Stockman v Chief Executive, Department of Natural Resources and Mines
[2012] QLC 72
•20 December 2012
0B0B0BLAND COURT OF QUEENSLAND
CITATION: Stockman v Chief Executive, Department of Natural Resources and Mines [2012] QLC 72 PARTIES: Scott Langford Stockman
(Appellant)v Chief Executive, Department of Natural Resources and Mines
(Respondent)FILE NO: WAA194-12 DIVISION:
PROCEEDINGS:
Land Court of Queensland
Hearing of an Application for determination of a preliminary point regarding jurisdiction of the Court
DELIVERED ON: 20 December 2012 DELIVERED AT:
Brisbane
HEARD AT:
HEARD ON:
Cairns
19 October 2012
MEMBER: His Honour, Mr WL Cochrane, Member ORDERS:
1. .The appellant is not an interested person within the meaning of ss.877 and 851 of the Water Act 2000; and
2. The Land Court has no jurisdiction to entertain this appeal pursuant to s.5 of the Land Court Act 2000.
CATCHWORDS: Appeal rights - statutory jurisdiction of Land Court - preliminary point
Water Act 2000 - Water Resource Barron Plan 2002, Barron Resource Operations Plan 2005 (as amended)Land Court Act, s5 - appeal recite the background prior to the transfer to the appellants of that licence, they are matters of historical fact and of historic interest only
Land Court Act 2000, s.3
Water Act 2000, ss 217, 205, 851, 877,APPEARANCES: Mr D Yarrow of Counsel, instructed by p&e Law for the Appellant
Dr G Sammon, Special Counsel, Crown Law for the Respondent
This is the determination of a preliminary point raised by the respondent.
The primary proceeding is an appeal against a review decision pursuant to the Water Act 2000 (the Water Act). In order to understand the import of the preliminary point it is necessary to descend, in some detail, to the particulars which constitute the background to this appeal.
Before doing that it is appropriate to set out from the correspondence from Crown Law dated 13 August 2012, the manner in which the Chief Executive has framed the preliminary points.
That correspondence read as follows:
“The position of the Chief Executive is that for this appeal to proceed in the Land Court, there is a question of the jurisdiction of the Land Court which would need to be resolved. The question turns on whether Mr Stockman can be considered to be an “interested person” for the purpose of s.877 and s.851 of the Water Act 2000 so as to give the Land Court jurisdiction to hear and determine this appeal.”
Subsequent to the identification of that preliminary point by the respondent, the appellant’s solicitors filed an originating application on 10 October 2012 seeking declarations under s.3 of the Land Court Act 2000 (Qld):
“(a) The respondent has not given the applicant a valid notice under the Water Act 2000(Qld) s.205(2);
(b) In the alternative to (a) - the notice of the respondent dated 3 February 2012 is an Information Notice under the Water Act 2000 (Qld) s.205(2)(a)”The matter was mentioned before me on 31 August 2012 at which time I declined to consider the appellant’s originating application until such time as the preliminary point of law raised by the Chief Executive in its correspondence of 13 August 2012 had been heard and determined as it seemed to me that if that application were determined adverse to the appellant then consideration of the appellant’s originating application would be a futility.
Accordingly orders were made on 31 August 2012 that the preliminary issue to be determined be framed as follows:
1.There be determination of the following preliminary issues:
(a) whether the appellant is an interested person within the meaning of ss 877 and 851 of the Water Act 2000
(b) whether the Land Court has jurisdiction pursuant to s 5 of the Land Court Act 2000.
Orders were then made for the exchange of outlines of argument and the matter was heard before me in Cairns on 19 October 2012.
At the hearing of the preliminary point the appellant was represented by Mr Yarrow of Counsel and the respondent, Chief Executive, was represented by Dr Sammon, Special Counsel at Crown Law.
Background
As indicated above it seems appropriate to provide some details of the background to this matter.
The appellant, Scott Stockland, is the owner of Lot A on RP 846925 which enjoys the benefit of Water Licence 55494K for the purpose of taking water from Cherry Creek.
Mr Stockland acquired that licence when he purchased Lot 283 on RP 846926 from Lenard George and Margaret Lesley George Beck in 1994.
