SunWater v Warwick Shire Council
[2004] QLC 37
•20 May 2004
LAND COURT OF QUEENSLAND
CITATION: SunWater v Warwick Shire Council & Ors [2004] QLC 0037 PARTIES: SunWater
(appellant)v. Chief Executive, Warwick Shire Council
(first respondent)
AND
Chief Executive, Department of Natural Resources, Mines and Energy
(second respondent)FILE NO: A2003/0016 DIVISION: Land Court of Queensland PROCEEDING: Application to determine a preliminary point as to whether the Land Court has jurisdiction to hear and determine the appeal DELIVERED ON: 20 May 2004 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER Mr JJ Trickett, President ORDER: The Land Court has no jurisdiction to hear and determine the appeal. Therefore, the appeal is dismissed. CATCHWORDS: Practice and Procedure - Jurisdiction - validity of decision under appeal
Water Act 2000 - Transitional provisions - Interim water allocations - Appeal process
APPEARANCES: Mr A Watt for the appellant
Mr D Kevin (King & Co, Solicitors), for the first respondent
Mr J O'Rourke, Principal Legal Officer, Department of Natural Resources, Mines and Energy, for the second respondent
This is an application by the first respondent for the Court to determine a preliminary point as to whether it has jurisdiction to hear and determine the appeal.
Background
It seems that prior to the enactment of the Water Act 2000, water was supplied to the Warwick Shire Council by State Water Projects, a commercial business unit within the Department of Natural Resources. On 1 October 2000 State Water Projects was corporatised under the Government Owned Corporations Act 1993 to become SunWater. Supply arrangements that existed prior to that date have been continued by SunWater.
Under the provisions of the Water Act 2000, water managed by SunWater is allocated in the form of interim water allocations. In situations where water is supplied to a customer under an agreement, Order in Council or other arrangement, there is a need for the Chief Executive to decide whether the interim water allocation is to be granted to SunWater or directly to the customer.
The present matter arises following an appeal by SunWater against a review decision by the delegate of the Chief Executive reversing an earlier decision granting an interim water allocation to SunWater. Chapter 9 of the Water Act 2000 (the Act) contains transitional provisions for the allocation of water to local governments. The right to a water allocation depends upon whether a local government had the right to water prior to the commencement of the relevant provisions of the Act. The history of the entitlement of the Warwick Shire Council to water is explained in the following paragraphs.
On 1 September 1966, the then Warwick City Council entered into an agreement with the Commissioner of Irrigation and Water Supply for the supply of 2,600 acre/feet of water annually from the Leslie Dam, for a period of 40 years. That agreement was the subject of an Order in Council published in the Government Gazette dated 6 August 1966. The volume of water equated to 3,207 megalitres (metric) per annum.
It seems that in 1998, the Warwick Shire Council (the successor of the Warwick City Council), entered into an agreement with the Primary Industries Corporation (the successor to the Commissioner of Irrigation and Water Supply) to forego its rights to 500 megalitres of water on the condition that the water be used to supply Danpork Australia Pty Ltd, provided that the Council has first right of refusal, if the allocation of water to be supplied to Danpork is reduced. A deed of variation to that effect was signed on 23 November 2000, by the Council and SunWater (the successor to the Primary Industries Corporation).
The agreement dated 1 September 1966 and the deed of variation constitute "the authority" as defined in s.1109 of the Act. The authority therefore provides for the supply of 2,707 megalitres of water from Leslie Dam in accordance with the terms and conditions set out in the authority.
The relevant provisions of the Act commenced on 1 October 2000. Chapter 9, Part 4 of the Act is headed "Transitional provisions about State Water Projects and its customers", while Division 2 of Part 4 is headed "State Water Projects after corporatisation". Section 1111 deals with the granting of interim resource operations licences to the corporatised entity and relevantly provides:
"(1) Within 30 business days after this division commences, the chief executive must grant and give to the corporatised entity an interim resource operations licence … for each irrigation or project area … the corporatised entity operated both immediately before and immediately after the entity was corporatised.
