Natale v Minister for Environment and Conservation
[2005] SASC 170
•10 May 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
NATALE v MINISTER FOR ENVIRONMENT AND CONSERVATION
Judgment of The Honourable Justice Besanko
10 May 2005
ENERGY AND RESOURCES - WATER RESOURCES - STREAMS, RIVERS AND WATER COURSES
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - SUPREME COURT
Appeal against orders of a Judge of the Environment, Resources and Development Court (ERD Court) and application for an extension of time and application to amend the Notice of Appeal - where respondent granted a water licence to appellant under the Water Resources Act 1997 - where appellant appealed against respondent's decision, sought leave to amend his Notice of Appeal and sought an extension of time within which to institute an appeal - where a Judge of the ERD court made an order striking out the appeal - where appellant appealed to the Supreme Court - where Judge allowed the appeal, set aside the order and remitted the matter to the ERD Court - where a different Judge of the ERD Court made an order striking out the appeal - whether Judge erred in concluding that the matter raised by the proposed amendment to the Notice of Appeal was not reasonably arguable - whether Judge erred in refusing the application to extend time - appeal dismissed.
Water Resources Act 1997 ss 29, 36, 142; Environment, Resources and Development Court Act 1993 s 30, referred to.
Natale v Minister for Environment and Conservation [2004] SASC 176, considered.
NATALE v MINISTER FOR ENVIRONMENT AND CONSERVATION
[2005] SASC 170Land and Valuation Division
BESANKO J: This is an appeal from orders made by a Judge of the Environment, Resources and Development Court (“ERD Court”). The appellant is Mr Roberto Natale and the respondent is the Minister for Environment and Conservation. The Minister made a decision under the Water Resources Act 1997 (“WRA”) on or about 13th September 2000 granting a water licence to the appellant. The water allocation given under the licence was 1.2 hectares for the purpose of vines. The appellant appealed against the Minister’s decision by notice of appeal dated 15th October 2003. He complains of the water allocation given under the licence and he says that it should have been greater. The appeal was not instituted within six weeks of the decision appealed against and the appellant sought an extension of time pursuant to s 142(4) of the WRA. Under that subsection the Court may grant further time for instituting an appeal “as the Court considers to be reasonable in the circumstances”. The appellant also sought leave to amend the notice of appeal by adding a further ground of appeal.
The applications to extend the time for instituting the appeal and for leave to amend the notice of appeal came on for hearing before a Judge of the ERD Court (Judge Cole) on 12th March 2004. The Judge made an order striking out the appeal. The appellant appealed to a Judge of the Land and Valuation Division of this Court. Debelle J allowed the appeal and set aside the order made by Judge Cole ([2004] SASC 176).
Debelle J remitted the matter to the ERD Court for the hearing and determination of the application to amend the notice of appeal and of the application to extend the time within to lodge the appeal.
The matter was considered by her Honour Judge Trenorden. After considering the evidence before her and the submissions of the parties, she refused the application to amend the notice of appeal and she refused the application to extend time. She made an order striking out the appeal.
The appellant appeals against the orders made by Judge Trenorden. The appeal is against orders of an interlocutory nature and lies to a single Judge of this Court (s 30(1)(a) of the Environment, Resources and Development Court Act 1993).
The Facts
The appellant is the owner of land in the Hundred of Kuitpo, Section 868, in the State of South Australia being the land comprised and described in Certificate of Title Register Book Volume 5440 Folio 987. The land is within the McLaren Vale Prescribed Wells area under the WRA. The water licence issued on 13th September 2000 grants a water allocation for vines and the allocation is for 1.2 hectares. By a subsequent notice dated 17th November 2000 the Minister stated that the allocation was 1536 kilolitres per annum. On 31st August 2001 the appellant applied to vary the licence to increase the areas of vines which might be irrigated. That application was refused by the Minister on 13th December 2001.
