Rosser v Chief Executive, Department of Natural Resources
[1997] QLC 110
•25 July 1997
|
BRISBANE
25 July 1997
Re: In the matter of an appeal under Section 51
of the Water Resources Act 1989 by IL Rosser
being the owner of Lot 21 on Plan M 341103,
Parish of Killarney, against the decision of
the Chief Executive, Department of Natural
Resources, with respect to Waterworks Licence
No 80532. (A96-15).
IL Rosser
v.
Chief Executive, Department of Natural Resources
(Hearing at Warwick)
D E C I S I O N
Introduction:
This matter came before the Court following the granting of a licence for "works" defined under the Water Resources Act 1989. The case was heard on 15 and 16 May 1997. Following a preliminary conference with the advocates for the parties, at their request it was agreed that, as the case had some substantive issues impacting policy for the Department of Natural Resources, the Court would fully hear the whole of the evidence, before making any decision in respect of whether there was jurisdiction to make any determination in the matter, a point raised early by the respondent.
In the spirit of that agreement I therefore now intend to consider all of the facts surrounding the case, before making any decisions on the matters of fact or of a jurisdictional nature. This will have the advantage of concisely clarifying the issues without exceeding the powers of the Court to decide any matter, which by the nature of the law, may be outside the powers of the Court to decide.
Background:
The matters concern an appeal by Mrs Inez Lavinia Rosser, Killarney, the owner of Lot 21 on Plan M 341103, against the licensing of works associated with Waterworks Licence No 80532 on an adjoining upstream property described as Lot 96 on Plan ML 320, and owned by MJK, AS and PJ Wickham. Following a notice in the "Warwick Daily News" on 9 September 1994, seeking objections from affected owners, a decision to issue Licence No 80532 was subsequently approved on 29 February 1996. Special conditions of the licence specifically include:
•a nominal groundwater allocation of 4 megalitres.
•6.011The diversion of water under this Licence for commercial purposes (bottled water for consumption) is not to exceed 20% of the total weekly discharge at the site of the works up to a maximum of 4 megalitres per annum.
•6.012The Licensee shall install and maintain water meters to the satisfaction of the Department of Primary Industries on the gravity flow pipeline from the site of the works to record flow volumes before and after the offtake point for water to be used for commercial purposes.
•6.013The Licensee shall record meter readings at both meters on a weekly basis during those periods when water is diverted for commercial purposes and shall submit records to the Department of Primary Industries at Warwick on a monthly basis.
The Licence expires on 30 June 2005.
Following that decision the appellant appealed on the grounds that:
the initial appeal of 1 April 1996, to the Land Court sought a right of appeal on the grounds of:
•the definition of the "works" as a sub-artesian bore was incorrect and should be defined as a "spring".
•the naming of the "works" as a sub-artesian bore restricts the appellant's legal rights to appeal only to an objection to the Chief Executive, with no subsequent right of appeal to the Land Court.
Following receipt of advice from the Registrar of the Land Court that the matter had been set for hearing, the appellant on 23 April 1996, clarified her grounds of appeal claiming:
•the incorrect use of the term "existing sub-artesian bore" in the advertisement seeking objections;
•inadequacy of the water supply;
•restriction of rights of other downstream landholders;
•special circumstances;
•precedent for commercial use of spring water in the area.
Mrs IL Rosser appeared for herself and gave evidence, also calling evidence from her husband Mr David Rosser, a retired agronomist, and Mr Allan Hancock, a local farmer at Killarney and former owner of Lot 21 on Plan M 341103.
Mr K Fisher, Crown Law, appeared for the respondent, calling evidence from Mr GA Murphy, Acting District Manager, Department of Natural Resources, Warwick, and the delegated officer responsible for determining and approving the licence.
The Facts:
Mrs Rosser argues that there is currently inadequate water to supply the present uses of riparian owners to Blackfellows Creek, without the use of other "commercial" purposes. In seeking to understand the history of the appeal, I note the chronology of events which became apparent during the evidence:
•About 1952 Mr Allan Hancock first saw the site of the works with his father who was logging in the area.
•About 1966 Mr Allan Hancock again saw the site while logging in the area.
•14 July 1968. Mrs Rosser inspected the property in company with her husband and the former owner, Mr Colin Hancock, prior to purchasing Lot 21. Access was through Lot 96 which is the location of the "works". On that occasion Mrs Rosser saw the spring and its point of discharge.
•Later in 1968 Mrs Rosser purchased Lot 21.
•About 1970 a dam was constructed on the watercourse just upstream of the northern boundary of Lot 21.
•In August 1992 Mrs Rosser became aware of works encasing the "spring" and associated works.
•On 28 August 1992 the matter was reported by Mrs Rosser to the Department of Primary Industries (DPI) and a joint inspection occurred with Mr R Broderick, a Departmental officer, Mrs Rosser and her husband. It was decided that it was a groundwater matter and was referred to another Departmental officer. There was no further follow-up with Mrs Rosser, and no apparent moves to license the "works" already in existence.
•July 1994.Mrs Rosser was contacted by the Department of Environment (DOE) in respect of a possible Carabeen Nature Refuge proposal.
•October 1994. Mrs Rosser formally requested an evaluation of her properties for Nature Refuge purposes.
•2 September 1994. An advertisement for sale of spring water in the "Warwick Daily News".
•Hearsay evidence that a tanker bearing the name of the owner of Lot 96 was parked regularly at the service station named in the advertisement for the next six months. This was not confirmed by direct evidence from Mrs Rosser.
•About 9 September 1994. Notice in the "Warwick Daily News" notifying of an application to license and sell water commercially from a source on Lot 96. The source was described as a "sub-artesian bore".
•9 September 1994. Mrs Rosser provided a detailed letter to the Chief Executive setting out her grounds of objection to the issuing of Licence No 80532.
•23 September 1994. Letter of objection from CE Brosnan received by DPI, Warwick.
•About 12 September 1994. Discussions occurred between Mrs Rosser and Mr A McKay of the DPI, who confirmed that control "springs" and "sub-artesian bores" were managed by the same group within the DPI, known as the Ground Water Group.
