Noye v Resource Management and Planning Appeal Tribunal
[2007] TASSC 47
•20 June 2007
[2007] TASSC 47
CITATION:Noye v Resource Management and Planning Appeal Tribunal [2007] TASSC 47
PARTIES: G F NOYE PTY LTD (ACN 009 538 309)
v
RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL
BADHAM, Anthony J
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M49/2006
DELIVERED ON: 20 June 2007
DELIVERED AT: Hobart
HEARING DATE: 27 April 2007
JUDGMENT OF: Tennent J
CATCHWORDS:
Administrative Law – Judicial review – Grounds of review – Error of law.
Judicial Review Act 2000 (Tas), s17(2)(f).
Aust Dig Administrative Law [1030]
Administrative Law – Judicial review – Grounds of review – Generally – Lack of jurisdiction – Failure to consider relevant consideration – No evidence to justify making of decision.
Judicial Review Act 2000 (Tas), ss17(2)(d), (e), (h) and (i).
Aust Dig Administrative Law [1028]
REPRESENTATION:
Counsel:
Applicant: W A Ayliffe
Respondent: C M Schokman
Solicitors:
Applicant: Chris Boland Lawyers
Respondent: Ogilvie Jennings
Judgment Number: [2007] TASSC 47
Number of paragraphs: 48
Serial No 47/2007
File No M49/2006
G F NOYE PTY LTD (ACN 009 538 309) v RESOURCE MANAGEMENT
AND PLANNING APPEAL TRIBUNAL and ANTHONY J BADHAM
REASONS FOR JUDGMENT TENNENT J
20 June 2007
On 14 June 2005 the Assessment Committee for Dam Construction ("ACDC") constituted under the Water Management Act 1999 ("the WMA") issued a "Permit to construct a dam" pursuant to s157 to Anthony J Badham ("the respondent") in respect of an application he had made to carry out certain works ("the Dam works") on an existing dam at Premaydena ("the Dam").
The applicant in these proceedings appealed to the Resource Management and Planning Appeal Tribunal ("the Tribunal") against the decision to grant the permit. After a hearing, the Tribunal, in effect, confirmed the decision of the ACDC to issue the permit. The applicant has sought a review of the Tribunal's decision under the Judicial Review Act 2000 setting out five grounds of review. Prior to the hearing, the applicant abandoned ground 2. However, at the hearing he was given leave to reinstate it for the limited purpose of addressing an argument that the Tribunal failed to take into account a relevant consideration, namely the proposed use by the respondent of water from the Dam for commercial purposes, when considering the issue of detriment to the applicant under the WMA, s158(1)(c ) or (ca).
Background facts
The respondent and the applicant owned adjoining land at Premaydena. Predecessors in title to them both entered into an agreement dated 23 April 1968 ("the agreement") pursuant to which they agreed to build a dam which straddled the boundary between the two properties. The operative parts of the agreement were as follows:
"1 EACH party will allow the other to construct the dam and to accumulate water on the property of the other, the said dam and the accumulation of water being shown approximately on the plan drawn hereon.
2 EACH party shall be entitled to take such amount of water from the dam as they may require provided that if either party is taking more water than the other so that the other is deprived of water then the other party may call upon the party so taking more water to reduce his consumption so that he will not take more than one half of water in the dam and in case of any dispute as to whether or not any party is taking more water than his share the matter shall be referred to arbitration in the manner provided by law.
3 EACH party shall be entitled to enter upon the property of the other for the purpose of taking such water provided that he shall do no damage to the other property and shall enter onto no more of the other's property than is necessary for the taking of such water.
4 IF either party sells his property on which the dam is constructed they will notify any purchaser of the terms of this Agreement and obtain an acknowledgment and make it a condition of such sale that the purchaser is bound by the terms of this Agreement and each party shall be at liberty to lodge a caveat on the title of the other to protect this right and neither party will sell their said property unless they shall first notify such purchaser of the terms of this Agreement."
