Sinclair v Chief Executive, Department of Natural Resources and Water
[2008] QLC 175
•27 August 2008
LAND COURT OF QUEENSLAND
CITATION: Sinclair v Chief Executive, Department of Natural Resources and Water [2008] QLC 0175 PARTIES: Steven Mark Sinclair & Heather Joy Sinclair
(appellants)v. Chief Executive, Department of Natural Resources and Water
(respondent)FILE NO: A2005/0009 DIVISION: Land Court of Queensland PROCEEDING: Preliminary issue concerning an appeal under the Water Act 2000. DELIVERED ON: 27 August 2008 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: Mr RP Scott ORDER: The effect of s.22(1) of the Water Resources (Moreton) Plan 2007 is to preclude the Chief Executive from dealing with the application by the appellants for a water license. CATCHWORDS: Statutory interpretation – WaterResource Plan – construction of provision. APPEARANCES: Mr J Haydon (instructed by Anthony O'Dwyer, Mullins, Lawyers), appeared on behalf of the Appellants.
Mr P Flanagan, SC, with him Mr MO Plunkett (instructed by Mr K Fisher, Crown Law) appeared on behalf of the Respondent.
Background
The appellants have appealed against a review decision of the Chief Executive (respondent) to refuse an application for a water licence for 350 megalitres a year (ML/a) made by them under s.206 of the Water Act 2000 (the Act) on 11 July 2003. The parties have agreed that prior to any merits hearing of the appeal taking place a preliminary point should be dealt with. These reasons are concerned with that preliminary point. The evidence was limited to some letters from the Crown Solicitor to the lawyers for the appellants and affidavits of Mr Tad Bagdon Director of Water Planning for the South East Region of Queensland for the Chief Executive's department (22 February 2008 and 26 June 2008) and that of Dr Trevor Charles Johnson a qualified civil engineer and an Executive Director of Cardno Pty Ltd (2 May 2008). Given the nature of the issue such evidence as was included in the material was of limited assistance.
Some illumination of the reasons for the considerable delay since the application was made appears warranted. The Chief Executive responded to the appellant's application by way of an information notice received 23 November 2004 advising that the application had been refused. On 15 December of that year the appellants made application for an internal review of the information notice pursuant to s.862 of the Act. In a review notice dated 22 December 2004 the respondent confirmed the original decision to refuse the application. A notice of appeal pursuant to s.878 of the Act was filed by the appellants on 2 February 2005. Then on 24 March 2005 the Minister published an Moratorium Notice[1] which, in part, provided that an application of the type made by the appellants could not continue to be dealt with. Presumably the purpose of the Moratorium Notice was to preserve the status quo until a Water Resource Plan for the relevant area could be prepared under Division 2 Part 3 of the Act. A further Moratorium Notice was published on 21 May 2005 which relevantly had similar effect to the earlier notice. On 6 February 2006 judgment was delivered by this Court to the effect that the relevant Moratorium Notice precluded the Court from setting aside the review decision and substituting a decision to grant the licence applied for by the appellants. On 17 March 2007 the Water Resource (Moreton) Plan 2007 (the Plan) was published by the Minister. Pursuant to s.26(7)(b) of the Actthe Moratorium Notice ceased to have effect; however, the respondent advised the appellants that s.22 of the Plan precludes the appellants from succeeding in their application.
[1] s.26 of the Act.
Section 22 of the Plan provides:
"22 Decisions not to increase amount of water taken
(1)The chief executive must not make a decision that would increase the average volume of water available to be taken in the plan area.
(2)Subsection (1) does not apply to a decision—
(a)about unallocated water made under section 25; or
(b)about a water permit.
(3)For subsection (1), a decision includes a decision about an application for an authorisation to take water made but not dealt with before the commencement of this plan." (my emphasis)
The appellants submit that s.22 does not preclude them from succeeding in their appeal. Central to that submission is a debate between the parties as to the meaning of the underlined phrase, "average volume of water available to be taken in the Plan area". No definition of that phrase is provided in the Act nor in the Plan. The evidence is that the words do not have a technical engineering meaning nor are they a term of art. The appellants' submission is that the phrase means "the annual average taken from the simulation period (1 July 1889 – 30 June 2000) as calculated by the IQQM computer program for all allocated and unallocated water within the plan area …".
Whilst I subject the disputed phrase to further analysis below, my initial reaction is to say that the reference to "available water" is not a reference to water that might be observable in the Plan area, but to water that has, by some statutory process, been legally made available. That would appear to follow from the fact that whilst the Chief Executive may under some statutory power decide to make observable water available to be taken, he cannot by any decision make more observable water. By "observable water" I refer to the total water that one may see or observe, perhaps with the assistance of technology, whether at a point in time, over a period or averaged by reference to a period.