•21 September 1994. Mrs Rosser called upon Mr G Murphy who committed to inspecting the site to investigate. Mrs Rosser believed that would occur jointly with herself.
•27 September 1994. Mrs Rosser lodged her objection to the licence with the DPI.
•30 September 1994. DPI acknowledged the objection, promising to have an officer visit within a month. To Mrs Rosser's knowledge the problem was not inspected.
•February 1995. Mrs Rosser again visited Mr G Murphy noting the sale of water without a licence. She understood this illegal activity was undertaken with the full knowledge of DPI.
•9 August 1995. Aerial photography showing the position of a stainless steel tank on the ridge above the "works".
•14 February 1996. Mr A McKay (DPI) telephoned Mrs Rosser advising that he had visited the works in company with the owners of Lot 96.
•29 February 1996. Letter from Department of Natural Resources (DNR) advising that Licence No 80532 had been granted, authorising "the construction of a three metre deep sub-artesian bore", and advising that Mrs Rosser had therefore no right of appeal. Mrs Rosser was unclear as to why the wording of "existing bore" in the advertisement was changed to "authorising the construction" in the licence. Mrs Rosser received the letter on 6 March 1996.
•1 April 1996. Appeal lodged with the Land Court seeking a right of appeal. Mr McKenna (DNR) telephoned Mrs Rosser who claims he acknowledged that the "works" was a "spring".
•10 April 1996. Land Court Registrar acknowledged appellant's appeal.
•12 April 1996. Mrs Rosser personally delivered a letter to DNR advising that an appeal had been lodged with the Land Court. (Mrs Rosser admitted in evidence that she had not lodged a copy of the appeal but only a letter advising of the lodgement of the appeal - Exhibit 7.)
•23 April 1996. Letter from appellant to the Land Court further clarifying her grounds of appeal lodged on 1 April 1996.
•11 October 1996. Mrs Rosser met Mr D Boyland of Department of Environment.
•23 October 1996. Letter from DOE confirming possible interest subject to a formal review of the properties.
•Date for hearing set, in Warwick, 15 May 1997.
The key issues in the case relate to -
•definition of the works
•location of the works
•rights of riparian owners
•legality of the licence
•environmental matters
Definition of the Works -
Mrs Rosser argues that the current 3-metre bore has been placed at the site of an old "spring" which has been continually in existence, to her knowledge, since 1968. She produced the evidence from her husband, Mr D Rosser, to confirm that date, and also from Mr Allan Hancock that the "spring" had to his knowledge existed since about 1952.
Apparently, according to evidence from Mr Murphy, after the Wickhams purchased Lot 96 in 1966, they cleared the slopes around the site of the "spring" between 1966 and 1970, which "resulted in significant increase in recharge and resulting discharge at the site". Mr Murphy confirmed that at the time of the application for a licence (September 1994), the works were in existence, and Mr Murphy noted that these installations occurred "at the site of what I believed to be a spring". He also noted at the time that there was "no saturation at the surface at the site of the works. I observed no saturation within the bed of a drainage line below the site of the works." All water from the site appeared to be collected by a pipe from the bore and transported to discharge into a dam downstream of the "works" site.
In seeking to understand the meaning of the "works", I turn to the Act which describes:•"spring" means water naturally rising to and flowing over the surface of land.
•"sub-artesian bore" includes any shaft, well, gallery, spear or excavation and all works constructed in connection with any sub-artesian bore, shaft, well, gallery, spear or excavation which intersects an underground source of water and from which water does not flow naturally to the surface.
•"works" means operations of any kind and all things constructed, erected or installed for or in connection with the purposes of this Act, all sources of water supply and land reserved or set apart, occupied, held or used for or in connection with those operations or those sources, and includes a quarry or gravel pit vested in the Corporation or under the control of the Corporation or the chief executive.
•"watercourse" means a river, creek or stream in which water flows permanently or intermittently -
(a)in a natural channel;
(b) in a natural channel artificially improved;
(c) in an artificial channel that has changed the course of the watercourse;
but, in any case, only at every place upstream of the point to which the spring tide normally flows and reflows therein whether due to a natural cause or an artificial barrier therein or, when the chief executive has declared by notification under this Act a downstream limit then, during the continuance in force of that notification, only at every place upstream of that limit.
•"beds and banks", with reference to a watercourse or lake, means land over which the water of that watercourse or lake normally flows or that is normally covered by that water whether permanently or intermittently, but does not include land abutting or adjacent to the bed or banks that is from time to time covered by floodwater.
For the purposes of this definition "bed" means the relatively flat and "banks" the relatively steep portions of the firstmentioned land.
The definition of "watercourse" has been extensively defined in common law by many cases, and one text which helps to clarify the intent is that proposed by "Angell on Watercourses" which said:
"A watercourse may be defined as a body of water issuing ex jure naturae from the earth, and by the same law pursuing a certain direction in a defined channel, till it forms a confluence with tide water. (Coulson and Forbes on 'Waters and Land Drainage', 5th Edition, page 76.) "
It is also not necessary for a watercourse to flow continually, as a channel may be occasionally dry, but it must appear that the water flows usually in a regular channel. (Stollmeyer v. Trinidad Lake Petroleum Company (1918) AC at p.491.)
Mrs Rosser takes some comfort from the definition of a "sub-artesian bore" which says in the Act "and from which water does not flow naturally to the surface". She argues that the words "flow naturally" means under the forces of nature, which she describes as under the forces of gravity. While her understanding of the force of gravity was challenged by Mr Fisher, what does not appear to be challenged is the fact that for many years water has flowed "naturally" from the site of a spring, which by all understanding now by both parties, is the site of the current 3-metre bore which is part of the prescribed "works" under the Act.
Mr Murphy is a very experienced groundwater expert who has extensive experience throughout Queensland, and who has gained an extensive knowledge of springs and other groundwater structures. He noted that "the science of groundwater is quite separate from the science of surface water". He believes he has "an excellent appreciation of the occurrence of springs". By his own admission, he believes the site of the current works was the site of a spring, which supports Mrs Rosser's evidence.
