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Beaudesert Shire Council v Smith [1966] HCA 49; (1966) 120 CLR 145 (26 August 1966)

CATCHWORDS

Water - Riparian owners - Common law rights - Statutory rights - Licensee for irrigation purposes - Damage resulting from taking by local authority without permit of gravel from river bed for road construction purposes - The Water Acts, 1926 to 1964 (Q.), ss. 4*, 11, 14 - The Main Roads Acts, 1920 to 1965 (Q.), s. 27** - The Gravel, Sand, and Material Regulations (Q.), regs. 5, 6, 7.

HEARING

DECISION

2. On 6th November 1944 a licence under The Water Acts of 1926 (Q.) (as amended) was issued by the Commissioner of Irrigation and Water Supply to Patrick Reilly Smith to install a pumping plant, with a three-inch diameter delivery outlet on the pump, on part of his farming and grazing property fronting the Albert River for the purpose of irrigating twenty acres of the property for growing lucerne and farm crops. This licence was, with amendments that are not material, renewed from time to time and was in force in 1957. Pursuant to the licence, Patrick Reilly Smith did install a pump in November 1944, and for the thirteen years between 1944 and 1957 pumped water for the irrigation of his property in accordance with his licence. The pump was installed where there was a natural and permanent pool in the river-bed, so that, independently of surface flow, water was at all times available for pumping. (at p149)

3. In 1957 the appellant Council took 12,000 yards of gravel for road construction out of the bed of the Albert River in the vicinity of Smith's farm and, in so doing, destroyed the natural waterhole from which he pumped water. The removal of the gravel altered the flow of the river so that, as the pump was situated, Smith could no longer use it to obtain the water which is licence permitted him to take. Unquestionably there would be some expense involved in restoring a supply of water by shifting the pump to another site and it seems that no alternative site was quite as advantageous as that which had been rendered useless by the appellant's acts. (at p149)

4. Smith brought an action against the Council, claiming 20,000 pounds damages, alleging that what had been done was wrongful and had caused him loss and damage. Hanger J. found for the plaintiffs who, upon Smith's death, had been made parties to the action and awarded them 5,000 pounds damages. (at p149)

5. The first question to be decided is whether the appellant Council was authorized to take gravel from the river, as it did. Counsel for the appellant sought to justify the taking upon one of two grounds. In the first place, it was said that the taking was authorized by a permit granted by the Commissioner of Irrigation and Water Supply to the Commissioner of Main Roads which did authorize the taking by the Commissioner of the gravel taken by the Council, because the Council was acting on behalf of the Commissioner in doing what it did. The permit in question was granted pursuant to The Gravel, Sand, and Material Regulations (Q.) made under The Water Acts, which forbid the taking of gravel except with a permit and provide for the issue of permits authorizing a holder to take, inter alia, specified quantities of gravel from a specified locality upon a watercourse. Regulations 5, 6 and 7 are as follows:-

"5. A permit shall authorize the holder thereof during the period
therein set forth to do the acts upon the lands and/or at the
location therein specified but not otherwise or elsewhere : Provided
that the Commissioner in his discretion from time to time may vary,
alter, and amend any permit in such manner as he may deem fit.
6. Every permit shall be and shall be deemed to be held by and
shall operate for the benefit of the person to whom ABC such permit
is issued, and shall not be capable of being transferred or
assigned. Any holder of a permit transferring or assigning or
attempting to transfer or assign a permit shall be deemed to have
committed a breach of these Regulations.
7. No person shall take any material under or in pursuance of any
permit issued by the Commissioner under these Regulations, except
the holder of such permit or a person who is the holder of a
certificate of authority in writing in the form or to the like
effect of Form B of the First Schedule hereto issued by the holder
of such a permit." (at p150)

6. Unfortunately for the Council, it did not obtain any certificate of authority under reg. 7 from the holder of the permit - that is, the Commissioner of Main Roads - and so the permit granted to the Commissioner did not afford the Council authority to do what it did. (at p150)

7. In the second place, reliance was placed upon s. 27 of The Main Roads Acts (Q.), but there is nothing in that section affording the Council - notwithstanding that it was the road-constructing authority for the Commissioner - any authority to take the gravel which it did. (at p150)

