NUTT AND ENVIRONMENT PROTECTION AUTHORITY
[2008] ACTAAT 23
•1 October 2008
AUSTRALIAN CAPITAL TERRITORY
ADMINISTRATIVE APPEALS TRIBUNAL
CITATION:NUTT AND ENVIRONMENT PROTECTION AUTHORITY [2008] ACTAAT 23 (1 OCTOBER 2008)
AT08/53
Catchwords: Water Resources Act 2007 – fee payable for licence to take water for agricultural purposes – reduction of fee under competition equalisation scheme – jurisdiction of Tribunal to review decision as to amount of payment under scheme.
Administrative Appeals Tribunal Act 1989, ss 24, 43
Environment Protection Act 1997, s 12
Legislation Act 2001, ss 58, 139
Water Resources Act 1998 (repealed)Water Resources Act 2007, ss 23, 24, 28, 30, 31, 55, 94, 106, 107, 109, 110, Pts 4, 5 & 6
Tribunal:Mr M H Peedom, President
Date:1 October 2008
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT08/53
GENERAL DIVISION )
RE: JOHN ADRIAN NUTT
ApplicantAND: ENVIRONMENT
PROTECTION
AUTHORITY
Respondent
DISMISSAL OF APPLICATION PURSUANT TO SECTION 43(5) OF THE ADMINISTRATIVE APPEALS TRIBUNAL ACT 1989
Tribunal : Mr M H Peedom, President
Date : 1 October 2008
It appears to the Tribunal that the decision in respect of which the application has been made to the Tribunal for review is not reviewable by the Tribunal.
Pursuant to section 43(5) of the Administrative Appeals Tribunal Act 1989, the Tribunal dismisses the application without proceeding to review the decision.
……………………………..
President
AUSTRALIAN CAPITAL TERRITORY )
ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT08/53
GENERAL DIVISION )
RE: JOHN ADRIAN NUTT
ApplicantAND: ENVIRONMENT
PROTECTION
AUTHORITY
Respondent
REASONS FOR DECISION
1 October 2008 Mr M H Peedom, President
Background
From 20 April 2000 the applicant was continuously the holder of a water allocation for agricultural irrigation in respect of land of which he is a lessee at 18 Kallaroo Road, Pialligo (“the property”). The allocation was issued under the Water Resources Act 1998 (repealed) (“the repealed Act”) and specified 94ML per annum as the volume of water allocated.
2. The repealed Act was repealed by the Water Resources Act 2007 (“the WRA”) with effect from 1 August 2007. Pursuant to section 110 of the WRA the applicant’s water allocation continued in force and, after the commencement of the WRA, he was initially issued with a licence which was expressed to be under section 28(1) of the WRA. Section 28(1) makes it an offence to take water from a place without a licence. Authority for the issue of a licence is, in fact, contained in section 30 of the WRA. The licence, which was undated, specified the date of its grant as 10 December 1999. It was expressed to licence the taking of 72ML of water by pumping it from the Molonglo River for the purpose of agricultural irrigation until 31 December 2008. The licence was amended on 7 September 2008 to increase the licensed volume of water to 74ML pursuant to Part 5 of the WRA. The amended licence was made subject to general conditions and a number of additional specific conditions.
3. During each of the calendar years 2000 to 2006 the applicant had been sent a form of ‘Application for Competition Equalisation Payment’ in respect of the water taken in accordance with the licences issued to him during that period. He completed each form and submitted it to the respondent. It appears that in rendering the applicant a tax invoice for payment of each annual licence fee there was deducted from the amount otherwise payable an amount equal to the competition equalisation payment (“CEP”) applied for by the applicant and approved for payment to him.
4. The Tribunal was informed that a competition equalisation scheme which involved the payment of part of the fees payable by eligible licensees under the WRA was introduced as a budget initiative included in the 1999-2000 Budget Paper No. 3 – Budget Overview. The Budget Paper included the following explanation of the scheme:
To assist rural irrigators competing with business in NSW, a competition equalisation payment scheme has been adopted which will reduce the water abstraction charge to the equivalent of NSW charges.