On 28th August 2003 the Minister varied the appellant’s water allocation by reducing it to 1320 kilolitres per annum. On 15th October 2003 the appellant appealed to the ERD Court against the variation made on 28th August 2003 and against the allocation of water under the licence granted on 13th September 2000. In the hearing before Judge Cole the Minister accepted that he had no power to vary the licence on 28th August 2003 and from that point that particular decision was no longer in issue. The Minister also conceded during the hearing before Debelle J that he had no authority to issue the notice dated 17th November 2000 stating that the appellant’s allocation was 1536 kilolitres per annum. By consent, Debelle J made orders declaring that the notices dated 17th November 2000 and 28th August 2003 respectively are invalid.
The only issue then is the appellant’s appeal against the allocation of water under the licence granted on 13th September 2000.
The notice of appeal which was filed in the ERD Court contains the following grounds of appeal:
1. That the grant of the licence:
(a) was not consistent with the relevant water allocation plan;
(b) was not in the public interest;
(c) was based upon incorrect information as to the area of vines requiring irrigation.
2. That the allocation of water on the licence:
(a) was contrary to Section 33 of the Water Resources Act 1997;
(b) by way of further particulars the appellant repeats paragraphs 1(a) – (c) hereof.
The Crown Solicitor on behalf of the Minister wrote to the appellant’s solicitors on 28th November 2003 and advised them that the water licence had been issued pursuant to s 36 of the WRA and the appellant then sought leave to amend the notice of appeal by amending ground 2 to read as follows:
2. That the allocation of water on the licence:
(a) was not determined in accordance with the provisions of section 36(2)(a), (b) and (c) of the Water Resources Act 1997.
(b) was contrary to section 33 of the Act and by way of particulars the appellant repeats paragraphs 1(a) – (c) hereof.
The decision of Judge Trenorden
The Judge had before her an application to amend the notice of appeal and an application for an extension of time within which to institute the appeal. The Judge dealt with the application to amend the notice of appeal first. She said that the application to amend should not be allowed if the appellant’s case, with the amendment, is not reasonably arguable or does not have a reasonable prospect of success. She referred to other considerations relevant to the application to amend but she decided the application by reference to the matter which I have identified.
The Judge noted that by his application the appellant had asked for a water allocation for 1.2 hectares of vines and that he had received the allocation which he had requested.
The applications before Judge Trenorden and before me proceeded on the basis that the relevant section for the purpose of the appellant’s appeal is s 36 of the WRA. That is because that is the section which is relevant to the decision which led to the grant of the licence on 13th September 2000. In effect, the proposed amendment to the grounds of appeal raises the issue the appellant wishes to agitate on the appeal. That was common ground on the hearing before me. Section 36 of the WRA provides:
1)On declaration of a watercourse, lake or well as a prescribed watercourse, lake or well or declaration of a part of the State as a surface water prescribed area, an existing user of water from the water resource concerned—
(a) may, subject to a restriction or prohibition under section 16, continue to use water without a licence until the end of the prescribed period or, if he or she applies for a licence within six months after the publication in the Gazette of the regulation declaring the resource to be a prescribed resource, until the application is granted or refused;
(b) is, subject to subsection (3), entitled to have endorsed on the licence without the payment of a purchase price a water (taking) allocation determined by the Minister under subsection (2) after consultation with the existing user.
(2)The water allocation will be the quantity of water that will, in the opinion of the Minister, meet the future requirements of the existing user—
(a) based on his or her reasonable requirements in the establishment period; or
(b) for water for a development, project or other undertaking to which he or she was legally committed or in respect of which he or she had committed significant financial or other resources before the commencement of the prescribed period; or
(c) under both paragraphs (a) and (b).
(3)If at the expiration of the prescribed period, the aggregate of the allocations of water to which existing users are entitled under subsection (1) exceeds, in the opinion of the Minister, the capacity of the resource, the Minister may—
(a) reduce the allocation to which each existing user is entitled proportionately; or
(b) reduce the allocations pursuant to a scheme set out in regulations.