Prior to his purchasing Lot 283 Mr Stockland’s predecessors in title, Mr and Mrs Beck, had applied to increase their water entitlement, on an area basis, from 8 ha to 12 ha.
The appellant asserts in his grounds of appeal, and this is not disputed by the respondent, that at the time that application was made water entitlements were expressed on a hectare basis.
Some 14 months after the application by the Becks the relevant department granted a licence to irrigate 12 ha and, in granting that water entitlement imposed a condition placing a 58 ML condition on the licence.
It was that licence with the 12 ha limit and a 58 ML condition which was transferred to Mr Stockland with the purchase of the subject Lot 283 in 1994.
The Court was not informed whether the appellants acted on their own behalf or had engaged a solicitor for the purchase of Lot 283 and/or for the transfer of the water licence. It seems unlikely that they acted in such a transaction on their own behalf but the material before the Court is silent as to that matter.
It is asserted in the appeal material, but was not ventilated at the hearing of the preliminary point, that the appellant did not become aware of the 58 ML condition until October 1997. In any event, in my opinion, those matters are irrelevant to the present determination.
Subsequently, on 6 November 1997 the appellant, by solicitors, requested the removal of the 58 ML condition from the licence.
The appeal grounds
The decision appealed against in the notice of appeal is identified as being, really, two separate decisions.
Those decisions are:
(a)the decision of the senior technical officer, John Charles, given under cover of correspondence dated 3 February 2012 to amend Water Licence 55494K under s.45 of the Water Resource (Barron) Plan 2002. (original decision);
and
(b)the decision of Leader, Water Resource Management, Peter Siemsen to decline to internally review the decision to amend Water Licence 55494K under s.45 of the Water Resource (Barron) Plan 2002.
The decision of John Charles was conveyed under letter dated 3 February 2012 under the signature of Mr Charles and in the relevant notice of decision identifies the basis for the decision in the following terms:
“This notice of decision is given under section 205(2)(b) in accordance with section 217 of the Water Act 2000 (“the Act”) in respect of the decision to issue a water licence under the Barron Resources Operations Plan. It provides advice of my decision and the reasons for the decision.FFF[1]
[1] Exhibit TMJ-1 page 3.
The basis of the decision itself is identified in the following terms:
“I am an officer of the Department of Environment and Resource Management delegated by the Chief Executive to exercise the power of the Chief Executive under s.217 of the Act. I have decided to issue Water Licence 55494K in accordance with the Barron Resource Operations Plan”.
The notice of decision attached to the covering letter of 3 February 2012 contained the following:
“Water Licence : Reference 5549K
This notice of decision is given under section 205(2)(b) in accordance with section 217 of the Water Act 2000 (“the Act”) in respect of the decision to issue a water licence under the Barron Resource Operations Plan. It provides advice of my decision and the reasons for the decision.
Background Matters
Water Licence 55494K authorises the taking of water from Cherry Creek at a maximum extraction rate of 25 litres per second with the point of take on or adjoining Lot A on RP846925. The purpose is for the irrigation of 12 hectares within Lot 283 on RP846926 and Lot 208 on N157175. The licence has a Schedule B condition stating that the annual allocation is not to exceed 58 megalitres.The water licence relates to the taking of water within the Water Resource (Barron) Plan 2002 (WRP) area. In October 2011, an amendment to the Barron Resource Operations Plan 2005 (ROP) was released.
The water licence must be amended to be consistent with the WRP and the amended ROP.”
The second decision appealed against is that dated 8 March 2012 over the signature under Mr Siemsen.
That correspondence from Mr Siemsen asserts as follows:
“This application relates to the amendments made to your Water Licence No. 55494K in accordance with the Barron Resource Operations Plan (2005). I am unable to accept your application because you are not given an information notice and therefore do not have standing to apply for internal review of the original decision.
Under section 862 of the Act only an interested person may apply for review of an original decision. An interested person for the purpose of this section is a person who has been given an information notice or a compliance notice by the Chief Executive (section 581 of the Act).”It is appropriate to consider in some detail the legislative background to the decision of 3 February 2012 to amend Water Licence 55494K.
The Legislative background
There exists a suite of three relevant legislative documents which come into play in this matter.
The first of those is the Water Act 2000 which came into affect, generally, in that year.