Mr Murphy expressed the view that at the time of approving the licence (1996), he determined that the "spring" ceased to be a spring within the definition of the Water Resources Act, and was designated as a sub-artesian bore, bearing also in mind that there was a physical change at that time to the nature of the site. Mr Murphy explained that at the time of inspection of the "works" at the site he noted two pipes, one a 4-inch PVC and the other originally an air vent. These were connected by a third overflow pipe below the ground surface to a collection chamber and then discharged the water to the dam downstream by a gravity feedline. There is also a gully at the low point of the terrain slightly to the west of the discharge pipeline to the dam.
Mr Murphy also noted that "in their natural state and in a relatively pristine environment, springs are relatively stable features except for climatic influence. In developed situations the very nature of springs can alter through a range of impacts." In respect of the regular quantity of flow from the 3-metre bore hole to the dam, Mr Murphy also noted "a discharge of water by way of the overflow pipe from the cylinder well to the dam". He then went on to say also that "on most occasions I've visited the property I've noticed a discharge of water from the dam through the hollow log towards the boundary of the appellant's property". What appears from the evidence is that there is a continual flow of water from the "works" which would seem to occur from the surface by natural forces.
In his evidence Mr Murphy had concluded that if he determined that the "works" was a spring and not a sub-artesian bore, then Mrs Rosser would have been disadvantaged as, under the Water Resources Act, there would be no requirement for the Wickhams to seek permission to use the water nor for any right of objection by adjoining owners within 500 metres of the Wickhams' property. In the event of his determination as a sub-artesian bore, subsequently only two objections were received, one from Mrs Rosser and a second from the Brosnans further downstream. Only Mrs Rosser has gone on to appeal to the Court, in spite of advice from the Department that, under the Act, there was no right of appeal against a licence for a sub-artesian bore. On the facts, while the Department had apparently sought to provide an objection mechanism for affected owners, the lack of any appeal rights as a sub-artesian bore was in fact a "Catch 22" situation for Mrs Rosser. The statement by Mr Fisher that there was "no disadvantage only advantage to the interests of downstream landholders in respect of the decision to treat the works as a sub-artesian bore", has in fact a "sting in the tail" in terms of democratic rights to appeal.
While I can understand Mr Murphy's desire to ensure fairness in the community in this matter, I am conscious that he is currently restricted by certain limitations in the Legislation. To be able to object, when you have no right of appeal against the Chief Executive's determination, is really no preservation of riparian rights. In the circumstances I believe all parties know that the site of the "works" was really a natural spring, and has been so at least since the surveyors surveyed the area in 1907. There was discussion that the site may have been a "soak" rather than a spring, but the evidence reveals a certain regular and consistent flow of water that would define a "spring" rather than a soak.
I believe the works are more properly defined as a spring in its original sense, but note Mr Murphy's problem in having to determine the works at a time when the works had been in existence for some years. I do not accept that the water only rises to the surface "by reason of the pipe" in the 3-metre bore. Because the channel of the water rising to the spring is unknown, it is therefore unclear whether the water of the spring is a result of "vertical elevation from underneath the surface" or in fact occurs as a result of gravity forces upon the sub-surface waters further up the slope.
Location of the Works -
The difficulty in this matter is that the original topography has been disturbed with the construction of the dam in the watercourse in 1970. It is therefore very difficult for Mr Murphy to have any in-depth knowledge of the terrain as it was prior to 1970. At the time of determining the licence in 1996, he had to consider the evidence as it then was, with the "works" already in existence. He has therefore concluded that the site of the 3-metre bore was in fact not part of the watercourse that flows into the dam, and eventually down through Mrs Rosser's property.
In this matter I note that currently there is a natural gully between the two hills, which Mr Fisher argues represents the original position of the watercourse, in spite of the construction of the dam. Mrs Rosser contests that opinion as she claims the natural terrain was changed considerably with the construction of the dam, but agrees the lowest point of the gully has remained unchanged since the construction of the dam in 1970.
Mr Fisher argues that the distance between the present 3-metre deep bore (the site of the old spring) and the lowest point in the current gully was at least 20 metres, which indicated that the old "spring" was not in fact part of the watercourse. Mrs Rosser argues the distance was more like 10 metres. Mr Murphy also gave evidence that he has "not been to the site of the bore, the site of the works or the licensee's property at a time when there was a flow in the watercourse below the site of the works". Mr Fisher also argued that the general location of the drainage line which is the left-hand branch of Blackfellows Creek as shown on the 1907 Plan of Survey, was basically the same as the current location of the lowest point in the gully which is taken as defining the current position of the watercourse above the dam. Mrs Rosser argues that the general area had been changed by the construction of the dam in 1970, and offered no other comment on similarities with the 1907 Plan of Survey.
In respect of this comparison with the plotted position of the "drainage line" by the surveyor in 1907, I note the similarity referred to by Mr Fisher, but also note that the scale of the Plan of Survey is small. Generally speaking such gullies were located on the Cadastral Plan of Survey more by interpretation in sketch form by the surveyor rather than as a result of any direct measurement of the features at the time. They are therefore more indicative by nature than fully descriptive in location. I find that does not draw any firm conclusion to my mind in respect of the detailed location of the original watercourse.
The most relevant evidence, I find, was from Mr Allan Hancock, who had personal knowledge and memory of the area of the spring from as early as 1952 to 1966. His evidence was that in 1966 the spring was in cleared country, well clear of the edge of rainforest. The main "spring" area was, in his opinion, on the western side of the watercourse looking downstream, which was well defined with steep banks. A water trough existed for cattle and appeared to draw water from the main spring as well as some minor springs which were fenced off to prevent cattle from interfering with the waterflows. He said, "The stream always ran well". Like all springs on Spring Mountain, there were ferns around the sites, which often flows "like little waterfalls" from up to 2 to 3 feet above the bottom of the watercourse, but as part of the watercourse.
In respect of the particular gully of the spring in this case, he noted that it came out of the ground as a defined stream, which he believed to be a watercourse as he went there to "fill your billy" at the time. He noted that the spring always started with banks on three sides, which was the start of the fall in the watercourse. As the spring continued to run it tended to erode further into the slope, such that in his opinion, it was about 20 feet further up slope than it possibly was years ago. However in 1966 the spring was in his opinion part of the water course.
