Stevenson v Wenck
[1995] QCA 186
•16/05/1995
| IN THE COURT OF APPEAL | [1995] QCA 186 |
| SUPREME COURT OF QUEENSLAND |
Appeal No. 223 of 1994.
Brisbane
[Stevenson v. Wenck & Ors.]
BETWEEN:
HUGH ISAAC DESMOND STEVENSON and
STEVENSON FINANCE CORPORATIONPTY LTD
Appellants
AND:
ROBERT EDWARD WENCK
First Respondent
- and -
REGINALD WILLIAM BETTS, HILDA JOAN
BETTS and OWEN JAMES BETTS
Second Respondents
- and -
JOHN WINTON HILL and ROSA MARIA HILL
Third Respondents
- and -
THE CHIEF EXECUTIVE, PRIMARY INDUSTRIES
CORPORATION
Fourth Respondent
__________________________________________________________________
___
Fitzgerald P.
Pincus J.A.McPherson J.A.
__________________________________________________________________
___
Judgment delivered 16/05/1995
Judgment of the Court
__________________________________________________________________
___
APPEAL DISMISSED WITH COSTS
__________________________________________________________________
___
CATCHWORDS: | ADMINISTRATIVE LAW - licence to construct and use dam granted by chief executive under Water Resources Act 1989 - appeal to Land Court - jurisdiction of Land Court to hear appeals from decision of Chief Executive - whether licence granted under s. 4.18 - whether application relating to water - whether chief executive wrongly restricted himself to consideration of "issues of safety and the protection of life and property" - appeals to Land Court generally - "person aggrieved" - whether confined to persons who have duly objected. |
| Ss. 4.13(1), 4.17, 4.18, 4.26 Water Resources Act Cook v. Southend-on-Sea Borough Council [1990] 2 Q.B. 1 | |
| Counsel: | Mr C E K Hampson Q.C. for the appellants. Mr S A McLeod for the first respondent. Mr M M Stewart for the second and third respondents. Mr P J Dwyer for the fourth respondent. |
| Solicitors: | John P Kelly & Co. for the appellants. The Crown Solicitor for the first respondent. Sly & Weigall Cannon & Peterson for the second and third respondents. The Crown Solicitor for the fourth respondent. |
| Hearing date: | 28 March 1995. |
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 223 of 1994.
Brisbane
| Before | Fitzgerald P. Pincus J.A. McPherson J.A. |
[Stevenson v. Wenck & Ors.]
BETWEEN:
HUGH ISAAC DESMOND STEVENSON and
STEVENSON FINANCE CORPORATIONPTY LTD
Appellants
AND:
ROBERT EDWARD WENCK
First Respondent
- and -
REGINALD WILLIAM BETTS, HILDA JOAN
BETTS and OWEN JAMES BETTS
Second Respondents
- and -
JOHN WINTON HILL and ROSA MARIA HILL
Third Respondents
- and -
THE CHIEF EXECUTIVE, PRIMARY INDUSTRIES
CORPORATION
Fourth Respondent
REASONS FOR JUDGMENT - THE COURT
Judgment delivered 16/05/1995
This appeal is brought from a judgment of the Supreme Court dismissing an
application made by the appellants under the Judicial Review Act 1991; the appellants
sought an order from the primary judge quashing a decision of the first respondent, a member of the Land Court, by which decision there were allowed appeals by the
second and third respondents from a decision of the fourth respondent who is the chief
executive, Primary Industries Corporation. The Land Court's decision was based on
the view that the chief executive had, in granting the appellants a licence under the
Water Resources Act 1989, erred in that he took too narrow a view of the
considerations which it was, in the circumstances, proper to take into account; that
Court revoked the licence. The appellants seek to have the chief executive's decision,
even if affected by that error, restored on the ground that the Land Court had no
jurisdiction to interfere with it. If that was so, then presumably the only means of
attacking it available to the second and third respondents would have been an
application to this Court under the Judicial Review Act 1991; the dispute has come to
the Supreme Court under that Act by way of a challenge to the Land Court's decision
revoking the grant of a licence by the chief executive, rather than by way of an
application directly raising the legality of the chief executive's grant of the licence.