8. The next question is whether the Council's unauthorized act gave rise to any cause of action for any damage suffered by Smith by reason thereof. In considering this question, it is necessary in the first place to ascertain the rights conferred upon a licensee by a licence under The Water Acts. The relevant provisions of the Acts are ss. 11 and 14 which, so far as material, are in these terms :-

"11. Any owner or occupier of land whereon any work is constructed
or used or is proposed to be constructed or used for the purpose of
water conservation, irrigation, water supply, or drainage, or of the
prevention of flooding of land by water, or of changing the course
of a watercourse, shall make application in writing to the
Commissioner for a license to construct and use the said work, and
to take, use, and dispose of (either for his own use or for the use
of occupiers of lands in the neighbourhood of the site or proposed
site of the work) the water contained therein or conserved or
obtained thereby."
"14. Subject to this Act, the person holding a license in respect
of any work shall have, during his lawful occupation of the work but
so far only as the said work is constructed or maintained on the
land occupied by him, the quiet enjoyment and the sole and exclusive
use of the work as against all other persons whomsoever, and shall
be entitled to take, use, and dispose of the water contained therein
or obtained or conserved thereby, subject, however, to the proviso
next hereinafter contained : . . . ." (at p150)

9. From s. 14 it appears that Smith, upon the installation of his pump in accordance with his licence, became entitled to "the quiet enjoyment and the sole and exclusive use" of the pump and also became entitled to "take, use, and dispose of the water . . . obtained . . . thereby". As we read it, however, there is nothing in the licence which entitled Smith to have the pool from which he pumped preserved or to have the flow of the river maintained to his pump. We do not think the right to quiet enjoyment and exclusive use extended beyond the licensee's pump to the river, which, it will be seen, was, to all intents and purposes, the property of the licensor. (at p151)

10. Counsel for the respondents contended, however, that as riparian owner Smith was, at common law, entitled to the flow of water as it was when the pump was installed. It seems to us that the scheme of The Water Acts denies this. What the Acts do is vest the bed and the banks and the right to the flow of a watercourse in the Commissioner of Irrigation and Water Supply subject to certain restrictions : see The Water Acts, ss. 4, 6 and 7. Of these restrictions, the only one that we think is material for present purposes subjects the right of the Crown, through the Commissioner, "to the rights of the holders of licenses granted under this Act" (The Water Acts, s. 4 (2) (c)). Apart from the special rights conferred by a licence, the only riparian rights of an owner or an occupier of land abutting on the bank of a watercourse are those referred to in ss. 7 and 9 of The Water Acts. Neither of these sections confers such a right as the respondents here assert. We conclude, therefore, that neither as riparian owner nor as licensee did Smith have a right to the preservation of the pool from which he pumped or to a flow of water to the pump as it had been installed. (at p151)

11. The plaintiff did not make a case in negligence and although upon appeal some reference was made to negligence, in the event of its being found that the appellant did have authority to remove the gravel, we have reached the conclusion that a judgment in favour of the respondents cannot be maintained upon appeal on the footing that the damages were awarded for loss caused by negligence. Such a case was not fought at the trial. (at p151)

12. Moreover, we would regard it as an unwarranted extension of the law to uphold the judgment under appeal on the simple ground that the respondents were entitled to damages occasioned by a breach of a statutory duty, viz. the duty not to take gravel without the requisite authority. The statutory regulations to which we have referred were not intended to confer a private remedy at the suit of a person who has suffered damage by reason of some breach. (at p152)

13. We have also considered whether the facts, as proved, disclose an actionable nuisance. Patrick Reilly Smith was the owner and occupier of land, and it was from adjoining land that the appellant removed the gravel, thus causing him damage. The appellant was not, however, the occupier of the adjoining land ; the damage suffered by Smith was simply inability to water his land from a river belonging, in effect, to the Crown ; and the removal of gravel from a river cannot be regarded as a public nuisance such as is constituted by interference with a public right of way or by the pollution of waters. Smith, so far as it appears, was the only one adversely affected by the unlawful removal of the gravel. There was, therefore, no public nuisance and the facts do not bring the case within the category of private nuisance. So far as nuisance is concerned, the respondents appear to us to be in a much less favourable position than the unsuccessful respondent in Esso Petroleum Co. Ltd. v. Southport Corporation (1956) AC 218 There the jettisoning of the oil did pollute the sea, and the foreshore at Southport was damaged by the oil which was brought on to it by the sea. (at p152)

