O'Donnell v Environment Protection Authority (Administrative Review)
[2010] ACAT 4
•4 February 2010
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
O’DONNELL v ENVIRONMENT PROTECTION AUTHORITY (Administrative Review) [2010] ACAT 4.
AT 08/96
Catchwords: ADMINISTRATIVE LAW – application for licence to take water – when water licence made – moratorium on the issue of water licences – whether lessee had accrued rights – nature of rights held by lessee – surrender of Crown lease – effect on accrued rights of lessee
WATER – capping and sealing a bore – discretionary considerations
Legislation:Administrative Appeals Tribunal Act 1989 (ACT)
ACT Civil and Administrative Tribunal Act 2008 (ACT)
Water Resources Act 1998 (ACT)
Water Resources Act 2007 (ACT)
Legislation Act 2001 (ACT)
Water Resources Amendment Act 2005 (ACT)
Land (Planning and Environment) Act 1991 (ACT)
ACT Civil and Administrative Tribunal (Transitional Provisions) Regulations 2009 (ACT)
Cases:Rashleigh v Environment Protection Authority (2004) ACTAAT 31.
Rashleigh v Environment Protection Authority (2005) ACTSC 18.
Environment Protection Authority v. Rashleigh (2005) ACTCA 42.
Creaser v Savannah Associates [2003] ACTCA 26
Jones v Dunkel (1959) 101 CLR 298
Costello and Secretary, Department of Transport (1979) 2 ALD 934
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Drake v Minister of Immigration and Ethnic Affairs (1979) 24 ALR 577
Esber v The Commonwealth (1992) 174 CLR 430
Yanner v Eaton[1999] HCA 53
Chang v Laidley (2007) 234 CLR 1
Tribunal: Professor P. Spender Presidential Member
Mr C Chenoweth Member
Date of Orders: 4 February 2010
Date of Reasons for Decision: 4 February 2010
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 08/96
BETWEEN:
GARRY O’DONNELLApplicant
AND:
ENVIRONMENT PROTECTION AUTHORITYRespondent
TRIBUNAL:Professor P. Spender Presidential Member
Mr C Chenoweth Member
DATE: 4 February 2010
ORDER
The decision under review is confirmed.
…………………………….
Professor P. Spender
Presidential Member
REASONS FOR DECISION
1.This is an application by Mr Garry O’Donnell (‘the applicant’) to review a direction of the Environment Protection Authority (‘the respondent’) dated 10 November 2008, (‘the Direction’) requiring the applicant to disconnect and discontinue the use of a bore for extraction of groundwater at the applicant's residence, 30 Mugga Way Red Hill ACT (‘the Property’). The Direction also specified that the applicant should close off and seal the bore in the manner specified in the Direction.
2.The applicant lodged an application for review of the Direction with the Administrative Appeals Tribunal of the Territory. The application was by notice dated 13 November 2008. Following certain correspondence and interlocutory steps, the Administrative Appeals Tribunal by a decision of 17 December 2008 stayed the terms of the Direction requiring the sealing off of the bore, but did not stay those parts prohibiting the use of the bore to extract groundwater or the requirement to disconnect the electrical connections to the pumping equipment. At the date of this hearing, the bore was still in existence but could not be used because the pump required to operate it had been disconnected.
Jurisdiction of the Tribunal
3.The application for review was made on 13 November 2008. The application was to the Administrative Appeals Tribunal of the Territory. Apart from the stay order referred to above, the matter had not been heard under the provisions of the Administrative Appeals Tribunal Act 1989 (ACT). That Act has now been repealed as a consequence of the passing of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (‘the ACAT Act’). The ACAT Act became effective on 2 February 2009.
4.Regulations made under the ACAT Act provide that any application that had been brought to review an administrative decision prior to the commencement date of the ACAT Act, and where there had been no hearing of the matter the subject of the application, was to be taken to be an application to the ACT Civil and Administrative Tribunal (‘the Tribunal’) for review of the administrative decision.[1] The matter is therefore one in which the Tribunal has jurisdiction.
Background
The Property
[1] ACT Civil and Administrative Tribunal (Transitional Provisions) Regulations 2009 (ACT), clause 6 (1).
5.The original Crown lease of the Property was dated 4 August 1997 and was issued to the applicant (‘the First Crown Lease’). The Property consists of a large block of land on the high side of the Mugga Way in Canberra. On the Property has been constructed a substantial house and associated outbuildings, a tennis court, swimming pool and landscaping. Some of the details of the size of the Property, and the substantial amount of money that the applicant spent on the development and landscaping of the garden are set out in paragraph 1 of the applicant’s witness statement filed in this matter.[2] In order to service the garden, a bore was installed in 1989, again at considerable cost.
[2] Exhibit A1.
6.On 25 September 2006, the applicant surrendered the First Crown Lease of the Property in consideration for the grant of a further Crown Lease commencing on 26 September 2006 ("Second Crown Lease").
Applicant’s contentions.
7.In the original Statement of Facts and Contentions filed with the Tribunal on 13 May 2009, the applicant contended that the Direction should be overturned and set aside because the applicant had applied on 28 June 2003 for a licence to take bore water, pursuant to s 33(1) of the Water Resources Act 1998 (ACT) (‘WRA 1998’). However, during the hearing, the applicant gave evidence that the alleged application (dated 28 June 2003[3]) and the alleged cheque accompanying the application (dated 30 June 2003[4]) were actually sent in July 2003. The applicant contends that the respondent failed to process the 2003 application appropriately or at all and had the respondent processed the June/July application at the time it was received, it inevitably would have been approved.
