Nauss v Department of Natural Resources and Mines
[2004] QLC 92
•27 October 2004
LAND COURT OF QUEENSLAND
CITATION: Nauss v Department of Natural Resources and Mines [2004] QLC 0092 PARTIES: Jay Nauss
(appellant)v. Chief Executive, Department of Natural Resources and Mines
(respondent)FILE NO: A2004/0043 DIVISION: Land Court of Queensland PROCEEDING: Jurisdiction - Appeal against a decision to refuse an application to pump water from the Severn River for domestic purposes DELIVERED ON: 27 October 2004 DELIVERED AT: Brisbane HEARD AT: Stanthorpe MEMBER: Mr BR O'Connor, Judicial Registrar ORDER: The Court has no jurisdiction to hear the appeal. CATCHWORDS: Practice and Procedure - Jurisdiction - Water Act 2000 - No original decision or internal review APPEARANCES: Mr I McLeod (Agent) for the appellant
Mr A Cradick (Principal Legal Officer, Department of Natural Resources and Mines) for the respondent
The appellant, Mr Jay Nauss, held a licence to pump water from the Severn River, near Glen Aplin, to his nearby property for irrigation and domestic purposes. This licence has been held under various guises since 1987. The most recent licence expired on 31 January 2004.
Mr Nauss was asked by the respondent Department if he wished to renew this licence shortly before expiry. Under the new provisions of the Water Act 2000 (the Act) an annual fee (presently $50) applies for such licences unless they service properties adjoining a watercourse (s.20 of the Act preserves the common law position of such owners to take water for stock and domestic purposes without need for separate licence).
Mr Nauss, through his agent Mr I McLeod, claims his property falls within s.20 exemption as there is only a gazetted, but unformed road between his property (Lot 9) and the bed and banks of the Severn River. It is not necessary to consider this substantive issue in this decision relating to whether the Court has jurisdiction to hear the appeal.
Correspondence has passed between the parties on the question of costs of licence restoration and costs of a new licence fee. However, as the licence has expired and no application for a new licence has been made by Mr Nauss, the respondent argues that there is no decision against which to appeal. They argue that an "information notice" or a "compliance notice" must have issued as a pre-condition to appeal. Further, an appeal cannot proceed to the Land Court without there first being an internal review of the decision.
Appeal Scheme for Licences
Section 220 of the Act provides for the renewal of water licences. Subsection (1) states:
"The licensee may apply to renew a water licence before the licence has expired."
Subsection (7) provides that:
"Within 30 business days after deciding the application, the chief executive must -
(a)if the application is refused or approved with variation, give the applicant an information notice;"
Chapter 6 of the Act provides for reviews, appeals and arbitration. Section 851 states that a person who has been given an "information notice" by the chief executive is an "interested person".
Section 851(6) provides that the decision or action for which a notice was given under subsection (1), is an "original decision". Section 861 provides that every appeal against an original decision must in the first instance be by way of an application for internal review. Section 877 provides that an interested person who has applied for a review of an original decision may appeal against the review decision to the Land Court in certain situations.
Decision
In my view, despite extensive correspondence between the parties, there exists no decision against which to appeal. No "information notice" has been given to Mr Nauss, as prescribed by the Act and he has therefore not become an "interested" person. Even if there was an original decision, the prescribed internal review process has not taken place. Given the above, I find that the Court has no jurisdiction to hear the present matter.
BR O'CONNOR
JUDICIAL REGISTRAR OF THE LAND COURT
0
0
0