The second relevant document is the Subordinate Legislation enacted pursuant to the Water Act 2000 namely the Water Resource (Barron) Plan 2002.
The third relevant document is the Barron Resource Operations Plan of June 2005 which was amended by the Barron Resource Operations Plan Amendment in October 2011.
The Water Act relevantly contains the following sections:
205Decisions to be in accordance with plans and declaration
(1) If a water resource plan, a resource operations plan or a wild river declaration has been approved for an area, the chief executive must make decisions under this part in accordance with the plan or declaration.
(2) If the chief executive makes a decision under this part, in accordance with a water resource plan, a resource operations plan or a wild river declaration, the chief executive is required to give, for the decision—
(a)to the extent a different decision, consistent with the plan, could have been made—an information notice; or
(b)otherwise—a notice stating the decision and the reasons for the decision.
(3) In this section—
decision includes a part of a decision.
217Amending water licence to implement water resource plan
(1)The chief executive must amend a water licence, if the water licence is inconsistent with a water resource plan or a resource operations plan.
(2)The chief executive must, within the time stated in the plan or as soon as possible after the plan is approved—
(a) amend the licence; and
(b) give the licensee a notice under section 205(2) stating the aspects of the existing licence that are inconsistent with the plan; and
(c) give the licensee an amended licence in the approved form.
(3)The amended licence takes effect from the day the chief executive gives the licensee the licence.
851Who is an interested person
(1) A person who has been given an information notice or a compliance notice by the chief executive, or an authorised officer appointed by the chief executive, is an interested person.
(2) However, if the decision for which the notice was given is in relation to a water resource plan, a resource operations plan or a wild river declaration, the interested person may appeal only to the extent a different decision, consistent with the plan or declaration, could have been made.
…
(4) The decision or action for which a notice was given under subsection (1) or the decision mentioned in subsection (3) is an original decision.
877 Who may appeal or apply for external review
(1) If an interested person has applied for an internal review of an original decision, any interested person for the original decision may appeal against or apply for a review of the review decision to—
(a)if the review decision was about an original decision or action about a water bore driller’s licence—QCAT; and
(b)if the review decision was about an original decision or action mentioned in section 851(1), other than the giving of a compliance notice—the Land Court; and
(c)if the review decision was about a decision or action mentioned in section 851(1) for which a compliance notice was given—QCAT; and
(d)if the review decision was about an original decision or action mentioned in section 851(3)—the Land Court.
The concept of a “interested person” is germane to this decision and reference to the dictionary contained within the Water Act 2000 refers back to s.851 which is set out above.
Schedule 4 to the Water Act is the dictionary which contains the following definition:
information notice, about a decision under this Act, means a notice—
(a) stating the following—
(i)the decision;
(ii)the reasons for the decision;
(iii)the name and address of any other person who was given the notice;
(iv)that any person given the notice may apply for an internal review of the decision within 30 business days after the day the notice is given; and
(b) including a copy of the relevant internal review provisions of this Act.
The Water Act from s.38 onwards contains provisions directed towards creating water resource plans.FFF[2]
[2] Water Act 2000, s.38.
The Water Act also contains provisions for preparing and implementing resource operations plans.FFF[3]
[3] Water Act 2000, s.95.
The Water Resource (Barron) Plan 2002 is such a water resource plan as contemplated by the Water Act.
If a water resource operations plan is brought into existence it must be consistent with a water resources plan.FFF[4]
[4] Water Act 2000, s.103(5)(a).
There was no debate between the parties but that the area within which Water Licence 55494K exists is covered by the provisions of the Barron Resource Operations Plan and the Water Resource (Barron) Plan 2002.
Chapter 3 Part 2 of the Barron Resources Operations Plan referred to in the notice of decision provides for the granting and converting of authorisations. In particular Chapter 3 Part 2 deals with amending and granting water licences for taking unsupplemented water and section 58 deals with the water licences which are to be amended.
The Barron Resource Operations Plan was amended in October 2011 and at all relevant times since then s.48 has provided as follows:
58Water licences to be amended
(1) This section applies to water licences listed in attachment 7, table 1.
