respondent made inadequate effort to clarify some of those matters, thus eliminating those objections. However, the evidence of Mr Brogan indicates that certain efforts were made by departmental staff to seek clarification, but these had proved fruitless, perhaps in view of some apathy on the part of the appellants. In hindsight, I believe, unfortunately, many of those problems emanated from the communication breakdown between certain members of the WAC and Mr Brogan.
However, the matter of legibility of appeals is a subject upon which some comment would seem appropriate. The "Shorter Oxford English Dictionary" defines "legible", when referring to writing, as "plain, easily made out, accessible to readers, easy to read, readable". Section 42(1)(a) of the Act requires an application for a licence to "be in writing and signed by the applicant"; and s.42(1)(b) to "contain particulars and other information determined by the chief executive". Section 42(7) covers the granting of a licence for an artesian or sub-artesian bore and specified:
"42.(7)(b) The chief executive receives, from each owner of land entitled to
object to the granting of the application under subsection (9), a signed statement, in the form approved by the chief executive, that the owner does not object to the granting of the application."
Section 42(9) further provides that an objector, as specified as an eligible person in s.42(12), "may, by signed notice and addressed to the chief executive, object to the granting of the application and submit to the chief executive the grounds of his or her objection".
When considering objections under s.43(1)(a)(ii) the Chief Executive must consider, amongst others, "the effect that the granting of the application will have or is likely to have on entitlements of riparian owners, licensees and permittees".
If the Chief Executive is to effectively examine all objections from "dissatisfied persons", it is essential that he be certain of the details of those persons. While the Act makes no specific reference to the legibility of any objection, it would be reasonable to conclude that a similar level of legibility would be required of an objector, as is required of an applicant, or an owner not objecting to a bore. As a consequence, the onus is upon any objector to provide clear and legible information of their right to object and the nature of their objection. While the Chief Executive may choose to seek further clarification of the objection, responsibility finally rests upon the objector to validate his objection.
(3) The Right to Appeal
As the licence to Mr Kent issued on 28 November 1996, the current provisions of s.51 in respect of the 1996 amendments of the Act, assented to on 9 December 1996, were not relevant as at the date of eligibility for these appeals under the Act. In order to appeal to this Court against the issuing of the licence to Mr Kent, under s.51(1)(a)(i) applicants needed at that time to demonstrate that they were persons "aggrieved by a decision of the chief executive with respect to an application for a licence". While the word "person" is defined under s.2(1) of the Act, the word "aggrieved" was not so defined. However Mr Fisher, for the respondent, has
drawn my attention to certain legal precedents which have some relevance in that matter. Before examining the impact of the use of the words "an aggrieved person", it may be helpful to understand the subsequent amendments to the Act, in the context of these matters.
Following the decision of the Court of Appeal, Supreme Court of Queensland, of 16 May 1995 in Stephenson v. Wenck QR 1996 Vol 2, p.84, where the definition of the former words "aggrieved person", as then used in s.51, was held to have a wider meaning than was originally intended in the Act, the Government moved in 1996 to amend s.51 to refer to a "dissatisfied person".
By Amendment Act No. 68 of 1996, the wording of s.51 was amended to read: "51.(1) A dissatisfied person may appeal to the Land Court against a decision of the chief executive with respect to -"
A new s.51(13) was then introduced to define the meaning of "dissatisfied person" and which, in s.51(13)(e) is established as:
"a person who, on or before the date specified in a notice under section 42(8),
had a right to object, and objected, to an application;"
Section 84 provides direction on persons who are eligible to give objections. Section 85 sets out the responsibility to inquire into those objections, particularly noting "the relative advantages and disadvantages arising from the issue of the potential licences having regard to its effects on the interests of the objector" (s.85(1)). The intention of the new use of the words "dissatisfied person" is to allow a person directly affected by a decision to appeal against the decision as prescribed. It is clearly now meant to refer only to persons who are directly impacted in some way by the approving of the licence.
The thrust of that section is that appellants must now prove under s.51(9) that a licence will impact their interests. In the current matters, by their own evidence, all appellants, with the possible exception of Mr Powter, agree that the Kent licence will have no direct impact upon their properties.