[3] Document T37.
[4] Document T44.
8.Although WRA 1998 was repealed on 1 August 2007 and a new Act was passed – the Water Resources Act 2007 (ACT) (“WRA 2007’) – the applicant argues that the Tribunal must apply WRA 1998 as it applied in 2003. This is because s 84 of the Legislation Act 2001 (ACT) (‘Legislation Act’) operates to preserve a pre-existing right held by the applicant for a licence. In particular s 84(1)(b) and (c) of the Legislation Act state that the repeal or amendment of a law does not—
(b)affect the previous operation of the law or anything done, begun or suffered under the law; or
(c)affect an existing right, privilege or liability acquired, accrued or incurred under the law.
9.The applicant further contends the respondent failed to process the 2003 application and that the Direction amounts to a deemed refusal of the application of June/July 2003 and seeks review of the deemed refusal, inter alia because the deemed refusal failed to have regard to:
· the circumstances of the application including the date of the application;
· the law applicable to the application, being an application under WRA 1998;
· the invariable practice of the respondent in granting licences in, at or about June 2003;
· the negligence, breach of statutory duty or other failure of the respondent to process in a diligent fashion the 2003 application at or about the time it was made; and
· the respondent, being deemed to have accepted the June 2003 application by its silence until January 2007 thereafter lacked jurisdiction to make its purported decision of 10 November 2008 by reason of s 110 of WRA 2007.
10.The applicant contends that the consideration of his application for a licence had begun under the WRA 1998 and the repeal of that legislation does not affect an existing right that the applicant held under that statute. He contends that the respondent incorrectly applied WRA 2007 in issuing the Direction.
Respondent’s contentions
11.The respondent disputed that the applicant had made any application for a licence or a water allocation prior to 17 October 2003, and that that date was the first time that applicant contacted the respondent by telephone and provided a faxed copy of an application.
12.It was further contended by the respondent that in accordance with the policy in place at the time, there was no further water available to be licensed for extraction from the Lake Burley Griffin sub-catchment. This is to be contrasted with the policy pertaining to leases issued before 11 December 1998 that operated at 26 June 2003. On 26 June 2003, a licence would have been granted to the applicant because the groundwater extraction from the Lake Burley Griffin sub-catchment had not reached the limit set in accordance with the policy operating at that time.
13.The respondent further argued that the respondent received the applicant's application to take water by facsimile on 17 October 2003 and the application was not accompanied by the requisite fee.
14.The respondent further contends that the Water Resources Amendment Act 2005 (ACT) amended the WRA 1998 and a new provision – s 63A – suspended the power to grant licences for the taking of water under s 35 of WRA 1998.
15.The respondent says that whilst moratorium was still in operation, the applicant surrendered the First Crown Lease pursuant to s 171 of the Land (Planning and Environment) Act 1991 (ACT) (‘the Land Act’) in consideration for the grant of the Second Crown Lease and by operation of s 172C of the Land Act the Second Crown Lease did not include the right to the use, control or flow of water under the land of the Property.
16.Following the grant of the Second Crown Lease, the respondent argues that even if s 63A of the WRA 1998 had not been in effect, no licence could be granted to the applicant for the extraction of bore water as s 35(8) of the WRA 1998 required that licences could not be issued for post 11 December 1998 leases “if a water allocation ... on which to base the taking of water from the place to which the application relates does not exist.” At no time after the grant of the Second Crown Lease, says the respondent, did the applicant hold a water allocation granted pursuant to Part 6 of the WRA 1998 that would permit a licence to be granted to the applicant in relation to the Property.
The Legislative Framework – The Water Resources Act 2007 (ACT)
17.The current legislation governing the drawing of groundwater by means of a bore and pump is the Water Resources Act 2007 (ACT) (‘WRA 2007’). The objects of the WRA are set out in s 6, as follows:
To ensure that management and use of the water resources of the Territory sustain the physical, economic and social well-being of the people of the ACT while protecting the ecosystems that depend on those resources; and
To protect aquatic ecosystems and aquifers from damage, and where practicable, to reverse damage that has already happened; and
To ensure that the water resources are able to meet the reasonably foreseeable needs of future generations.
18.The WRA 2007 also provides in section 7 that:
Subject to this Act, the right to the use, flow and control of all water of the Territory is vested in the Territory and is exercisable by the Minister on behalf of the Territory.
19.The WRA 2007 goes on to provide for a system of preparation of environmental flow guidelines to be approved by the Minister under s 15 in Part 3; for the determination of access to water and water access entitlements in Part 4; for the granting of licences to take water in Part 5; and for supplemental matters necessary to regulate and license the taking of water. This includes provision for a system of entitlements to a stated amount of groundwater to be made available to applicants.[5]
[5] Water Resources Act 2007 (ACT) s 19.
20.Under s 76 of the WRA 2007, the respondent may give a direction to the owner or occupier of land where a bore is located to shut off the supply of ground water from the bore, to disconnect the use of the bore and to disable it in the manner specified by the respondent.
21.In addition to holding a water access entitlement under Part 4 of the WRA 2007, a person must have a licence to take water issued under s 28 of the WRA 2007 before that person may take water (including groundwater from a bore) from a place in the Territory. Taking water without a licence is an offence under s 28(1) WRA 2007.
