Simes v Minister for Environment and Conservation No. Scciv-03-1106

SIMES v MINISTER FOR ENVIRONMENT AND CONSERVATION
[2004] SASC 84
Full Court: Prior, Debelle and Bleby JJ

PRIOR J: I agree with Bleby J. The appeal should be dismissed.
DEBELLE J: I have had the advantage of reading the reasons of Bleby J. I agree with them. I agree that the appeal should be dismissed.
BLEBY J: The Water Resources Act (the “Act”) 1997 is a code relating to the use of water resources, including underground water, in this State. Section 7(1) restates the common law right, subject to other provisions of the Act and in particular to the remaining provisions of s 7, of a person who has lawful access to a “watercourse, lake or well”. That is qualified, however, by the fact that a licence under the Act is required to take water from a prescribed watercourse, lake or well or to take surface water from a surface water prescribed area.
Most of the State’s significant water resources are prescribed under the Act, and therefore require a licence before they can be used. The amount of water that may be taken from a prescribed water resource depends on the relevant water allocation endorsed on the licence. It is not necessary for present purposes to describe how the water allocation on a licence is determined. For a person without existing use rights the allocation is determined by the Minister in accordance with the requirements of s 35.
Some of the State’s underground water resources have only relatively recently been proclaimed. Before that, subject to complying with legislation regulating the drilling of wells, there was no regulation of the amount of water that could be taken from an underground well.
The appellant owns land at Kangarilla in what is known as the Upper Willunga Catchment Area (“the Area”). In 1985 a bore was sunk on the appellant’s land. From 1991 the appellant had used underground water from the bore for the irrigation of pasture and vines. At that time wells in the area were not prescribed wells.
On 24 December 1998 all existing wells in the area became prescribed wells.
The appellant has not been granted a licence to take water from his bore, and accordingly he has no water allocation from the bore. This appeal concerns his alleged right to a water allocation as at 24 December 1998, the date of the relevant proclamation of the wells in the area as prescribed wells.
Control of the use of underground water in the Area began under the Water Resources Act 1990, an Act repealed by the Act. By s 40 of that Act the Minister was empowered to prohibit or restrict the taking of water from a watercourse, lake or well in the case of inadequate supply or over-use of water. On 1 April 1993 the then Minister introduced a moratorium on the taking of water from water resources in the area in amounts which exceeded the then existing use at the date of the notice. A similar provision enabling such interim controls now appears in s 16 of the Act.
Officers of the then Engineering and Water Supply Department conducted a land use survey of the area in order to obtain details of crops irrigated from 1990/91 to 1992/93 and details of pumping equipment from those land holders in the area identified as likely water users from aerial photographs, drilling records and visual observations. The purpose of the survey was to identify existing irrigators within the area. Existing irrigators identified by the investigations were notified of the moratorium by the Department and were issued with authorisations to continue to take water on the basis of their existing use at the time of the declaration or according to a commitment to the use of water established between 1 April 1990 and 30 March 1993.
Those investigations did not identify the appellant as an existing irrigator. He was not notified of the moratorium by the Department and was not offered an authorisation to take water. He continued to use water from his bore during the period of the moratorium and expanded the area under irrigation.
The initial moratorium was for a period of two years. Further moratoriums were introduced for periods of between one and two years up to 31 December 2000. As I have noted, all existing wells in the area were declared to be prescribed wells for the purposes of the Act on 24 December 1998.
What is to happen when a watercourse, lake or well is prescribed is set out in s 36 of the Act:
“36. (1)   On declaration of a watercourse, lake or well as a prescribed watercourse, lake or well or declaration of a part of the State as a surface water prescribed area, an existing user of water from the water recourse concerned –
(a)    may, subject to a restriction or prohibition under section 16, continue to use water without a licence until the end of the prescribed period or, if he or she applies for a licence within six months after the publication in the Gazette of the regulation declaring the resource to be a prescribed resource, until the application is granted or refused;
(b)    is, subject to subsection (3), entitled to have endorsed on the licence without the payment of a purchase price a water (taking) allocation determined by the Minister under subsection (2) after consultation with the existing user.