The Dam was subsequently built. Neither of the parties to the agreement, nor any successor in title, ever lodged a caveat to protect any interest said to arise under the agreement. The respondent acquired his property in or about November 1992. The applicant acquired his in July 2002. Prior to his purchase, the applicant was made aware of the existence of the agreement. The respondent was not aware of the agreement when he signed a contract to purchase his property, but was made aware shortly before he actually became the registered proprietor which, for some unexplained reason, was nine months after he contracted to purchase. The storage capacity of the Dam was not equally divided between the two properties, with about 11 per cent sitting on the applicant's property and about 89 per cent on the respondent's.
I infer that ill-feeling arose between the applicant and the respondent as to the use and maintenance of the Dam. As a consequence, the respondent applied to the ACDC for a permit to erect a new dam wall within the existing dam on a line approximately parallel to the notional property boundary between his and the applicant's properties. The proposed new dam wall was, however, wholly on his own land.
The respondent's application was for a permit to undertake dam works pursuant to the WMA, s146. The WMA, s149, required the ACDC, prior to considering whether to grant or refuse a permit, to publish notice of the application and, in that notice, invite representations from any person who may be affected by the application. It advertised this application on 7 May 2005, inviting submissions by 23 May 2005. On the same date, notice of an application for a water licence by the respondent was published in which the purpose of the licence to take water was stated as being "commercial". There was no evidence to directly link the two applications.
Legislation
Counsel referred to a number of sections and definitions contained within the WMA which, they submitted, were relevant to the issues to be determined in this review. These were ss7, 48(1), (2), (4) and (6), 146(1), 148(1) and (2), 157(1), and 158(1). The definitions relied on were those appearing in s3 relating to "dam", "dam works", "dispersed surface water", "land", "owner" and "watercourse". These sections and definitions are set out below:
"7 (1) All rights existing at common law immediately before the commencement of this section to the flow of, or for the taking of, naturally occurring water are abolished.
(2) Except as provided by this Act, all rights to the taking of water from the water resources of Tasmania are vested in the Crown to be administered in accordance with this Act.
(3) This section does not derogate from any rights conferred under Part 5."
"48 (1) In this section –
'casual use' of land means lawful use by persons or stock not normally resident on land which adjoins a watercourse or lake from which water is taken and includes camping, recreational use and use by travelling livestock;
'specified purpose' means –
(a) a domestic purpose; or
(b) irrigation of a household garden; or
(c) stock watering; or
(d) firefighting; or
(e) drilling under section 168 of the Mineral Resources Development Act 1995;
'tenement to which this section applies' means –
(a) a riparian tenement; and
(b) land that would be a riparian tenement but for the existence of a Crown reserve not exceeding 20 metres in width between it and a watercourse or lake; and
(c) land that would be a riparian tenement but for the existence of a Crown reserve exceeding 20 metres in width between it and a watercourse or lake where the Secretary of the responsible department in relation to the Crown Lands Act 1976 has, in writing, permitted the occupier of the land to take water across the reserve.
(2) Subject to this Act –
(a) a person who is an occupier of a tenement to which this section applies may take water from a watercourse or lake on, or adjoining, that tenement for a specified purpose; and
(b) a person may, in casual use of land, take water from a watercourse or lake on, or adjoining, that land for a specified purpose.
(3) ...
(4) An owner or occupier of land may take dispersed surface water from the land for any purpose.
(4A) ...
(5) ...
(6) Nothing in this section is taken to affect any interest in land held by any person or any rights or obligations of an owner or occupier of land which exist otherwise than under this Part."
"146 (1) A person may apply to the Assessment Committee for the granting of a permit to undertake dam works."
"148 (1) If an applicant for a permit is not the owner of the land in respect of which the permit is required, the application –
(a) is to be signed by the owner of the land; or
(b) is to be accompanied by the written permission of the owner to the making of the application.
(2) If the Assessment Committee is satisfied that the applicant is a lawful occupier of the relevant land and as such is entitled to carry out the proposed dam works, the Committee may waive a requirement under subsection (1)."
"157 (1) On receipt of an application for a permit, the Assessment Committee
may –(a) grant the permit; or
(b) refuse to grant the permit in accordance with section 158."