22.Section 30 of the WRA 2007 obliges the respondent to consider applications for licences to extract water, including groundwater. The respondent must be satisfied that the applicant holds a water access entitlement, a corresponding water access entitlement (being a water access entitlement granted by another government and which is prescribed by regulation[6]) or a "surviving allocation", as defined in s 110 of the WRA 2007. This provision states that:
A water allocation in force under the repealed Act immediately before the commencement day (a surviving allocation) continues in force subject to this Act.
[6] Water Resources Act 2007 (ACT) s 27(5).
23.The ‘repealed Act’ is defined as the Water Resources Act 1998 (ACT) (‘WRA 1998’). The ‘commencement day’ referred to in s 110 was the day upon which the WRA 2007 commenced, that is 1 August 2007.
24.The effect of s 110 of the WRA 2007 is that the holder of a licence and surviving allocation issued under the WRA 1998 would have the right to hold a licence to take water and receive an allocation, subject to the particular conditions in Part 13 of the WRA 2007 being satisfied.
25.If an applicant is given a water access entitlement and a licence to take water, then groundwater may be extracted and used subject to any conditions imposed on the licence. In the absence of a licence, a person who takes water from a bore is liable under s 76 (1) of the WRA 2007 to have a direction made under subsections 76 (2)(d) and 76(2)(e) to discontinue the use of the bore and plug, seal and backfill the bore in the manner stated in the Direction.
26.The policy of the WRA 2007 referred to above finds expression in the preparation of the environmental flow guidelines in sections 12 and 13 of Part 3 of the WRA 2007. These guidelines must include the matters set out in s 13(2) that the respondent must consider in preparing draft guidelines for the Minister.
27.There are further matters which must be taken into account by the respondent before issuing a licence. These are set out in s 30 of the WRA 2007. One of particular significance to this case is that s 30(2) (d) prevents the respondent from issuing a licence unless it is satisfied that water extracted under it, ‘is not intended to be used on urban residential property.’ ‘Urban Residential Property’ is defined in the Dictionary of the WRA 2007 to include a single dwelling house that has access to urban water supply. The Property falls within this definition.
28.In the absence of a corresponding water access entitlement or a surviving allocation (referred to above), the provisions of the WRA 2007 prohibit the granting of a licence and a water allocation where the purpose for which these are obtained is a watering of gardens in urban residential properties. It is common ground that the applicant does not formally hold a licence or a water allocation, and in the absence of some other right does not have an entitlement to take groundwater for use in watering of the Property. In the absence of any other right (such as the applicant claims) the respondent would be entitled to issue and enforce the Direction.
The Water Resources Act 1998 (‘WRA 1998’)
29.The regulation of water in the Territory was the subject of consideration by Territory governments prior to 1998. The history and policy reasons for this are set out in detail in the decision of President Peedom of the ACT Administrative Appeals Tribunal in Rashleigh v. Environment Protection Authority[7] (referred to in this decision as ‘Rashleigh 1’). That decision was the subject of an appeal to a judge of the Supreme Court reported as Rashleigh v. Environment Protection Authority[8] (‘Rashleigh 2’). His Honour Justice Crispin held in Rashleigh 2 that the rights to ground water where a crown lease commenced prior to 11 December 1998 were of such a nature that acquisition of them had to be on just terms.[9] This decision was the subject of a further appeal to the ACT Court of Appeal and is reported as Environment Protection Authority v. Rashleigh [10] (‘Rashleigh 3’). In paragraph 11 of the decision, the Court of Appeal determined that:
On a careful review of the authorities it seems to us that, at common law, an owner or lessee of land, while they have a right to access water flowing below that land, does not have property in that water.
[7] (2004) ACTAAT 31.
[8] (2005) ACTSC 18.
[9] (2005) ACTSC 18 at [52].
[10] (2005) ACTCA 42.
30.In paragraphs 8-11 of Rashleigh 1, the President set out in detail the policy considerations leading to the passage of the WRA 1998, the establishment and approval by the Minister of environmental flow guidelines under the WRA 1998 and the preparation of a water resources management plan in accordance with that Act.
31.The WRA 1998, and the guidelines and the water resources management plan developed under it, specifically acknowledged in s 13 the position of lessees of property in the Territory where the Crown lease from the Territory commenced prior to 11 December 1998. This was the date on which the section commenced.[11]
[11] See note 3 “Legislation history” in the endnotes of WRA 1998.
32.Section 13 of the WRA 1998 was as follows:
Subject to this Act, the right to the use, flow and control of all water of the Territory (other than groundwater under land the subject of a lease of Territory land granted before the commencement of this section) is vested in the Territory, and subject to any other Act, those rights are exercisable by the Minister in the name of and on behalf of the Territory.
33.The exception in the case of groundwater extracted from land the subject of a lease granted prior to the commencement date appears to arise from concern about the nature of the rights held by a Crown lessee to access water under the leased land. The concern was that these rights could give rise to a claim that the licensing and allocation scheme meant that property was being acquired on other than just terms.[12] This matter was considered by the Court of Appeal in Rashleigh 3. The court noted that:
[12] (2004) ACTAAT 31 at [63].
… at common law, while any landowner may extract groundwater, no landowner has property in that water. It follows that Parliament may intervene to regulate, in the public interest, access to that water without interfering with an interest in property.[13]
[13] (2005) ACTCA 42 at [15].
34.It is also significant to note paragraph 16 of the decision in Rashleigh 3, where the Court stated:
Moreover, it seems to us that, even if the right to extract water percolating under land is anything more than one of the "bundle of rights" that go to make up “property" (Yanner v. Eaton (1999) HCA 53, (1999) 201 CLR 351 at 366) the imposition by the Legislative Assembly of a regime to regulate access to underground water does not amount to an acquisition of any such property.
