Morland v Chief Executive, Department of Natural Resources - [1998] QLC 30

[1998] QLC 30

LAND COURT BRISBANE

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Morland v Chief Executive, Department of Natural Resources

Details

AGLC: Morland v Chief Executive, Department of Natural Resources [1998] QLC 30
Case: [1998] QLC 30
Decision Date: 13 March 1998

CaseChat Overview and Summary

In the matter of six appeals against the Chief Executive, Department of Natural Resources' decision to grant Waterworks Licence No. G-0111185 to MA Kent, the Land Court of Queensland heard appeals from various property owners in the Wongawallan Creek catchment area. The appellants argued that the granting of the licence would set a precedent for other non-riparian owners and negatively impact the water supply and environmental health of the creek. The court examined the legal issues, including the meaning of "good faith" in exercising discretion under the Water Resources Act 1989, the adequacy of the Chief Executive's inquiry into objections, and the rights of riparian owners.

The court found that the Chief Executive had exercised discretion in good faith, taking into account all matters specified under the Act, and that the appellants had not proven that the granting of the licence would negatively impact their properties or the creek's environmental health. The court also determined that the Chief Executive had not jurisdiction to hear the appeals of AM and MA Jackson (A97-02) and RC and CA Conrad (A97-03) due to inadequacies in their Notices of Appeal. The appeals of GS and J Morland (A97-01), H and MY Broersen (A97-05), RE and NA Aston (A97-06), and JK and BM Powter (A97-07) were dismissed as the grounds of appeal were not proven.

In conclusion, the Land Court of Queensland found that the Chief Executive had properly exercised discretion in granting the waterworks licence to MA Kent and dismissed all appeals except those of AM and MA Jackson (A97-02) and RC and CA Conrad (A97-03), which were dismissed for lack of jurisdiction.

Orders