14. It appears to us, therefore, that if what the appellant did was actionable at the suit of Smith and his personal representatives for damage suffered thereby, liability must depend upon the broad principle that the Council intentionally did some positive act forbidden by law which inevitably caused damage to Smith by preventing the continuing exercise of his rights as a licensee in the manner in which they had been enjoyed for some thirteen years. Such a cause of action must, we think, be found either in, or by analogy with, an action on the case for trespass. (at p152)

15. In our consideration of whether the respondents' action can be supported as an action on the case independently of trespass, nuisance or negligence, we are indebted to A. K. Kiralfy, the author of an historical study of The Action On The Case. We do not propose to take up the author's historical research ; rather we will refer to a number of the authorities he has collected relating to actions of trespass on the case and add one or two further references. These authorities are, in the main, cases where breach of duty owed to persons directly affected by wrongful acts caused damage to other persons. Thus, to quote from The Earl of Shrewsbury's Case [1572] EngR 435; (1610) 9 Co Rep 46b, at p 50b (77 ER 798, at p 806) :

"The Abbott of Evesham brought an action on the case against
certain persons, and declared that he had a fair in S. with all that
belonged to a fair, and that the defendant with force and arms
disturbed the people coming to the fair (which was causa causans) by
which the plaintiff lost his toll (which was causa causata) the
point of the action, and the action held maintainable."

"So, if persons coming to market are disturbed, by which I lose my
toll, an action on the case lies. 11 H.4, 47.b. Roll. Abr. 106.
Vent. 26, 28."

16. There were too, it appears, a number of instances of actions by persons injured by the failure on the part of persons responsible for the maintenance of sea walls and dykes: see Kiralfy, The Action On The Case, at p. 11, and cases cited such as Y.B. 18 Edw. III, T. pl. 6, f. 23, and Keighley's Case [1572] EngR 219; (1609) 10 Co Rep 139a (77 ER 1136) (at p153)

17. In the middle of the nineteenth century, English courts considered a case which is, we think, germane: Whaley v. Laing [1857] EngR 630; (1857) 2 H & N 476 (157 ER 196) As stated by Bramwell B., the facts were

". . . that the plaintiff, by permission of a canal company, made
a communication from the canal to his own premises, by which water
got to those premises, and with which water he fed his boilers; that
the defendant fouled the water in the canal, whereby the water as it
came into the plaintiff's premises was fouled, and by the use of it
the plaintiff's boilers were injured; the defendant having no right
or permission to do this from the canal owners" (1857) 2 H & N, at
p. 485 (157 E.R., at p. 200).

"Our opinion proceeds . . . on the ground that the defendant caused
foul water to flow on to the plaintiff's premises without right to
do so" (1a).

"I am of opinion that the judgment of the Court below ought to be
affirmed, on the ground that the plaintiffs were in possession of
the water and the defendant was a wrong doer" (1858) 3 H & N, at
p. 679 (157 E.R., at p. 641).

"It is further contended that no right of action is shewn in the
declaration, and that the judgment ought to be arrested. But I
think it sufficiently appears that the plaintiffs were in the lawful
enjoyment of a beneficial flow of clear water from the branch canal,
and that the defendant wrongfully polluted the stream, and thereby
damaged the plaintiffs, which appears to me a sufficient statement
of a good cause of action. I think therefore the judgment ought to
be affirmed" (1858) 3 H & N, at p 680 (157 ER, at p 641)

"Where a man has the permission of the owner of a pond to get
water from it for his cattle, and a defendant, knowing of such
permission and knowing the probable and natural effect and
consequence of his act, poisons the water of such pond so as that
the cattle are injured, probably an action would lie. Such an action
is founded, not on the title or right to the water, but on the
injury to the property of the plaintiff" (1858) 3 H & N, at p 681
(157 E.R., at p. 642).

