Vanbrogue Pty Ltd v Chief Executive, Department of Environment and Resource Management
[2011] QLC 54
•29 August 2011
LAND COURT OF QUEENSLAND
CITATION: Vanbrogue Pty Ltd v Chief Executive, Department of Environment and Resource Management [2011] QLC 54 PARTIES: Vanbrogue Pty Ltd
(Appellant)v. Chief Executive, Department of Environment and Resource Management
(Respondent)FILE NO: WAA124-11 PROCEEDING: Application for determination of preliminary point DELIVERED AT: Brisbane DELIVERED ON:
29 August 2011
HEARD AT: Brisbane MEMBER: His Honour, Mr PA Smith ORDERS:
1. The relief sought by the Respondent is refused.
2. The matter is listed for Further Review and Directions at 11:30am on Tuesday, 20 September 2011 in Court 22, Level 5, 363 George Street, Brisbane.
CATCHWORDS: Preliminary Point – Water Act 2000, s.26 – Effect of Moratorium Notice – Application to Interfere with the Flow of Water by Impoundment – Definition of “stock purposes” in Schedule 4 to the Water Act 2000 APPEARANCES: Mr C Hughes, SC and Mr M Williamson of Counsel for the appellant, instructed by South & Geldard Solicitors for the appellant.
Mr N Loos of Counsel, instructed by Legal Services, Department of Environment and Resource Management, for the respondent.
I have before me an application brought by the respondent seeking the following orders: -
1.“A declaration that, while the Moratorium Notice has effect, it precludes the Court from setting aside the review decision and substituting a decision to grant the licence applied for by the Appellants.
2.Upon the Moratorium Notice no longer having effect, each party has liberty to apply for further directions by making a written request to the Court that the Appeal is listed for directions and by giving at least 3 working days notice to the other party.”
The respondent’s application is resisted by the appellant.
The facts giving rise to this application are essentially uncontested. On 5 February 2010 Vanbrogue Pty Ltd (the appellant) lodged an application with the Chief Executive, Department of Environment and Resource Management (the respondent) under the Water Act 2000 seeking a licence to interfere with the course of flow by impounding water for land described as Lot 2 on Registered Plan 602629, located at Alexandra Street, Rockhampton. The appellant’s proposal involved the construction of a four m. high by 400 m. long embankment on the land to impound water.
The application, by letter dated 23 November 2010, was refused by the respondent’s delegate. Subsequently, on 14 December 2010, the Minister for Natural Resources, Mines and Energy and Minister for Trade published a Moratorium Notice for the Fitzroy Basin pursuant to s.26 of Water Act 2000.
On 4 January 2011 the appellant made an application to the respondent pursuant to the provisions of the Water Act 2000 for an internal review of the delegate’s decision. By letter dated 7 January 2011, the respondent notified the appellant that an internal review of the original decision was prohibited by clause 5(a) of the Moratorium Notice for the Fitzroy Basin.
Although the respondent has at no time issued a decision with respect to the application for internal review, in light of s.864(5) of the Water Act 2000, the absence of such decision, given that the relevant period for a decision on review has expired, is treated as a deemed refusal of the internal review sought.
On 29 March 2011 the appellant filed a Notice of Appeal in this Court against the respondent’s decision.
In light of s.880(2) of the Water Act 2000, an appeal is by way of rehearing, unaffected by the reviewer’s decision.
It is accepted by both parties that the Moratorium Notice applies to the Fitzroy Basin, and that the land subject of the application falls within the Fitzroy Basin.
It is the primary contention of the respondent that the decision of this Court in Burtenshaw & Ors -v- Chief Executive, Department of Environment and Resource Management[1] is correct and should be applied by the Court in the case at hand.
[1] [2011] QLC 0010
Burtenshaw was concerned with appeals under s.887 of the Water Act 2000 against the Chief Executive, in circumstances where the Minister published a Moratorium Notice. An application was brought to the Court to consider the impact of the Moratorium Notice on the Court proceedings. In considering the matter, His Honour Mr Cochrane made the following observations[2]: -
“[43]Accordingly, I have become persuaded that the view expressed by Member FY Kingham (as Her Honour then was) in Sinclair & Anor v Chief Executive, Department of Natural Resources and Mines² is both persuasive and correct. The right to an appeal is, in my opinion, protected by s.20 of the Acts Interpretation Act but that section does not protect the right of the appellants to have the appeals “dealt with” until such time as the moratorium notice is revoked or lifted.(see the authorities referred to in paragraph [18] of Her Honour’s decision)
{44]The reference to the dicta of Fitzgerald P in the Kentlee case referred to by Her Honour (see para 18 of the judgement) makes it clear, in my opinion, that the effect of the subordinate legislation constituted by the moratorium notice is to remove from the appellants (ie each of Burtenshaw and Radlof) the entitlement, presently, to have the appeal heard and determined.