(2) Within 120 business days of the commencement of this plan, the chief executive, in accordance with section 217 of the Water Act 2000, must amend the water licences mentioned in subsection (1) in accordance with attachment 7, table 1.
In carrying out the actions required by s.58 the Chief Executive is constrained to compliance with the Rules set out in s.57 which are as follows:
57Rules for amending water licences
(1) This section details the rules for amending water licences to which this part applies.
(2) When amending a water licence for taking unsupplemented water in accordance with section 271 or section 218 of the Water Act 2000, the chief executive must amend the water licence as follows-
(a) the purpose for the water licence must be in accordance with section 44A of the Water Resource (Barron) Plan 2002;
(b) the nominal entitlement for the water licence must be in accordance with section 45 of the Water Resource (Barron) Plan 2002;
(c) the seasonal volumetric limit for the water licence must be in accordance with section 45A of the Water Resource (Barron) Plan 2002.
(d) the monthly volumetric limit for the water licence must be in accordance with section 45B of the Water Resource (Barron) Plan 2002.
(e) the daily volumetric limit for the water licence must be in accordance with section 45C of the Water Resource (Barron) Plan 2002.
(f) the maximum rate at which water may be taken under the water licence must be in accordance with section 46 of the Water Resource (Barron) Plan 2002.Section 58(1) provides that the section applies to water licences listed in attachment 7 table 1 and reference to schedule 7 identifies S and L Stockland the holder of licence 55494K at the watercourse Cherry Creek holding a licence for rural purposes entitling them to a maximum rate of take of 25 litres a second with a nominal entitlement of 58 ML with a water licence condition requiring “the daily volumetric limit that my be taken under this licence is 2.16 ML.
Thus there appears to be little doubt that the Stockland’s water licence is one which was required to be amended pursuant to the provisions of the Barron Resource Operations Plan as it existed after amendment in October 2011.
Section 58(2) provides:
58 Water licences to be amended
…(2) Within 120 business days of the commencement of this plan, the chief executive, in accordance with section 217 of the Water Act 2000, must amend the water licences mentioned in subsection (1) in accordance with attachment 7, table 1.
Section 3 of the Barron Resource Operations Plan provides that the Plan commences on the first business days after the Plan is notified in the Queensland Government Gazette.
Reference to the Queensland Government Gazette of Friday 7 October 2011FFF[5]FFF shows that notice of approval of an amendment of a Resource Operations Plan (No. 2) of 2001 relating to the Barron Resource Operations Plan 2011 was contained within that Gazette. Accordingly the Operations Plan, pursuant to s.3, came into effect on Monday 10 October 2011. Fairly clearly the letter of 3 February 2012 was sent within the 120 business days mandated by s.3 and s.58 of the Operations Plan. By my calculations the last day of the amending action to be taken by the Chief Executive was 29 March 2012.
[5] Queensland Government Gazette Volume 358 number 42.
The notice of decision of 3 February 2012 identified the following findings on the material questions of fact:
“Findings on Material Questions of Fact
My findings of fact in this matter are:
Water Licence 55494K is listed in Attachment 7 of the ROP.The existing terms and conditions of this water licence are inconsistent with the ROP.
The water licence has been amended as follows in accordance with the rules of the ROP and to ensure it is consistent with the WRP.
• The stated purpose of the licence was irrigation. The purpose of the licence has been amended from irrigation to rural consistent with section 44A of the WRP.
• The licence did not contain a nominal entitlement. The existing licence included an annual allocation of 58 megalitres in the conditions. This annual allocation is the nominal entitlement on the amended licence. A nominal entitlement of 58 megalitres has been included on the licence consistent with section 45 of the WRP. The nominal entitlement represents the maximum volume of water that may be taken in a water year. A water year is defined under the ROP as the period from 1 July to 30 June in the following year.
• The licence did not contain a seasonal volumetric limit. Under section 45A, the seasonal volumetric limit for this water licence is the nominal entitlement for the licence. The seasonal volumetric limit is defined under the WRP as the maximum volume of water that may be taken during the period from 1 July to 31 December.
• The licence did not contain a daily volumetric limit. A daily volumetric limit of 2.16 megalitres has been included as a condition on the licence consistent with section 45C of the WRP. The daily volumetric limit is defined under the WRP as the maximum volume of water that may be taken in a day.