In evidence Mr D Rosser said he first saw the "spring", in company with Mrs Rosser in July 1968. At that time he argued that the bank of the watercourse on the eastern side was steeper than the western side, and the spring flowed from this eastern bank and ran about 4 or 5 metres across an amphitheatre before joining the lowest point of the watercourse and then flowing south towards Mrs Rosser's property, where it became a steep gully with steep sides in Lot 21. He recalled that water flowed to the surface through large pebbles. He was adamant it was not a soak but was a spring.
Mrs Rosser, Mr Hancock and Mr Rosser all related the position of the spring to a key lone sassafras tree which continues to the present. There was no doubt in their minds that the current location of the 3-metre pipe is the same position as the spring. All three argue that the original terrain had been changed with the construction of the dam in 1970. Mr Rosser confirmed that in 1968 when he visited the site, there was a spring which clearly had water flowing freely coming out of the ground, and to all intents and purposes was where the watercourse started. It ran west for a small distance, and then turned south and ran towards the boundary with Lot 21. Mr Rosser also related the spring to a "red soil bank" below the sassafras tree, which was similar to the position he noted in 1968.
On balance, while the evidence calls upon the memories of the appellant and her witnesses over a period of nearly 30 years, I find no reason to doubt their veracity or clarity. I feel the spring in its original state was in fact within the banks of the watercourse and therefore in accordance with the definition of "watercourse" in the Act, constitutes part of the watercourse. In defining the extent of a watercourse I note in Section 2(1) of the Act that the definition of "banks of a watercourse" includes the relatively steep portion, while the "bed" constitutes the relatively flat land where the water flows in times of normal flow. It is also noted that a spring which abuts the banks or is adjacent to the banks, but is not part of the banks, is not included in a watercourse.
In considering the matter of the definition of the watercourse as defined in the Act, it is noted that the principles discussed and adopted in the High Court decision in Knezovic v. Shire of Swan-Guildford (1967-68) 118 CLR 468 have been followed in the Act. In that case the High Court dealt with a matter where a local council was seeking authority to enter upon the plaintiff's premises for the purpose of maintaining a supposed watercourse. The Court found that the depression in the ground, having no bed or banks as of a permanent stream, with only a surface discharge of water during heavy rains, was in fact not a watercourse within the meaning of the Act. In that matter the source of the water flow was determined to come from a swamp and not from any "spring" source (p.480). Barwick C.J. found at page 475:"It seems to me, on an examination of such authorities as exist and of the work of recognized writers on this subject, as well as the decision of the Court, that it is settled that a watercourse consists of a stream with a bed, with banks, and water. That the flow of the water in the stream is intermittent or seasonal will not prevent what would otherwise be a watercourse from being accounted such: but though it is quite true that a watercourse may exist though its bed be dry for some periods, the watercourse, in my opinion, must exhibit features of continuity, permanence and banks with flowing water. It must, in my opinion, essentially be a stream and be sharply distinguished from a mere drain, or a drainage depression in the contours of the land which serves to relieve upper land of excess water in times of major precipitation".
In the matter of the current case the parties agree that Black Fellow Creek is in fact a watercourse and not merely a depression which occasionally carries water. The evidence of the spring demonstrates the permanency of the water flow.
It is therefore important to note that, in consideration of the earthworks resulting from the construction of the dam in 1970, I would agree with Mr Murphy that the site of the "spring" in its current state would not be part of the watercourse. He could not reasonably be expected to conclude that the spring was in the watercourse when he inspected the site in 1996. However, the evidence of Mrs Rosser draws a different conclusion of the site prior to the construction of the dam. This then leads to a consideration of the legal rights of riparian owners. Mr Murphy also advised that even in the event that the "works" constituted an improved channel in the vicinity of the dam, it would still constitute a watercourse.
Rights of Riparian Owners -
In this matter I seek guidance from the Act which says in section 36:"Ordinary riparian rights to use water
36(1)Subject to section 57, an owner or occupier of land abutting a watercourse, lake or spring or a weir, barrage or dam vested in the Corporation or under the control of the Corporation or chief executive may, without applying for or obtaining a licence or permit in that behalf, use for -
(a) domestic purposes;
(b) watering stock;
the water, at the material time, in that watercourse, lake or spring or weir, barrage or dam.
(2) For the purposes of this section -
"stock" means stock of a number not exceeding the number depastured ordinarily on the land having regard to seasonal fluctuations in the carrying capacity of the land and not held in close concentration for a purpose other than grazing. "
Section 57 of the Act sets out the powers of the chief executive to issue permits for works in the exercise of a right to use water under Section 36.
I note in the evidence of Mr Murphy that, in determining the works to constitute a "subartesian bore" and not a "spring", he claims that he had in fact provided some safeguards for Mrs Rosser in that "it brought the works under public notice, it brought the works under the control of the Crown, and provided an ability to limit the use of water from the works." Had he determined the works to be a "spring" he argues that, as the spring was entirely within the Wickhams' property, and, "because the spring does not and has never abutted the land of two or more properties or been contained within the land of two or more properties", then the Chief Executive would have had no control over the use of the water under the Water Resources Act.
However, Mr Murphy also noted that "if the licence application or the works subject to licensing or the taking of water at the time the application was made consisted of works or the taking of water associated with a watercourse, a different tack would have been taken. At the time of the licence application these works were in the form of an sub-artesian bore that was constructed at the site of a spring."
In seeking guidance in this matter I note the definition of "spring" and "sub-artesian bore" in the Act (supra) and also precedent in respect of "Halsbury's Laws of England" 4th Edition, revised, Volume 49(2).