[45]Again, consistent with the findings of Her Honour in the Sinclair matter I endorse the view that while the moratorium notice has affect this Court does not have any power pursuant to s882(1)(e) of the Water Act to review the decision and to otherwise complete the hearing of the appeal.
[46]Accordingly, the appropriate course to take is to adjourn the proceedings in each of the Burtenshaw and Radlof appeals until such time as the moratorium notice no longer has effect”.
[2006] QLC 0006
[2] At paragraphs 43-46
The appellant has not contended that the decision of this Court in Burtenshaw was wrongly decided. Rather, the appellant contends that, on a proper construction of the Moratorium Notice of 14 December 2010, the Moratorium Notice does not apply to the application made by the appellant and accordingly there is no reason why the appeal should not be determined on its merits. Cleary, in the circumstances, a close examination of the Moratorium Notice is required. Relevantly, the Moratorium Notice provides as follows[3]: -
[3] See Exhibit 4
“Department of Environment and Resource Management
Moratorium Notice
Fitzroy Basin
Water Act 2000 (Qld) Section 26
1. This is a Moratorium Notice (the Notice) under section 26 of the Water Act 2000 (Qld) (the Act) for the Fitzroy Basin (the Area) as shown in the indicative map below…
2. The Notice has effect on and from 14 December 2010.
3. …
4. This Notice applies to:
(a) the following water within the Area:
i.…
ii.water in a watercourse, lake or spring.
(b) …
(c) …
(d) all applications for or about a water licence to interfere with the flow of water in a watercourse, lake or spring by impoundment if granting the licence would have the effect of increasing or changing the interference with the water;
(e) …
5. Applications stated in clause 4 of this notice received:
(a) before the day the Notice has effect, will not be dealt with;
(b) on or after the day the Notice has effect, will not be accepted.
6. Clause 5 of the Notice does not apply:
(a) …
(b) …
(c) if the application relates to interfering with water mentioned in clause 4(a)(ii) by impoundment and is an application:
i.) for interfering with water for stock purposes or domestic purposes;”
It is accepted by both parties that the application in question relates to water in a watercourse, lake or spring in accordance with clause 4(a)(ii) of the Moratorium Notice. It is also accepted by both parties that the appeal relates to a water license to interfere with the flow of water in a watercourse, lake or spring by impoundment as contemplated by clause 4(d) of the Moratorium Notice.
The dispute between the parties arises as to whether or not clause 6(c)(i) applies in this appeal. In short, can the application proceed because it falls within one of the exceptions, namely applications relating to interfering with water by impoundment for stock purposes.
The parties are in factual dispute as to whether or not the application can properly be construed as one made “for interfering with water for stock purposes”.
During oral submissions, Mr Loos for the respondent contended that the application should properly be considered as an application “for irrigation purposes” and not for “stock purposes”. In Mr Loos submission, the original application made by the appellant made only “fleeting references” to stock purposes.
Further, Mr Loos contended that reference should be had to the definition of stock purposes as set out in Schedule 4 of the Water Act 2000 as follows: -
‘“stock purposes, in relation to taking water, means –
(a) watering stock of a number that would normally be depastured on
the land on which the water is, or is to be, used; or
(b) watering travelling stock on a stock route.”’
Mr Loos concedes that the definition relates to the taking of water rather than interfering with water (by way of an impoundment). However, even with this limitation, Mr Loos contends that the definition “gives an indication of the meaning of ‘stock purposes’”[4]. It is not controversial that the appellant is seeking the license so as to increase the carrying capacity of the subject land ten fold. Mr Loos submits that as that far exceeds the normal number of stock that would be depastured on the land, the appellant is unable to avail itself of the exemption provided by clause 6(c)(i) of the Moratorium Notice.
[4] See respondent’s submissions paragraph 23
Mr Hughes, SC for the appellant contends that the application should properly be construed as one made for “stock purposes” and that the definition of “stock purposes” in the Water Act 2000 should be limited to only applying with respect to the taking of water. In his written submissions, Mr Hughes set out an appropriate summary of the key aspects of the application made by the appellant as follows[5]: -
“(a) Part E of the completed Water Act form identified the reason for the proposed impoundment as: “proposal to create an extension dam by constructing of embankment in accordance with plan” and “See attached plan 0180607 – 01P Rev E” (emphasis added);
(b) Part G of the completed Water Act form which makes provision for an applicant to include some “comments” about the application. This aspect of the form was completed with the following statement: “to create water storage for rural uses”;
(c) a proposed plan was included with the application (i.e. the “attached plan”) which was titled “Proposed Access Road and Stock Water Facility for Vanbrogue Pty Ltd Stage 2” (emphasis added);
(d) the proposed plan included in the application identified a number of relevant aspects of the proposal going to the issue of interfering with water for stock purposes, namely;
the note “Stock Dam No.3”
the Notes to the plan described a proposed dam as a “Stock Dam”; and
a hatched area on the plan indicated that part of the land was described as “Proposed Irrigated Pasture.”