However, under the then existing provisions of s.51, the words "aggrieved persons" are to be read in their ordinary natural meaning. As noted by the Court of Appeal in Stephenson v. Wenck (supra), the use of the words "persons aggrieved", in an appeal against a licensee, is not limited to persons who had duly objected to the grant, but extended to others whose interests were prejudicially affected by it. The Court rejected any narrow reading of the words. In that matter an appellant, who was not qualified to object, and who did not object, was deemed could be an "aggrieved person".
In the current matters there is no question that appellants Ashton, Morland, Broersen, Powter and Conrad were all bona fide objectors, however, there was a request for the Jackson appeal to be rejected for lack of jurisdiction, discussed later. Whether the grounds of the appeals satisfied the intentions of the meaning of "aggrieved persons", is a separate matter.
(4) The Rights of Riparian Owners:
While all appellants concede that the Kent licence will have no, or no significant,
impact upon their personal properties, all are concerned that the licence may become a precedent for future applications from non-riparian owners. Generic to that concern is a possible misconception of what actually constitutes riparian rights to land. The appellants accept that authority to pump water from a stream is, in fact, a "privilege", approved by the State, in the interests of managing rights in water, and the effective use of the water supply, which, as noted by the Minister in his Second Reading Speech in introducing the new Act on 6 September 1989 was:
"... to improve administrative procedures to enable that most important and
scarce natural resource, water, to be better utilised to the overall benefit of Queensland and to provide a better service to the commission's many clients. It also aims at better protection for water-users generally." (Handard p.461).
In seeking to understand the nature of riparian rights to land, I note that those rights have long had their authority in the common law. The principle was considered, for example, in the matter of Chasemore v. Richards (1859) 7 HLCAS 349, where Lord Wensleydale said:
"It has now been settled that the right to the enjoyment of a natural stream of
water on the surface, ex jure naturae, belongs to the proprietor of the adjoining lands, as a natural incident to the right to the soil itself."
The matter of the right to water in its natural quantity is discussed fully in "Waters and Land Drainage" by Coulson and Forbes, Fifth Edition, p.126. A clear statement of its general understanding may be found in Stollmeyer v. Trinidad Lake Petroleum Company (1918) AC 485, where Lord Sumner said at p.491:
"A riparian proprietor is entitled to have the water of the stream, on the banks of
which his property lies, flow down as it has been accustomed to flow down to his property, subject to the ordinary use of the flowing water by upper proprietors, and to such further use, if any, on their part in connection with their property as may be reasonable under the circumstances. Every riparian proprietor is thus entitled to the water of his stream, in its natural flow, without sensible diminution or increase and without sensible alteration in its character or quality. Any invasion of this right causing actual damage or calculated to form a claim which may ripen into an adverse right entitles the party injured to the intervention of the Court."
This common law principle has also been enshrined in the current Act in s.36(1). However, the right to the use and flow and control of water in watercourse under s.3(a) vests in the Crown. Section 57 then sets out the powers of the Chief Executive to issue permits to construct or use works in the exercise of a right to use water under s.36. The key power relates to the requirement for all riparian owners to apply for a permit to use works to take water (s.57(1)).
The rights of a riparian owner under s.36 are therefore constrained, as of right, to the use for domestic or stock-watering purposes, the latter being merely for grazing upon the land. While the "as of right" conditions for riparian owners refers to the "use" of the water in the stream adjoining the land, the capacity to pump water from the stream is subject to discretion by
the Chief Executive. Mr Brogan gave evidence that, in his considerations of the Kent application, he tended to give a higher weighting to the needs of riparian owners.
This recognition of the rights of riparian owners was inherent in his decision to impose a restriction in Mr Kent's licence which precludes him from pumping during periods of restrictions in Wongawallan Creek. However, Mr Brogan advised that, because of the apparent adequate supply of water in the catchment, he may have found such a restriction difficult to defend, had Mr Kent chosen to appeal to the Land Court. In the interests of ensuring that the inherent rights of riparian owners are not unnecessarily impacted during periods of restricted flow in the stream, I believe Mr Brogan's strategy is a sound management decision, and not inconsistent with the rights of all users in the catchment.
