Williams v Chief Executive, Department of Environment and Resource Management

LAND COURT OF QUEENSLAND

CITATION: Williams v Chief Executive, Department of Environment and Resource Management [2012] QLC 0024

PARTIES:Richard Fred and Mary Olive Williams
(appellants)

v.

Chief Executive, Department of Environment and Resource Management
(respondent)

FILE NO:WAA022-07
PROCEEDING:  Appeals under the Water Act 2000
DELIVERED ON:         14 June 2012 [Ex tempore]
DELIVERED AT:                   Brisbane
MEMBER:Mr PA Smith
ORDERS:1. The need for a special condition to the water licence consistent with paragraph 86 of my reasons for decision of 5 April 2012 is dispensed with.
2.The matter be listed for further hearing in the event that the appellants and the respondents do not resolve all outstanding issues between them, for 10 am on 21 September 2012, in Brisbane.
3.Costs of today are reserved.

CATCHWORDS: WATER LICENCE ― need for special condition ― not now feasible ― requirement dispensed with
APPEARANCES: Mr PD Sheridan, Counsel for the appellants
Mr S Fyness-Clinton, Counsel for the respondent

SOLICITORS: P & E Law for the appellants
Crown Law for the respondent

Background

On 5 April 2012, I gave my decision with respect to the appeal by Mr and Mrs Williams against the then Chief Executive, Department of Environment and Resource Management.[1] The matter related to an application for a water licence. As part of the orders that were made on 5 April 2012, the parties were to seek to reach agreement as to special conditions to be included in the water licence.
[1] Gallo and Williams v Chief Executive, Department of Environment and Resource Management [2012] QLC 0015.
What has transpired is that there is now some dispute as between the parties as to what conditions should be included in the water licence. One aspect of that dispute can be dealt with immediately.
The special condition that was anticipated by the orders of the Court on 5 April 2012 are those as set out in paragraph 86 of the reasons for decision of the same date. I have now been informed that it is the position of both parties that it is not technically feasible to appropriately monitor and/or measure the water licence in the way originally anticipated by the expert report of Mr Smith.
As the proposed special condition in paragraph 86 was being put in place following the precautionary principle and for the benefit of the respondent, and, as the respondent now considers that special condition not technically feasible, and as the appellants are content not to have the special condition, in my view it would be fruitless to proceed with a special condition of the nature of that proposed by paragraph 86 of the original reasons.
Accordingly, I dispense with the need for a special condition to the water licence consistent with paragraph 86 of my reasons for decision of 5 April 2012.
The appellants seek a further special condition which has been set out in paragraph 7 of Mr Fynes-Clinton's written submissions[2] in the following terms:
“… 1.6 Whilst the nominal allocation under this licence is for 515 megalitres any restrictions on the nominal allocation shall be calculated as follows:
750 megalitres x (percentage reduction required by the State in the Area B) = Y megalitres.
There will only be a reduction applied to the nominal allocation of 515 megalitres in the event that Y mega-litres is less than 515 megalitres. In those circumstances the nominal allocation will be Y megalitres.
[2] Submissions of the respondent - conditions, 14 June 2012, paragraph 7.
This condition will apply until such time as all of the remaining allocations in Management Area B are recalculated according to law.”
Mr Fynes-Clinton, for the respondent, strongly opposes the making of a special condition in the form as set out in 1.6. He has raised issues of jurisdiction as well as whether or not it falls within the ambit of the orders of 5 April 2012.
These submissions were only handed to the Court today by Mr Fynes-Clinton, and Mr Sheridan, who could not be physically present in Court today,[3] has not had an opportunity to fully consider those submissions. This is not meant in any way as a criticism to any party, but is simply stating the facts of life.
[3] He appeared by telephone.
Mr Sheridan has requested time to properly consider the appellants' position regarding the special condition 1.6, and also regarding the general conditions that are proposed to be included in the water licence.
Accordingly, it appears to me the easiest way to proceed is to allow a period of time for the parties to further negotiate the outstanding issues as to conditions of the water licence for the appellants. And, in the event that agreement between the appellants and the respondent cannot be reached, to bring the matter back on before the Court for resolution.
The parties have proposed that, due to my lengthy absence from the Court, the matter be brought back on in September 2012. Accordingly, I order that the matter be listed for further hearing in the event that the appellants and the respondents do not resolve all outstanding issues between them, for 10 am on 21 September 2012, in Brisbane.
I will leave it to the parties to organise, as between themselves, a sensible timeline for the exchange of any factual material and written submissions in the lead-up to that hearing. I am being very generous in that regard, but I appreciate that much will depend upon what happens as between the parties and their negotiations. And I would also order that the costs of today be reserved.

Orders

1.    The need for a special condition to the water licence consistent with paragraph 86 of my reasons for decision of 5 April 2012 is dispensed with.
2.    The matter be listed for further hearing in the event that the appellants and the respondents do not resolve all outstanding issues between them, for 10 am on 21 September 2012, in Brisbane.
3.    Costs of today are reserved.

P A SMITH
MEMBER OF THE LAND COURT

In the Land Court of Queensland, the case of Williams v Chief Executive, Department of Environment and Resource Management was heard and decided by Mr PA Smith. The parties involved were Richard Fred and Mary Olive Williams, who were appealing against the Chief Executive, Department of Environment and Resource Management. The primary dispute related to an application for a water licence, specifically the special conditions that should be included within the licence. The case revolved around the feasibility of implementing certain monitoring and measurement conditions for the water licence as originally proposed.

The court was tasked with determining the appropriateness of a special condition outlined in paragraph 86 of the earlier decision made on April 5, 2012. Both parties agreed that the proposed condition was not technically feasible, leading the court to conclude that it would be pointless to enforce such a condition. The court also considered a further special condition proposed by the appellants, which the respondent strongly opposed. Given the respondent's objections and the need for the appellants' counsel to review the submissions, the court decided to allow time for the parties to negotiate and resolve the outstanding issues.

The court dispensed with the need for the special condition mentioned in paragraph 86 and ordered that the matter be listed for further hearing on September 21, 2012, if the parties could not resolve their issues. The costs of the current hearing were reserved. This decision allowed the parties an opportunity to negotiate and potentially reach an agreement on the terms of the water licence, thereby avoiding the need for further court intervention unless absolutely necessary.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established