(4)Before determining the capacity of the resource the Minister must prepare a report assessing the need for water of ecosystems that depend on the resource for water.
(5) The Minister must make the report publicly available.
(6)An existing user may appeal to the Court against a determination or decision of the Minister under subsection (2).
(7)Subject to a restriction or prohibition under section 16, a person who is not an existing user may take water from the water resource without a licence until the end of the prescribed period.
(8)If the quantity of water available for allocation exceeds the entitlements of existing users, the Minister may allocate the excess in accordance with this Act and the relevant water allocation plan.
(9)An entitlement referred to in subsection (1)(b) may be transferred to another person with the approval of the Minister.
(10) In this section—
the establishment period in relation to the declaration of a water resource means the period prescribed for the purposes of this definition by the regulation declaring the resource to be a prescribed resource being a period that ends at the commencement of the prescribed period;
existing user means, subject to subsection (11), a person—
(a) who took water from the resource at any time during the establishment period; or
(b) who did not take any water during that period but who needs water for a development, project or undertaking to which he or she was legally committed or in respect of which he or she had, in the opinion of the Minister, committed significant financial or other resources before the commencement of the prescribed period;
the prescribed period in relation to a water resource commences on the date of publication in the Gazette, a newspaper circulating generally throughout the State or a local newspaper (whichever occurs first) of the notice inviting submissions in relation to the proposed regulation declaring the resource to be a prescribed resource and ends on the date specified for that purpose in the regulation.
(11)A person ceases to be an existing user if he or she does not apply for a water licence within six months after publication in the Gazette of the regulation declaring the resource to be a prescribed resource.
As I understand it, it is accepted by the Minister that the appellant was an “existing user” within s 36(10) at the time of his application and at the time the water licence was granted on 13th September 2000. The establishment period in this case is 29th March 1993 to the commencement of the prescribed period, and the prescribed period is 21st August 1997 to 1st July 2000.
The Judge proceeded on the basis that the prospects of success of the appeal should be considered by reference to the provisions of s 36(2)(a), (b) and (c) of the WRA and there was no suggestion before me that she erred in doing so.
The Judge referred to the criterion in s 36(2)(a), namely, the appellant’s reasonable requirements in the period from 29th March 1993 to 20th August 1997. She noted that in February 1997 the appellant applied under the Water Resources Act 1990 for an increase in the area endorsed on his then licence from 1.2 hectares vines to 8.1 hectares vines. That application was refused because it did not meet the criteria for the Willunga Basin Moratorium Area. At the time of the refusal, the appellant was advised that he had a right of appeal against the refusal. The appellant did not appeal. The Judge said that the fact that the appellant did not appeal suggested that his need for more water did not amount to a “requirement”. The Judge said that that was taking the most favourable view of the appellant’s evidence before the Court. The Judge referred to other evidence before the Court which contradicted his stated need for a water allocation to irrigate 8.1 hectares of vines in 1997. That evidence tended to show that a total of 7.0 hectares of vines had been planted prior to 1998.
Secondly, the Judge referred to the criterion in s 36(2)(b) and to the evidence put forward by the appellant of a development, project or other undertaking in respect of which the appellant had committed significant financial or other resources before the commencement of the prescribed period. The Judge noted the invoices and cheques said to relate to vineyard improvement during the establishment period and in particular in the period between 2nd December 1994 and 25th June 1996. The Judge noted that the item or service purchased in respect of which each cheque was drawn or invoice made out was not identified. The Judge said that in the absence of that detail the listing of the invoices and cheques was of no assistance to make a reasonably arguable case in terms of s 36(2)(b) should the amendment be allowed.
The Judge concluded that the appellant had not shown that, should the amendment be permitted, his case would have a reasonable prospect of success. That was fatal to the application to amend the notice of appeal. The Judge did say that there was no evidence that injustice would be caused to the respondent if the amendment was allowed and she said that it was reasonable to conclude that the amendment would enable the Court to address the real issue between the parties.