Bearing in mind the overall intention of the Act to better manage the total water resource, there is no sound argument for exclusivity in granting licences to riparian owners. In arguing that the Kent licence may set a precedent, the appellants have not convinced this Court that the Kent application was not properly considered by the Chief Executive in making his decision at that time. This Court is constrained to determining the validity or otherwise of the granting of the licence to Mr Kent. In the context of dealing with each matter on its merits, and not considering future unknown problems, I am drawn by the decision of the Land Court in CC Wickham & Ors v. The Commissioner of Irrigation and Water Supply (1968) 35 CLLR 287, where the learned Member found at p.290:
"Again, a blanket decision had been made in 1966 and that was it. Again I feel
that the Act never contemplated such action. Unless an applicant can feel confident that his application will receive some individual consideration then he might as well tear up the Water Acts or use it for something else than as a guide as to what rights he has to seek a share of the State's limited stream waters."
In the Wickham matter, the appellants had been refused a water licence by the Chief Executive on the basis "that available water supplies in the Upper Condamine Basin are fully allocated for use by existent licensees". The Court found that a blanket decision was made, which, was in complete contradiction of the purpose of the Act, and a thorough investigation of the application for the licensees had not been undertaken. The learned Member went on to say at p.289:
"This 'once and for all' decision seems to have been made in mid-1966, many
months before the subject applications were made. This fact is rather startling. It seems to me that in mid-1966 all future applicants for licences upstream from the dam then had their applications or their pending applications arbitrarily prejudged and refused.'
The implication to this matter is that it would be inconsistent with the intentions of the Act for the Chief Executive to seek to treat Mr Kent's licence as any form of precedent for future applications. Each application must be treated entirely on its own merits.
To seek to conclude future possible unspecified impacts resulting from the Chief Executive's decision would, in my opinion, be an unreasonable constraint upon the Chief
Executive's responsibilities in conducting his inquiries. Any suggestion by the appellants that the enforcement of that restriction on Mr Kent would be almost impossible to implement, is not a matter for this Court, but would be referred to another Court of competent jurisdiction under s.40(3).
(5) Jurisdiction:
I turn now to the matter of whether this Court has jurisdiction to hear the appeal of AM and MA Jackson (A97-02) and RC and CA Conrad (A97-03).
In the matter of the Conrads' appeal the respondent argues that their Notice of Appeal "does not give any description of the subject property over which it purports to appeal". The respondent also argues that the Conrads' Notice of Appeal was incorrect in fact and law in respect of whether Mr Kent's licence did apply conditions restricting usage during times of restriction, a matter subsequently disproved.
In considering the matter of a failure to specify the subject property of the licence, I note that there is no specific requirement to that effect in the Act. I note also that there is no general regulation under the Act specifying the requirements of the Notice of Appeal, and that regulations under the Act tend to be restricted to specific geographical areas or works. As noted previously, authority to object is provided in s.42(9) and s.42(12). I note also that the standard "Notice of Appeal" form of the Department requests specific details of the "name of the applicant and full particulars of the land in respect of which the licence was granted". That the Conrads did not supply that detail, even after it was drawn to their attention by the Department, is not contested.
I note also that, as evidence has been given that only three non-riparian licences have been issued in the catchment, and as only two of those are still current, then the appeal by the Conrads against possibly setting a precedent by "other non-riparian land owners", restricts the possible licence being appealed against to only one of two properties. It is also likely that the relevant date of those two non-riparian licences would have identified that it was Mr Kent's licence which was being appealed against.
However the Act is, in other details, very specific in its implementation, a matter later discussed in respect of the Jackson appeal. In the spirit of the Act, therefore, I feel the failure to define the subject of the appeal must seriously disadvantage the Conrads' appeal. Had there been a large number of non-riparian licensees then the task to properly make inquiries into that appeal would have been very onerous for the Chief Executive, who has a responsibility to fully investigate the matter. In seeking to apply the spirit of the Act, I seek guidance from the Acts Interpretation Act 1954, which says at s.14A(1):
"In the interpretation of a provision of the Act, the interpretation that will best
achieve the purpose of the Act is to be preferred to any other interpretation."
I note also in the completion of forms, that Act also specifies in s.49(1) that strict compliance of a form is not necessary and substantial compliance is sufficient. However, it goes on in s.49(2) to direct that a form prescribed in an Act, if it requires to be completed in a
specified way (49(2)(a)), or specific information is requested (49(2)(b)), then the form is not properly completed unless the requirements are complied with. The specified information requested on the form must be reasonably necessary for the purposes of the form under s.49(5).