(2) Each licence must state, for the licence -
(a) …
(b) …(c)details of existing customers of the corporatised entity who are to be granted interim water allocations other than those customers who hold interim water allocations taken to be granted under s.1114; and
(d)…
(e)…
(3) Within 30 business days after the granting of the interim resource operations licence, the chief executive must give the customers mentioned in sub-section (2)(c) and (d) information notice about the granting of the licence."
The Council is not a customer which holds interim water allocations taken to be granted under s.1114. The corporatised entity referred to in s.1111 is SunWater.
Under s.1112(1), on the day that the Chief Executive grants SunWater interim resource operations licences under s.1111, the Chief Executive must grant to SunWater an interim resource allocation in accordance with each interim resource operations licence SunWater is given under s.1111(1).
Under s.1113(1), on the day the Chief Executive grants SunWater interim resource operations licences, the Chief Executive must grant each customer of SunWater mentioned in s.1111(2)(c), an interim water allocation in accordance with the interim resource operations licence for the allocation. However, s.1113(2) provides that:
"Before the chief executive grants an interim water allocation under sub-section (1) the chief executive must consider … the following matters in relation to the customers existing authority -
(a)whether the authority stated that the customer was granted nominal allocation of the water;
(b)whether the authority was in existence when the relevant irrigation area or project was established;
(c)whether the supply of water under the authority had an end date;
(d)whether the customer has, over the term of the authority, paid the full commercial value for the supply of water under the authority;
(e)whether the customer has paid the full commercial value for all or part of the supply of the water under the authority and it is reasonable that a proportion of the authority should be granted to the customer as an interim water allocation."
The Warwick Shire Council was advised by an information notice dated 21 December 2000, that Mr CK Robson, General Manager, Water Planning, acting as delegate of the Chief Executive, had granted an interim resource operations licence to SunWater on 10 November 2000. The information notice explained that "interim water allocation" is defined under the Act as an authority to take water managed under an interim resource operations licence that represents a volumetric share of water and any conditions attaching to the authority.
The information notice then explained that Mr Robson had decided to grant an interim water allocation of 2,707 megalitres per annum of high-A priority water to SunWater under s.1112(1)(a) of the Act "after consideration of the principles in Section 1113(2) of the Act."
The giving of the information notice gave the Council the right to apply to have the decision reviewed provided that the application was made within 30 business days after the Council was given the information notice, or such extended time granted by the reviewer (s.863). On 2 December 2002, nearly two years after the date of the information notice, the Warwick Shire Council applied for an internal review of that decision (which is called "the original decision"). On 20 December 2002, SunWater made a submission under s.863(4) of the Act to the Chief Executive ("the reviewer") in response to the application by the Warwick Shire Council for a review of the decision. That submission contained the following paragraph:
"I note that Mr Graeme Milligan of your Department confirmed to Mr Ross Muir, Commercial Business Manager that you will accept submissions on the application for review up until 3 January 2003."
On 10 January 2003, Mr Milligan, then Acting General Manager, Water Management and Use, advised the Warwick Shire Council and SunWater, that he had decided to substitute another decision for the original decision. The review decision was that an interim water allocation of 2,707 megalitres of high-A priority water be granted to Warwick Shire Council.
It is from that decision that SunWater has appealed by way of an originating application filed in the Land Court Registry on 24 February 2003. The grounds of appeal by SunWater are to the effect that the reviewer erred in failing to find that the application for review was made outside the period of 30 business days as provided by s.863(1) of the Act and on various other grounds relating to the reviewer's consideration of the matters set out in s.1115(3), being the grounds upon which the Council could apply for a review of the original decision.
The procedure for lodging an appeal to the Land Court is provided for in Part 2 and Part 3 of Chapter 6 of the Act.
An Appeal to the Land Court
An appeal against an original decision must commence by way of an application for internal review (s.861). The application must be made within 30 business days after the person is given the information notice (s.863(1)), but the reviewer may extend the time for applying for an internal review (s.863(2)). If the reviewer is satisfied that the applicant has complied with s.862 and either s.863(1), or within the time extended under s.863(2), the reviewer must, within 20 business days after receiving the application, review the decision and make a decision (called the "review decision") to either -
(i)confirm the original decision; or
(ii)amend the original decision; or
(iii)substitute another decision for the original decision (s.864(2)).