The matter of the riparian rights of downstream owners where diversion of a spring is involved has been considered in previous cases, noting particularly that where a spring rises from which water flows into a natural channel, the owner may restrain a riparian owner from diverting the water so that it does not reach the riparian owner's land. (See Mostyn v. Atherton (1899) 2 CH 360. In that case a well was constructed around a spring and the water was made to flow in an artificial channel for a short distance before entering the natural channel. In that case at page 369, Bryne J found:"I think the true view to take is that the spring existed, and existed as a spring coming direct from the land and running in a natural course, and the fact that at some remote date some one has built round and over the issuing point, the source of the spring, in order to improve its method of issuing from the earth, will not be sufficient to distinguish this from the case above cited, which holds that you must not at the source of the spring destroy the natural flow from the spring all down the natural course of the stream. The utmost that could be said would be this - that at some remote date an artificial course has been made for a small distance from the issuing point of the spring. In my opinion that is not sufficient to justify the acts complained of, or to destroy the rights which have been acquired by the riparian owners. "
It is also interesting to note that the purpose of the restriction by the defendant (Atherton) in that case occurred as a result of the Urban District Council of Holywell issuing a permit to extract water "for the purpose of storing, making up in casks, jars, bottles, and other receptacles, and treating, preparing, and selling the same". The Court went on to note that "from the nature of the soil and confirmation of the surrounding rock and strata the water probably flowed in a known and defined subterranean channel before it issued into the well". The Court also found at page 363:
"The onus is on the party asserting his right to the flow to show affirmatively, not as a visible fact, but as a reasonable inference from known facts, that the water comes to the place of emergence, not by percolation or oozing, but in a known and defined channel."
From the description of the Mostyn case there would seem to be some analogy with the current claims of the appellant.
Matters also to be considered are the rights of any riparian owner to a continuance of flow both in respect of quantity, subject to the rights of uses of upstream owners for ordinary purposes, and in respect of quality in respect of the powers and obligations of local authorities. It is also noted that if the riparian right of access is taken away as a result of works authorised by a statute, the riparian owner has a right of compensation whether or not it is exempted by the Legislation. See Metropolitan Board of Works v. McCarthy (1874) LR7HL, 243. In that case, which involved a claim for compensation occasioned by works of the Thames Embankment, the Court of Appeal found that "in the legislature authorising works and taking away any rights of action which the owner of land would have had if the works had been constructed without such authority, intended to confer on such owner a right to compensation co-extensive with the rights of action of which the statute had deprived him". Under Section 238(1), except where the Act otherwise provides, compensation is payable to a person who is aggrieved by actions taken by the Chief Executive under the Act, where the person is not in default.
The key to whether downstream riparian rights flow from the presence of a "spring" relates to whether the spring in fact flows into or forms part of the natural channel or watercourse, which is the very heart of the present case. If, for instance, the water from a "spring" flows over land but not in a defined channel or watercourse, the owner of such land may appropriate the water to his own use or direct it. Chasemore v. Richards (1859) 7 HLCAS, 349. In that case, Lord Wensleydale said:"It has now been settled that the right to the enjoyment of a natural stream of water on the surface, ex jure naturae, belongs to the proprietor of the adjoining lands, as a natural incident to the right to the soil itself. "
The difference between surface water flowing over the ground, and water flowing in a natural stream or in a defined channel was also examined by the High Court in Gartner v. Kidman (1961-62)(HC) 108 CLR 12. That matter dealt with whether an artificial drain in fact had become a watercourse, and whether there was any riparian rights attached to the flow of water in that drain. The High Court found that the artificial drain in fact was not a watercourse, and that the owner downstream of the drain was not obliged to receive on his land all surface water which flows naturally on to it from adjacent higher land. These important principles are often key issues in land development matters.
This is also reflected in Section 36 of the Water Resources Act. The rights are therefore similar to those for surface water which is an unqualified right to divert or drain the water for his own purposes. Rawstron v. Taylor (1855) 11 Exch. 369.
The rights of any riparian owner to the quantity of flow of water is subject to similar rights for other riparian owners on the same stream, and each has the right of action in respect of any unreasonable and unauthorised use of the water, and an equal duty to him. Briskow v. Drought (1860) 11 ICLR 250. The use for ordinary or domestic purposes includes the right to take water for all ordinary or domestic purposes, and in feeding and watering the ordinary quantity of cattle on his land. Owen v. Davies (1874) WN 175.
In the current case, the location and relationship of the old "spring" in relation to the watercourse which eventually becomes the headwaters of the left-hand branch of Blackfellows Creek is germane to the final outcome of the appeal. This then leads to an understanding of the meaning of a defined channel or watercourse, which is taken to mean the knowledge of the watercourse from existing or observed facts in the natural or pre-existing condition of the surface of the ground. The onus of proof is on the person claiming riparian rights, and has particular implications for underground water, noting for instance in Bradford Corporation v. Ferrand (1902) 2 CH 655, which found that a spring which was alleged to be fed by underground water flowing in a defined channel, the course of which was unknown, a diversion which diminished the flow from the spring gave no course of action.
That matter dealt with the rights of persons to sink wells or bore holes above a water source where the course of the water was undefined, and not in a known channel. Farwell J. said at p. 660:"The rights in relation to water flowing in a defined and known channel on or under the surface of the earth are now well settled. .... But the right does not extend to water percolating through the strata in no known channels (Chasemore v. Richards) or to common surface water rising out of springy or boggy ground and flowing in no definite channel (Rowstron v. Taylor). "
In the current case the fact that water from the spring was diverted by the owner through the "works", would bring no grounds for appeal against the works, so long as there remains a continuance of the riparian rights of Mrs Rosser. To this end it is noted that the Wickhams have provided an overflow pipe through a "hollow log" towards the appellant's property. However, it is also noted that, while the intake to the dam has flowed continuously, the outflow has only flowed intermittently to the knowledge of Mr Murphy.
It can be argued that Mrs Rosser does benefit from the natural flow from the overflow pipe, and also from possible leakage from the dam elsewhere into the watercourse. However, from the evidence of a reduction in water flow through Lot 21, it would seem that the riparian rights of Mrs Rosser have been diminished below what might be expected if the works had not been constructed. Certainly this must cast some concern about the further withdrawal of water by the Wickhams for commercial purposes, in any absence of conclusive evidence that the flow has not been materially diminished on an overall basis. It could be, for example, that the few times that Mr Murphy did not see flow from the overflow of the dam, are not as detrimental as Mrs Rosser has concluded. But there is no measurement at the overflow to confirm the quantity of water passing to the appellant. A water meter at the overflow pipe would confirm the situation one way or the other.