"158 (1) The Assessment Committee or its delegate may refuse to grant a permit where the proposed dam works –
(a) are inconsistent with the objectives of this Act or a relevant water management plan; or
(b) may result in material environmental harm, serious environmental harm or environmental nuisance; or
(c) may adversely affect persons with a right under Part 5 or a licence to take water from a relevant water resource; or
(ca) may damage or adversely impact on property owned by a third party; or
(cb) may adversely impact on public safety –
and may also refuse to grant a permit –
(d) if the applicant does not have a right or licence to take water into the relevant dam; or
(da) if the proposed dam works are wholly or partly within a pipeline planning corridor and are likely to compromise the safety or safe operation of the pipeline in the pipeline planning corridor; or
(e) if the Board so determines under section 153."
"3 (1) In this Act, unless the contrary intention appears –
"'dam' means a permanent or temporary barrier or structure that stores, holds back or impedes the flow of water and includes –
(a) any spillway or similar works for passing water around or over the barrier or structure; and
(b) a pipe or other works for passing water through or over the barrier or structure; and
(c) water stored or held back by the barrier or structure and the area covered by that water; and
(d) an artificial depression or hole excavated in a watercourse that holds water or impedes the flow of water; and
(e) an artificial levee or bank that holds back or diverts water in a watercourse –
but does not include –
(f) associated works and canals used in, or in relation to, the generation of electricity; or
(g) a tank or reservoir unless –
(i) the storage of water involves flooding natural ground; or
(ii) the tank or reservoir is on a watercourse; or
(h) roads, buildings and other ancillary works that are not part of the dam;"
"'dam works' means any works for the construction, erection, enlargement, modification, repair or removal of a dam to which Part 8 or Part 8A applies or any work on any such dam which may significantly increase the dam's safety risk;"
"'dispersed surface water' means –
(a) water flowing over land otherwise than in a watercourse –
(i) after having fallen as rain or hail or having precipitated in any other manner; or
(ii) after rising to the surface naturally from underground; or
(b) water as mentioned in paragraph (a) that has been collected in a dam or reservoir;"
"'land' includes –
(a) buildings and other structures permanently fixed to land; and
(b) land covered with water; and
(c) water covering land; and
(d) any estate, interest, easement, privilege or right in or over land;"
"'owner' means –
(a) in the case of land alienated from the Crown by grant in fee simple, the holder of an estate in fee simple; or
(b) in the case of dedicated Crown land that has not been granted in fee simple but which is under the care, control and management of a Minister, body or other person, that Minister, body or other person; or
(c) in the case of land held under Crown lease or licence, the lessee or licensee of the land; or
(d) in the case of land held under an agreement to purchase it from the Crown, the person entitled to the benefit of the agreement; or
(e) in the case of any other land, the Minister who is responsible for the care, control and management of the land or, if no Minister is so responsible, the Minister having the administration of the EMPC Act; or
(f) in the case of a dam, any person or statutory authority who, whether solely or with another person or statutory authority, owns, controls, operates, manages or maintains a dam, and includes any person or statutory authority who, whether solely or with another person or statutory authority, proposes to build a dam;"
"'watercourse' means a river, creek or other natural stream of water (whether modified or not) flowing in a defined channel, or between banks, notwithstanding that the flow may be intermittent or seasonal or the banks not clearly or sharply defined, and includes –
(a) a dam that collects water flowing in any such stream; and
(b) a lake through which water flows; and
(c) a channel into which the water of any such stream has been diverted; and
(d) part of any such stream; and
(da) the floodplain of any such stream –
but does not include –
(e) a channel declared by the regulations to be excluded from this definition; or
(f) a drain or drainage depression in the contours on the land which only serves to relieve upper land of excess water in times of major precipitation;"
The application to review - grounds 1 and 3
These grounds were as follows:
"1The decision was not authorised by the enactment under which is was purported to be made; (Section 17(2)(d) of the Judicial Review Act 2000)
FURTHER AND BETTER PARTICULARS
(a)the ACDC had no jurisdiction to issue the permit because the Applicant, as the owner of the dominant tenement of an easement, was the owner of the land in question (within the definition of that term in the WMA) and had not signed the application for the relevant permit pursuant to S 148 of the WMA.