The challenge to the Land Court's decision is based on two grounds, one of
which was raised (and failed) before the primary judge; it was argued that the Land
Court was in error because the application for a licence was not one of a kind
mentioned in s. 4.18(1) of the Water Resources Act 1989 - "the section 4.18 point".
The other ground upon which the appellants seek to argue that the primary judge erred
is one which was not mentioned before the primary judge, nor specified in the notice of
appeal to this Court. To succeed upon it, the appellants must persuade us that the point
may be agitated here, for the first time, and to do so they seek leave to adduce further
evidence. This second point is one which, factually, depends in part on the distance
between the appellants' property on which they desire to build a dam under the licence
granted by the chief executive and revoked by the Land Court, and the properties of the second and third respondents; it may conveniently be called, for reasons which will
appear, the "8 km point".
On 8 March 1991 the appellants made application to construct and use a very
large dam on Cubbie Station in the Dirranbandi district. The proposed dam was said in
the application to have the purpose of irrigation and water harvesting; the length of the
"wall/excavation", apparently meaning the length of the perimeter of the dam, was to be
20 km and the "height of wall/depth of excavation" 10 metres. On 7 May 1993 the
licence sought was granted over the objection of, amongst others, the second and third
respondents. The licence was required by reason of the provisions of s. 4.13(1) of the
Water Resources Act 1989 ("the Act") because what was proposed was a "referable
dam", as is conceded, within the meaning of para. (a) of that subsection. Under s.
4.17(2) the chief executive was obliged to publish notice of the application and he did
so. The notice published was defective, in that it gave an erroneous indication of the
statutory criteria determining the class of persons entitled to object to the granting of the
application. Whether the defect in the advertisement for objections should have led to a
rejection of the appellants' application is not a question in issue; but its existence is a
circumstance bearing upon the exercise of this Court's discretion in determining
whether to allow the 8 km point to be relied on here.
In the Land Court's reasons for decision, it is explained that before the appeals
were set down for hearing the chief executive advised the Court that it was "the opinion
of the Department" that there was no basis for appeal, for various reasons; why the
Department's view of the law should have been thought to be of any interest to the Court
is unclear. This advice was intended to be an objection to jurisdiction, but none of the
reasons given is now supported. The only one which requires mention is the third:
"the matters which the Chief executive could consider with respect to the application are confined to issues of safety and the protection of life and property.
Section 4.26(2)(b) of the Water Resources Act 1989 states that an appeal does not lie from a decision of the Chief Executive with respect to a referable dam that concerns safety or the protection of life and property." (emphasis added)
The present importance of this objection to jurisdiction is that the appellants'
application to have fresh evidence considered and so to be allowed to raise the 8 km
point is intended to achieve the result of preserving a decision made under a
misapprehension of the effect of the relevant statute. It is not now argued that the
matters which the chief executive could consider were in truth confined in the way set
out in his letter to the Court and there is nothing in the Act to support such a suggestion.
A question arises as to the construction of s. 4.18 of the Act. Sections 4.18(1)
and (2) are as follows:
" (1) Upon an application under section 4.17 and an objection thereto, the chief executive must cause inquiry to be made -
(a) where the application relates to water other than underground water - into -
(i)
the availability and sufficiency of water to supply the requirements of-
(A) riparian owners; and (B) licensees; and (C) permittees; and (D) the applicant; and (E) persons specified in section 2.2(a); (ii) the effect that the granting of the application will have or is likely to have on entitlements of riparian owners, licensees and permittees;
(b) where the application relates to underground water - into -
(i)
the availability and sufficiency of water to satisfy the requirements of -
(A) licensees; and (B) the applicant; (ii) the effect that the granting of the application will have or is likely to have on the requirements of owners of neighbouring land and licensees;
(c) in a case to which paragraph (a) or (b) applies - into any other matters or things the chief executive thinks fit.
