Watts v Ellis - [2006] QDC 56

DISTRICT COURT OF QUEENSLAND

CITATION:	Watts – v – Ellis [2006] QDC 056
PARTIES:	WATTS, Shane Andrew Appellant Against ELLIS, Robert Edward Respondent
FILE NO:	6/2005
PROCEEDINGS:	Appeal from Magistrates court.
DELIVERED ON:	7 March 2006
DELIVERED AT:	Bowen
HEARING DATE:	3 March 2006
JUDGE:	C.F Wall Q.C
ORDERS:	Appeal dismissed with costs.
CATCHWORDS:	APPEAL – STATUTE – convictions for offences under s814 Water Act 2000 - wh the Water Act 2000 applies to land which is the subject of a Grazing Homestead Freeholding Lease - wh the conditions of the Grazing Homestead Freeholding lease prevent Queensland Parliament from legislating to restrict and regulate excavation in a watercourse and destruction of vegetation in a watercourse Legislation referred to: Water Act 2000, s. 266, 748, 814 Land Act 1962, s.125 Cases referred to: Bone v. Mothershaw [2002] QCA 120 (FAA) Burns v. State of Queensland, Planning and Environment Court Cairns, 2 August2004, Judge White (CON) Burns v. State of Queensland [2004] QSC 434 (CON) Dore v. Penny, District Court Cairns, 17 September 2004, Bradely DCJ (CON) Wilson v. Raddatz, District Court Maryborough, 24 August 2005, Brabazon QC DCJ (CON) Glasgow v. Hall, District Court Rockhampton, 2 March 2006, Nase DCJ (CON)
COUNSEL:	Mr D Walter (Agent) for the Appellant Mr D Grealy for the Respondent
SOLICITORS:	Crown Solicitor for the Respondent

HIS HONOUR: The appellant has appealed against his

convictions in the Magistrates Court at Bowen on 27 October

2005 of two offences against section 814 of the Water Act

2000.

The offences are:

1. That between the 1st of May 2004 and the 18th of June
   2004 at Lot 25, Registered Plan DK276 at Collinsville in
   the State of Queensland, Shane Andrew Watts not being a
holder of a permit under section 269 of the Water Act
   2000 did excavate in a watercourse, namely Teatree Creek.

2. That between the 1st of May 2004 and the 18th of June
   2004 at Lot 25, Registered Plan DK276 at Collinsville in
   the State of Queensland, Shane Andrew Watts not being a
holder of a permit under section 269 of the Water Act
   2000 did destroy vegetation in a watercourse, namely
   Teatree Creek.

The appellant was fined $2,000 and ordered to pay costs.

The excavation and destruction occurred in the course of

constructing a pipeline to bring water to a paddock for

drought affected cattle.

The appellant's argument on the appeal commences with the

proposition that the Parliament of Queensland has no power to

regulate some activities carried out on the land which is

owned by his parents and managed by him, including prohibiting

without a permit excavation in a watercourse and destruction

of vegetation in a watercourse. It will be simpler if I refer

to the land as the appellant's land.

The watercourse the subject of the charges that the

appellant was convicted of - Teatree Creek - is on his land.

The appellant's argument is that the Water Act 2000, in

particular sections 266, 748 and 814…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Watts v Ellis

Details

AGLC: Watts v Ellis [2006] QDC 56
Case: [2006] QDC 56
Decision Date: 7 March 2006

CaseChat Overview and Summary

Watts v Ellis is an appeal brought before the court regarding convictions for offences under section 814 of the Water Act 2000. The primary dispute centres on whether the Water Act 2000 applies to land that is subject to a Grazing Homestead Freeholding Lease and whether the conditions of the lease prevent the Queensland Parliament from legislating to restrict and regulate excavation in a watercourse and the destruction of vegetation in a watercourse. The appeal was dismissed by the court with costs.

The court was tasked with determining the scope of the Water Act 2000 and its applicability to the leased land in question. A critical issue was whether the provisions of the Act could be overridden by the terms of the Grazing Homestead Freeholding Lease. Another issue was whether the Queensland Parliament had the legislative authority to enact regulations concerning the excavation and vegetation destruction within a watercourse on leased land.

The court found that the Water Act 2000 did apply to the land in question despite it being subject to a Grazing Homestead Freeholding Lease. The court reasoned that the Act's provisions were designed to protect water resources and public interest, which outweighed any potential conflicts with the lease terms. Furthermore, the court held that the Queensland Parliament had the requisite authority to legislate in matters concerning watercourses, regardless of the lease conditions. As a result, the appeal was dismissed, and the convictions under the Water Act 2000 were upheld. The court also ordered that the costs of the appeal be paid by the appellant.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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