Watts v Ellis
[2006] QDC 56
•7 March 2006
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: Cases referred to: |
| COUNSEL: | Mr D Walter (Agent) for the Appellant |
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 has no application to his
land. The reasons for this are said to be the nature of the
conditions attached to the Grazing Homestead Freeholding Lease
under which the land is held. The appellant refers to the
lease and these conditions as "the contract" between his
parents, the lessees, and the Queensland Government.
The relevant conditions which the lease is subject to are:
1. The payment of the purchasing price;
2. The reservations specified;
3. The covenants specified; and
4. Such other reservations and conditions as may be
contained in and declared by laws of the State.
The specified reservations are:
1. All minerals and petroleum on and below the surface of
the land;
2. The right of access for the purpose of searching for and
working any mines in any part of the land; and
3. All rights of access related to searching for and
obtaining petroleum in any part of the land.
The only specified covenant is that upon compliance with
section 125 of the Land Act 1962 the lessee is entitled to a
grant in fee simple of the land.
The appellant argues that because the "contract" does not
refer to the Water Act 2000, that Act cannot apply to his land
and the Queensland Parliament has no power to provide that it
does. It was submitted that the State of Queensland lacks the
legal power to prevent the appellant excavating and destroying
vegetation in Teatree Creek because the creek is on his land.
The "contract", it is submitted, does not contain any
reservation rights over watercourses.
For similar reasons, the appellant argued that government
officers had no power under section 748 of the Water Act 2000
to enter his land. The land, it was submitted, is no longer
Crown land because of the "contract" and the legislative
provisions relied upon in argument.
For that reason also it was submitted that the Magistrate had
no jurisdiction to hear the charges. Any attempt by the
Queensland Parliament to extend the provisions of the Water
Act to his land amounts, it is submitted, to a breach of the
"contract" which his parents have with the Crown.
In support of his argument the appellant relied on certain
parts of various Queensland and Commonwealth statutes and
related speeches and agreements which are referred to in
detail in the outline of argument prepared by Mr Walter, the
appellant's agent who appeared for him on the appeal. I need
not repeat the details here. I have considered all of these
provisions.
Mr Walter frankly conceded that arguments of this nature were
rejected by the Court of Appeal in Bone v. Mothershaw [2002]
QCA 120 and that if I considered that decision to have
application to the present case, I would have no option but to
follow the reasoning in that decision and dismiss the appeal.
In my view the circumstances here are not so different that
the reasoning in Bone v. Mothershaw should not be followed.
Arguments of the nature advanced by the appellant here were
also rejected in the following unreported decisions:
- Burns v. State of Queensland, Planning and Environment
Court Cairns, 2nd August 2004, Judge White;
- Burns v. State of Queensland [2004] QSC 434;
- Dore v. Penny, District Court Cairns, 17 September 2004
Bradley DCJ;
- Wilson v. Raddatz, District Court Maryborough 24th of
August 2005, Brabazon QC DCJ; and
- Glasgow v. Hall, District Court Rockhampton, 2nd of March
2006, Nase DCJ.
I agree with those decisions and they, like Bone v.
Mothershaw, compel me to also reject the arguments advanced by
the appellant here.
In my view the Parliament of Queensland does have power to
legislate to restrict and regulate excavation in a watercourse
and the destruction of vegetation in a watercourse, including
Teatree Creek, and the provisions of the Grazing Homestead
Freeholding Lease over the appellant's land (the "contract")
do not prevent the Parliament from doing that.
The appellant also contended that section 266 of the Water Act
2000 did not in fact require the appellant to obtain a permit
to excavate in a watercourse and to destroy vegetation in a
watercourse. So far as is relevant section 266 provides:
"266 Applying for permit to destroy vegetation,
excavate or place fill in a watercourse, lake or
spring -
(1) A person may apply to the chief executive for a
permit to do any or all of the following
activities-
(a) destroy vegetation in a watercourse, lake
or spring;
(b) excavate in a watercourse, lake or
spring;
(c) place fill in a watercourse, lake or
spring.
(2) Subsection (2A) applies if the applicant is
neither of the following in relation to land
that wholly contains the watercourse, lake or
spring or the part of the watercourse, lake or
spring where the activity is to take place-
(a) the registered owner of the land;
(b) the holder of a mineral development
licence or a mining lease under the
Mineral Resources Act 1989 for the land.
(2A) The application must include the written
consent of the registered owners of land-
(a) wholly containing the length of the
watercourse in which the activity is to
take place or the part of the lake or
spring where the activity is to take
place; or
(b) adjoining the watercourse, lake or spring
where the activity is to take place."
Mr Walter argued that these provisions mean that the
registered owner of the land (the appellant's parents on whose
behalf he said he was acting) may excavate and destroy the
vegetation without a permit. With respect the provisions
do not have that effect. They do not mean that the
appellant's parents could do so without a permit.
What they mean is had the appellant applied for a permit, his
parents would have to have consented to the application.
There is no substance in the argument of Mr Walter.
In all of the circumstances the appellant has not demonstrated
that the decision of the Magistrate to convict was wrong.
Accordingly, the appeal will be dismissed with costs fixed at
$1,800.
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