(2)The water allocation will be the quantity of water that will, in the opinion of the Minister, meet the future requirements of the existing user -
(a)     based on his or her reasonable requirements in the establishment period; or
(b)     for water for a development, project or other undertaking to which he or she was legally committed or in respect of which he or she had committed significant financial or other resources before the commencement of the prescribed period; or
(c)     under both paragraphs (a) and (b).
(3)If at the expiration of the prescribed period, the aggregate of the allocations of water to which existing users are entitled under subsection (1) exceeds, in the opinion of the Minister, the capacity of the resource, the Minister may -
(a)    reduce the allocation to which each existing user is entitled proportionately; or
(b)    reduce the allocations pursuant to a scheme set out in regulations.
(4)Before determining the capacity of the resource the Minister must prepare a report assessing the need for water of ecosystems that depend on the resource for water.
(5)    The Minister must make the report publicly available.
(6)An existing user may appeal to the Court against a determination or decision of the Minister under subsection (2).
(7)Subject to a restriction or prohibition under section 16, a person who is not an existing user may take water from the water resource without a licence until the end of the prescribed period.
(8)If the quantity of water available for allocation exceeds the entitlements of existing users, the Minister may allocate the excess in accordance with this Act and the relevant water allocation plan.
(9)An entitlement referred to in subsection (1)(b) may be transferred to another person with the approval of the Minister.
(10) In this section -
“the establishment period” in relation to the declaration of a water resource means the period prescribed for the purposes of this definition by the regulation declaring the resource to be a prescribed resource being a period that ends at the commencement of the prescribed period;
“existing user” means, subject to subsection (11), a person –
(a)    who took water from the resource at any time during the establishment period; or
(b)    who did not take any water during that period but who needs water for a development, project or undertaking to which he or she was legally committed or in respect of which he or she had, in the opinion of the Minister, committed significant financial or other resources before the commencement of the prescribed period;
“the prescribed period” in relation to a water resource commences on the date of publication in the Gazette, a newspaper circulating generally throughout the State or a local newspaper (whichever occurs first) of the notice inviting submissions in relation to the proposed regulation declaring the resource to be a prescribed resource and ends on the date specified for that purpose in the regulation.
(11)A person ceases to be an existing user if he or she does not apply for a water licence within six months after publication in the Gazette of the regulation declaring the resource to be a prescribed resource.”
For the purpose of that section the prescribed period was the period which commenced on 21 August 1997 and ended on 1 July 2000. The establishment period was the period which commenced on 29 March 1993 and ended on 21 August 1997.
Following the prescription of the resources on 24 December 1998, the holders of existing authorisations to take water in the area were advised in writing by the Department for Environment, Heritage and Aboriginal Affairs of the prescription and of the necessity to make application for a water licence and water allocation. The appellant, not having been previously identified as an existing irrigator and not being the holder of an authorisation to take water under the moratorium, was not contacted by the Department regarding the need to apply for a water licence and a water allocation. He did not apply for a water licence and water allocation until 12 February 2002, well after the conclusion of the prescribed period.
Various negotiations took place between the appellant and representatives of the Department over the grant of a licence and a possible water allocation. It was acknowledged that the appellant had been an existing user for the purposes of s 36, but as he was no longer considered to be an existing user, the Minister declined to issue a licence with a water allocation based on that pre-existing use. The Minister was prepared to issue a licence on the basis of his existing use as at 1 June 1993 with a transferable component calculated in accordance with the relevant area water allocation plan under s 35. In view of the fact that the area of the appellant’s pasture had increased since then, the Minister was prepared to grant an additional allocation but only for the purpose of sustaining the appellant’s present business. It could not be traded, leased or sold or used for the growing of alternate crops. This allocation was not acceptable to the appellant, and on 24 February 2003 his application for a licence was refused.
As I have mentioned, his application had been treated as an application under the general licence provisions of the Act to be determined in accordance with s 35. There is a right of appeal from a decision of the Minister to refuse a water licence and a water allocation: s 142(1)(a) and (ab). However, the appellant asserted in the Environment, Resources and Development Court that he had a right of appeal under s 36(6), he alleging that the Minister had refused a water allocation to which he claimed to be entitled under s 36(2). The only question so far determined by the Environment, Resources and Development Court, from which there is now an appeal to this Court, is a declaration that the appellant is not an existing user within the meaning of s 36 of the Act and accordingly has no right of appeal under s 36(6). The Court ordered that his application for a water licence and water allocation be remitted to the Minister for further consideration.