The Judge then turned to consider the application for an extension of time within which to appeal and in that context the Judge considered the length of the delay, the explanation for the delay, any prejudice suffered by the opposing party, the prospects of success and the public interest.
The Judge noted that the delay was almost three years and she concluded that that was inordinate delay. The Judge said that there was no explanation for the delay. She rejected as an explanation the fact that it was not until 28th November 2003 that the Minister acknowledged that the appellant’s water licence had been issued to him as an existing user of a resource and by reference to the criteria set out in s 36 of the WRA. The fact is that the appellant instructed solicitors in July 2001 and applied for a variation of the water licence on 31st August 2001. The Judge said that the appellant had provided no explanation as to why at that time the appellant did not appeal against the decision made on 13th September 2000. The Judge noted that there would be no actual prejudice to the respondent if the extension was granted. The Judge said that there was no reasonable prospect of a successful outcome of the appeal even if the amendment was allowed. The Judge also said that in all the circumstances an extension of time would not be in the public interest. The Judge expressed her conclusion in the following terms:
26 I do not consider it to be reasonable to extend the time by almost three years where no explanation for the delay has been provided to me, where there are no real prospects of success on the appeal and where solicitors were instructed by the appellant more than two years prior to the lodgement of the appeal. Given the refusal by the Court to extend the time in which to appeal, it would be pointless to allow the appellant to amend his grounds of appeal, in any event. It remains to dismiss the purported appeal.
Issues on the appeal
As I have said, if the appeal to the ERD Court proceeds, the issue on that appeal will be whether the appellant, as an existing user at the time he made his application and the water licence was granted on 13th September 2000, was entitled to a greater water allocation than 1.2 hectares for vines by reason of the provisions of s 36(2)(a), (b) or (c) of the WRA. In other words, were the appellant’s future requirements for a quantity of water greater than 1.2 hectares for vines based on his reasonable requirements in the period 29th March 1993 to 20th August 1997 and/or for a development, project or other undertaking to which he was legally committed or in respect of which he had committed significant financial or other resources before 21st August 1997. As I understand it, the appellant does not say he was legally committed to a development, project or other undertaking before 21st August 1997 so that it is the second limb which is relevant namely, a development project or other undertaking in respect of which he had committed significant financial or other resources before 21st August 1997. In effect, this issue is the issue raised by the proposed amendment to the notice of appeal rather than the existing grounds of appeal.
An amendment to a notice of appeal will not be allowed if it does not raise a matter which is reasonably arguable. In this case it is not suggested that any of the existing grounds are arguable and in those circumstances if the amendment is not allowed, the application to extend the time within which to appeal must be refused. In this case the Judge started with the application to amend the notice of appeal and if she was right to conclude that the application to amend was not reasonably arguable then not only would the application to amend be refused but the refusal of the application to extend time would be inevitable. However, with respect to the Judge, and for the reasons I will give, although the appellant’s case at this stage appears weak I am not prepared to conclude that it is not reasonably arguable. If the only question before me was the application to amend then I would be disposed to allow it. However, I do not think the Judge was wrong to refuse the application to extend the time within which to appeal and it is convenient to start with that application.
The time limit prescribed by the WRA is six weeks but the Court has power to grant such further time as it considers to be reasonable in the circumstances (s 142(4) of the WRA). The Judge said that in applying this criterion it was appropriate to consider the length of the delay, the reasons for the delay, the prejudice to the respondent if time is extended, whether there are some prospects the appeal will be successful and the public interest. In my opinion, these are the matters which must be considered on an application of this nature. I would add the prejudice to the applicant if the application is refused. In most cases the prejudice to the applicant will be obvious.
The Judge did not err in her conclusion that the delay in this case is inordinate. No did the Judge err in concluding that there is unlikely to be any prejudice to the Minister if an extension of time is granted. Nor did the Judge err in concluding that it was relevant to consider the public interest and that there is “an interest in appeals being instituted and disposed of within the time frame provided in the legislation or, within a period thereafter that is ‘reasonable in the circumstances’”. Neither party challenged those conclusions of the Judge, and the focus of the submissions on appeal was the appellant’s explanation for the delay and the prospects that the appeal will be successful.
