Scott Rashleigh v Environment Protection Authority - [2005] ACTSC 18

SCOTT RASHLEIGH v ENVIRONMENT PROTECTION AUTHORITY [2005] ACTSC 18 (18 March 2005)

ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – statutory construction – application for licence to take water – applicant entitled to benefit of Crown lease entered into prior to commencement of Act – proprietary rights to ground water under property not impugned by Act – whether Environment Protection Authority nonetheless entitled to refuse licence due to concerns relating to overall quantity of water taken from subcatchment area.

Water Resources Act 1998 (ACT), s 4, s 5, s 13, s 27, s 28, s 33
Australian Capital Territory (Self-Government) Act 1988 (Cth), s 23, s 28, s 48A
The Constitution, s 51(xxxi)
Legislation Act 2001 (ACT), s 141, s 142
Bushfire Act 1936 (ACT)
Fire Brigade Act 1957 (ACT)
Administrative Appeals Tribunal Act 1989 (ACT), s 46
Administrative Appeals Tribunal Act 1975 (Cth), s 44
Supreme Court Act 1933 (ACT), s 20

Water Resources Bill 1998 (ACT)

The Water Resources Management Plan 1999
Declaration of the Rights of Man 1789, art 17

Frank v Australian Capital Territory (2001) 161 FLR 262
Commonwealth v Tasmania (1983) 158 CLR 1
Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155
Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297
Newcrest Mining (WA) Ltd v BHP Minerals Ltd & Commonwealth (1997) 190 CLR 513
Smith v ANL Ltd (2000) 204 CLR 493
Australian Capital Territory v Pinter (2002) 121 FCR 509
Minister of State for the Army v Dalziell (1944) 68 CLR 261
Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397
Sargood Bros v Commonwealth (1910) 11 CLR 258
Pyneboard Pty Ltd v Trade Practices Commission (1983) 45 ALR 609
Sorby v Commonwealth (1983) 46 ALR 237
R v Cain [1985] 1 AC 46
Commissioner of Australian Federal Police v McMillan (1987) 70 ALR 203
Buck v Comcare (1996) 137 ALR 335
Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399
American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677
Federal Commissioner of Taxation v Murray (1990) 21 FCR 436
Minister for Immigration & Ethnic Affairs v Gungor (1982) 63 FLR 441
Director-General of Social Services v Hangan (1982) 70 FLR 212
Morales v Minister for Immigration and Ethnic Affairs (1995) 60 FCR 550.

Zines, The High Court and the Constitution, 4^th ed, 1997

APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

No SCA 55 of 2004

Judge: Crispin J
Supreme Court of the ACT
Date: 18 March 2005

IN THE SUPREME COURT OF THE  )
  )  No SCA 55 of 2004
AUSTRALIAN CAPITAL TERRITORY  )

APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:SCOTT RASHLEIGH
Appellant

AND:ENVIRONMENT PROTECTION AUTHORITY
Respondent

ORDER

Judge:  Crispin J
Date:  18 March 2005
Place:  Canberra

THE COURT ORDERS THAT:

the appeal be upheld;

the decision made by the respondent and affirmed by the Administrative Appeals Tribunal be set aside;

in lieu thereof it be decided, subject to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] ACTSC 18
Decision Date

CaseChat Overview and Summary

In this case, Scott Rashleigh appealed against the refusal by the Environment Protection Authority (the Authority) to grant him a licence to take water from his property. The property was subject to a Crown lease granted prior to the commencement of the Water Resources Act 1998 (ACT) (the Act). The respondent and the Tribunal had both refused the application, the Tribunal affirming the decision of the respondent. The Act contains provisions that require a licence to take water and the Tribunal had found that the refusal was based on the proposition that the appellant's application did not satisfy the criteria contained in s 35(7) of the Act. The appellant submitted that the Tribunal had erred in concluding that the refusal of his application for a licence to take water was compatible with his proprietary right to the water. In the absence of a licence he could not lawfully take a single drop of the water and, in practical terms, his right had been nullified. Furthermore, the adoption of the 70 megalitre limit meant that for each megalitre the appellant was prevented from taking, the Territory acquired the opportunity to "allocate" a comparable amount to others and to make a financial gain, whether from the proceeds of auctions conducted by the respondent pursuant to s 28 of the Act or otherwise. The court found that the refusal of the appellant's application for a licence to take water was not compatible with his proprietary right to the water. The refusal had effectively nullified his right to take water from the property. The court held that the legislature had not intended to authorise the Authority to nullify the rights of pre-1998 leaseholders and that the Act should be construed in a manner that would be consistent with the appellant's pre-existing rights. The court held that the appeal should be allowed, the decision of the respondent and the Tribunal should be set aside, and in lieu thereof, the appellant's application for the licence should be granted.

Orders