In seeking to determine whether Lot 21 has in fact a reasonable flow of water to satisfy the riparian rights of Mrs Rosser, it is noted that there is no other water source within Lot 21, and the flow from the spring on Lot 96 is the only source of water for Lot 21. Subject to an adequate water supply, Mrs Rosser claims that Lot 21 should be capable of supporting up to 50 head of adult cattle. Mrs Rosser gave evidence that at times she had fattened up to 30 and 40 bullocks for the last 29 years. She currently runs about 10 head of cattle as a small economic base for the property in order to preserve the land for its main purpose for Mrs Rosser, which is for maintaining the habitat area of a group of rare Albert's lyrebirds which occupied the rainforest area in the south-west corner of Lot 21.
It is also noted that Mr Murphy observed in respect of the quality of the water entering the dam from the 3-metre bore at the spring that it was always clear and clean, while there was slight turbidity leaving the dam overflow pipe.
Legality of the Licence -
Mrs Rosser argues that the public notice inviting objections against Licence No 80532 was incorrectly worded in that it noted that the "works" under the Act applied to an existing sub-artesian bore and not to a "spring". She also argues that in so advertising the licence, affected owners within 500 metres of the boundaries of the subject property upon which the "works" were located, were entitled to object.
Mrs Rosser also noted that the owners of Lot 96 also included in the application permission for water on Lot 107 which they also owned and which is on a neighbouring drainage system called Jack Button Gully which is downstream of Lot 21. She claimed the total area affected by Licence No 80532 covered 774 acres, which would require considerable water for normal domestic and stock consumption purposes. Mrs Rosser claims that insufficient research had been undertaken by the Department to ensure that riparian rights of owners were not impacted before any water harvesting could be undertaken for commercial sale of water.
Mrs Rosser also argues that the Chief Executive was remiss in not moving earlier to require a licence, in view of his knowledge of the sale of "spring water" reputedly from the spring located on Lot 96. Mrs Rosser also claims that on objecting to the granting of the licence, she was advised that she had no right of appeal in view of the licence being for a sub-artesian bore under section 42(6)(a) of the Act.
When Licence No 80532 was finally issued, Mrs Rosser noted that the wording of the licence stated it was for "the construction of a bore", an apparent misdescription bearing in mind that the "works" had already been in place for six years. Mr Murphy responded that the interpretation of the licence was that the "licence authorised an existing sub-artesian bore".
In the matter of whether the public notice was in fact unlawful at 9 September 1994, it is agreed that at that time, in view of the genuine understanding of the existing nature of the land by Mr Murphy, the notice correctly defined the "works" as a sub-artesian bore. Subsequently it was agreed that the site should more properly have been defined as a "spring" but only with the hindsight of the personal experience provided to this Court. I believe the Chief Executive acted in good faith in advertising the intention to issue a licence under Section 42(6) where:"The chief executive must cause notice thereof to be published in a newspaper circulating in the locality in which the land the subject of the application is situated. "
In respect of the matter of whether the Chief Executive should have acted earlier in requiring a licence for the works on Lot 96, I note that it is a requirement of the Act that the Chief Executive must cause an inquiry to be made under Section 43(1) where an application has been made under Section 42 for a licence, and an objection has been received. I also note that under Section 42(3) the Chief Executive may require further information, and shall not deal with the application until his requests have been supplied - Section 42(4). Collectively this means that the determination of an application may become an extended process.
I note also that Mr Murphy gave evidence that there are some thousands of unlicensed works within the river catchment of the area. Once the Chief Executive becomes aware of an unlicensed structure, he moves to rationalise the matter retrospectively. A similar approach is now being rationalised with respect to the current works. In respect of the ability of the Chief Executive to retrospectively license a works which has been constructed without a lawful licence, I note that under Section 67(1) "The chief executive or an authorised officer may give to the owner of those works .... notice in writing requiring the owner within the time specified in the notice to remove or modify those works". Clearly if in the mind of the authorised person the offending structure may be modified to conform to the requirements of the Act, the Chief Executive has authority to belatedly license the works.
In respect of Mrs Rosser's concerns that there has not been any research into the possible impacts upon the riparian rights of adjoining owners, I note Mr Murphy's evidence that the Department has assessed the average annual discharge at the site of the works at 40 megalitres. As a consequence of that determination, Mr Murphy established in Licence No 80532 the requirement that a maximum of 10 percent of that average annual discharge, or 4 megalitres, could only be used for commercial use of the water. Also to ensure some constraint upon the weekly use of the water, required that only 20 percent of the total weekly discharge could be used for commercial purposes. To monitor these volumes, water meters have been placed on the intake pipe to the dam, and also to the extraction pipeline to the stainless steel tanks used for commercial purposes. The remaining 90 percent of the average annual discharge, or 36 megalitres, is therefore available for normal riparian purposes.
In the matter of the differing wording between the application and Licence No 80532, I believe this is really a matter of the interpretation of the approval given by the Executive Director for the issuing of the licence. In summary I believe Mr Murphy had a difficult situation to deal with in this matter, in view of conflicting community expectations. I believe he has sought to resolve the matter so as not to adversely impact the rights of either the Wickhams or Mrs Rosser.
(5)Environmental Matters -
One issue which is of concern especially to Mrs Rosser is the matter of whether an environmental flow is of a minimum sustainable nature across Lot 21. When asked about his understanding of an environmental flow, Mr Murphy offered that in his opinion "It is the sustaining flow of water to maintain an environment and associated eco-systems during critical periods". I believe Mrs Rosser would agree with that definition as it would ensure, if guaranteed, to support the key object of her concerns, the sustainability of the group of Albert's lyrebirds on Lot 21.
In response to the suggestion that she might arrange certain water storage works within Lot 21, Mrs Rosser argues that would be entirely contrary to her possible proposal to have the land declared as a Nature Conservation Area. Any clearing within the rainforest would also be counter-productive to the welfare of the Alberts' lyrebirds, which are reported to not drink from open areas.
There is no doubting Mrs Rosser's absolute dedication to the protection of the birds, and I believe any solution to the ensuring of a sustainable environmental flow must accommodate the very special nature of those birds. Mr Murphy advised that under the current licence arrangements, in the event of a genuine need for normal riparian purposes for a minimal conservation flow, he would give preference over any commercial purpose. Apparently Mrs Rosser has never discussed any desperate water shortage problems with Mr Murphy in respect of the needs of Lot 21.
