Timm v The Commissioner of Water Resources

[1989] QLC 9

[1989] QLC 9

 

  LAND COURT,

BRISBANE

11th August, 1989

Re:       E.J. Timm and J.B. Timm
  v.
                 The Commissioner of Water Resources

Water Act - Section 12

A85-41/42.

D E C I S I O N

(Hearing at Rockhampton)

The appellants, Eric Joseph Timm and Judith Beth Timm, are the owners of Portions 211 and 40, County of Raglan, Parish of Prairie.
     On 15th April, 1985, they, as objectors, lodged in the Court appeals (2) against decisions of the Commissioner of Water Resources to grant Waterworks Licenses -

41373 to N.F. and E.A. Manwaring for water harvesting and irrigation purposes; and

41374 to G.A. Bucholz for irrigation purposes

both from Washpool Gully.
     The licenses were issued on 14th March, 1985, to expire respectively on 31st July, 1987 and 28th February, 1988.
     The appeals were called on for hearing at Rockhampton on 19th August, 1985, and following a day's hearing were adjourned, by consent, on the following terms and conditions -

"1.The Water Resources Commission will install meters on the pumps permitted with the licenses issued to G.A. Bucholz and N.F. and E.A. Manwaring, being license numbers 41374 and 41373, respectively, to measure the amount of water used by those licensees.

2.The Water Resources Commission will install a meter or take such steps as may be necessary to measure the water intake associated with the ring tank utilised by E.J. and J.B. Timm.

3.The Water Resources Commission will take readings approximately every month of the meters referred to and at approximately three monthly intervals furnish written reports for E.J. and J.B. Timm and such other parties as they see fit.

4.Notwithstanding that the adjournment referred to above shall be for a period of 12 months from the date of installation of the last meter or such longer period as the parties may agree on, the Water Resources Commission or E.J. & J.B. Timm may bring this matter back before the Court on the giving of three weeks notice to the other side by application to the Land Court.  "

In October, 1986, the solicitors for the appellants advised the Registrar that the meters (the meters referred to in the terms and conditions of the adjournment) were installed on the relevant pumps by about January, 1986, and that at the request of the appellants the respondent had agreed to a further adjournment of the matter to around mid-1987.  In September, 1988, application was made for a further twelve (12) months deferment of the hearing of the appeals.  This application was also agreed to by the respondent.  In March, 1989, the solicitors for the appellants asked the Registrar to bring the matters on for hearing as soon as possible.  The matters were called on for hearing on 17th May, 1989, and, on being called, the Court queried whether it had jurisdiction to hear and determine the appeals in view of the fact that the licenses had expired.  The matter was adjourned to enable Counsel to make submissions on the point.  The Court received the benefit of these submissions on 27th July, 1989. 
The licenses issued to Manwaring and Bucholz were issued by the respondent following due process and inquiry under s. 12 of the Act. Sub-s. 4 of the section provides, inter alia, that -

"Upon the completion of inquiry made, the Commissioner may, subject to this section, grant or refuse the application and, if he grants it, cause to be issued to the applicant a license in ......   "

Sub-s. (4A) provides that if the applicant or an objector is dissatisfied with the decision of the Commissioner, that person may appeal therefrom to the Court; that the Court shall hear and determine the matter and may confirm, vary or revoke the decision of the Commissioner.  Sub-s. (4B) sets out the procedure for instituting an appeal.  Sub-s. (4D) provides that the Commissioner shall give effect to the decision of the Court.
     The appellants were objectors to the granting of the applications.  There is no dispute that they had the right to object, the right to appeal the decision and that the appeals were instituted in accordance with the procedures laid down in sub-s. (4B).  The Court was seized of jurisdiction to hear and determine the appeals and they were brought on for hearing at the first available sittings following their lodgment.
     The terms and conditions of the adjournment talk about the installation of meters.  Counsel for the appellants submits that it was anticipated that the gathering of the information would take some time, that the process was interrupted by an extended dry period, that there was no rush from either side and that it was mutually agreed that the matter could go on until sufficient information or the appropriate information was obtained.  It is his submission that the adjournments should not be seen or read as depriving the appellants of their rights and that the principles of natural justice, and this being a court of equity and good conscience (Land Act s. 41 (5)), require the appeals to be dealt with on their merits.  Inherent in his submission is recognition that if the licenses ceased to exist on expiry a decision of the Court would constitute nothing more than a piece of paper of no force and effect.  Counsel for the respondent put it on the basis that the position was akin to a defendant dying.
     Now, in order to pursue the submissions, it is necessary to begin at the beginning.  Under the section every application for a license shall be in the prescribed form and whenever the works for which a license is applied for affects or is deemed to affect the interests of persons other than the applicant, certain material or information as the Commissioner deems to be necessary must be furnished by the applicant before the application is dealt with (sub-s. 1).  Notice of the application is required to be published in the Gazette and in a newspaper circulating generally in the neighbourhood of the land and the Commissioner shall appoint a time within which objections may be received (sub-s. 2).  An owner of land "situated as prescribed" may object to the granting of the application and if he does so object he shall submit to the Commissioner the grounds of his objection (sub-s. 3).  In relation to the application and any objections thereto, the Commissioner or a person appointed in writing by him for the purpose shall, inter alia, inquire into