Whether or not the appellant has the right of appeal under s 36(6) depends on the proper application of subsection (11) to the rest of the section and whether the appellant is correct in his assertion that he is entitled to a water allocation determined in accordance with the provisions of s 36 of the Act.
The appellant argues that within s 36 the defined expression “existing user” performs different functions. He says that some of those functions, such as those contained in par (1)(b) create and define rights to a water allocation. For that the time limit in subsection (11) is not critical. Likewise, it is not critical for the purposes of subsection (6). However, in so far as the section limits the unconstrained use of water beyond the prescribed period or the grant or refusal of an application for a licence, the time limit is critical. The section should therefore be construed taking such factors into account.
I reject the appellant’s argument. There are, within the section, no conflicting provisions such as to require any adjustment to the meaning of competing provisions “to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions”: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 per McHugh, Gummow, Kirby and Hayne JJ at 382. Such a requirement only applies where there is conflict in the language of the particular provisions. Here, the meaning of “existing user” for the purposes of s 36 is clear. By subsection (10), when it is used in the section, the phrase has the meaning attributed to it, which meaning is “subject to subsection (11)”. That subsection is also clear in determining when an existing user ceases to be so.
Whatever may have given rise to the appellant’s failure to apply for a licence within six months of the well becoming a prescribed well, the Act is clear that, at the time of his application, he was not an existing user for the purposes of s 36 and had no right to a water allocation calculated in accordance with that section. So to hold is not to ignore the principle of construction that statutory provisions designed to protect and preserve existing rights should be as liberally construed as the language in its context allows: Dorrestijn v South Australian Planning Commission (1985) 59 ALJR 105 at 108. The language in this case allows no other construction.
By way of alternative, the appellant relied on s 33 of the Environment, Resources and Development Court Act 1993. That section provides:
“33. (1)     If, in proceedings before the Court under this or any other Act, or on an appeal to the Supreme Court from a decision or order of the Court under this Act, it appears to the relevant Court that –
(a)    there has been a failure to comply with a requirement of any Act or other law that affects the matter to which the application or appeal relates; and
(b)    it would not be unjust or inequitable to exercise the powers conferred by this subsection,
the relevant Court may excuse the failure by ordering that, subject to such conditions as may be stipulated by the relevant Court, the requirement be dispensed with to the necessary extent.
(2)If, in proceedings before the Court under this or any other Act, or on an appeal to the Supreme Court from a decision or order of the Court under this Act, it appears to the relevant Court that -
(a)     the proceedings or appeal could be resolved in a manner that is fair to all parties if certain modifications to the proceedings or appeal were made; and
(b)     it would be conductive to the expeditious administration of justice if the powers conferred by this subsection were exercised,
the relevant Court may, by order, amend the application or appeal accordingly.”
Whatever may be the scope of s 33, in my opinion it cannot be construed so as to change the substantive effect of an Act which is said to give rise to the relevant proceedings in the Environment, Resources and Development Court.
Section 36 of the Water Resources Act assumes that there will be an application made for a licence in accordance with the general requirements of the Act, particularly those contained in s 29. Section 35 prescribes the basis on which the Minister may decide to grant or vary a water licence where there has been no existing user. Section 36 prescribes how the Minister’s decision is to be made in the case of an existing user. If s 33 of the Environment, Resources and Development Court Act were to be applied in the manner advocated by the appellant by excusing the appellant’s failure to make an application for the licence within the time prescribed by s 36, the Court would, in effect, be authorising or directing the Minister to do something which the Water Resources Act does not permit him to do. It would be saying that the Minister was required to consider the application under s 36 where the Water Resources Act plainly requires it to be considered under s 35. Section 33 of the Environment, Resources and Development Court Act cannot be used to change the substantive effect of the Water Resources Act in that manner.
It follows that the Environment, Resources and Development Court was correct in making the declaration it did and in remitting the application for the licence and water allocation to the Minister for further consideration in accordance with the requirements of the Act. The appeal to this Court should be dismissed.

[2004] SASC 84

2 April 2004