(b)Further and/or in the alterative, the ACDC did not have jurisdiction to grant the permit because that power could not be used contrary to the wishes of the owner of a dominant tenement of an easement that would be affected by the issue of such permit.
(c)Further and/or in the alternative, the WMA did not apply to the Applicant because the water in the dam in question was collected as a consequence of dispersed surface water, rather than as a consequence of a watercourse, and therefore the ACDC had no power pursuant to the WMA to issue a permit."
"3The decision involved an error of law (whether or not the error appears on the record of decision (Section 17(2)(f) of the Judicial Review Act 2000)
FURTHER AND BETTER PARTICULARS
The Applicant repeats the particulars as to Ground 1."
The applicant mounted three alternative arguments in relation to these grounds. The first two were dependent on there being a finding of fact that an equitable easement claimed by the applicant existed in respect of the respondent's land. The Tribunal made no finding as to the existence or otherwise of such an easement because it took the view such a consideration was irrelevant to an application for a dam works permit. The third argument was dependent on there being a finding of fact that water in the Dam was collected as a consequence of dispersed surface water, rather than as a consequence of a watercourse. The finding made by the Tribunal was that the Dam was fed from a watercourse, which is challenged elsewhere. It did not consider whether, if the Dam were fed by dispersed water and not a watercourse, that meant it did not have jurisdiction to grant the permit.
As to the first two arguments, the applicant submitted that by virtue of the agreement, he had rights to accumulate water on the respondent's property and to maintain the Dam walls there and hence he had an equitable easement over the respondent's land. By virtue of the definitions of "land" and "owner" in the WMA, he was, as a consequence of the existence of that easement, an owner of land and as such must be a signatory to any application for a dam works permit in respect of that land. Since he was not a signatory to the application, the Tribunal had no jurisdiction to deal with it. Further, it had no jurisdiction to grant a permit contrary to the owner's wishes.
The WMA, Pt8, deals with applications for permits for dam works. The applicant submitted that it was fundamental to that Part that an owner of any land upon which dam works were to be carried out was given the status of applicant because the inference from s148 was that any person who did not sign an application was consenting to it. He also submitted that because s157(2)(c) provided that a permit was binding on the applicant and owner or occupier of land, that was a good reason why such an owner should be a signatory to an application. He submitted that the Tribunal did not give proper consideration to the applicant's status as an owner, giving him only status as the beneficiary of a riparian tenement. As a consequence, the Tribunal did not explore a number of issues.
The issues identified by the applicant's counsel as not having been explored by the Tribunal were:
-Did the agreement create the equitable easement claimed by the applicant and, if it did, did that easement survive the WMA, s7?
-The impact of the fact that the bulk of the water in the Dam came originally from the applicant's property, although it entered the Dam on the respondent's side, thus giving the respondent control of it.
-If the easement claimed survived, the applicant stood to lose the right to take 50 per cent of the water from the Dam. His ability to take water would be restricted to whatever was on his side of the new dam wall. Although the proposed dam works included a spillway and an interconnecting pipe for the purpose of evening up the storage, they were unlikely to be useful because the respondent was going to sell water from the dam commercially, thus significantly reducing its level, such that the pipe and spillway would have little or no effect, save to perhaps operate to add water to the respondent's side, which he could sell. Further, the applicant's own side of the Dam would only be refilled largely from heavy rain.
- That on no view could the WMA, s7, affect rights to maintain the Dam.
The Tribunal, in its decision, did not, on the face of it, address the issue of whether or not it had jurisdiction to determine the application before it, clearly proceeding on the basis it did. It proceeded on the basis that the provisions of the WMA, s158, constituted the sole basis upon which a dam works permit could be refused, and that as a consequence a number of matters raised by the applicant's counsel were irrelevant. It determined that, by reference to s158, the principal issue it needed to determine was whether the proposed dam works "may adversely affect a person with a right under Part 5 or a licence to take water from a relevant water resource" (s158(1)(c). It then proceeded to determine that the applicant was such a person by reference to a number of factors, but starting with a consideration of the relevant parts of Pt5.