"(i)the availability and sufficiency of water to satisfy the requirements of riparian owners, existing licensees and the applicant;

(ii)the effect that the granting of the application is likely to have on entitlements of riparian owners and licensees under existing licenses;..."  (sub-s. 4)

Upon completion of the inquiry he may "grant or refuse the application and, if he grants it, cause to be issued to the applicant a license...". 
     The subject licenses were granted for periods expiring on the dates mentioned.  Counsel are of the opinion that the licenses were valid from the moment of their issue.  I agree.  The words of the Act last quoted appear to be mandatory; that is, to contain a direction that the Commissioner, having decided to grant the application, shall issue the applicant with a license.  There is no provision in the Act putting the licenses on hold until an appeal is determined. 
     Under sub-s. (6) of the section, licenses may be renewed by the Commissioner on application of the person holding the license on or before the date of expiration of the license and the Commissioner, upon receiving an application to renew a license, may notify the applicant that -

"(a)the application is granted; or  

(b)the application is granted subject to the license being varied by -

(i)the amendment of any one or more of the terms or     conditions; or

(ii)the revocation of any one or more of the terms or    conditions; or

(iii)the addition of one or more terms or conditions; or

(iv)reducing the amount of water that the holder of the license was validly entitled to use pursuant to the license at the date of the application; or

(v)reducing the area of the land in respect of which the license was issued or, (where that area has since such issue been duly amended pursuant to this Act) in respect of the area as last amended; or

(vi)a combination of two or more of the foregoing     methods of variation; or

(c)    the application is refused.   "

The sub-section goes on to provide that if the applicant for the renewal of a license is dissatisfied with the decision of the Commissioner, he may appeal to the Court.  There are no provisions in the Act permitting the lodgment of an objection against renewal nor is there provision enabling an appeal to carry over to the renewed license if renewed.  For the objector - the person in the shoes of the appellants - the objection is a one shot affair.  The consequences of inactivity are obvious.  Counsel for the appellants stresses that the provisions I have outlined in the Act are there to safeguard the interests of persons who, for the purposes of inquiry into an application, are affected or deemed to be affected by the application and so, in giving effect to the spirit and intent of the Act, the Court should not lightly put the appeals aside.  He relies upon the wording of sub-s. 6 in supporting the submission that a renewal constitutes an extension of a license and that if there is an appeal lying over a license at the date of renewal the renewed license is subject to the appeal - the appeal taking the form of a caveat as it were. 
     In the subject cases the licenses were renewed - Bucholz as from 28th February, 1988, and Manwaring as from 31st July, 1987.  Counsel for the Commissioner informed the Court that the license of Bucholz was renewed without change.  The license of Manwaring changed in property description and the area of land to which the licensee could supply water physically changed.  It is his submission that the original licenses terminated with renewal and that the rights of the appellants terminated with them.  I come then to the question which is vital to the submission of Counsel for the appellants.  He refers to the meaning of the word "renew" as contained in the Shorter O.E.D. - to make new or as new again; to restore, re-establish, set up again, bring back into use or existence; to take up again or afresh; to resume, to begin again.  It is his submission that if the word is given its literal meaning, "renewal" is merely the granting of an extension of an existing license and that in the circumstances of the subject cases, the licenses, when renewed, were renewed subject to the appeals lying over them.  The question whether the Court should entertain an appeal in respect of the license which has expired has been argued previously but the circumstances are not the same.  In R.L. and E.A. Wein v. The Commissioner of Irrigation and Water Supply (1976) 3 Q.L.C.R. 387, the appellants were the licensees. The matter was adjourned by consent, sine die. When the matter was brought on for hearing at the instigation of the transferees of the appellants, the license had long since expired. At the hearing it emerged that although the license had expired no application for a renewal had been made within the time prescribed by law and that, although the Commissioner in good faith had purported to renew the license, such license was void. The Court found that it had no jurisdiction to entertain an appeal in respect of a license which had expired - unprosecuted appeal rights terminate with the license. Counsel for the appellants distinguishes this case on grounds that the license in the true sense of the word had expired; that the renewal purported to have been issued by the Commissioner was void, and that consequently there was nothing upon which the Court could adjudicate and that it was correct in making the finding that it did.
     In the subject cases, the applications for renewal were duly made and the licenses were renewed.  In interpreting the sub-section, reliance is placed on the definition of the word "renew" and the wording of the first part of par "b" where the words "the application is granted subject to the license being varied by ......." are used.
     In Australian Temperance & General Mutual Life Assurance Society Ltd. v. Howe (1922) 31 C.L.R. 290, at p. 294, Knox C.J. and Gavan Duffy J. in their joint judgment said:-