In the matter of the use of water for commercial purposes, I also have no doubt that Mr Wickham has incurred considerable expense in developing his commercial operations. Mr Murphy is aware of that matter and has sought to ensure Mr Wickham is not unreasonably disadvantaged, albeit it that the works were installed without a formal licence to proceed.
In respect of the impact of the Riparian Zone Management Manual presently being debated by the Land Care movement, Mrs Rosser has a real concern to see the implementation of conservation of annual flows at a level to support the environment; and a sensible balance struck between those flows and the normal use of water for domestic or stock and commercial purposes.
In these matters it is noted that Mr Murphy was a contributor to the Manual, and has particular expertise in the operations of River Improvement Trusts and their contribution to the maintenance of effective riparian zone management. It is also noted in the Manual at page 11:"Retaining a minimum cover of native vegetation helps land and farm resources remain resilient during drought. .... It also provides shade and shelter for stressed stock and native wildlife. "
The Manual has examined threats to the Riparian Zone and concludes:
"The most important environmental issue relating to riparian zones is fragmentation caused by changes in land use and flow regulation. "
All of these matters are clearly close to Mrs Rosser's heart, and I believe she would find a helpful ally in Mr Murphy in her quest to retain the habitat for the endangered and rare Albert's lyrebirds.
Jurisdiction:
Mr Fisher raised the following matters which he argued impacted whether the Court had jurisdiction to determine the matters:
(1)A copy of the notice of appeal was not lodged with the Department by Mrs Rosser as required under Section 51(6) of the Act.
(2)The extended grounds of the appeal cannot be taken into account under Section 51(5) of the Act.
(3)The notice of appeal does not disclose a substantive ground on which the Court could make a finding.
(4)In the event that the Court finds that the "works" are correctly categorised as a sub-artesian bore, or an artesian bore, then there is no ground of appeal as established in Section 51(3)(d) of the Act.
Discussion:
I turn first to the definition of the "works" under the Act. For the reasons previously discussed I believe that Mr Murphy has made a reasonable determination at the time of approving the licence, that the "works" should be categorised as a sub-artesian bore. However, having heard the whole of the evidence, I believe the licence should have been granted for works associated with a "spring" and therefore this Court does have jurisdiction to determine the matter under Section 42 of the Act.
In the matter of whether the appeal contained a substantive matter upon which the Court could make a determination, I note that Mrs Rosser in her appeal claimed that the "works" covered by Licence No 80532 were in fact a "spring" and not a sub-artesian bore. As the evidence has disclosed, she has supported her case with evidence that supports her claims in respect of the nature of the water source prior to the construction of the dam in 1970.
As Mr Murphy said:"Sir, to extend the definition of a spring to waters contained within the watercourse would be an extremely dangerous precedent if it was accepted. It would basically mean, sir, that all base flows within watercourses that have a spring origin would be termed a spring and that would place immense implications upon the Crown in terms of defending hundreds of decisions over a long, long period of time in respect of the appropriation of water from watercourses."
Clearly the matter is of a substantive nature such that it should be determined by the Court. However, the possible implications of a decision in favour of the appellant is no reason for not considering the matter. In the end, while Mrs Rosser has successfully argued the relationship of the "spring" to the old water course, the specific nature of that matter should not be interpreted for wider general application. Every other matter would need to be considered individually, unless the legislation was amended to clarify the situation in respect of the meaning of the intentions of the Act.
In respect of whether Mrs Rosser sought to extend the grounds of appeal I note, that her initial appeal to the Court included only two grounds:•the definition of the "works"
•whether she could be granted an appeal in view of the Chief Executive's determination in the objection that the "works" was a sub-artesian bore, against which no appeal was allowed under Section 51(3)(d) of the Act.
Following advice from the Registrar of the Land Court that the appeal had been listed for hearing, Mrs Rosser forwarded further advice to the Land Court clarifying her full grounds of appeal. This clarification of the full grounds of appeal followed similar arguments raised in the objection process. There would not appear to be further material in that clarification of which the Chief Executive would not have been aware. Bearing in mind the uncertainty placed in her mind by the advice from the Chief Executive that there were no grounds for appeal against his decision, I believe the appellant could be seen as having acted in good faith, and has not sought to expand her original grounds of appeal. However, within the strict meaning of the Act, her original grounds contained only the two substantive matters.
Finally I note what is perhaps the most difficult matter for the appellant, which is whether Mrs Rosser did in fact satisfy the requirements of Section 51(6) of the Act in that she failed to lodge with the Chief Executive a copy of the appeal within the specified time. By her own admission Mrs Rosser did not supply a copy of the appeal to the Chief Executive, but instead personally delivered a letter of advice to the Warwick Office at 4p.m. on 12 April 1996. In this matter I note the wording of the Act:"51(6).The appellant must, within 14 days after filing it, serve on the chief executive a copy of the notice of appeal. "
My attention was also drawn to the decisions of AJ and E Schirmer v. Valuer-General (1974) (LAC) 1 QLCR 144; Valuer-General v. FJ Bradshaw for Purposes of Conversion of Lease (1985) (LAC) 10 QLCR 261; and also H Masen v. Chief Executive, Department of Natural Resources (1997) (28 April 1997) (unreported).
In this matter I note in the letter from Mrs Rosser on 12 April 1996, that she did not provide any details of her appeal to the Chief Executive. The wording of the letter is merely a notification that an appeal had been lodged "with the Office of the Land Court". In respect of the letter of further clarification by Mrs Rosser of 23 April 1996, the Chief Executive only became aware of those details via advice from the Land Court.
Precedent in such matters has been clearly laid down over many years. As noted in the Schirmer case at p. 146:"Having regard to the whole scope of the appeal provisions in the statute with which we are here concerned and considering in combination sections 21, 21A and 22 it is our view that the legislature in framing section 21(3) in mandatory terms intended that its provisions should be obligatory. "
The Land Appeal Court found in that case that the notice of appeal did not comply with the provisions of the Act, and dismissed the matter for lack of jurisdiction.