Part 5 of the WMA is headed "Rights in respect of Water" and is constituted by ss48 – 53 inclusive. Section 48 sets out the rights of persons to take water (Pt5 rights). Then, s48(6), set out in full earlier in these reasons, preserves rights "which exist otherwise than under this Part". The Tribunal found that the right claimed by the applicant pursuant to the alleged easement could not be a right under Pt5. It then made reference to the WMA, s7, also set out in full earlier in these reasons, and determined that, even if the right the applicant claimed existed pursuant to the agreement did in fact exist and survive the operation of s7, it was not a right existing under Pt5 and therefore not one the Tribunal had to consider.
The Tribunal went on to find that the Dam was a watercourse, the applicant's land adjoined the dam and was therefore a riparian tenement. Such a right was a Pt5 right. Once that finding had been made, the Tribunal considered whether the applicant was adversely affected.
The applicant's submission as to jurisdiction was based on the premise that the WMA, s148, required an application for a dam works permit to be signed by, or have the written permission of, every person who it could be asserted was an owner, on any definition, of the land the subject of the application. If such persons did not sign or give written permission for the application, the Tribunal had no jurisdiction to deal with it. It also proceeded on the basis that it could be inferred from s148 that any owner who had not signed or consented to an application was somehow deemed to have consented. This approach implied that the Tribunal would be required to hold some sort of preliminary hearing to determine the claims of every person who asserted to be an owner, before it could address a substantive application for a permit.
The application was one for dam works, in this case the addition of a wall within an existing dam wholly on the respondent's side of the notional boundary line running through the Dam. The applicant did not dispute that the respondent was the owner of the land on which the Dam works were to be carried out. His submission was founded on the premise that by virtue of the easement claimed over the respondent's land where the Dam lies, he was also an owner of that land. For this he relied on the definitions of "land" and "owner". Subparagraphs (b) and (d) of the definition of "land" provide that "land" includes "land covered by water" and "any estate, interest, easement, privilege or right in or over land". Subparagraphs (a) and (f) of the definition of "owner" provide that the term "owner" means "in the case of land alienated by the Crown by grant in fee simple, the holder of an estate in fee simple" and "in the case of a dam, any person … who, whether solely or with another person … owns, controls, operates, manages or maintains a dam …" respectively.
The respondent was the holder of the estate in fee simple in the land in respect of which the permit was sought. He was by definition the owner. The applicant relied on subpar(f) of the definition of "owner", asserting that the agreement gave him a right to maintain the dam. Even if the agreement relied on by the applicant were to give rise to an equitable easement, nowhere in that agreement is there a right given to the applicant to maintain any dam walls. Therefore it is hard to see how subpar(f) of the definition of "owner" could even apply.
Proceeding then to WMA, s148(1), the opening words of the section are "If an applicant for a permit is not the owner of the land in respect of which the permit is required, the application …". The respondent, who was the applicant for the permit, was the owner of the land. The section does not need to be considered further.
It should be noted also that there is nothing in the section or Pt8 generally which somehow deems a person in the position of the applicant to have consented to the application. It is clear that Pt8 provides for representations to be received by any person who claims to be affected by an application. The applicant in this case was such a person and his objections to the permit and his reasons therefor were vociferously pursued before the Tribunal. It was quite plain to the Tribunal the applicant did not consent to the issue of the permit sought and in no way did the Tribunal treat him as having been deemed to do so in some way.
As to the third argument raised by the applicant under this ground, irrespective of the factual finding as to dispersed water or a watercourse, it was dependent on an interpretation of the WMA to the effect that where a dam was fed by dispersed water, the Tribunal had no power to issue a dam works permit in respect of that dam. Dam works permits are dealt with in Pt8 of the WMA. There is nothing in that part of the WMA which confines the authority of the Tribunal in the manner sought by the applicant. The fact that the WMA, s48, deals with rights to take dispersed water from a dam cannot be read as extending to the proposition put by the applicant.