Section 22(3) of the Plan makes it clear that s.22(1) applies to the appellants' application for a water licence which appears to me to be encompassed by the undefined phrase "an authorisation to take water".
Reference to a "water permit", a term not defined in the Plan, appears to me to be a reference to that term as dealt with in Chapter 2 Part 6 Division 4 of the Act which provides that a person may apply for a water permit to allow the taking for an "activity". Activities include, for example, the construction of a road, mineral exploration, or petroleum exploration and the usage for that activity must have a reasonably foreseeable conclusion date. The term is not a reference to a water licence of the type applied for by the appellants. It follows that s.22(2)(b) does not remove the appellants' licence application from the effect of s.22(1).
It follows from s.22(2)(a) that s.22(1) is concerned with "allocated" water. Neither allocated nor unallocated water is defined in the Plan. Unallocated water is, however, dealt with in ss.24 and 25:
"24 Unallocated water held as strategic reserve
Unallocated water is held as a strategic reserve and dealt with under this division.
25 Granting or reserving unallocated water
Unallocated water may be granted or reserved only—
(a) for infrastructure for a project declared under the State Development and Public Works Organisation Act 1971, section 26, to be a significant project; or
(b)for infrastructure identified for—
(i)the SEQ regional plan; or
(ii)a regional water security program; or
(c)under a process in the resource operations plan."
The role of a "Resource Operations Plan" is to "implement a Water Resource Plan for any water in the Plan area in all or part of the Plan area" (s.95 of the Act). To date no Resource Operations Plan with respect to the Plan has been promulgated. I return now to consider the disputed phrase in s.22(1).
The term "IQQM computer program" is defined in Schedule 15 of the Plan:
"IQQM computer program means the department’s Integrated Quantity and Quality Modelling computer program, and associated statistical analysis and reporting programs, that simulate daily stream flows, flow management, storages, releases, instream infrastructure, water diversions, water demands and other hydrologic events in the plan area."
The IQQM program is therefore concerned with surface water which is defined in s.9(1) as "water in a watercourse or lake"; or "in springs not connected to groundwater". Groundwater on the other hand is defined in Schedule 15 to the Plan as artesian or subartesian water. In this case we are not concerned with groundwater. Division 2 Part 5 of the Act in which s.22 is found, is a division concerned with decisions made under the Plan regarding surface water.
Section 21(1) of the Plan provides:
"21 Assessing impact of decisions
(1)The IQQM computer program’s simulation for the simulation period is used to assess consistency with the objectives."
"Simulation period" is defined in Schedule 15 to the Plan:
"simulation period means the period from 1 July 1889 to 30 June 2000."
The objectives in relation to surface water are set out in Division 2 of Part 4 (environmental flow objectives[2]) and Division 3 of Part 4 (water allocation security objectives).
[2]Which are stated in Schedule 7 of the Plan in numerical and mathematical terms and whose performance indicators are to be found in s.14.
It seems that the IQQM program produces a figure which represents the total observable surface water during the 111 year period of the simulation period. By process of division the average annual observable water can therefore be calculated. As I understand it, it is the appellants' submission that this average annual calculation represents the "average volume of water available to be taken in the Plan area".
The respondent's approach commences from what I have termed the "average annual observable water" then, having regard to Division 2 of Part 4 submits that that water is split into two segments: the volume sufficient to satisfy the "environmental flow objectives" and the balance which could be applied to other purposes. The balance water then, it is submitted, bifurcates into "allocated" and "unallocated" water. I understand it to be common ground between the parties that it is only allocated water with which they are concerned. It is not claimed that the appellants qualify for a grant of water under s.25. I understand it to be the case that the appellants seek water for irrigation purposes:
"irrigation purposes means any of the following purposes—
(a) aquaculture;
(b) dairying;
(c) irrigation;
(d) piggery;
(e) stock or domestic purposes;
(f) water harvesting."There is no need for me to decide the question of whether I accept the respondent's approach as to whether the observable water is split into environmental and balance water as I have described that in [16]. However, I should say that whilst the Plan is concerned with allocated and unallocated water I do not understand the Plan to say that water required to meet environmental objectives is not to be found in unallocated water. Indeed, the water required to satisfy water allocation security objectives would not be understood as comprising a distinct volume of water either. Nevertheless, my focus is on allocated water.
In the Water (Transitional) Amendment Regulation(No. 1)2002 which commenced on 1 July 2002 there is provision for the allocation of water from the impoundments of the Wivenhoe, Somerset and North Pine Dams and the section of the Brisbane River between the Wivenhoe Dam and the Mount Crosby Weir:
"3 Continuing allocation for South East Queensland Water Corporation Limited
‘(1)Despite the repeal of the Water Resources Regulation 1999, the water allocation of 345 000 ML a year (the 'company allocation') from the sources mentioned in subsection (2) continues for South East Queensland Water Corporation Limited (the 'company').