The approach by the respondent to the applicant
35.The position as at March 2003 was that the WRA 1998 had commenced on the commencement date, and as a result there was, subject to s 13, a prohibition on taking water without a licence issued under the Act. It appears from the evidence of the respondent’s officer, Ms Garnsey, that at about this time, the respondent took steps to get information about the number of bores in existence and the need for licences and allocation of water, with the aim of licensing and granting allocations to the bores operating in the area of the Property. These steps were taken in order to achieve the objects set out in section 3 of the WRA 1998.
36.The respondent’s statement of facts and contentions referred in paragraphs 4 and 5 to letters that had been sent to the applicant asking him to make contact with the respondent in relation to the bore on his property.[14] A further approach was made by an officer of the respondent on 28 May 2003, by leaving at the Property an information sheet and application form together with a business card and a request asking the occupant to contact the respondent.[15] A further letter was sent by the respondent to the applicant on 24 June 2003.[16] It is not disputed by the applicant that these steps were taken. The applicant gave evidence that he was overseas on business for a substantial period in 2003. He did not recall the dates, and now has no records which would clarify when he was absent.
[14] Documents T26 and T29.
[15] Document T31.
[16] Document T32.
37.The copy of the letter of 24 June 2003 from the respondent to the applicant[17] has a notation on it to the effect that:
26/603 10:22 AM Peter received a telephone call from Mr O'Donnell's brother. Mr O'Donnell is O/S & will be returning in January. His brother will file this letter with other mail. LMW 26.6.03.
[17] Document T32.
38.The applicant gave evidence that he does not have a brother, but his brother-in-law did have access to the Property, and was attending to matters such as collection of the mail. The Tribunal is satisfied that the letter records a discussion on 26 June 2003 between a person associated with the applicant and an officer of the respondent.
Allocation of water
39.Presumably in response to the letterbox campaign and the correspondence from the respondent to various households and operators of bores in the area, the respondent received a number of applications for licensing of bores and water allocations.
40.The respondent had established a water allocation limit for the aquifer under the area of the Property and surrounding residential areas. The establishment of the limits on the amount of water that could be allocated from a particular aquifer, and the considerations of environmental flows and availability of water as a result of recharge of the aquifers was discussed at length in Rashleigh 1.[18] While the issues in this case do not turn on the science of water resources, the comments of Peedom P. in Rashleigh 1 indicate the scientific complexity, and uncertainty, of establishing underground water flows and the desirable level of extraction from aquifers, having regard to the environmental considerations set out in s 3 of WRA 1998.
[18] (2004) ACTAAT 31 at [27] – [32], [34] – [36] and [38] – [45].
41.The respondent had established a limit on the size of the allocations that could be made from the Lake Burley Griffin aquifer, part of which was under the Property, and commenced allocations of water to applicants in the order of receipt. However, the respondent’s statement of facts and contentions concedes in paragraph 11 that had the applicant applied for a licence and allocation in June 2003 he would have been issued with them, and therefore been able to take groundwater.
42.Paragraph 12 of the respondent’s statement of facts and contentions contends that by 17 October 2003, in accordance with the policy in place at the time, there was no further water available to be licensed for extraction from this aquifer.
The making of the application
43.The applicant contends that the application for a water licence was made in June or early July 2003. The applicant relies on the witness statement and oral evidence of the applicant and various documents, copies of which were filed by the respondent as the T documents. The applicant’s evidence was unreliable and there are several inconsistencies between his oral evidence and the witness statement filed on his behalf.[19] He conceded that the witness statement was not accurate, and appeared to have considerable difficulty in recalling the details of the matter. He conceded that he had no recollection of what had happened on 26 June 2003 and thereafter (up until 17 October 2003) apart from what was on his file. The documents upon which the applicant relies to corroborate his version of events are similarly unreliable, as will be discussed below.
[19] Exhibit A1
44.In paragraph 2 of his witness statement, the applicant stated that within a few days of 26 June 2003, having become aware of the need to lodge an application, he completed an application form and sent it together with a cheque for $107 to the respondent. In giving verbal evidence to the Tribunal, the applicant stated that the application was sent in July but had been backdated to June 2003. The applicant said that he did not recall exactly when it had been sent but it was in early July and was backdated to June 2003 to claim a tax deduction for the June 2003 tax year.
45.On 3 July 2003 the respondent wrote to the applicant advising him again that he needed to license the bore, and enclosing an application form. This form was only available as from the 1 July 2003, and contained a new fee for that year –
$107.[20] The tribunal is satisfied that the form that was sent by the respondent with the letter of 3 July 2003, or another copy thereof, was the version ultimately signed by the applicant.
[20] Water Resources (Fees) Revocation and Determination 2003, DI 2003 – 164, Exhibit R5.
46.The applicant gave evidence that the cheque that was sent with the application had been drawn from the cheque-book of one of his private companies at the time that the application was filled out and sent to the respondent. Presumably, as the application was accompanied by a cheque, this would have been sent by mail. The evidence from the respondent is that neither the cheque nor this form were ever received.
47.The Tribunal has given careful consideration to the oral evidence given by the applicant. The Tribunal cannot be satisfied in the absence of evidence from sources other than the applicant that the applicant ever filed an application in July 2003, nor sent a cheque in payment of the application fee.