Grounds 1 and 3 of the application to review must fail.
Application to review - ground 2
This ground of review provided:
"2The making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made (Section 17(2)(e) of the Judicial Review Act 2000)."
The applicant was permitted to pursue this ground for the limited purpose of considering a submission that the Tribunal failed to take into account a relevant consideration when considering the detriment to the applicant, namely the proposed use of the water from the Dam for commercial purposes.
The WMA, s158(1)(c), provided the Tribunal with a discretion to refuse a permit where the proposed dam works "may adversely affect persons with a right … to take water from a relevant water resource". The WMA did not limit the exercise of the discretion in any way. The WMA did not provide for any factors the Tribunal was obliged to take into account when exercising its discretion. The applicant's submission was that the particular consideration was a relevant one because it evidenced detriment to him.
The Tribunal dealt with the issue of any adverse effect on the applicant commencing at par26 of its reasons. It did not make any reference to the use to which the respondent proposed to put the water in the Dam. Was that use a relevant consideration in the exercise of its discretion and did the Tribunal, as a consequence, make an error in failing to refer to it and, by implication, to take it into account?
The applicant's submissions were to the effect that the respondent proposed to use water in the Dam for commercial purposes, that is, to sell it to Tassal Ltd, that this would adversely affect the applicant's ability to take water from the Dam and hence the grant of the permit would adversely affect him. In those submissions, the Court was directed to parts of the evidence before the Tribunal which, it was submitted, made it clear this was the purpose for which the respondent proposed to use the Dam and that such use would adversely affect the applicant.
The evidence of the respondent was that, in the past, he had sold water to Tassal Ltd from "the lower dam". From the dam assessment report for the ACDC, it was apparent that prior to the grant of the dam works permit, there was already complaint by the applicant that such arrangement was adversely affecting him. The author of the report said:
"In recent years Mr Badham has leased a part of his property including the lower dam to Tassal Ltd who installed a pump to transfer the water from that storage dam to the Tassal storage dam at Nubeena. Mr Noye has complained that Mr Badham's deal with Tassal has affected his access to water supply from the upper dam.
… Mr Badham has said that he wants to use his share of water from the dam for commercial purposes but does not want to prevent Mr Noye from accessing his share of the water in the dam.
An internal dam wall centered along the property boundary would form two separate storages and allow each landowner to use their part of the storage for their own purposes without unduly affecting the other. Mr Noye would not give his consent for building the internal dam centred along the property boundary so Mr Badham has applied for a permit to build the internal dam entirely on his own property.
The internal dam wall should include a suitably sized spillway at the upstream end and at the same level as the existing spillway on Mr Badham's property. The internal spillway would transfer flood flows from the catchment feeding into Mr Noye's dam to the spillway on Mr Badham's dam, thereby maintaining the existing direction of flow. The internal spillway would also allow flood flow from the catchment feeding into Mr Badham's dam to spill into Mr Noye's dam, also maintaining the existing direction of flow. An outlet pipe through the internal dam would provide the means to transfer water between the dams when they are less than full.
The proposed internal dam and spillway should not cause an increase of detriment to Mr Noye's property or affect his existing right to water."
There were a number of conclusions drawn by counsel for the applicant in his written submissions, which he submitted made certain things clear. With respect, the conclusions he has sought to draw were, in my view, not necessarily open and were coloured by what his client wished the evidence to mean. In particular I refer to the submission contained in par9 of the submissions dated 1 May 2007. In that paragraph, counsel quoted from a portion of the transcript of the evidence of the respondent before the Tribunal, adding in words of his own to indicate which dam he thought the respondent was describing. However, if regard is had to the evidence which followed, it is quite clear that the "dam on my adjoining property" was not the Dam (as counsel said) but another dam on the respondent's property. The evidence of the respondent was that when the applicant's property had been owned by Glenila Orchards they used the Dam to irrigate their orchard and "lots of times it didn't fill so they pumped from my dam …on another stream, in the winter time when mine was overflowing."