18. Two other old cases, Carrington v. Taylor [1809] EngR 469; (1809) 11 East 571 (103 ER 1126) and Keeble v. Hickeringill [1809] EngR 7; (1706) 11 East 574n (103 ER 1127); see also Holt 14, 17 [1738] EngR 470; (90 ER 906, 907) , may be referred to, not so much for the actual decisions, which do not depend upon the principle under discussion, as for what Holt C.J. said in Keeble v. Hickeringill. In Carrington v. Taylor it was held that an action lay by the owner of an ancient decoy for wild fowl against one who, without firing into the decoy, was guilty of a wilful disturbance of, and damage to, it by firing near it. Keeble v. Hickeringill, which was there referred to, was an earlier case of the same character and in that case Holt C.J. said:

". . . where a violent or malicious act is done to a man's
occupation, profession, or way of getting a livelihood; there an
action lies in all cases. But if a man doth him damage by using the
same employment; as if Mr. Hickeringill had set up another decoy on
his own ground near the plaintiff's and that had spoiled the custom
of the plaintiff, no action would lie, because he had as much
liberty to make and use a decoy as the plaintiff. This is like the
case of 11 H.4, 47. One schoolmaster sets up a new school to the
damage of an antient school, and thereby the scholars are allured
from the old school to come to his new. (The action was held there
not to lie.) But suppose Mr. Hickeringill should lie in the way with
his guns, and fright the boys from going to school, and their
parents would not let them go thither; sure that schoolmaster might
have an action for the loss of his scholars. 29 E. 3, 18. A man hath
a market, to which he hath toll for horses sold: a man is bringing
his horse to market to sell: a stranger hinders and obstructs him
from going thither to market: an action lies, because it imports
damage. Action upon the case lies against one that shall be threats
fright away his tenants at will" (1706) 11 East, at p 576 (103
E.R., at p. 1128).

19. There is, therefore, a solid body of authority which protects one persons's lawful activities from the deliberate, unlawful and positive acts of another. It is not, however, possible to adopt a principle wide enough to afford protection in all circumstances of loss to one person flowing from a breach of the law by another, for regard must be had to the limitations which the law has placed upon the right of a person injured by reason of another's breach of a statutory duty to recover damages for his injury. Bearing this in mind, it appears that the authorities cited do justify a proposition that, independently of trespass, negligence or nuisance but by an action for damages upon the case, a person who suffers harm or loss as the inevitable consequence of the unlawful, intentional and positive acts of another is entitled to recover damages from that other. It may be that a wider proposition could be justified, but the proposition we have stated covers this case and leads us to the conclusion that the appellant is liable to the respondents for loss occasioned by its unlawful trespass in removing gravel from the river-bed. (at p156)

20. The appellant, however, also appealed against the learned trial judge's assessment of damages and, upon this point, it is, we think, entitled to succeed. (at p156)

21. P. R. Smith was entitled, under his licence, to irrigate twenty acres of his land which, as irrigated land, was upon the evidence worth about 20 pounds an acre more than it would have been worth without irrigation. There was sketchy evidence that Smith had suffered some loss from the failure, due to the lack of water, of some crops or grass for meadow hay, and a milk quota had also been lost. There was also varying evidence that water could be restored to the respondents' land at a cost of 62 pounds, 165 pounds, 300 pounds, 500 pounds-600 pounds and 3,670 pounds. This last figure must, of course, be disregarded, for to pay 3,670 pounds to bring water to twenty acres of land worth about 80 pounds an acre would be extravagantly uneconomical. Upon the whole of this evidence, we are satisfied that the assessment of 5,000 pounds, at which the learned trial judge arrived, was excessive and that an award of 1,000 pounds damages would amply cover the loss sustained. (at p156)

22. In the result, therefore, we would allow the appeal but only as to the quantum of damages, which we think should be reduced from 5,000 pounds to 1,000 pounds. In the circumstances, we would make no order for the costs of the appeal, leaving each side, having succeeded and failed in part, to bear its or their own costs. (at p156)

ORDER