• The licence already states a maximum extraction rate of 25 litres per second. This rate has been retained on the amended licence consistent with section 46 of the WRP.
• 2.16 megalitres of water could be taken in approximately 24 hours by pumping at an extraction rate of 25 litres per second.”
As set out in both the notice of appeal and more fully in the affidavit of Ms Johnston, from that decision of 3 February the appellant sought “an internal review of the original decision under sections 851 and 862 of the Water Act 2000”.
Section 851 set out above identifies who is an interested person.
Section 862 of the Water Act set out below limits an application for review to a decision referred to in s.851(1) or 851(3).
862Who may apply for internal review
(1)An interested person, may apply for a review (an internal review) of an original decision mentioned in—
(a) section 851(1)—to the chief executive (the reviewer); or (b) section 851(3)—to the chief executive officer of the category 2 water authority (also the reviewer).
(2)The application must be—
(a) in the approved form; and
(b) supported by enough information to enable the reviewer to decide the application.
That is to say, pursuant to s.851(1) a person who been given an information notice or a compliance notice may seek review of those notices. Pursuant to s.851(3) a person given a notice in respect of a rate of charge or levy relating to a category 2 water authority may also seek review.
Schedule 4 defines information notice and that definition is set out in full above.
Schedule 4 also defines a compliance notice as meaning a notice given under s.780 which in its turn relates to enforcement matters and seems to be irrelevant to the present case.
The grounds of appeal set out in the notice of appeal provide substantial detail about the background to Water Licence 55494K. To the extent that those grounds of appeal recite the background prior to the transfer to the appellants of that licence they are matters of historical fact and are of historic interest only.
Similarly the reference in the grounds of appeal to various representations including meetings with Assistant Director Generals and Members of Parliament acting on behalf of the Minister are beyond the interest of this Court and are irrelevant, in my view, to the issue with which I must grapple in this preliminary point.
Similarly, I am bound to say, I am unmoved by representations premised upon suggestions that some rights which the Stockman’s predecessors in title (Mr and Mrs Beck) may have had have in some way transferred to the Stockmans.
In the material so far before the Court I can find no documentary evidence which satisfies me that the letter of 3 February was anything other than evidence of the Chief Executive carrying out its responsibilities pursuant to s.58 of the Barron Resource Operations Plan.
The Submissions
Counsel for the respondent Chief Executive sets out in some detail the basic tenets upon which he relies in his submissions to persuade the Court that it is without jurisdiction in this matter.
Those submissions are concise and to the point and I can do little better than adopt them in this part of the judgment. He writes:
“12.The term ‘information notice’ underlined in s 205 above is defined in the Dictionary (schedule 4 to the Water Act) to mean a notice:
(a)stating the following –
(i)the decision;
(ii)the reasons for the decision;
(iii)the name and address of any other person who was given the notice;
(iv) UUUthat any person given the notice may apply for an internal review of the decision within 30 business days after the date the notice is givenUUU; and
(b) including a copy of the relevant internal review provisions of this Act.
(emphasis added)13.The underlined words in the definition of ‘information notice’ emphasise the relevance of an information notice to inform the recipient, of rights of internal review and subsequently appeal to the Land Court under the Water Act.
14.By contrast, s 205(2)(b) draws a distinction between a decision which attracts an obligation to give an information notice, triggering review and appeal rights (where a different decision could have been made), and merely a notice stating the decision and the reasons for it, which does not.
15.At the date of the decision made on 3 February 2012, there was both a water resource plan under the Water Act in place - the Water Resource (Barron) Plan 2002 (‘the Barron WRP’), and a resource operations plan under the Water Act namely the Barron Resource Operations Plan (June 2005, amended October 2011( (‘the Barron ROP’).
16.Relevant extracts from the Barron WRP are exhibited to Ms Johnson’s affidavit as exhibit TMJ-2. A water resource plan under the Water Act requires approval of the Governor in Council in order to take effect (s 50(2)) and has the status of subordinate legislation for the purposes of the Statutory Instruments Act 1992 (s 50(3)(a). The purposes of a water resources plan are set out in s 38 of the Water Act and include to ‘provide a framework for sustainably managing water and the taking of water’ (s 38(3)(b)). The content of draft water resource plans is set out in s 46 and includes ‘criteria for adjusting existing water entitlements to achieve the plans outcomes’ (s 46(2)(g)).
