Scott Rashleigh v Environment Protection Authority

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.