"The rule is that words used by the legislature should be given their plain and natural meaning unless it is manifest from the general scope and intention of the statute that injustice and absurdity would result from so construing them (per Jervis C.J. in Mattison v. Hart (1854) 14 C.B. 357 at p. 385). By plain and natural meaning is meant the literal and popular as opposed to a figurative or technical meaning. "

The authority is complemented by another authority of eminence which requires that an Act be given such meaning as will carry out its objects - The Duke of Buccleuch (1889) 15 P.D. 86.
     In perusing the sub-section, it is clear to me that a licensee does not possess an option of renewal in the sense that the license may roll over (be renewed) simply on the doing of something on his part, e.g. on the payment of a further year's rent before the expiry of the license; in which event it would appear that a literal as opposed to a figurative or technical meaning of the word would have much force and effect.  Under this Act the licensee has the right to apply for a renewal and having done that the section goes on to outline what the Commissioner may do with the application.  This part of the Act connotes an investigation and some deliberation of the matter by the Commissioner.  What goes out may or may not be the same as what came in or nothing may go out at all - he may refuse the application.  On his part a decision is involved.  His decision is appealable but only by the licensee.  Whilst all this is going on, the Act provides that if the application for renewal of a license has been duly made "that license shall remain in force until the Commissioner has notified the applicant of his decision on the application and any appeal duly instituted against the decision has been finally determined".  It is in this area where Counsel for the respondent finds support in his submission that the licenses, the subject of these appeals, ceased to exist when the decision on renewal was made and that any rights in respect of an earlier decision lapse.  In my opinion he is correct.  It appears to me that the object of the Act is to give an objector the right to object and to appeal the decision to grant the license.  He is given the right to test the validity of the decision in whole or in part.  Under usual principles, if he fails to exercise that right within a reasonable time he is bound by the decision.  The Act would appear to give him, at most, the period of the licenses in which to pursue his rights.  There is nothing in sub-section 6 restraining the Commissioner from dealing with an application for renewal until unprosecuted appeal rights have been prosecuted.  If he decides to renew a license, the substance of his decision may or may not be in the form of the earlier decision but if it is I think this is coincidental.  I have accordingly concluded that a decision of the Commissioner to renew a license is an action separate and distinct from a decision to grant the license and that if the word "renew" were to be given the meaning suggested, being one of several meanings, the object of finality would be defeated.  On the facts of the subject case, the appellants had a lengthy period in which to pursue their rights.  They sought to prolong the adjournment and whilst the Commissioner may have acceded thereto, he did not have the carriage of the actions.  In the circumstances, I fail to see how the principles of natural justice can be invoked. 

I am therefore of the opinion that the appeals should be struck out.
     The appeals are struck out.

Member of the Land Court