48.The applicant alleged that he sent copies of his bank statements, ledger records and accounts including cheque book butts to the respondent in October 2003. The alleged copies show a cheque butt for the amount of $107 with the following notation:
30-6-03
ENVIRONMENT
ACT
BORE LIC
APPLICATION
49.The cheque butt is in a different handwriting to other cheques butts adjacent to it in the applicant’s records. The respondent submitted that the copy of the cheque butt is not reliable evidence for, inter alia, the following reasons:
· The date is written above the line for the date and the payee is written below the line for payee, both consistent with the markings on the copy of the butt that are consistent with the original payee and date having been whited out;
· Parts of the lines on the cheque butt next to "Date" and "To" have been obscured which is consistent with whiting out of writing on the original cheque butt;
· The cheque is written in different handwriting to the other cheques suggesting that Mr O'Donnell wrote it other than in accordance with the ordinary practice which involved someone in his office writing the cheques;
· The original of the cheque butt has been destroyed notwithstanding that Mr O'Donnell must have realised by October 2003 that it would be significant. Mr O'Donnell considered himself under an obligation to retain such records for six years. Mr O’Donnell’s oral evidence regarding the destruction of the documents was inconsistent with the statements in Exhibit R1;[21]
· The poor copy shows evidence of it being struck through and then the striking through having been partially deleted or whited out in order that the cheque be written – consistent with the butt of a discarded cheque being used. There appear to be the remnants of crossing through lines at the bottom of the cheque and the lines printed on the cheque are not present in places consistent with handwritten striking through having been whited out.
[21] O’Donnell, Statement in Response to Subpoena dated 25 May 2009 (Exhibit R1).
50.The respondent further submitted that the purported ledger records[22] show the last entry as being Environment ACT added just above the line. Mr O'Donnell could give no evidence of who made the entry or when it was made. The originals have been destroyed notwithstanding that by October 2003 Mr O'Donnell must have known that they were significant.
[22] Document T67
51.The Tribunal considers that the evidence of the purported copy of the cheque butt and the purported ledger is unreliable and in the Tribunal’s view does not corroborate Mr O’Donnell’s evidence that he sent an application form and cheque in July 2003.
52.There is no evidence that the alleged July application was delivered or returned to Mr O'Donnell. The alleged cheque has not been drawn upon.
53.The respondent was cross-examined about the alleged despatch of the licence application together with the writing on the cheque butt. He insisted that this had been done in early July 2003. However, he was not able to produce the original cheque-book butts or other documents, which, as discussed above, have been destroyed.
54.The Statement of Ms Andrea Garnsey,[23] indicates that she searched the records maintained by the respondent in relation to licence applications and there is no record of the applicant having filed any application for a licence to take water from a bore at the Property prior to the facsimile which appears in the T documents at T37 – T45, which was stamped as having been received on 17 October 2003.
[23] Exhibit R4.
55.The applicant is an experienced businessman, having interests in fields such as hotels and child-care centres where knowledge of and compliance with licence conditions are important. The respondent also maintains a business office in Fyshwick, with staff to assist in the administration of his affairs.
The Events of 17 October 2003
56.It is common ground that the applicant had a telephone discussion with officers of the respondent on 17 October 2003. These discussions are set out in a file note of the respondent which is document T 36. That file note indicates that the applicant spoke to both Ms Wildman and Mr Neil on 17 October 2003. In the report of the discussion, the applicant asserted that he had sent an application in on 26 June 2003, with a cheque. The applicant was told that the sub-catchment had been fully allocated and he could not be given a licence and allocation.
57.Following the telephone call, the respondent received a faxed form of application from the applicant. This is document T 37. The fax number of the respondent’s office and the reference to Ms Wildman is at the top of the document. It was sent together with faxed copies of the defendant’s alleged cheque book butts and bank statements, and a letter from the applicant.[24]
[24] Document T38.
58.In his oral evidence to the Tribunal, the applicant did not explain why, if a cheque had been originally sent in July, he did not simply cancel it and send a new one.
59.The Tribunal is satisfied that the application sent by fax on 17 October 2003 was the first time that the application had been received by the respondent. The Tribunal is further satisfied that the application was sent by Mr O’Donnell for the first time on 17 October 2003. At that time, the respondent told the applicant that the respondent could not satisfy the application because the resource had been fully allocated. This decision is not attacked by the applicant as being wrong in law, or in some other way inappropriate. The applicant’s case depends upon an alleged failure to consider the application in July 2003.
60.It is not clear why the respondent did not confirm the decision in writing. While as a matter of law, an application that is not accompanied by a fee is not a valid application,[25] as a matter of reasonable administration, having received an application for such an important matter, one might have expected the respondent to have at least asked for the fee to be sent or in some other way indicated that it was necessary to finalise the application. Nor was there any written response to the telephone discussion between the applicant and the respondent’s officers at this time, to confirm the verbal advice given to the applicant over the phone. The only conclusion that the Tribunal can come to is that the respondent’s officers took the view that there was no point in proceeding any further with the application because it could not be successful. This may or may not be a correct view of Mr O’Donnell’s rights in October 2003.
[25] Creaser v Savannah Associates [2003] ACTCA 26 at [68].
61.The respondent did not call any current or former officers of the respondent who had had dealings with the applicant, such as Ms Wildman or Mr Neil. Ms Garnsey gave evidence but she was on maternity leave for the period August 2003 until October 2004 and therefore did not deal with the applicant or with his application during the relevant period - in and around October 2003. The applicant expressly asked the Tribunal to draw a Jones v Dunkel[26] inference that Ms Wildman and Mr Neil would have substantiated Mr O’Donnell’s evidence. The applicant argues that if Ms Wildman and Mr Neil had been called, their evidence of the events would have been that Mr O’Donnell not only drew the fact of his earlier application to their attention but he had also drawn to their attention the problem with the cheque not having been cashed and had provided them with supporting evidence to demonstrate that the cheque had not been cashed.