(2) Upon the inquiry, the chief executive subject to this section -
(a) may grant the application -
(i) absolutely; or (ii) subject to any modifications or variations determined by the chief executive in a particular case; or (b) may refuse the application. "
It is s. 4.18(2) which gives the chief executive power to grant such an application as was
made by the appellants and the chief executive's power to do so appears to be
governed by the words, "Upon the inquiry". Looking, then, at s. 4.18(1), it is seen that
the chief executive is obliged to cause inquiry to be made "upon an application under s.
4.17 and an objection thereto" (emphasis added). If there is no objection (or, perhaps,
no valid objection) then a literal reading of the opening words of s. 4.18(1) produces the
result that there is no need for inquiry into any of the matters mentioned in that
subsection. And "the inquiry" in s. 4.18(2) is a reference back to an inquiry of the kind
mentioned in subs. (1), so that a question arises whether, if there is no such inquiry as
there mentioned, the chief executive may nevertheless grant an application under s.
4.17. The chief executive has no power to grant a s. 4.17 application except under s.
4.18(2), which begins with the words "Upon the inquiry".
It is impossible to suppose that the legislature intended that an application under
s. 4.17 could not be granted unless objected to, and unlikely that the legislature intended
that in the absence of objections such an application should be granted automatically -
i.e. without any inquiry whatever into the merits of the application. The better view
appears to be that the words "and an objection thereto" in s. 4.18(1) should be read as
"and any objection thereto" or "and objection thereto (if any)", to avoid the anomalous
result that there is no obligation to cause inquiry to be made in the absence of objection,
as well as the absurd result that the chief executive may not grant an application unless there is such an inquiry as s. 4.18(1), read literally, contemplates - i.e. one "upon an
application...and an objection thereto".
It follows that the chief executive's obligation to cause inquiry to be made arises,
under s. 4.18(1), whether or not there is objection. It may be assumed that sometimes
an application to which no objection is made may appropriately be subjected to only a
rather cursory inquiry, perhaps confined to information already held by the chief
executive; but of course that will not necessarily be so.
The result is that inquiry was necessary here, and it is of no consequence
whether or not there was, within the meaning of the section, "an objection thereto". But
the appellants say that s. 4.18 cannot affect the application they made, because it was
not one which "relates to water", within the meaning of s. 4.18(1). It may well be that s.
4.18 was drafted on the assumption that all applications under s. 4.17 would relate to
water - either underground or otherwise. This understanding of the subsection is
supported by the consideration that it would be rather odd if the legislature intended,
with respect to s. 4.17 applications not relating to water, that there should be inquiry, but
gave no indication of the topics to be inquired into. But there is no need to pursue that
topic, for the application in issue is caught by para. (a) of s. 4.18(1). On the face of the
application, what is sought is permission to build a dam to collect, for the purposes of
water harvesting and irrigation, 100,000 megalitres of water, and to use any water in the
dam. It is true that the application could be characterised as relating to the earth wall
and excavation constituting the dam, or as relating to other subject matters; but the fact
that there are other objects to which the application could be said to relate does not
detract from the plain fact that it also relates to water. An argument was pressed on
behalf of the appellants to the effect that no application relates to water unless the water is pre-existing, which presumably means existing in a lake or watercourse before the
performance of the works the subject of the application. That argument will hardly stand
scrutiny, when one considers that regrettably often there is little or no water in
watercourses in considerable areas of Queensland.
The application is one which "relates to water" and the appellants' argument that
there was no obligation to consider any of the matters in s. 4.18(1) must be rejected.
The scope of the topics which, in an individual case, should be looked at under s.
4.18(1)(c), does not require discussion here; but plainly the chief executive's discretion
under that paragraph may be exercised in a way which vitiates the decision. This is
what has happened here; the chief executive wrongly thought himself to be restricted, in
considering the appellant's proposed dam, to "issues of safety and the protection of life
and property". There is no warrant for that view in the Act. Further, it would be odd if a
referable dam, however vast, may be built as long as it is safe; surely there must be a
limit to the extent to which a property owner would be licensed to "impound, divert or
control water" (see the definition of referable dam in s. 1.4(1) of the Act) which might
otherwise benefit the licensee's neighbours.