5. Despite the reference in the Budget Paper to the adoption of a scheme, the Tribunal was informed by the current manager of Water Resources, Department of Environment and Recreation, that the ACT Government had no record of such a scheme or of its adoption apart from the form of application for payment completed and submitted by the applicant and the guidelines contained in that form.
6. The form of application included the following statements:
Under the Water Resources Act 1998, persons who held a licence to take water were required to pay the water abstraction charge of $0.25 per kilolitre on licensed use except where that use related to groundwater taken from a lease which was dated before 11 December 1998. Under the Water Resources Act 2007, which took effect from 1 August 2007, persons who hold a licence to take water are required to pay the water abstraction charge of $0.25 per kilolitre on all licensed use. For agricultural irrigators in direct competition with irrigators in NSW a competition equalisation payment (CEP) can be claimed which reduces the charge to that charged in NSW. To be eligible for the CEP the water use would normally be on a rural lease and fall into one of the categories resulting in a net charge of 0.216 cents per kilolitre to agricultural irrigators.
If you consider that you may be eligible for the CEP and wish to apply for it you should complete this application form and provide it to Water Resources at the address below.
7. Notes attached to the form stated:
Before Water Resources approves the Competition Equalisation Payment to any applicant, Water Resources must first be satisfied that:
· Water use fell within one or more of the categories listed on this application form;
· A serious attempt to produce the relevant agricultural produce was made;
· The produce was intended for sale and profit;
· The amount of water claimed to be used within one or more of the categories listed was in fact used; and
· The lease to which the application relates is a rural lease or the production of the agricultural produce is a permitted use on the lease.
In addition to the information provided by this application form, information already held by Water Resources particularly that held in relation to the relevant licence, may be used for these purposes. Additional information may also be sought from the applicant.
Eligibility for the Competition Equalisation Payment is limited to the production of agricultural produce. It does not include water used in the processing or sale of agricultural produce (including retail nurseries) or for the irrigation of parks, sports grounds, golf courses, and equestrian facilities.
8. On 8 April 2008 the applicant submitted a CEP application form specifying lucerne, vines and olives as the forms of agricultural use in respect of which he sought a CEP for the whole of the licence fee payable by him. By letter dated 16 May 2008 the respondent advised the applicant that he had only provided sufficient evidence to justify a payment for water use in respect of the 10% of total water use which he attributed to the growing of lucerne. He was sent an invoice for an administration fee payable under the WRA (which he does not challenge) and for 90% of the total water usage fee, there having been deducted the 10% component of the fee attributable to the growing of lucerne.
9. The application for review of decision lodged by the applicant with the Tribunal identified the refusal of the respondent to approve 90% of the CEP application as the decision which he wished the Tribunal to review. He contended that such a decision involved the imposition of a condition on his licence pursuant to section 31 of the WRA or the amendment of an existing condition of his licence pursuant to section 55 of the WRA. Alternatively, he submitted that the respondent had amended the conditions of a water access entitlement granted to him pursuant to section 24 of the WRA.
10. Decisions made pursuant to section 24, section 31 and section 55 are made reviewable by the Tribunal by paragraphs (a), (d) and (n), respectively, of section 94 of the WRA.
The legislation
11. Part 4 of the WRA provides for the grant to applicants of a water access entitlement of an amount of surface or groundwater stated in the entitlement. A water access entitlement can be made subject to conditions, examples of which include the purpose of use of the water, the area in which it may be used and the place from which it may be taken (see section 23 of the WRA).
12. Section 24 of the WRA provides:
24 Water access entitlement—amendment
(1)The authority may amend a water access entitlement, including by imposing a condition on, or amending an existing condition of, the entitlement.
(2) However, the authority may amend an entitlement only if—
(a)the authority has given the holder of the entitlement written notice of the proposed amendment; and
(b)the notice states that written comments on the proposal may be made to the authority before the end of a stated period of at least 14 days after the day the notice is given to the holder; and
(c)the authority has considered any comments made before the end of the stated period.