[26] (1959) 101 CLR 298.
62.The principles in Jones v Dunkel were clearly and conveniently stated by Menzies J in that case:[27]
In my opinion a proper direction in the circumstances should have made three things clear:
(i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.[27] (1959) 101 CLR 298 at 312.
63.The direct evidence establishes that a conversation took place on 17 October 2003 and it is common ground that the material was sent by fax on that day. It is also common ground that the respondent did nothing to progress the application sent by fax on that day. Although Jones v Dunkel allows the Tribunal to more readily accept evidence that might have been contradicted by the respondent it cannot be used to prove affirmative facts eg that Mr O’Donnell made an application in July 2003 or that there were any acts of misfeasance or malfeasance committed by officers of the respondent by failing to progress the application sent in October 2003. Although the applicant submitted that the respondent’s failure to progress the application amounted to misfeasance or malfeasance, these allegations were not made in the applicant’s facts and contentions and there was no direct evidence led on this point. It would be inappropriate for the Tribunal to apply Jones v Dunkel to fill these gaps in the applicant’s case.
64.The applicant acknowledged in cross examination that notwithstanding the advice that the bore was unlicensed he kept using bore water on his garden. The reason that he gave for this was that he wanted to continue “until all legal processes were exhausted”. This reference to legal process may have been as a result of other people talking generally about the subject, but there were no legal processes instituted by him. Nor does he appear to have followed up with the respondent at that time to press his case, or explore whether any other steps were possible. Considering the significance of the use of groundwater by the bore in watering his gardens, this failure indicates at least a lack of attention to the matter.
Conclusion on the Evidence
65.The Tribunal concludes that the applicant made an application to the respondent on 17 October 2003 to take water by means of the bore at the Property. The application was not processed by the respondent. The applicant continued to use the bore at the Property until he was issued with the Direction by the respondent dated 10 November 2008 to discontinue the use of the bore and to seal the bore in the manner disclosed in that Direction.
Analysis of the Issues
66.The applicant submits that, at a minimum he had the right to have his application properly considered. As stated above, proper consideration was not given to the application. A proper consideration may have involved a finding of facts referred by the Court of Appeal in Rashleigh 3.[28] It may be that a proper consideration of the application may have required independent findings of fact as to the sustainable flow limit in the catchment and whether extraction of the water sought by the application would damage the environment.
[28] (2005) ACTCA 42 at [36].
67.There is also some doubt as to whether the grant of a licence for pre-1998 properties required a water allocation. This view was expressed by Crispin J in Rashleigh 2.[29] His Honour interpreted the WRA 1998 to mean that Part 7 of the Act (licences) applied to everyone and created an offence to take water without a licence[30] but the requirements under Part 6 for a water allocation only applied to post-1998 leases. Although s 35(8)(a) of the WRA 1998 required that the respondent should not grant a licence to take water without a water allocation, s 35(9) stated that s 35(8)(a) applied to post-1998 leases. Although Crispin J’s decision was overturned by the Court of Appeal in Rashleigh 3, this aspect of the first instance decision was confirmed on appeal as follows:
Persons such as Mr Rashleigh, who held a residential lease issued before the commencement of s 13, do not need to obtain a water allocation from either the Territory, or by open market purchase. This provision, taken with the effect of s 13 (which vests the right all water in the Territory except for groundwater under land the subject of a pre-existing lease) seems to us to recognise the pre-existing common law right of a landowner to access groundwater. The legislature, it seems to us, has clearly evinced an intention not to interfere with these rights, even though, in our view, these rights do not amount to proprietary rights.[31]
[29] (2005) ACTSC 18 at [65] and [71].
[30] (2005) ACTCA 42.
[31] (2005) ACTCA 42 at [20].
68.Like Mr Rashleigh, the applicant in the present case held a residential lease issued before the commencement of s 13, therefore, based on this reasoning, did not need to obtain a water allocation from either the Territory, or by open market purchase.
69.The Tribunal has found that the respondent did nothing to progress Mr O’Donnell’s application after 17 October 2003. The respondent submitted that on 1 September 2005 the WRA 1998 was amended by the Water Resources Amendment Act 2005 (ACT) so as to insert a new provision into the WRA 1998 - s 63A - which had the effect of suspending the operation of the power to grant licences. This meant, the respondent says, that from 1 September 2005 until the repeal of the Act on 1 August 2007 no licence could have been granted.
70.On this interpretation, the Tribunal would investigate whether the applicant had a present entitlement to the grant of a ‘right or a privilege.’[32] The jurisdiction and the powers of the Tribunal to review the decision of the respondent to issue the Direction must take into account the general provisions of the ACAT Act and the specific provisions of the Water Resources Acts defining the characteristics of the decision that is subject to review. As stated by Kirby J in Shi v Migration Agents Registration Authority:
Only when all of the relevant features of the two inter-related statutes are understood can a correct decision be arrived at as to the ambit of the review in question and the manner in which it should be conducted.[33]
[32] Costello and Secretary, Department of Transport (1979) 2 ALD 934 at 944.
[33] Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [25].
71.As regards the ACAT Act, s 68 provides that the Tribunal may exercise any function given by an Act to an entity for making a decision and s 68(3) states that ACAT must confirm, vary or set aside the decision. The effect of an order under s 68(3) of the ACAT Act is stipulated in s 69(2) which specifies that the order is:
(a)taken to be the decision of the decision-maker; and
(b) takes effect from the day the tribunal makes the order, unless the tribunal orders otherwise.