17.A resource operations plan must be consistent with a water resources plan (s 103(5) of the Water Act). It too requires the approval of the Governor in Council (s 103(5)). There are extensive provisions in the Water Act requiring public consultation of a draft resources operation plan (ss 96-104A). It is submitted that it is a ‘statutory instrument’ as defined in the Statutory Instruments Act - see s.7 of the Act, and making it is a quasi-legislative process.
18.Relevant extracts from the Barron ROP are exhibited to Ms Johnson’s affidavit as exhibit TMJ-3. In particular, s 58 of the Barron ROP required the Chief Executive to amend the water licences mentioned in attachment 7, table 1. Page 100 of the Barron ROP is contained in exhibit TMJ-3 and specifically mentions Mr Stockman’s water licence.
19.One of the effects of the amendments made to the Barron ROP in October 2011 was that the chief executive was required to amend Mr Stockman’s water licence so that it was consistent with the Barron WRP and the Barron ROP - see s 217(1) which provides that:
The chief executive UUUmustUUU amend a water licence, if the water licence is inconsistent with a water resource plan or a resource operations plan.
(emphasis added)
20.There is a legislative link between s 217(1) and s 205(1) referred to above, in that a decision made under s 217 is a decision made ‘under this part’ as referred to in s 205(1): that is, under chapter 2 part 6 of the Water Act. That means that a decision made under s 217 must be made in accordance with a WRP and a ROP if they are in existence for the area concerned. Section 58 of the Barron ROP required the chief executive, in accordance with s 217 of the Water Act (see use of the word ‘must) to amend the licences listed in attachment 7, table 1 of the Barron ROP in accordance with that part of the ROP. Attachment 7 of the ROP specifically refers to Mr Stockman’s water licence and that the nominal entitlement specified was 58 Ml.
21.In other words, where a ROP is in force, the requirement cast on the Chief Executive is to amend a water licence under s 217 in accordance with the ROP.
22.Accordingly, if the chief executive’s decision under s 217 of the Water Act was to be consistent with the Barron ROP, there could be no other decision made (under s 851(2) of the Water Act), in the decision dated 3 February 2012, than for the licence to have a volumetric limit of 58Ml.
23.The amendments made to Mr Stockman’s water licence in accordance with s 217 are described at the foot of page 1 of the Notice of Decision contained in exhibit TMJ-1, to the top of page 2 of that document.
24.That being the case, Mr Stockman is not an ‘interested person’ under s 851(1) of the Water Act and had no entitlement to seek an internal review of the decision made on 3 February 2012, or appeal to the Land Court about the same decision.”
Counsel for the appellant in his carefully constructed submissions pays particular attention to s.205 and s.217 of the Water Act.
About those sections Counsel for the appellant submits as follows:
“8.WA s.205(2) is the key provision which determines the review treatment of decisions under WA s.217. As set out above, WA s.217(2)(b) requires a decision maker to give a licensee ‘a notice under section 205(2)’. Section 217 of the WA has been amended once, by s.695 of the Water Supply (Safety and Reliability) Act 2008 (Qld). The provision commenced on the Act’s date of assent, 21 May 2008. The amendment introduced the phrase ‘a notice under section 205(2)’ in s.217(2)(b) in place of the words ‘an information notice’. Consequently, an information notice was issued for any water licence amendment made before 12 May 2008.”
As Counsel for the appellant points out, prior to May 2008 an information notice was issued for any water licence amendment made before that time.
That the Act was amended to change that situation in my view somewhat stiffens the argument advanced by the respondent before me.
Counsel for the appellant also quite properly draws the Court’s attention to the explanatory notes for the Water and Other Legislation Amendment Bill 2005 which became the Water and Other Legislation Amendment Act 2005 (Qld) which amended both s.205 and s.851 of the Water Act.