(3)Subsection (2) does not apply if the holder applied for, or agreed in writing to, the proposed amendment.
(4) The amendment of an entitlement takes effect on—
(a)the date on which notice of the amendment is given to the holder; or
(b) if a later date is stated in the notice—that date.
(5)A condition imposed or amended by the authority must not be inconsistent with any condition prescribed by regulation that applies to the entitlement.
(6) This section does not apply to an amendment made under section 25.
13. Subject to a number of exceptions which do not apply in the circumstances of this case, it is an offence to take water from a place without a licence (section 28). A licence is only able to be granted to a person who is the holder of a water access entitlement or other specified entitlement or is exempt from a requirement to have such an entitlement and other specified requirements are satisfied (section 30).
14. Section 31 provides for the imposition of conditions on a licence as follows:
31 Licence to take water—conditions
(1) A licence to take water is subject to any condition—
(a) prescribed by regulation; or
(b) imposed on the licence by the authority.
Examples of conditions to which licence may be subject
1 that records must be kept
that a water meter must be installed, operated and maintained
3 that information about compliance with licence conditions must be given to
the authority
4 that monitoring and testing must be done after water is taken
5 that places from which water is taken must be marked in a stated way
6that water may only be taken at a stated rate (which may be different for different days of the year) 7 that not more than a stated maximum amount of water may be taken
8that water must not be taken from a waterway at a time when there is no or little flow in the waterway
9 that the authority must be allowed to conduct regular routine inspections
Note 1The licence is also subject to any condition that applies to a water access entitlement on which the licence is based (see s 23 (2)).
Note 2An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(2)A condition imposed by the authority must not be inconsistent with any condition prescribed by regulation that applies to the licence.
15.Section 55(1) provides:
55 Licences—amendment
(1)The authority may amend a licence, including by imposing a condition on, or amending an existing condition of, the licence.
The amendment of a licence is subject to the same requirements as those which are imposed by section 24(2) to (5) of the WRA in respect of a water access entitlement (see section 55(2) to (5) WRA).
Jurisdiction of the Tribunal
16. The Tribunal does not have general review powers. Its jurisdiction to review a decision of a government agency is dependent upon jurisdiction being conferred on it by an enactment and the making of a decision pursuant to the enactment which confers jurisdiction (see section 24 Administrative Appeals Tribunal Act 1989).
17. It was submitted on behalf of the respondent that the CEP scheme operated administratively and independently of the WRA with funds allocated for the purpose by the Appropriation Act for each relevant year. Accordingly, any decision made under the CEP scheme did not involve the making of a decision under the WRA and any such decision was not made reviewable by section 94 of the WRA.
18. On behalf of the applicant it was submitted that the refusal of the respondent to approve a CEP in relation to the whole of the applicant’s licence fee involved the imposition by implication, if not expressed, of a condition of the applicant’s licence or an amendment of the conditions subject to which it and/or his water access entitlement were held. Section 106 of the WRA, it was noted, conferred a discretion on the respondent to cancel or suspend a water access entitlement or licence for non-payment of the applicable fee. In that event, it was argued, the refusal to approve payment of the whole of the CEP involved the imposition or variation of a condition subject to which the entitlement and licence were held.
19. In support of the applicant’s submission reliance was placed upon the requirement of section 139 of the Legislation Act 2001 for a purposive approach to interpretation as justifying a broad characterisation of a “decision” for the purpose of the WRA and section 24 of the Administrative Appeals Tribunal Act and judicial authority that supported the taking of a liberal view of the Tribunal’s jurisdiction. Reliance was also placed by the applicant on the requirement of section 12 of the Environment Protection Act 1997 that the respondent exercise its functions under the WRA in accordance with the objects of that Act which include achieving effective integration of environmental, economic and social considerations in decision-making processes.