In seeking to understand the meaning of the intentions of the Notice of Appeal, I note that the word "notice" is defined as a "direct and definite statement of a thing, as distinguished from supplying materials from which the existence of such thing may be inferred". (See Burgh
v. Legge 8 LJEx 258, per Parke B; and Vallee v. Dumergue 4 Ex 290. "Stroud's Judicial Dictionary" Fourth Edition, p.1783). I note also in "The Dictionary of English Law", edited by Earl Jowitt. (1959), when referring to a "Notice to Quit" in respect of a tenancy says at p.1246:
"The notice should be clear and certain, neither ambiguous nor optional."
(Phipps v. Rogers (1924) 40 TLR 845).
In the current matter I note that, because of incomplete information supplied to the Chief Executive, the intentions of the Notice of Appeal were inconclusive and ambiguous, in that the appeal could have referred to at least two licences. The Notice of Appeal failed to supply information about the possible non-riparian licence being appealed against, in respect of either the name of the appellants or their property description, those facts having to be inferred by the Chief Executive. In accordance with the requirements of s.49(2)(b) of the Acts Interpretation Act 1954, I believe the Chief Executive was correct in requisitioning the Notice of Appeal and seeking further information from Mr Conrad before examining the merits of the appeal. That Mr Conrad did not comply with that "requisition" (irrespective of it being only verbal by telephone), then the onus of proof required of the appellant, to establish the appellant's legitimacy to objection under s.42(10), should apply.
In making its decision under s.51(9), the Land Court notes that the burden of proof lies on the appellant to prove his case. In this matter I believe that failure to provide all the relevant key information requested by the Chief Executive, in respect of the object of the appeal, precludes the appeal from consideration.
In the matter of the Jacksons' objection lodged on 5 July 1993, I note that the Notice of Objection was signed by Mrs Jackson under her maiden name of MA Leighton. Mrs Jackson is the same person as MA Leighton and I see no problem with the Notice of Objection in that matter, although her signature, as Mrs Jackson, in other documents has understandably caused some confusion.
The key problem for the Jacksons is that they have apparently failed to lodge a copy of the Notice of Appeal with the Chief Executive as required under s.51(6) of the Act, within 14 days of being filed with the Court. Under examination, Mr Jackson could not certify that he had forwarded a copy by facsimile, although to the best of his knowledge he had done so, but could not prove it. The matter of an inaccurate property description for the Jackson property, on the objection form lodged on 5 July 1995, further complicated the matter. The property description was noted as Lot 41 on WD 5611 rather than Lot 141 on WD 5611 and, coupled with the use of the name Leighton rather than Jackson, made positive identification of the
objection difficult.
The failure, however, to lodge a copy of their appeal with the Chief Executive has severely disadvantage the Chief Executive in that, until exchanging evidence in Court, he was unaware of the grounds of the Jacksons' appeal. Such failure has previously been found to be fatal in matters before this Court, and I do not intend to further elaborate on the reasons, but refer to several cases including AJ & E Schirmer v. The Valuer-General (1974) 1 QLCR 144; Valuer-General v. FJ Bradshaw for Purposes of Conversion of Lease (1985) 10 QLCR 261; H Masen v. Chief Executive, Department of Natural Resources (1997) (A96-41), 28 April 1997, unreported; and more recently IL Rosser v. Chief Executive, Department of Natural Resources (A96-15), 25 July 1997, unreported.
While such a failure to supply a copy of the Notice of Appeal to the Chief Executive has been argued strenuously in previous cases, the directions of the Act are very specific:
"Section 51(6). The appellant must, within 14 days after filing it, serve on the
chief executive a copy of the notice of appeal."
In the light of those precedents, I find I have no jurisdiction to make any determination in the Jacksons' appeal.
Determination:
Having considered the whole of the evidence, I make the following findings:
AM and MA Jackson (A97-02)
In view of inadequacies of the Notice of Appeal I find I have no jurisdiction to hear the matter.
RC and CA Conrad (A97-03)
In view of inadequacies of the Notice of Appeal I find I have no jurisdiction to hear the matter.
GS and J Morland (A97-01)
The grounds of appeal are not proven and the appeal is dismissed.
H and MY Broersen (A97-05)
The grounds of appeal are not proven and the appeal is dismissed.
RE and NA Aston (A97-06)
The grounds of appeal are not proven and the appeal is dismissed.
JK and BM Powter (A97-07)
The grounds of appeal are not proven and the appeal is dismissed.
NG DIVETT MEMBER OF THE LAND COURT
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