‘(2) The sources for the company allocation are—
(a)the impoundments of the Wivenhoe, Somerset and North Pine Dams; and
(b)the section of the Brisbane River between the Wivenhoe Dam and Mt Crosby Weir."
I observe that the sources for the company allocation fall within the water from which the appellants seek to draw water. Regulation 3 deals with the same water described in the Plan as "surface water" and found in the Plan area.
That "company allocation" made in 2002 is then dealt with s.1037A(5) of the Water Act:
"(5) An authority under this Act to take or interfere with water, held by the SEQ Water and in force on 12 April 2003, continues under this Act until whichever of the following first happens—
(a)the chief executive grants a water licence to replace the authority;
(b)the authority is replaced with a water entitlement, interim resource operations licence, resource operations licence or distribution operations licence."
I observe that the "company allocation" made under Regulation 3 was in force on 12 April 2003.[3]
[3]s.1037A was inserted was in 2005 (No. 19 s.163) and was subsequently amended but not relevantly to the present issue.
The company allocation is dealt with further in s.39 of the Plan:
"39 Authority for SEQ Water
(1)This section applies to the authority held by SEQ Water, continued under section 1037A of the Act, to take or interfere with water from the Brisbane River, North Pine River and Stanley River.
(2)The authority continues until—
(a)it is replaced with an interim resource operations licence or resource operations licence; and
(b)water entitlements for taking water under the interim resource operations licence or resource operations licence are granted."
The combined effect of these provisions is to keep in place the water allocation referred to in s.3 of the Regulations; that is one apparently made under the Water Resources Regulations 1999. As I was not provided with evidence to the effect that the allocation was determined by any of the events referred to in s.1037(A)(5) of the Act or s.39 of the Plan, it follows that the 345,000 (ML/a) allocated to the company continues today.
The company allocation is subject to conditions imposed by s.4 of the Regulations. I quote that section in full, however it is s.4(5)(a) to which I draw particular attention:
"4 Conditions for company allocation
‘(1)The conditions stated in this section are imposed on the company allocation.
‘(2) The maximum volume of water the company may take from the impoundment of the North Pine Dam in a year is 59 000 ML.
‘(3) The company must make available from the company allocation to Esk Shire Council, free of charge—
(a)220 ML a year for use for the Town of Esk; and
(b)270 ML a year for use for the Town of Lowood.
‘(4) The company must make available from the company allocation to the Glamorgan Vale Water Board, free of charge, 250 ML a year for use for the Glamorgan Vale Water Supply Area.
‘(5) The company must make available from the company allocation, free of charge—
(a)a sufficient volume of water, but not more than 7 000 ML a year, to meet the rights to water of licensees authorised under licences issued under part 4 of the repealed Act[4] to take water for irrigation purposes from the Brisbane River between the Wivenhoe Dam and Mt Crosby Weir; and
(b)a sufficient volume of water to meet the riparian rights of persons under section 36 of the repealed Act relating to any of the sources to which the company allocation relates; and
(c)a sufficient volume of water to meet the rights to water of other persons under authorisations under the repealed Act if the authorisations—
(i) were in force on the commencement of section 15B of the repealed Water Resources Regulation 1999; and
(ii) relate to any of the sources to which the company allocation relates."
[4] The repealed Act is the Water Resources Act1989 – this is my addition.
The 345,000 ML/a company allocation is the only water from which the appellants may obtain water for irrigation purposes there being no other water within in the total annual observable water identified as being allocated. Within that company allocation it is the "7,000 ML/a" referred to in s.4(5)(a) of the Regulations upon which the parties focused. The evidence was that the combined volume of water provided for in licences issued under Part 4 of the Repealed Act for irrigation purposes was 6,873 ML/a.[5]
[5]Although a volume of 6978 ML/a is also mentioned in Mr Bagdon's affidavit of 22 February 2008 the difference in figures is not critical to the disposal of the preliminary issue.
It was contended for the appellants that as the 6,873 ML/a falls short of 7,000 ML/a provided for in the relevant regulation, a volume of 127 ML/a remains "available" to satisfy at least part of the application for 350 ML/a. I have a number of difficulties with that contention.
The 7,000 ML/a is water contained within the company allocation of 345,000 ML/a. It is water designated to meet, "free of charge" the water rights of existing licensees and the appellants do not hold such an existing licence. The 127 ML/a difference between the water rights held by existing licensees and the 7,000 ML/a does not appear to me to be water that is legally "available". It is simply the mathematical difference between the actual volume of water that the company must make available free of charge and the maximum of its obligation in that respect.