The explanatory notes, quoted by Counsel for the appellant include the following:
“UUUClarifying appeals against certain decisions
Currently section 851(2) of the Act limits the extent to which an appeal is available for decisions made under a resource operations plan. A decision may only be appealed to the extent that the decision is inconsistent with the plan or to the extent a different decision, consistent with the plan, could have been made. In cases where the chief executive makes a decision consistent with the plan and where a different decision, consistent with the plan, could not have been made, the chief executive is not making a discretionary decision. In this case, the giving of an information notice, essentially is giving an illusory appeal right under the terms of section 851(2).
These circumstances apply equally to decisions made under a water resource plan. A water resource plan is subordinate legislation and the chief executive is bound to follow the requirements of the water resource plan. If the chief executive makes a decision consistent with the plan and where a different decision, consistent with the plan, could not have been made, the chief executive again is not making a discretionary decision.
Water resource plans and resource operations plans are publicly released as draft plans before being finalised and approved. Submissions received are considered as part of the preparation of the final plan.
The amendment provides that in these cases the chief executive need only give a written notice stating reasons for the decision. A Recipient of this notice in any event is still afforded rights of review of this decision under the Judicial Review Act 1991. In all other cases, an information notice is given for all discretionary decisions made by the chief executive in accordance with a water resource plan or resource operations plan.”
The highlighting of the availability of review under the Judicial Review Act is, in my view, significant in the light of non-discretionary decisions.
The explanatory notes referred to by Counsel for the appellant go on to point out that in the giving of an information notice in circumstances where the chief executive makes the decision consistent with a resource operations plan the chief executive is not making a discretionary decision and in such a case the giving of an information notice would, essentially, give an illusory appeal right under the terms of s.851(2).
The explanatory notes go on to refer again to the Judicial Review Act in this context and say:
“The amendment provides that in these cases the chief executive need only give a written notice stating reasons for the decision. A recipient of this notice in any event is still afforded rights of review of this decision under the Judicial Review Act 1991.”
Earlier in his submissions Counsel for the appellant set out his characterisation of the decision contained in the 3 February letter. He submitted as follows:FFF[6]FFF
“7.When comparing the original 4K licence with the amended 4K licence, it is apparent that the original decision was a decision:
(a)to change the original purpose of the original 4K licence from ‘irrigation’ to ‘rural’ (amendment 1);
(b)to change the original 4K licence from an area licence (with 12 ha as the ‘maximum area to be irrigated’) to a volumetric licence (with 58 ML as the nominal entitlement) (amendment 2);
(c)to add a seasonal volumetric limit of 58ML (amendment 3);
(d)to add a daily volumetric limit of 2.16 ML with the maximum rate of take set at 25 Ls (amendment 4).”
[6] Exhibit 6, page 3, para 7.
Counsel for the appellant deals with his submission in paragraph 7 in paragraph 13 and makes a number of concessions although maintains that the decision had, impliedly some discretionary elements attached to it. He submitted:
“13.On its proper construction, this phrase ‘to the extent a different decision, consistent with the plan, could have been made’ in WA s.205(2)(a) is determined by whether or not the application of the relevant plan to the particular licence confers any discretion in the relevant decision maker. In the context of amendments to the original 4K licence arising from the original decision (using the number from paragraph [7] above):
(a)the decision maker had no discretion in respect of amendment 1;
(b)for amendment 2, the decision maker did not have a discretion by reason of the fact that:
(i)Barron
(b)to change the WRP s.45 is inconsistent with Barron ROP attachment 7.
(ii)Barron WRP s.45(2)(b)(ii), or in the alternative s.45(2)(c), apply to the original 4K licence; and
(iii)under both Barron WRP s.45(2)(b)&(c), the decision maker must decide a volume of water as the nominal entitlement;
(c)for amendment 3, the decision maker did have a discretion by reason of the fact that:
(i)Barron WRP s.45A is inconsistent with Barron ROP attachment 7; and
(ii)in the event that Barron WRP s.45(2)(b) applies to the original 4K licence, Barron WRP s.45A(b) means that the seasonal volumetric limit must be different from the nominal entitlement;
(d)the decision maker did have a discretion in respect of amendment 4 by reason of the fact that:
(i)Barron WRP s.45C is inconsistent with Barron ROP attachment 7;
(ii)the original 4K licence did not specify a volume of water that could be taken in a day;
(iii)waterworks licence G-55494, which is development permit associated with the original 4K licence, authorised the installation of a ‘75mm centrifugal pump …capable of pumping a maximum of 24 [Ls-1];
(iv)the pump size ‘75mm’ is not mentioned in schedule 8 column 3 of the Barron WRP;
(v)the daily volumetric limit for the original 4K licence falls to be determined by the decision maker ‘having regard to the daily volumetric limits stated for similar pump sizes in schedule 8, column 3’ under Barron WRP s.45C(1)(b)(ii);
(vi)given the daily volumetric limit for a 65mm pump size is 3.5 ML and for 800mm is 3.9 ML, that for the original 4K licence should be approximately 3.7 ML.”