72.Thus the tribunal ‘stands in the shoes of the decision-maker’[34] in arriving at its decision and applies the law that is in force when the Tribunal makes the order.
[34] Drake v Minister of Immigration and Ethnic Affairs (1979) 24 ALR 577, at 589.
73.In the respondent’s submission, the applicant has no present entitlement to a water licence because any previous rights held by the applicant in that regard were abolished by the moratorium on the grant of water licences which was created by the insertion of s 63A into the WRA 1998 by the Water Resources Amendment Act 2005 (ACT).
74.Conversely, the applicant argued that he had at least part of a ‘bundle of rights’[35] which attracts the principle in Esber v The Commonwealth[36] (‘Esber’) so that the applicant’s entitlement must be interpreted as being an accrued right to access water, that is, a pre-existing complete entitlement to access water. The applicant says that Mr O’Donnell’s application had begun under the version of WRA 1998 which operated in 2003 and is therefore preserved by s 84 of the Legislation Act 2001 (ACT). As discussed above, s 84 states that the repeal or amendment of a law does not—
…
(b)affect the previous operation of the law or anything done, begun or suffered under the law; or
(c)affect an existing right, privilege or liability acquired, accrued or incurred under the law.
[35] The ACT Court of Appeal in Rashleigh 3 (2005) ACTCA 42 at [16], citing Yannerv. Eaton (1999) 201 CLR 351 at 366.
[36] (1992) 174 CLR 430.
75.‘Right’ is defined in s 84(6) as a capacity, interest, status and title.
76.The applicant’s submission cites s 84 of the Legislation Act to argue that the 2003 application was ‘begun’ under the 2003 legislation and Mr O’Donnell’s existing right to water must continue as if the amendment and repeal of the WRA 1998 had not happened.
77.The Tribunal accepts this submission insofar as it applies to the finding of fact made by the Tribunal that Mr O’Donnell’s application for a water licence was made on 17 October 2003. It is to be noted that the applicant submitted that the relevant version of the WRA 1998 was that operating in June 2003. It is common ground that the licence would have been granted if the application had been made then. However, the Tribunal has found that the application was made on 17 October 2003. The situation at that stage as to what the applicant needed to establish to obtain the licence was less clear, as discussed above.
78.In Esber[37] an application for redemption of weekly compensation under the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth) was rejected by the responsible officer of the respondent and the appellant lodged an application in the federal AAT to review the delegate’s decision. After the application had been made to the AAT but before the hearing, the Act was changed so that weekly payments were no longer redeemable. It was held by the High Court that the AAT was correct in applying the earlier legislation because the applicant had a right to have the decision of the delegate reconsidered and determined by the Tribunal. The relevant right was:
…not merely “a power to take advantage of an enactment”. Nor was it a mere matter of procedure; it was a substantive right. Section 8 of the Acts Interpretation Act [the equivalent of s84 of the Legislation Act] protects anything that may truly be described as a right, “although that right might fairly be called inchoate or contingent.”[38]
[37] (1992) 174 CLR 430
[38] Esber v The Commonwealth (1992) 174 CLR 430 at 440. [Footnotes omitted.]
79.However, it is clear from the Court of Appeal decision in Rashleigh 3 that certain rights to flowing water are incidental to the ownership of riparian property.[39] The Court of Appeal in Rashleigh 3 did not discuss the precise nature of these rights, querying whether “the right to extract water percolating under land” could be “anything more than one of the ‘bundle of rights’ that go to make up ‘property’.”[40]
[39] (2005) ACTCA 42 at [11], quoting Halsbury’s Laws of England (4th ed 2004 reissue) Vol 49(2): Water, at [47]:
[40] Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351 at 366.
80.Provisions such as s 84 of the Legislation Act protect a wide range of entitlements, not just strict ‘rights’.[41] Consequently the Esber principle may extend to inchoate and contingent rights but not to ‘potential rights’.[42]
[41] Chang v Laidley (2007) 234 CLR 1 at [41] per Kirby J.
[42] Chang v Laidley (2007) 234 CLR 1 at [114-117] per Hayne, Heydon and Crennan JJ.
81.In the Tribunal’s view, the right held by the applicant in the present case in October 2003 was a substantive right. This conclusion is supported by the Court of Appeal’s treatment of Mr Rashleigh’s analogous right in Rashleigh 3 and the continuing protection accorded in the WRA 1998 and WRA 2007 to the holders of pre-1998 Crown leases. The substantive right so held by the applicant falls squarely within the category of rights protected by s 84 of the Legislation Act and the Esber principle. In the Tribunal’s view the applicant held a right that was preserved by s 84 of the Legislation Act, therefore the suspension of the power to grant licences imposed by s 63A of the WRA 1998 would not have applied to the 2003 application.
82.In particular, the applicant submitted that respondent’s failure to process his application for a water licence meant that he was not placed on a waiting list for a water allocation, a procedure which was used for other applications during 2003. However, there is no evidence that anyone placed on the waiting list during the relevant period received a water allocation. Two refusals by the respondent to grant water licences to Mr Rashleigh and Dr and Ms Cutter resulted in further applications for review to the Administrative Appeals Tribunal which were concluded by consent in 2006.[43] The respondent submits that these consent decisions were exempted from the moratorium imposed by s 63A WRA 1998 due to the operation of s 63B of that Act which stated that the operation of section 35 (1) to (4) is not suspended in relation to:
an application for a licence to take water if the licence is granted under a court or tribunal order made in a proceeding started before the commencement of this section.
