O'Donnell v Environment Protection Authority

[2012] ACTSC 140

GARRY O’DONNELL v ENVIRONMENT PROTECTION AUTHORITY
 [2012] ACTSC 140 (24 August 2012)

ADMINISTRATIVE LAW – Appeals from Administrative Authorities – application for leave to appeal, and appeal, from decision of Appeal President of ACT Civil and Administrative Tribunal – Appeal President upheld direction by Environment Protection Agency for appellant to cap an unlicensed bore on urban residential land – no questions or issues that could be resolved in favour of appellant – leave to appeal refused.

ADMINISTRATIVE LAW – Appeals from Administrative Authorities – appeal from decision of Appeal President of ACT Civil and Administrative Tribunal – relevance of appellant’s own actions – whether respondent had failed to provide natural justice – “natural justice” used by Appeal President not to mean “procedural fairness” but as alternative to “good administrative practice” or “common courtesy” – failure to advise appellant that licence application fee had not been received was not in the circumstances a failure to give procedural fairness – failure to advise appellant that licence application fee had not been received did not render unconscionable a decision nearly five years later to direct appellant to cap his unlicensed bore.

ADMINISTRATIVE LAW – Appeals from Administrative Authorities – appeal from decision of Appeal President of ACT Civil and Administrative Tribunal – appeal available by leave, on a question of fact or law – question stated in affidavit accompanying application for leave to appeal and for leave to appeal out of time – question not relied on in Notice of Appeal – whether appeal on question of fact or law provides for error-based appeal.

STATUTES – ACTS OF PARLIAMENT – Interpretation – applications for bore licences required to be accompanied by fee as determined – whether obligation to provide service arises where determined fee not paid – no obligation on respondent to deal with licence application when appellant claimed he had sent a cheque but knew that cheque had never been cleared.

STATUTES – ACTS OF PARLIAMENT – Interpretation – preservation of rights, privileges and liabilities after repeal or amendment of legislative provision – preservation of rights, privileges and liabilities only displaced “expressly or by a manifest contrary intention” – “manifest contrary intention” requires express statement of intention that preservation provision does not apply, that is, an express contrary intention – provisions explicitly addressing the relevant rights and privileges affected by amendment amounted to an express or manifest contrary intention to the preservation of those rights and privileges except as explicitly provided.

Administrative Appeals Tribunal Act 1975 (Cth), s 44(1)
Commonwealth Employees’ Compensation Act1930 (Cth), s 9(1)

ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 79, 82, 86
Land (Planning and Environment) Act 1991 (ACT), ss 171, 172B, 172C
Legislation Act 2001 (ACT), ss 5, 6, 47, 57, 79, 84, 88, 114, 116, 132
Water Resources Act 1998 (ACT), ss 13, 28, 35, 63A, 63B, 77
Water Resources Act 2007 (ACT), ss 30, 35, 76, 111, 202

Court Procedures Rules 2006 (ACT), r 5071
Water Resources (Fees) Revocation and Determination 2003