Within 10 business days after the making of the review decision, the reviewer must give the applicant notice of the review decision (s.864(3)). However, if the reviewer does not comply with sub-sections (2) or (3), the reviewer is taken to have made a decision confirming the original decision (s.864(5)). If the review decision confirms the original decision, for the purpose of an appeal the original decision is taken to be the review decision (s.864(6)).
An appeal to the Land Court is started by filing a notice of appeal with the Court within 30 business days after the appellant receives notice of the decision or the decision is taken to have been made (s.878(2)). However, the Court may extend the period for filing the notice of appeal (s.878(3)).
The Preliminary Point
In the present case, Mr O'Rourke, for the Chief Executive, submits that the Land Court has no jurisdiction to hear and determine the appeal. The basis for that submission is that both the review decision and the decision extending the time for making an application for a review decision had been made by a person without the authority to do so. The Chief Executive has power to delegate his powers under the Act to an appropriately qualified officer (s.1012). However, while the original decision had been made by Mr Robson who had the appropriate delegation, the other decisions were made by a Mr Milligan who did not have the delegation to make them.
Mr O'Rourke tendered a copy of a letter from the Chief Executive to the Warwick Shire Council dated 9 February 2004. That letter stated that legal advice was to the effect that the reviewer lacked the relevant authority and that the review decision had not been made but that it remains open to an appropriately authorised officer to now exercise those powers.
The letter further stated that the Chief Executive had been advised that a specific application for extension of time to seek review is not required and that he understood that adequate grounds had been made out in previous correspondence. The letter continued:
"Presuming that the Land Court confirms this view, I therefore propose to direct that the matter be referred to the officer who purported (in good faith) to make the original review decision, so that they can make a fresh and lawful decision on its merits."
The Submissions of the Other Parties
On behalf of the Council, Mr Kevin submits that should the Court find that the reviewer's decision was not effective, the Court should exercise its power under s.882(1)(d) and send the matter back to the reviewer.
Mr Kevin's argument proceeds as follows:
· Notwithstanding that the review decision was void, there is still an application for review which has not been dealt with by the reviewer;
· The time within which an application could be made has been extended;
· Under s.862(1)(a) an interested person may apply for a review of the original decision to the Chief Executive who, in the absence of any proper delegation, is the reviewer and may extend the time for applying for an internal review under s.863(2);
· The Chief Executive's letter of 9 February 2004 confirms that the time had been extended and the Chief Executive proposes to refer the matter to a properly delegated reviewer;
· While there is no question that the original decision stands, the time for determining the application for review is still current;
· The Court has no jurisdiction to declare that the original decision must stand without regard to the still pending application for review;
· Therefore the appeal cannot stand and the appeal should be dismissed and the application for review referred back to the Chief Executive.
Mr Kevin concedes that such an order could be made if the Court took the wider view of the its powers under s.882(1)(d). The narrower view would be that the Court should simply dismiss the appeal and let the parties decide how to deal with the matter.
Mr Watt, on behalf of the appellant, submits that the defect in procedure for the review decision (the lack of delegation by the person purporting to be the reviewer) rendered the purported review decision to be of no effect. Consequently, he submits, the original decision of 10 November 2000 stands.
His argument proceeds as follows:
· An application for review of the original decision could have been made within 30 business days after the day the interested person is given the information notice;
· However, some two years later, the Council made an application for review of the original decision;
· Section 864(2) requires the reviewer to review the original decision within 20 business days after receiving the application and to make a review decision. Assuming that the application dated 2 December 2002 by the Council was received by the Chief Executive on 4 December 2002, the last day for making a decision under s.864(2) was 6 January 2003;
· However, the notice of the review decision and the review decision itself bear the date 10 January 2003;
· Therefore, by virtue of s.864(5), the original decision was confirmed on 6 January 2003 as s.864(2) had not been complied with and the review decision is taken to be made by virtue of the statute on 6 January 2003;
· Then four days later the reviewer purported to make a further review decision. There is no power for the Chief Executive to remake a review decision once it is taken to be made by statute;
· The application for an extension of time should have been considered at the time of the application for review, not beforehand;
· Neither of those decisions was made within time, so the original decision stands.