In the Bradshaw case (supra), the Crown had appealed the decision of the Land Court, and in lodging its appeal to the Land Appeal Court, failed to provide a copy of the appeal notice to the lessee (respondent) within the specified period allowed by the Act. In that case, the Land Act provided for an original period of 42 days to appeal, plus a further extension period of 28 days subject to satisfying the Land Appeal Court that there was a reasonable case or explanation for lateness. The Crown exceeded even those total 70 days, and the matter was dismissed for lack of jurisdiction.
The Masen case (supra) is a recent water licence matter held in Beaudesert in April 1997. The learned President in that case again dismissed that matter for lack of jurisdiction in that the appellant had failed to provide a copy of the notice of appeal to the Chief Executive in accordance with Section 51(6) of the Act.
In seeking to understand the nature of the jurisdiction of the Land Court, I believe it could not be more clearly defined than in the words of the then President in Gold Coast Milk Pty Ltd and South Coast Co-Operative Dairy Association Limited v. Valuer-General (1983) (V82-483/484) 9 QLCR 13, who said at page 17:"The Land Court is a Court of statutory creation and its jurisdiction is likewise bestowed. It has no inherent jurisdiction. It is, therefore, a Court of limited jurisdiction and it must necessarily only assume jurisdiction when and in the manner in which the Legislature authorises it to do so. "
In seeking to understand the intentions of Section 51(6), I note in "Blacks Law Dictionary" 6th Edition, the following definitions:
•"copy" - a transcript, double, imitation, or reproduction of an original writing, painting, instrument or the like. A copy is that which comes so near to original as to give every person seeing it the idea created by original and must be such that ordinary observation would cause it to be recognized as having been taken from the work of another. (page 336).
•"transcript" - that which has been transcribed. A copy of any kind. A writing made from or after an original. A copy of an original writing or deed and suggests the idea of an original writing. (page 1497).
•"imitation" - the making of one thing in the similitude or likeness of another. That which is made or produced as a copy; an artificial likeness. (page 749).
•"must" - this word, like the word "shall", is primarily of mandatory effect. But this meaning of the word is not the only one, and it is often used in a merely directory sense, and consequently is a synonym for the word "may" not only in the permissive sense of that word, but also in the mandatory sense which it sometimes has. (page 1019).
•"mandatory" - containing a command; preceptive; imperative; peremptory; obligatory. (page 962).
•"may" - the word "may" usually is employed to imply permissive, optional or discretional, and not mandatory action or conduct. Regardless of the instrument, however, whether constitution, statute, deed, contract or whatever, courts not infrequently construe "may" as "shall" or "must" to the end that justice may not be the slave of grammar. (page 979).
In summary, the law sees the intention of Section 51(6) such that it is imperative and obligatory for the appellant to lodge a reproduction of the original notice of appeal with the Chief Executive. While the word "must" has some flexibility in terms of the use of grammatical expression, there is sufficient precedent in the courts to infer that, in the interests of clarity and justice to the respondent, the word "must" should be construed to mean "obligatory".
While the appellant has in fact gone out of her way to personally serve a letter outlining her actions, and the nature of her appeal to the Chief Executive, by her own admission she has failed to fulfil the strict requirements of Section 51(6) in that she did not provide a copy of the original notice of appeal forwarded to the Court.
The intentions of Section 51(6) are quite clear in that, in order to ensure that the case for the respondent is not disadvantaged in any manner, the Chief Executive is entitled to fully understand the basis of the appeal by the appellant. How else could he fairly defend his actions? In this matter I believe the Chief Executive has suffered no disadvantage, but nevertheless the letter of the law has not been followed.
I also note in this matter that Mrs Rosser did personally hand her letter of 12 April 1996, to an officer of the Chief Executive, who made no attempt to advise Mrs Rosser of her failure to provide the copy of the appeal. I note that on other occasions it has been the policy of the Department to notify the appellant of the need to lodge a copy of the appeal with the Chief Executive. (See Dawson (A97-17) and Rogers (A97-16). Bearing in mind that this has been an on-going matter of dispute between the parties, it makes one wonder as to why the respondent did not advise Mrs Rosser accordingly and thus allow the matter to proceed to a decision. Likewise, if the Chief Executive is really of a mind to find clarity in the matters involved in the case, it would have been available for the Chief Executive to ensure the appeal suffered no problems in getting before the Court. In the end, the Chief Executive did neither, and has now sought "lack of jurisdiction" to end the matter.
In this regard I note the different approach adopted for the notification of advice to the Chief Executive in the Valuation of Land Act 1944 where Section 60 of that Act provides for the Land Court to have jurisdiction in the event of a failure to lodge a copy of the appeal with the Chief Executive, but may allow costs in favour of the Chief Executive.
The Water Resources Act does not have that discretion, which, in my view, results in an inflexible approach to what may be a totally minor technical shortcoming. In Mrs Rosser's case she has made every effort to inform the Chief Executive by both telephone and letter, of her actions to appeal the licence. That she has now failed because of Section 51(6) is really a reflection on the inflexibility of the Act, unlike the Valuation of Land Act. This is all the more concerning bearing in mind that the appellant now has no right of appeal, although there possibly may be some other means of seeking redress.
The Knezovic case (supra) also raised an important matter of the right of the plaintiff to appeal to the High Court, against the decision of the Full Court of the Supreme Court of West Australia in respect of the defendant's objection on the competency of the appeal. The plaintiff sought special leave to appeal in view of the "important questions of law" in respect of the meaning of the word "watercourse", and the right of entry by the Local Authority.
The High Court granted special leave to appeal in view of those matters as issues of public interest. Unfortunately there is no similar power for this Court to consider special leave in the current matters before it, although both parties at the pre-hearing conference agreed that the matter of the "spring" was an important issue for resolution. This could only be considered by another court with wider jurisdiction.
Decision:
After having considered all of the evidence, I find that in view of her failure to lodge a copy of the appeal with the Chief Executive in accordance with Section 51(6) of the Water Resources Act, I now find I have no jurisdiction to determine in this matter. The appeal is dismissed for lack of authority to proceed.
(NG Divett)
Member of the Land Court
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