I start with the explanation for the delay and in this respect it is convenient to say something more about the facts. In early 1997 the land was within the Willunga Basis Moratorium Area under the Water Resources Act 1990 and the owner of the land had a licence or authority under that Act to take from wells on the land a water allocation of 1.2 hectares of vines per annum. In February 1997 the appellant applied for a licence or authority to take water for 8.1 hectares of vines per annum. The appellant said that he would like “an irrigation licence for my vineyards of around 20 acres”. That application was refused by the respondent in June 1997 and the appellant was advised that he had a right of appeal under the Water Resources Act 1990. The appellant did not appeal. On 24th June 1999 the appellant completed a document entitled “Application for a Water Licence” which was said to be pursuant to s 29 of the WRA. Under the heading of “Purpose of Proposed Water Use” and the subheading of “Irrigation”, “Proposed Plantings” the appellant wrote “vines” and under the subheading of Area (ha) he wrote “1.2”. The appellant’s evidence on his state of mind as to what he thought was occurring on being advised in 1999 that the land was to be included in the McLaren Vale Prescribed Wells Area and that he would have to make an application for a water licence is somewhat confusing. In his affidavit he states:
20.On or about the 21st May 1999, I received a letter from the respondent. Exhibited hereto and marked “RN9” is a copy of that letter.
21.I did not fully understand the letter and the document headed “Application for a Water Licence” that accompanied the said letter.
22.At that time, I understood that I was only allowed to irrigate the area specified in the notice and that any request for more water would simply be denied.
23.I took the “Application” to be some sort of survey. I thought it was asking me to set out what I was currently able to irrigate under the notice issued by the respondent.
24.It was my intention to increase the area of the land under vine further but I did not put any detail of that in the document. Exhibited hereto and marked “RN10” is a copy of the completed document I returned to the respondent.
On 13th September 2000 the water licence was issued to the appellant. The licence contained a statement that the appellant could appeal from any condition on the licence and that the appeal must be instituted within six weeks of the date of licence issue. No appeal was lodged within that time. The appellant states he did not think that there was anything he could do. In November 2000 the appellant was advised of a variation of his water licence from area to volume. As I have said the Minister subsequently accepted that this variation was not lawful. On 4th July 2001 the appellant obtained legal advice and in August 2001 he made an application to vary the water licence to increase the area for the use of water for irrigation. That application was refused on 13th December 2001. There then followed correspondence between the appellant and the Minister as follows, namely, a letter from the appellant’s solicitor to the Minister dated 12th August 2002, a letter from the Minister to the appellant’s solicitors dated 1st October 2002, a letter from the appellant’s solicitors to the Minister dated 17th December 2002 and a letter from the Minister to the appellant’s solicitors dated 4th July 2003. On 28th August 2003 the Minister advised the appellant that his water allocation based on volume had been reduced. As I have said, the Minister subsequently accepted that he had no power to do this.
On 15th October 2003 the appellant lodged the present appeal. On 28th November 2003 the Minister through his solicitor, the Crown Solicitor, advised the appellant that in relation to the decision made on 13th September 2000 the appellant was an existing user of water for the purposes of s 36 of the WRA. The letter from the Crown Solicitor to the appellant’s solicitor is in the following terms:
I write to advise that having examined more closely your client’s departmental file it is apparent that at the time the wells within the McLaren Vale Prescribed Wells Area were prescribed your client had been taking water from a well that accessed the underground water resource. Since your client applied for a water licence within 6 months after publication in the Gazette of the regulation declaring the resource to be a prescribed resource, he is an existing user for the purposes of section 36 of the Water Resources Act 1997. In this regard I enclose for your consideration a copy of correspondence from the Minister to your client dated 21 May 1999.
I am currently taking instructions from the Minister about the implications of the above in the context of your client’s appeal. I therefore inquire whether your client agrees to an adjournment of one month of the directions hearing set down for 4 December 2003.