The following exchange between the respondent and counsel for the applicant was also referred to:
" So this dam in question fills – doesn't remain full continuously, it's totally dependent on rainfall as to whether it fills or not?"
….
Oh it has been full, as its not been used for commercial purposes, yes
Yes right. So if it were used for commercial purposes, it wouldn't remain full very long, would it?
It hasn't done, no.
No. And if it were to be remain –used for commercial purposes, it could – you would have to pump water from your other dams to fill it?
If it was used constantly."
It is clear on the evidence before the Tribunal that prior to any application for a permit, the filling of the Dam was problematical and varied having regard to the season and rainfall, and, when used for commercial purposes, there were times it had not remained full for very long.
Counsel for the applicant went on to develop his submission at par11 of his written submissions that was based on his conclusion that the respondent would be using the water in the Dam to top up water to be sold to Tassal Ltd from another dam. However, counsel appears to have disregarded other evidence of the respondent which appeared at pp142 and 143 of the court book where he was questioned about what "useful" purpose he proposed to use the Dam for. It was specifically put to him that he would sell water from it and he replied "No, I've never sold water from that hole at all." He also referred to commercial purposes as being irrigation for cropping and water for stock.
The commercial purpose which the applicant asserted the respondent was going to use the Dam for was sale of water to Tassal Ltd. While there was evidence of sale of water to Tassal Ltd from another dam and an application by the respondent for a water licence, there was evidence from the applicant that he was not going to sell water from it. There was evidence he would irrigate with water from the Dam. There would not appear to have been anything to prevent the respondent, absent the dam works, from selling water to Tassal Ltd by pumping it directly from the Dam or from the Dam via another on his own land. He could very well have emptied the Dam in that way. This seems particularly so if there were any extended period without heavy rain. It follows that it is not the dam works which might have an adverse effect.
The Tribunal was obliged to consider whether the proposed dam works may adversely affect the applicant. They were not required, as part of that process, to consider what the respondent might or might not be proposing to do with some or all of the water in the Dam. In my view the applicant has not satisfied the Court that the Tribunal failed to take into account a relevant consideration.
Ground 2 of the application to review must fail.
Application to review - Ground 4
This ground of review provided:
"4There was no evidence or other material to justify the making of a decision (Section 17(2)(h) of the Judicial Review 2000)
FURTHER AND BETTER PARTICULARS
(a)There was no evidence to justify the finding of fact referred to in clause 27 of the Tribunal's decision and accordingly, no evidence to justify the making of the decision sought to be reviewed.
(b)Further and/or in the alternative, the findings of fact referred to in clause 27 of the Tribunal's decision and the evidence are in conflict with and inconsistent [sic] the Tribunal's decision, particularly clause 26 and accordingly provide no basis to justify the making of the decision sought to be reviewed."
This ground of review relies on the Judicial Review Act 2000, s17(2)(h), namely that there was no evidence or other material to justify the making of the decision. The ground may not be used as a vehicle to challenge a finding of fact not acceptable to the applicant. The decision the Tribunal was required to make pursuant to the WMA, s157, was to grant the dam works permit or refuse it by reference to s158. It had a discretion. The decision the Tribunal made was to grant the permit, having made a finding that "although there may be some adverse effect upon the appellant from the proposed dam works, that adverse effect is not sufficient to justify refusal of a permit." If there was evidence or other material "to justify the making of the decision", then irrespective of the impugned findings of fact, this ground of review must fail.
The submissions of counsel for the applicant relied heavily on what were said to be incorrect findings of fact in pars26 and 27 of the Tribunal's decision. He submitted that there was no evidence to justify certain findings, that certain findings were in conflict with the evidence and inconsistent with its decision.