[5] At paragraph 23
Although the issue is not without some doubt, I am inclined to agree with Mr Hughes’ submission that the application can properly be categorised as one made for “stock purposes”. My hesitation in this regard relates to the use of the words “proposed irrigated pasture” on the plan[6] which formed part of the application. However, I note that the words “proposed irrigated pasture” are in relatively small print to indicate an area on the subject land and that the title, for want of better words, of the plan is set out in large font and clearly indicates the words “stock water facility”.
[6] Exhibit 6
I now turn to the question as to the applicability of the definition of stock purposes as contained in Schedule 4 of the Water Act 2000. Mr Hughes, SC strongly contends that stock purposes, as defined, relates only to the taking of water and, as the exemption relied upon in the Moratorium Notice relates to interfering with water by impoundment and not the taking of water, the definition is of no relevance. In support of his contention, Mr Hughes relies upon two Planning and Environment Court decisions which both related to the meaning of “minor change” in the (repealed) Integrated Planning Act 1997. As Newton DCJ said in Zarb v Brisbane City Council[7], there is no definition of “minor change” for the purposes of s.4.1.52 of the Act. The dictionary contained in Schedule 10 to the Act does include a definition of “minor change” but that definition is confined to a development approval and does not extend to a development application[8]. His Honour then went on to state as follows[9]: -
“[6] Although the circumstances of a case may favour the adoption of a comparable view of the concept of “minor change” for both development approvals and applications, it is not permissible, in my opinion, to assume that the legislature intended such an approach to be adopted in every case. Had the legislature intended to apply the definition of “minor change” in Schedule 10 when interpreting s.1.4.52 of the Act, it would have been a simple matter to clearly express such intention. The legislature has seen fit not to do so and there is no warrant, in my view, for importing the statutory definition to a development application as a matter of course.”
[7] [2005] QPELR 475
[8] Ibid 5
[9] Ibid 6
As Mr Hughes, SC points out, the decision in Zarb is consistent with the decision of McLauchlan QC DCJ in Papas & Anor v Brisbane City Council[10]. In that case, His Honour made the following observations[11]: -
“[5] The legislation contains no definition of a “minor change” for the purposes of s.4.1.52. There is a definition of “minor change” in the dictionary contained in Schedule 10 to the Act but that definition is expressly confined in its application to a development approval and appears to relate to the provisions of s.3.5.24 of the Act. It may be that some analogy can be drawn between a development approval and a development application which would make it appropriate to consider the statutory definition for the purposes of s.4.1.52. However the definition pointedly is confined to an approval and has no apparent relevance to an application. I consider that for the purposes of s.4.1.52 the expression “minor change” needs to be construed without reference to the statutory definition.”
[10] [2003] QPELR 446
[11] Ibid 5
I agree with Mr Hughes’ submissions. The rationale applied in Zarb and Papas is clearly also applicable for the case at hand. It follows that the definition of “stock purposes” in Schedule 4 to the Water Act 2000 is limited to the taking of water and thus does not apply to the exemption set out in clause 6(c)(i) of the Moratorium Notice relating to the impoundment of water.
Before closing, it is necessary to make one final observation. In finding that the application can be characterised as an application to interfere with water for “stock purposes”, it does not necessarily follow that, should the application be approved, the appellant can avail itself of section 20(3) of the Water Act 2000 to take water from the impoundment for all of the “stock purposes” referred to in the appellant’s material, in particular, irrigating improved pasture for stock and drought-proofing. Although it is not necessary to consider the issue at this stage, it may be relevant to the merits of the present application.
In the circumstances, the relief sought by the respondent on a preliminary basis is refused. The matter will be returned to the Court for further review and directions on Tuesday, 20 September 2011, at which time the parties are required to present to the Court their proposals for relevant orders to prepare the matter for the merits hearing.
Orders
1. The relief sought by the Respondent is refused.
2. The matter is listed for Further Review and Directions at 11:30am on Tuesday, 20 September 2011 in Court 22, Level 5, 363 George Street, Brisbane.
HIS HONOUR, PA SMITH
MEMBER OF THE LAND COURT
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