Natale v Minister for Environment & Conservation - [2004] SASC 176

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division: Civil)
NATALE v MINISTER FOR ENVIRONMENT & CONSERVATION
Judgment of The Honourable Justice Debelle
18 June 2004
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - ENVIRONMENTAL, RESOURCES AND DEVELOPMENT COURT AND ITS PREDECESSORS - RIGHT AND AVAILABILITY OF APPEAL
Appeal from decision of judge of the Environment, Resources and Development Court striking out both an application for an extension of time in which to appeal, and to amend an appeal of an earlier decision with respect to water allocation - neither application properly considered by judge - appeal allowed.
Environment, Resources and Development Court Act 1993 s 30(1)(a); Water Resources Act 1997 s 33, s 35, s 36, s 142(4), referred to.
Simes v Minister for Environment and Conservation [2004] SASC 84, considered.

NATALE v MINISTER FOR ENVIRONMENT & CONSERVATION
[2004] SASC 176
Land and Valuation Division

DEBELLE J This is an appeal from a decision of a judge of the Environment, Resources and Development Court striking out an appeal made under the Water Resources Act 1997. As the order made by the judge was interlocutory in nature, this appeal is to be determined by a single judge of this Court: s 30(1)(a) of the Environment, Resources and Development Court Act, 1993. I set out the facts leading to the appeal.
On 13 September 2000 the Minister for Environment and Conservation issued a water licence to the appellant Roberto Natale. The licence authorised the appellant to take water from the McLaren Vale prescribed wells area for the purpose of irrigating 1.2 hectares of vines. The licence did not specify the quantity of water which might be taken. By a subsequent notice dated 17 November 2000 the Minister stated that the allocation was 1536 kilolitres per annum.
On 31 August 2001 the appellant applied to vary the licence to increase the area of vines which might be irrigated. The application was refused on 13 December 2001.
On 28 August 2003 the Minister varied the appellant’s water allocation by reducing it to 1320 kilolitres per annum.
On 15 October 2003 the appellant appealed to the Environment, Resources and Development Court (“the Environment Court”) against the variation made on 28 August 2003 and against the allocation made on 13 September 2000. In addition he sought an extension of time within which to appeal against the allocation made on 13 September 2000. That application was necessary because the time within which to appeal was six weeks: see s 142(4) of the Water Resources Act, 1997.
In the Environment Court the Minister conceded that he had no authority to vary the water licence in August 2003. Thus, the only issue on the appeal in that court concerned the allocation made on 13 September 2000.
The allocation on 13 September 2000 was made pursuant to s 36 of the Water Resources Act. The entitlement to take underground water in the area of McLaren Vale has been the subject of legislation in recent years. The history of that legislation is recited in Simes v Minister for Environment and Conservation [2004] SASC 84. For present purposes, it is sufficient to note that the appellant had been lawfully taking underground water before underground water resources in the area of McLaren Vale were declared to be prescribed resources. Before the prescription he was authorised to take water to irrigate 1.2 hectares of vines.
It is common ground that the appellant was an existing user within the meaning of s 36. The Minister contends that the appellant made an application for a water licence within the time prescribed by s 36. The Minister points to the fact that by letter dated 21 May 1999 the Department for Environment informed the appellant that underground water in the area of McLaren Vale had been prescribed and of the necessity to make a fresh application on a form enclosed with the letter. The appellant had within the prescribed time completed the form and, the Minister contends, had applied for water to irrigate 1.2 hectares of vines.
The document enclosed with the letter dated 21 May 1999 is entitled “Application for a Water Licence”. Under the heading “Purpose of Proposed Water Use” the form contains a number of sub-headings concerning the purpose for which water might be used. The appellant filled in the form under the sub-heading “Irrigation”. That section had two further sub-headings, two of which were “Proposed Plantings” and “Area”. Under the heading “Proposed Plantings” the appellant inserted the word “vines”. Under the heading “Area” the appellant inserted “1.2 ha”.
The appellant’s grounds of appeal as initially filed were as follows:
“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.”
In consequence of an admission on behalf of the Minister that the licence had not been issued pursuant to s 35 of the Water Resources Act but pursuant to s 36 of the Act, the appellant gave notice of an intention to amend the Notice of Appeal by varying 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 judge in the Environment Court listed the application to amend and the application for extension of time within which to appeal for hearing on 12 March 2004. On 12 March the judge struck out the appeal. The appellant appeals from that decision.