The remaining question is the 8 km point. The argument for the appellants which
is sought to be raised is that there was no right of appeal in the second and third
respondents and that therefore the Land Court had no jurisdiction to revoke the chief
executive's decision to grant the licence. The right of appeal is governed by s. 4.26(1),
but subject to s. 4.26(2); it is necessary to set out only the former:
" A person aggrieved by a decision of the chief executive with respect to -
(a) an application for -
(i) a licence; (ii) the renewal of a licence; (iii) the transfer of a licence; (b) an objection duly lodged to an application for a licence;
(c) any amendment, variation, cancellation, revocation or suspension of a licence;
(d) an application for an authority under section 4.14(3) to construct or use works on intervening land;
may appeal therefrom to the Land Court. "
Section 4.26(2) sets out certain exceptions to the right of appeal granted by
subs. 1, but none is applicable here. It will be noted that the remedy is available to a
person "aggrieved by a decision" and is not in terms confined to applicants, licensees
and duly qualified objectors. We were pressed with the argument that s. 4.26(1) should
be read down so as to restrict the right of appeal, so far as appellants other than
applicants for licences, and licensees, are concerned, to those who are qualified as
objectors and have objected. The basis of the submission is that if an application is
granted over objection, then the objector may not lodge an appeal claiming to be
aggrieved by the decision to grant the application under para (a), but is confined to
appealing with respect to the treatment of the objection, under para. (b); so that it
follows (so the argument runs) that unless there is an objection "duly lodged" - and due
lodgment imports that the lodger is qualified to object - there is no right of appeal. It
was contended that unless this construction is adopted para. (b) has no work to do.
In the present case the respondents' notices of appeal in the Land Court do not
purport to challenge the chief executive's decision with respect to objections. Each
notice simply attacks the decision to issue the licence which authorised the construction
and use of the referable dam; that is, the notices of appeal were based upon para. (a)
of s. 4.26(1). A number of considerations combine to support the conclusion that the
notices were, in this respect, properly drawn. One is that the decision to grant a licence
might be based on grounds which, although erroneous, have nothing to do with any objection lodged; if the appellants are right, then neither the objectors nor anyone else
could appeal against such a decision. Another is that a decision could be made
rejecting an objection, without disposing of the application to which objection is made;
in those circumstances, para. (b) would have a separate function to fulfil. A third
consideration is the natural reading of subs. (1): on the face of it,the subsection gives a
person aggrieved by a decision with respect to any of the matters listed a right of
appeal from that decision; whereas the appellant's argument would confine the rights of
one class of appellant, namely an objector, to appealing against one sort of decision
only.
It would have been simple enough, had that been the legislative intention, to
confine objectors' rights of appeals under s. 4.26(1) expressly in the way now submitted,
by stating that an objector may appeal only with respect to a decision on the objection.
Alternatively, the drafter, if the intention were to confine the rights of appeal along the
lines suggested, could have commenced the subsection with the words "An applicant,
licencee or duly qualified objector"; but if that had been done, there would have been a
problem with respect to one of the sorts of decisions mentioned in s. 4.26(1), namely
those in para. (c), "any amendment, variation, cancellation, revocation or suspension of
a licence". Power to make such decisions is given by s. 4.25, reference to which
section shows that decisions may be taken under it about such matters as breaches of
the terms of a licence. A breach might seriously affect the rights of persons other than
the licensee, for example, those deprived of water by the breach. Those persons may
well be, in the ordinary meaning of the expression, "persons aggrieved by" a decision
not to take steps against the licensee who is in breach.
A useful analysis of the history of English authority on the meaning of "person
aggrieved" is to be found in Cook v. Southend-on-Sea Borough Council [1990]
2 Q.B. 1, particularly at pp. 16 - 19, where the more recent cases are dealt with. One of
the two main cases mentioned is Attorney-General of the Gambia v. N'jie [1961] A.C.
617 at 634 where it is stated that:
"The words 'person aggrieved' are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him: but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests".
The other decision, that of the House of Lords in Arsenal Football Club Ltd v. Ende
[1979] A.C. 1 includes the following statement by Viscount Dilhorne (at p. 27):
"While it is true that words in the English language take colour from the context in which they are used, I see nothing in the subsection or in the remainder of the Act to warrant giving to the word 'aggrieved' any meaning other than its ordinary natural meaning. To be 'aggrieved' a person must be affected by the matter of which he complains."