[43] Exhibit R7 (Rashleigh) and R8 (Cutter).
83.The essence of the applicant’s pre-existing right that attracted the operation of s 84 of the Legislation Act and the Esber principle was his status as a holder of the First Crown Lease, a pre-1998 Crown Lease. These rights were preserved by s 13 of the WRA 1998 Act and maintained by s 110 of the WRA 2007. However, this right was surrendered by the applicant in September 2006.
The surrender of the First Crown Lease
84.As stated above, the First Crown Lease of the Property was dated 4 August 1997, and was issued to the applicant. In September 2006, the applicant for his own reasons chose to surrender that Crown lease, and the new Crown lease dated 26 September 2006 was granted to him.[44] The applicant surrendered the First Crown Lease pursuant to s 171 of the Land Act in consideration for the grant of the Second Crown Lease. The Tribunal notes that this was nearly 3 years after the telephone discussion with the officers of the respondent, in which he was advised that he was not able to obtain an allocation of water for his garden. Why the applicant chose to take the course of surrendering his original Crown lease, and whether he gave any consideration to the issue of the effect it may have on his rights to take water, was not explained.
[44] Exhibit R2
85.By operation of s 172C of the Land Act the Second Crown Lease did not include the right to the use, control or flow of water under the Property. The surrender and re-grant of Crown lease removed from the applicant the rights preserved by s 13 of the WRA 1998 Act and maintained by s 110 of the WRA 2007.
86.Having lost the protection of the First Crown lease, the applicant’s claim for a licence must now be considered in terms of the WRA 2007. Following the grant of the Second Crown Lease, no licence can be granted because s 35(8) of the WRA 2007 applies.
87. The applicant cannot be granted a licence under the WRA 2007 because:
· the applicant's property is an "urban residential property" within the meaning of the WRA 2007 and hence the grant of a licence is prohibited by s 30(2)(d) of the WRA 2007;
· at no time has the applicant held a water access entitlement or surviving allocation (within the meaning of those terms in s 30 of the WRA 2007) on which to base the taking of water from the Property and could not be granted one because the subject land is "urban residential property" (see WR Act s 21 (2)(b)).
88.Thus, not only does the applicant not have a licence, there is no prospect
of him obtaining a licence.
Discretionary considerations regarding the capping and sealing of the bore
89.Section 76 of the WRA 2007 applies where the respondent authority is satisfied that
something done or not done in relation to a bore may result, directly or indirectly, in the pollution or deterioration, inequitable distribution, loss, wastage or undue depletion of water, or unlicensed taking of water.
90.Pursuant to that section, the respondent may give the owner of the land where the bore is located a written direction to:
(f)close, or partly or completely plug, seal off or backfill the bore in the way stated in the direction.
91.In its Reasons for Decision[45] given in December 2008, the respondent stated that it was satisfied of the following:
[45] Document T25
(a)That the bore has been connected to the irrigation and, prior to 11 June 2008, had been used for irrigating the gardens on the property;
(b)That maintenance of the connection of the irrigation system and pump to the bore may result in the unlicensed taking of water in the future;
(c)That maintenance of the bore in a condition from which water could be pumped may result in the unlicensed taking of water;
(d)It was very unlikely that the bore could be licensed or lawfully used to take water in the foreseeable future.
92.Findings (a) to (c) were not disputed by the applicant and the Tribunal’s findings in relation to (d) have been discussed above. Moreover, the applicant acknowledged in cross examination that notwithstanding the advice that the bore was unlicensed he kept using bore water on his garden. The reason that he gave for this was that he wanted to continue “until all legal processes were exhausted”.
93.The respondent set out its policy in relation to unlicensed bores in its Reasons for Decision[46] given in December 2008. It stated that:
all unlicensed bores in urban residential areas will be permanently locked down to prevent water extraction. This process is designed to reduce or eliminate the possibility that water is taken from unlicensed bores in the future.
[46] Document T25.
94.The Tribunal is satisfied that applicant may use the bore for the unlicensed taking of water if the bore remains unsealed and uncapped. This conclusion is demonstrated by the history of the present case. The unlicensed and unlawful taking of water may, in turn, result in an inequitable distribution of water.
95.The reasoning above indicates that under the current legislation there is no prospect of a water licence being granted in the future and in the absence of a valid licence or the prospect that a licence will be granted, the bore should be capped. The requirements of s 76 WRA 2007 are therefore satisfied.
96.The applicant has other options for the collection of water, for example, from the roof of his residence or by ACTEW mains water.
Conclusion
For the reasons given above, the Tribunal determines that the decision under review should be confirmed.
…………………………….
Professor P. Spender
Presidential MemberPUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: AT 08/96
APPLICANT: GARRY O’DONNELL
RESPONDENT: ENVIRONMENT PROTECTION AUTHORITYCOUNSEL APPEARING: APPLICANT: CHRISTOPHER WARD
RESPONDENT: DAVID MOSSOP
PARTY JOINED:
SOLICITORS: APPLICANT: ROD BARNETT
RESPONDENT: ACT GOVERNMENT SOLICITORS
PARTY JOINED:
OTHER: APPLICANT:
RESPONDENT:
PARTIES JOINED:
TRIBUNAL MEMBER/S: P. SPENDER Presidential Member
C. CHENOWETH MemberDATE/S OF HEARING: 13-14 August 2009 PLACE: CANBERRA
DATE/S OF DECISION: 4 February 2010 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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