The judge did not publish reasons for her decision. An examination of the transcript of the hearing discloses that there were effectively two grounds on which she relied. The first was that the Minister had granted the allocation which the appellant sought. The second was that if, as the appellant contended, he had not completed an application form, the grant had not been made in consequence of an application so that there was no basis for any appeal pursuant to s 36. The judge decided that the appeal should be struck out for those two reasons. She did not deal expressly either with the application to amend or with the application for an extension of time. I was asked by counsel for the Minister to infer that the judge had dismissed both applications. I am not prepared to do so because it is apparent the judge did not address either question and because it was necessary for evidence to be led in support of the application. The appellant was not given any opportunity to lead evidence. Counsel for the appellant was seeking to put the proposition that the appellant misunderstood the documents he received in May 1999, a critical time. The judge should have required evidence to be given on that issue. It might have required an adjournment to enable affidavits to be prepared and to give the Minister an opportunity to answer the appellant’s assertion. The affidavit filed on behalf of the Minister in this application only reinforces that view. There was effectively no evidence before the judge in the Environment Court other than a bundle of documents tendered on behalf of the Minister.
There was no application in the Environment Court to strike out the appeal. The matter had been listed for the express purpose of hearing the appellant’s application for an extension of time within which to appeal and his right to amend the grounds of his appeal. Very quickly the judge took over the conduct of the hearing and determined the question whether the appeal should be struck out and did so on inadequate evidence.
It must be acknowledged that the question the judge considered was one of the questions which would have to be examined in the course of determining the application for extension of time within which to appeal. But, I repeat, she did so without giving the appellant an opportunity to adduce evidence.
Furthermore, the reasons she gave for striking out the application are flawed and justify allowing this appeal. One of the grounds of appeal is that the allocation was based upon incorrect information as to the area of vines requiring irrigation. This ground reflects the appellant’s contention that he did not understand that the document he completed was in fact an application. His understanding of the nature of the application does not alter the fact that the document he completed was in fact an application. The effect of the appellant’s case is that because he misunderstood the intent of the form, he did not complete it accurately in that he failed to seek an allocation of water to irrigate the total area of 8.1 hectares of vines established on his vineyard. The Minister contends the appellant is not able to seek that extra allocation. The Minister’s contention is founded on the terms of s 36(2) of the Water Resources Act which provides:
“(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 she had committed significant financial or other resources before the commencement of the prescribed period; or
(c)    under both paragraphs (a and (b).”
The Minister contends that the extra 6.9 hectares were not established before the commencement of the prescribed period. It is a question of fact as to when those extra 6.9 hectares were planted with vines. There was no evidence on this question in the Environment Court.
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.
On the hearing of this appeal, counsel for the Minister tendered an affidavit by consent. She then sought to adduce argument to the effect that the appeal should be dismissed because the appellant would fail on his application to extend the time within which to appeal. However, the effect of that submission was to ask me to determine the application to extend time. That would be quite improper because all of the facts had not been adduced. That issue can only be determined by the Environment Court once the evidence on the relevant facts has been adduced.
For these reasons the appeal should be allowed and the orders made in the Environment Court striking out the appeal should be set aside. The matter should be remitted to the Environment Court for hearing and determination of the application to amend the appeal and of the application to extend the time within which to lodge the appeal. The Environment Court should make orders to ensure that it has the relevant evidence before it on those applications. It may be necessary for the Environment Court to make orders requiring the parties to file and deliver affidavits and, depending on what those affidavits seek to prove, it may be necessary for oral evidence. Those are matters for the Environment Court to determine.
At the beginning of the hearing of this appeal, the Minister conceded that there was no authority to issue the notices dated 17 November 2000 stating that the appellant’s allocation was 1536 kilolitres per annum or the notice dated 28 August 2003 reducing the appellant’s allocation to 1326 kilolitres per annum. Counsel for the appellant made an oral application for judicial review of those notices seeking an order quashing the notices. Counsel for the Minister consented to the application. I will, therefore, make orders declaring those notices to be invalid.