I must confess to not understanding the extent to which the appellant contends that the conditions reflected in the licence as set in attachment 7 to the Barron Resource Operations Plan are inconsistent with s.45 of the Water Resource (Barron) Plan 2002.
The original water licence which appears as Exhibit RJS05 to the affidavit of Spiller identifies a maximum instantaneous extraction rate of 25 litres per second.
Schedule 7 of the Resource Operations Plan identifies that figure of a maximum rate of take of 25 litres a second and expresses that as a nominal entitlement of 58ML.
The mathematics are relatively straightforward. 2.5 litres per second converts into 90,000 litres an hour.
90,000 litres per hour produces a maximum figure of 2.16ML per day which is reflected in schedule 7 where it identifies the daily volumetric limit that may be taken under the licence as 2.16ML. To my mind there is nothing inconsistent about the mathematics reflected in either the original licence or the licence issued pursuant to the decision notice of 3 February 2012.
All that Schedule 7 to the Resource Operations Plan does is translate directly the figures contained within the earlier issued Water Licence. It might also be noted that as a matter of timing the Water Resource (Barron) Plan of 2002 preceded the Barron Resource Operations Plan of June 2005 (amended in October 2011).
Those two documents are of course both Subordinate Legislation.
As Counsel for the respondent has pointed out both of those documents require the approval of the Governor in Council.FFF[7]
[7] See ss 50 and 103 of the Water Act.
I am not prepared to find that there is any relevant inconsistency between the Resource Operations Plan and the Water Resource Plan relevant to this determination.
In any event, even if there were there is abundant authority discussed in Pearce and Geddes on Statutory Interpretation in AustraliaFFF[8]FFF to the effect that there may be an implied repeal of earlier legislation by later legislation.
[8] Statutory Interpretation in Australia DC Pearce and RS Geddes 6th Edition 2006 page 252-253.
I do not think it is necessary in the instant case to embark upon a detailed analysis of those propositions because, to my mind, there is no inconsistency relevantly apparent.
The Land Court is a Court of statutory jurisdiction and s.5 of the Land Court Act 2000 provides that it has the jurisdiction given to it under the Act. The Court, quite clearly, cannot assume jurisdiction to itself when no such jurisdiction is provided for in a relevant Act.
I can find nothing in the Water Act which confers jurisdiction on this Court to review or reconsider a decision notice issued pursuant to the Water Resource (Barron) Plan 2002 or the Barron Resource Operations Plan of June 2005 (amended October 2011).
Giving consideration to the matters set out above I am satisfied that the decision notice of 3 February 2012 is not an information notice as that term is used within the Water Act 2000 and it does not trigger any right of appeal. Any right the dissatisfied appellant has is to be addressed by reliance upon the Judicial Review Act 1991.
I am persuaded that the approach taken by Dr Sammon, Counsel for the respondent in his submissions which are repeated at paragraph 59 herein is correct and that Mr Stockman is not an "interested person" under s.851(1) of the Water Act and therefore had no entitlement to seek an internal review of the decision made on 3 February 2012 and consequently has no entitlement to appeal to this Court about that decision.
Accordingly I find that there is no right of appeal and this Court is without the jurisdiction to further consider the matter.
Addressing the preliminary points in paragraph 7 above, the preliminary issue is determined as follows -
a. The appellant is not an interested person within the meaning of ss.877 and 851 of the Water Act 2000; and
b. The Land Court has no jurisdiction to entertain this appeal pursuant to s.5 of the Land Court Act 2000.
HIS HONOUR, WL COCHRANE
MEMBER OF THE LAND COURT
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