20. The issue which the applicant, by his appeal, seeks to have the Tribunal address relates to the quantum of the fees charged for the water which he draws under licence from the Molonglo River. Section 107 of the WRA confers the power to determine fees for the WRA on the Minister. In pursuance of that power the Minister made a determination dated 31 July 2007 entitled ‘Water Resources (Fees) Determination 2007 (No. 1)’. The determination does not specify a fee for the purpose of section 24 of the WRA. It imposes an administration fee for a licence issued under section 30 of the WRA which is unaffected by any CEP. It also imposes a fee under section 30 of $0.25 per kilolitre in respect of the volume of water licensed to be taken by the applicant from the Molonglo River.
21. To the extent to which the decision in question has any impact upon the applicant it is in relation to the fee payable by him for the usage of water under his licence. It has no impact upon his water access entitlement. No suggestion was made that the respondent purported to amend the applicant’s entitlement in accordance with section 24(2) of the WRA. There is no basis for a finding that the decision has the effect of amending the applicant’s water access entitlement by imposing a condition on it or by amending an existing condition of it or otherwise. Accordingly, the conclusion to be reached is that the decision was not made under section 24 of the WRA.
22. In relation to the applicant’s licence, any fee applicable to it does not become payable pursuant to the exercise of any statutory power by the respondent. The fee is made payable in consequence of a determination made by the Minister pursuant to section 107 of the WRA. It does not involve the imposition of a condition imposed by the respondent pursuant to section 31 of the WRA. Nor is the fee made payable in consequence of the Minister’s determination capable of amendment by the respondent pursuant to section 55 of the WRA. In the absence of any suggestion of a delegation of the power of the Minister under section 107 to the respondent, it would be beyond the power of the respondent to interfere with the exercise of that power.
23. I do not accept the application’s submission that, because section 106 of the WRA authorised suspension or cancellation of a licence for non-payment of a fee payable in relation to it, the fee levied by the respondent involved the imposition of a condition on the licence. Part 6 of the WRA makes the contravention of a condition of a licence a disciplinary offence subject, inter alia, to disciplinary action including the suspension or cancellation of the licence. Section 106 of the WRA authorises the respondent to suspend or cancel a licence for non-payment of a licence fee. Section 106 of the WRA would be otiose if non-payment of a licence fee was to be regarded as a condition of a licence.
24. Furthermore, the power under section 107 together with the regulation-making power in section 109 of the WRA authorise the making of comprehensive regulations by the Executive in relation to fees including their payment, collection and recovery, waiver, postponement or refund (completely or partly) and anything else relating to fees (see section 58 Legislation Act). Any purported exercise of these powers by the respondent would be beyond its power and invalid. It would, therefore, be beyond the power of the Tribunal to make a decision which relieved the applicant of his obligation to pay the licence fee determined by the Minister pursuant to section 107 of the WRA.
25. It seems to me, in any event, based upon the information made available to the Tribunal, that neither the CEP that was approved for payment to the applicant nor the amount that was not approved, involved the making of a decision under any provision of the WRA. The scheme pursuant to which the decision sought to be reviewed was made, if it had a statutory basis, was not one that has any identifiable right of review as required by section 24 of the Administrative Appeals Tribunal Act.
Conclusion
26. The decision sought to be reviewed by the applicant is not reviewable by the Tribunal. The application for review of decision should therefore be dismissed.
FORM 33
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Member's Staff
________________________________________________________________________
PART A FILE NO: AT08/53
APPLICANT: JOHN ADRIAN NUTT
RESPONDENT: ENVIRONMENT PROTECTION AUTHORITY
PARTIES JOINED: N/A
COUNSEL APPEARING: APPLICANT: MR J PREST
RESPONDENT: MS J MUSSETT
PARTIES JOINED:
SOLICITORS: APPLICANT:
RESPONDENT: ACT GOVERNMENT
SOLICITOR
PARTIES JOINED:
OTHER:APPLICANT:
RESPONDENT:
PARTIES JOINED:
TRIBUNAL MEMBER/S: MR M H PEEDOM, PRESIDENT
DATE/S OF HEARING: 22 SEPTEMBER 2008 PLACE:CANBERRA
DATE OF DECISION: 1 OCTOBER 2008 PLACE: CANBERRA
______________________________________________________________________
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION (X)
COMMENT:
0
0
0