I would appreciate if you could confirm your instructions as a matter of urgency.
The Judge found that effectively there was no explanation for the delay by the appellant. I think that she was right to reach that conclusion. The only possible explanation was that proffered in paragraph 39 of the appellant’s affidavit. That paragraph is in the following terms:
It was not until the 28th November 2003 that the respondent acknowledged that the my [sic] water licence should have been issued to me as an existing user of a resource and with reference to the criteria set out under section 36 of the Water Resources Act 1997 (SA).
I am not prepared to draw the inference that in some way the appellant was to this point under a misapprehension as to his legal rights before he received the letter dated 28th November 2003. The appellant does not say as much in his affidavits. Earlier in his affidavit he does say that following the variation to his licence in late 2000 he did not think that there was anything he could do but by July 2001 he had taken legal advice. There is no explanation from the appellant or his solicitor as to why an appeal was not lodged shortly after July 2001. The absence of an explanation from the appellant’s solicitor is significant. A delay of nearly three years requires a full, frank and adequate explanation of the delay and the appellant was given every opportunity to provide the explanation. If an applicant for an extension of time has not done something because he has not been given proper advice then that should be clearly stated. There is no evidence to that effect in this case. I also note that there is no explanation of what is said to be the link between the letter dated 28th November 1993 and the institution of the appeal bearing in mind that the appeal was instituted over a month before the letter was written. I agree with the Judge that there is effectively no explanation for the delay.
I turn now to consider whether there are some prospects that the appeal will be successful. If, as in this case, the application for an extension of time within which to appeal is considered before the hearing of the appeal then the merits of the appeal cannot be assessed other than in broad terms and the temptation to refuse the application for an extension of time because the prospects of success appear slim or weak must be resisted. The only question is whether there are some prospects that the appeal will be successful. Although I think that there is much to be said for the Judge’s conclusion that there is no reasonable prospect of a successful outcome of the appeal even if the amendment is allowed, I have concluded by a narrow margin that it cannot be said that the appeal does not have some prospects of success.
On the previous appeal to this Court Debelle J said at [15]:
If the appellant is able to establish that he did not properly understand the nature of the form he was completing, and if he is able to establish that he had planted the extra hectares of vines before the commencement of the prescribed period, he may have some prospects of success. There may be other factors which negative the force of those factors. Those are issues which are to be explored in the Environment Court when all the relevant evidence has been adduced. Neither the fact that the appellant received an allocation for 1.2 hectares nor the fact that he did not understand that the document he was completing was not an application form necessarily leads to the conclusion that this appeal must fail. If the area to be irrigated was mistakenly inserted in the application form, the right of appeal provided by s 36 is a means of correcting the error. The judge therefore erred in striking out the appeal on the ground that the appellant had been allocated what he had been asked for in the application or that, if he misunderstood the nature of the application form, he had not received an allocation under s 36.
For the purposes of this application, I proceed on the basis that it is reasonably arguable that the appellant made an error in completing the application form and that the error is not fatal to the proposed appeal. I turn to consider whether there are some prospects that the appellant would succeed in showing that he was, by reason of s 36(2), entitled to a greater water allocation than 1.2 hectares of vines.
I start with s 36(2)(a) and the appellant’s reasonable requirements in the period from 1st April 1993 to 20th August 1997. On the evidence before the Judge, the land was within the Willunga Basin Moratorium Area in 1993. A member of the appellant’s family was granted a licence under the Water Resources Act 1990 for 0.8 hectare vegetables and 0.4 hectare fruit trees for the period from 13th October 1993 to 31st March 1995. The licence was renewed in April 1995 for a period of one year, and again in May 1996 for a period of one year. In July 1996 and on the application of the user, the water allocation on the licence was altered to “1.2 ha of vines per annum”. In February 1997 the appellant made an application to increase the area specified on the licence to 8.1 hectares. That application was refused and as the Judge noted there was no appeal from that decision. The appellant put before the Judge a report from a Mr Adam Jacobs, who is a director of viticultural management company, and in that report Mr Jacobs notes that as at November 2002 there is a vineyard on the land which is 12.5 hectares in area and that, on the information provided to him, 7 hectares of that vineyard had been planted by the end of 1997. At the beginning of 1997, 4.8 hectares of the vineyard had been planted. Mr Jacobs also records the particular areas containing particular types of vines and whether those areas were being irrigated or were being dry grown.