Therefore, Mr Watt's submission is that by virtue of the statute, the interim water allocation vests in SunWater. That occurred prior to the purported decision of the reviewer, so the Court must find that SunWater commenced the appeal on an incompetent basis. Mr Watt argues that it would be inappropriate to remit the matter back to the Chief Executive for further decision some three years later.
Mr O'Rourke for the Chief Executive, also rejects the suggestion that the Court should remit the matter to the Chief Executive to deal with the application for review of the original decision. He did not agree that the time for application for review had been extended, as he contends that the person who purported to grant the extension of time did not have the appropriate delegation. His submission is that the Court should find that it has no jurisdiction, but note the Chief Executive's proposal contained in the letter of 9 February 2004.
The Agreed Facts
Although each of the parties seeks somewhat different orders from the Court, there is essentially agreement about the factual chain of events:
· on 10 November 2000, the delegate of the Chief Executive, Mr Robson granted an interim resource operations licence to SunWater;
· on the same day, Mr Robson granted an interim water allocation of 2,707 megalitres to Warwick Shire Council (the original decision);
· on 21 December 2000, an information notice signed by Mr Robson was sent to the Warwick Shire Council advising that he had granted an interim water allocation of 2,707 megalitres to SunWater;
· on 2 December 2002, Warwick Shire Council made an application for an internal review of the original decision;
· on 20 December 2002, SunWater made a written submission on that application to the Chief Executive;
· on 10 January 2003, Mr Graeme Milligan acting as the reviewer, sent a review notice to Warwick Shire Council and to SunWater, advising that he had decided to substitute another decision for the original decision, ie that an interim water allocation of 2,707 megalitres be granted to Warwick Shire Council;
· on 14 January 2003, the review decision was received by SunWater;
· on 24 February 2003, an appeal by SunWater was filed in the Land Court Registry, against the review decision;
· on 10 December 2003, Mr O'Rourke, acting on behalf of the Chief Executive, advised the solicitors for Warwick Shire Council and SunWater that the departmental officer who made the review decision did not have the Chief Executive's delegation to do so and expressed the view that the review decision was void.
The Power to make an Internal Review Decision
The Chief Executive is given certain powers under the provisions of the Act, including the power under s.1113 to grant an interim water allocation and under s.864 to make a review decision following an application by an interested person. However, under s.1012 the Chief Executive may delegate his powers to an appropriately qualified public service officer or employee. Under an instrument entitled "Water Act Delegation (No 1) 2000" dated 19 September 2000, the Chief Executive delegated his powers under Chapter 9 of the Act, including the power to grant interim water allocations to four officers, including Mr Robson. Mr Robson exercised those delegated powers to grant the relevant interim water allocation to SunWater.
Following an application for internal review by Warwick Shire Council, Mr Milligan, who was not one of the four officers delegated, but who apparently thought he had the delegation, purported to exercise the powers of the reviewer and decided to substitute another decision for the original decision by granting the interim water allocation to Warwick Shire Council.
SunWater has appealed to the Land Court against that review decision on various grounds. It was only later that the Chief Executive became aware that Mr Milligan had no delegation to make the review decision.
The Status of the Appeal
Mr Watt has raised issues relating to the extension of time by the reviewer and the fact that the review decision was made some two years after the original decision. Mr Kevin submits that there is still a valid application for review that remains undetermined. Those issues depend on whether the Chief Executive is able to extend the time for making the review decision and to make such a decision so long after the original decision was made. They are not matters presently before the Court.
The only issue before the Court is whether there is a valid appeal against the purported review decision. There seems to be no dispute with the contention by the Chief Executive that Mr Milligan did not have the required delegation. Therefore, in my view, since the review decision was purportedly made by an officer who did not have the power to do so, there is, in effect, no decision at all. It is a nullity. There is therefore no decision against which SunWater could appeal.
Therefore, in my view, the jurisdiction of the Land Court has not been enlivened and the Land Court has no jurisdiction to hear and determine the appeal.
Order
The Land Court has no jurisdiction to hear and determine the appeal. Therefore, the appeal is dismissed.
JJ TRICKETT
PRESIDENT OF THE LAND COURT
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