The application made by the appellants was to the Chief Executive not to the company. I cannot see how the Chief Executive can deal with an application for a licence by dealing with or appropriating water allocated to the company – and by saying that I refer to the 7,000 ML/a which is part of the 345,000 ML/a company allocation. Presumably an application could be made to the company.
In their submissions the appellants provided the following example: if the IQQM computer program threw up a figure of say 500,000 ML/a and assuming 345,000 ML/a of that was allocated as the "company allocation", there would be 155,000 ML/a remaining for the Chief Executive to allocate.
There a number of difficulties I have with that submission. The IQQM program is concerned with producing a figure representing the total observable water as I have used that term above. The program does not just simulate "allocated" water as the identification of water as being allocated requires a decision not an observation to be made. And s.22(1) is concerned with "allocated" water as both parties agree. The submission recognises the allocation of 345,000 ML/a, but does not identify any process by which the balance of 155,000 ML/a can be identified as "allocated".
By taking the whole of the observable water dealt with in the IQQM program and, effectively, treating it as being "allocated", no part of the total observable water can be identified as "unallocated".
Based on the above analysis it seems to me that the hurdle confronted by the appellants is that there is no water in respect of which the Chief Executive can decide to grant a licence for irrigation purposes. The exercise of any power by the Chief Executive to allow surface water to be taken would be confined to s.22(2). Section 22(1) of the Plan would therefore seem to be declaratory only. Nevertheless, the parties have sought my opinion as to the meaning of s.22(1), in particular as to the words "average volume of water available to be taken in the Plan area".
It was submitted for the Chief Executive that s.22(1) should be understood as referring to water for irrigation purposes. Whilst I see no need to conclude that it is a reference to irrigation exclusively, it must be understood as including a reference to water for irrigation. It is not a reference to water dealt with under s.22(2).
In their submissions, the appellants said:
"… The approval of the Appellant's application for 350 ML of water will not necessarily increase the average volume of water to be taken in the plan area. For example if water is pumped from a pool of water that is available to be taken then there should be less water available to be taken and therefore the average volume of water to be taken is decreased. …"
That inventive submission cannot be accepted for a number of reasons. Whilst the example provided relies on the assumption that there is a "pool of water that is available" it has not been demonstrated that such a pool is legally available to the Chief Executive for irrigation licensing purposes. Other reasons are already expressed in [24] to [27].
Application of the appellants' submission would lead to the position that continual increasing of water usage in the Plan area would satisfy s.22(1). That such an outcome would be intended is improbable given the environmental flow and water allocation security objectives in the Plan and given the purposes of the Plan as expressed in s.2(a)(b):
"The following are the purposes of this plan—
(a) to define the availability of water in the plan area;
(b) to provide a framework for sustainably managing water and the taking of water;"
If, contrary to my conclusions, I assumed that the Chief Executive had power to grant a water licence which would allow the licensee to access surface water in the Plan area, then the meaning of the debated phrase would have some significance. Unfortunately the term "average" is not defined in the Plan, but given the various references to water volume[6] in the Plan it would be consistent to conclude that the reference is to a per annum average. Indeed, there is nothing in the Plan that would suggest that a reference to any other average such as average per licence or average per hectare is envisaged. Moreover, given that s.22(1) is found in Division 2 of Part 5 of the Plan concerned with strategies for achieving outcomes (surface water) it is apparent that the relevant phrase would be concerned with the overall water stock and not with such issues as, for example, the equity of usage between licensees. In particular s.20 of the Plan says:
"20 Decisions consistent with objectives
Decisions about the allocation or management of water in the plan area, other than a decision about a water permit, must be consistent with—
(a) the environmental flow objectives stated in schedule 7; and
(b) the water allocation security objectives stated in schedule 8."
[6] The definition of IQQM; the definition of simulation period; the inclusion of s.39 in the Plan.
The term "available" in the debated phrase is clearly not a reference to observable water but to the water that is legally capable of being turned to beneficial use. That is, I restate my initial impression recorded above at [5].
The "average volume of water available to be taken in the Plan area" includes the 6,873 ML/a applicable to existing licensees. If the Chief Executive were to grant the licence sought by the appellants for either 350 ML/a or 127 ML/a the annual average volume of water available would have been increased. The reference to 7,000 ML/a in Regulation 4(5) is not a reference to the water that is legally available (except to the extent that it forms part of 345,000 ML/a company allocation) but to the maximum that the company is required to provide to existing licensees. It follows that the Chief Executive is precluded by s.22(1) of the Plan from making an allocation of water as sought by the appellant.
Order
The effect of s.22(1) of the Water Resources (Moreton) Plan 2007 is to preclude the Chief Executive from dealing with the application by the appellants for a water license.
RP SCOTT
MEMBER OF THE LAND COURT
0
0
0