See also Day v. Hunter [1964] V.R. 845 as to the meaning of "person who feels
aggrieved".
The better view is that the expression "aggrieved by a decision" should be given
its natural meaning in s. 4.26 and not read down so as to confine the right to appeal
against a grant of a licence to persons who have duly objected. One advantage of
adopting this construction is that, as is illustrated by the facts of the present case, a
considerable gap in time - perhaps years - might elapse between the application for a
licence and the grant of the licence. It is difficult to see any reason why a person who
has bought a neighbouring property during that period and who, perhaps, knows nothing
of the application, should be held not to be capable of being aggrieved by the grant of a
licence, merely because the person from whom the property was bought failed to
exercise the right to object.
The 8 km jurisdictional point depends on the view that only persons who are
qualified, at the relevant time, to object to the application and who in fact object can be
aggrieved by the decision to grant a licence. For the reasons which have been given
we do not accept that view, but for the sake of completeness the appellants' point
should be explained briefly. Under s. 4.17 the procedure to be followed on application
for a licence is set out and subs. (2) requires that, in general, notice of the receipt of an
application for a licence be published in a newspaper. Under subs. (2A) the notice
must specify the place at which, and the time and date before which, objections may be
lodged, and under subs. (3) an owner of land "situated as prescribed" may object to the
granting of the application. Subsection (3A) explains what is meant by "situated as
prescribed" and the relevant part of that provision says that land is taken to be situated
as prescribed where "the land is so situated that any point on its boundary nearest to
the affected land is within a radius of 8 km measured from a point on the affected land
nearest to the land". The appellants have filed evidence to show that this condition was
not satisfied, in relation to the properties of the second and third respondents.
Therefore, it was said, the second and third respondents had no right to object to the
grant of a licence to the appellants and were not persons "aggrieved" under s. 4.26(1),
so as to have a right of appeal to the Land Court against the chief executive's decision.
Apart from any other difficulty in the way of accepting the argument, it depends
on reading down the expression "person aggrieved" in s. 4.26, so as to exclude
opponents of the grant of a licence who have not duly objected; for the reasons
explained, we have come to the conclusion that the expression "person aggrieved"
should be given its ordinary meaning and it seems clear that, so read, the expression
includes the second and third respondents.
But it is desirable to say something of the question of the discretion to adduce
further evidence. The material shows that the appellants, although not formally parties,
were involved in the proceedings in the Land Court. They were parties represented
before the primary judge in this Court. No question with respect to the jurisdiction of the
Land Court was raised under s. 4.26(1); the objection to jurisdiction in that Court was
based on s. 4.26(2) and that point has been abandoned. The primary judge in this
Court remarked in his reasons that "It is not in issue that the second and third
respondents are geographically qualified to object in terms of section 4.17(3A)(c)."
The evidence about the distance between the properties on which the 8 km point
is founded could have been called before the primary judge in this Court if the
appellants had thought of the point. We are inclined to think that, although the 8 km
point is put forward as a jurisdictional one, it would not have been a proper exercise of
discretion to let in the evidence about the distance between the properties, had we
adopted a narrower view of the words "person aggrieved". Not only do the appellants
face the difficulty that they could have, but did not, put the matter in issue below, but
there is the complication to which we have referred, that the chief executive's
advertisement for objectors did not properly define the geographical limits of potential
objectors. The second and third respondents may well have relied on that
advertisement as accurately defining their rights to object and it would seem unfair, if
they did so, to put them out of Court at this stage. It remains to add that there was no
submission made that this Court could dispense with the necessity of letting in evidence
about the distance between the relevant properties, by informing itself from maps of the
area.
In summary, our conclusions are that the chief executive was wrong in thinking
that the matters which could be taken into account were limited to issues of safety and
the protection of life and property, and that the appellants' objection to the jurisdiction of
the Land Court, based on a narrow reading of the expression "person aggrieved" in s.
4.26 of the Act, should be rejected. The appeal is dismissed with costs.
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