In a case where there were water restrictions during the establishment period the starting point as to the existing user’s requirements is the quantity of water he was permitted to take during the establishment period, in this case, an allocation of 1.2 hectares of vines. It appears that before his application for an increase in February 1997 the appellant had a vineyard in the order of 4.8 hectares and that by the end of the establishment period on 20th August 1997 he may have had up to 7 hectares. It is not possible for me to be precise because the evidence is not precise. If it is assumed that before the end of the establishment period he had a vineyard of 7 hectares he appears to have proceeded to plant vines in circumstances in which his state of mind was that he did not know whether his allocation of 1.2 hectares of vines would be increased or he knew an increase had been refused and he did not think that there was anything that he could do about that decision. It is difficult to see how it could be said in those circumstances that the appellant’s reasonable requirements during the establishment period exceeded his existing allocation of 1.2 hectares of vines, and I do not think that the appellant has established that his appeal has some prospects of success insofar as he relies on s 36(2)(a) of the WRA.
I turn then to s 36(2)(b). The appellant’s case is that he committed significant financial resources for the establishment of his vineyard prior to 21st August 1997. Although it is not entirely clear, I will assume in the appellant’s favour that before the commencement of the prescribed period the area of the vineyard on the land was 7 hectares in area. By the end of 1996 the vineyard was 4.8 hectares in area. He produced to the Minister twelve invoices relating to expenditure by him totalling $6,624.94 between August 1994 and April 1996 and he also gave particulars of cheques drawn between December 1994 and June 1996 and totalling $21,986.78. He also referred to the renovation of a submersible pump on the property in about 1993. There are difficulties with the appellant’s case. As the Judge noted there are no details of the item purchased or the service provided. Unlike the Judge, I do not think that is fatal. The question at this stage is whether the appeal has some prospects of success and I would be prepared to accept at face value the appellant’s assertion that the financial resources were committed to the vineyard and that the vineyard covered an area greater than the 1.2 hectares for which water was allowed. Whether the appellant will ultimately make good his assertion is not the issue at this stage. Of course there might be other obstacles in the appellant’s way on the appeal. I think the appellant’s appeal has some prospects of success insofar as it is based on s 36(2)(b) of WRA. For the sake of completeness I add that I have read the decision of the Full Court of this Court in Minister for Environment and Conservation v Wylie Group Pty Ltd [2005] SASC 127. The case considers s 36(2)(b) but there is nothing in the decision which directly bears on the issues before me.
The relevant factors must then be assessed to determine whether it is reasonable in the circumstances to grant an extension of time. Although I disagree with the Judge’s conclusion on the issue of whether the appeal has some prospects of success, I think her ultimate conclusion that an extension of time should be refused is right. I recognise that if an extension of time is refused the appellant will lose his right of appeal and that that appeal has some prospects of success. I recognise that there will be no actual prejudice to the Minister if an extension of time is granted. These are weighty matters in favour of an extension of time. On the other hand, the delay here is almost three years and there is effectively no explanation for that delay. To my mind it is of cardinal importance that in a case of very substantial delay a full, frank and proper explanation for the delay be provided. That has not been done in this case and it is not reasonable in the circumstances for the Court to extend the time within which to appeal. The appeal against the Judge’s decision refusing an extension of time must be dismissed and it follows that the appeal against the order refusing leave to amend and the order striking out the appeal should also be dismissed.
Conclusion
The appeal is dismissed. I will hear the parties as to costs and any other orders.
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