Counsel for the applicant made reference to two specific statements in the Tribunal's reasons. These were:
"That would on the evidence take it largely to the portion of the dam on his side of the proposed new dam wall." (par26), and
"… and that therefore the new dam constituted by the existing wall on the appellant's side and the new wall parallel to the boundary with the appellant's property, would be likely to fill first; and to a greater extent, than the remainder of the dam on the respondent's property; and that in that sense the appellant would therefore be advantaged." (par27)
The statement from par26 must be read in the context of what the Tribunal was doing in that paragraph generally. The Tribunal was referring to some of the evidence. A reading of the Court book makes it clear that by no means was the material referred to in par26 the only evidence on the general topic of water flow into the Dam and to the applicant's part of it, post dam works. There was significant other evidence about those topics. For example, there was evidence from Mr Pryor that:
-the bulk of the natural catchment running into this dam would be on the applicant's property, and
-the part of the Dam that would be created on the applicant's side would fill from the catchment on his property, albeit under heavy rainfall conditions.
There was also other evidence that the filling of the Dam generally was unreliable and that the catchment was, in any event, small and unreliable.
While the issue was not raised by counsel for the respondent, the Court must consider whether this ground is simply a challenge to adverse findings of fact which the applicant may not do, or whether it can be said the submissions relate to an argument that there is no evidence to justify the making of the decision the Tribunal made.
To succeed on this ground, the applicant needs to establish that there was no evidence to justify the Tribunal's decision, that decision being that which I have identified in par35. The finding made by the Tribunal, notwithstanding the asserted errors of fact highlighted by the applicant's counsel, was that there was some adverse effect on the applicant. There was evidence to support that conclusion.
Ground 4 of the application to review must fail.
Application to review - Ground 5
This ground of review provided:
"5The decision was otherwise contrary to law (Section 17 (2)(i) of the Judicial Review Act 2000)
FURTHER AND BETTER PARTICULARS
(a)The Tribunal erred in law by wrongly determining the nature of the right held by the Applicant to the water in the dam and the access to the water in the dam, specifically by failing to find that the Applicant held an easement to such water or alternatively held a right to such water on the basis that such water was constituted by dispersed surface water and not a watercourse.
(b)Tribunal failed to advance any reason or reasons for preferring the evidence of Mr Pryor to that of Mr Shackcloth, Mr Badham, Mr Noye and/or Mr Ridler,"
The applicant did not pursue the argument in subpar(b) of the particulars.
This ground purports to assert an error by reference to the Judicial Review Act, s17(2)(l), that is, that the decision of the Tribunal was "otherwise contrary to law". The particulars in subpar(a) in fact assert an error of law. The error asserted is that the Tribunal made the wrong finding as to the nature of the right of the applicant to take water from the dam. More specifically, the applicant asserted the Tribunal should have found the applicant had an easement which gave him rights to take water from the dam, or that he had rights to take water because it was dispersed surface water.
The Tribunal made a finding of fact that the dam was a watercourse. Almost the entirety of the submissions of the applicant's counsel in respect of this ground were to the effect that that finding of fact was wrong and that the Tribunal should have found the dam was the product of dispersed water. Counsel submitted that the Tribunal did not have regard to the definitions of those terms as they appeared in the WMA, in particular an exclusion at point (f) in the definition of "watercourse" and took the Court extensively through evidence relating to this issue.
It is not the role of this Court in an application under the Judicial Review Act to revisit the findings of fact made by the Tribunal in the manner sought by the applicant. The Tribunal is a specialist tribunal. It set out in full in its reasons the definition of "watercourse", inclusive of the subpar(f) referred to by counsel, it canvassed the evidence, and made a finding. That finding does not suit the applicant and is not the one contended for at the hearing. There has been nothing put to suggest the Tribunal interpreted the definition of "watercourse" contrary to its wording, or contrary to any interpretation of it previously ruled upon by the courts. The extent of the submissions can be characterised as being "we think they got it wrong".
As to the asserted error in failing to find the applicant had an easement which gave him rights to take water, counsel for the applicant did not actually address this in the context of this ground, confining his submissions to the issue of the finding relating to dispersed surface water and watercourse. Given the findings I have already made as to the role of the Tribunal under the WMA, s148, it is difficult to see how it can be said this failure could produce a conclusion that the decision of the Tribunal was otherwise contrary to law.
Ground 5 must fail.
Order
In all the circumstances the originating application to review the findings of the Tribunal filed 8 March 2006 is dismissed.
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