Braelee Pastoral v Minister for Water Resources No ERD-00-1135 [2000] SAERDC 91 (4 December 2000)

Last Updated: 19 December 2000

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of His Honour Judge Bowering

Hearing

30/11/2000.

Catchwords

Water Resources Act, 1990 - Water Resources Act 1997 - application for additional application under 1997 Act - correspondence advising licencee that licence under 1990 Act renewed under 1997 Act - whether amounts to determination of application - no determination made of application - no refusal against which an appeal may lie - application returned to Minister for determination.

Representation

Appellant: BRAELEE PASTORAL
Counsel: MR F BELL - Solicitors: FINLAYSONS

Respondent: MINISTER FOR WATER RESOURCES
Counsel: MR J LEVINSON - Solicitors: CROWN SOLICITOR'S OFFICE

ERD-00-1135

Judgment No. [2000] SAERDC 91

4 December 2000

BRAELEE PASTORAL

v

MINISTER FOR WATER RESOURCES

ERDC No.1135 of 2000

[2000] SAERDC 91

JUDGEMENT OF HIS HONOUR JUDGE BOWERING

1 This is an appeal, or a purported appeal, against a decision, or a purported decision, of the Minister for Water Resources whereby the Minister refused an application by a partnership trading under the name "Braelee Pastoral" for a licence pursuant to Section 29 of the Water Resources Act 1997, authorizing the taking of 96.6 hectare irrigation equivalents - hereafter referred to as "HIE" - from a well situated on land which the partnership owns in Section 309, Hundred of Mingbool. The appeal comes before this Court pursuant to Section 142 of the Water Resources Act 1997.

2 Upon the appeal coming on for hearing, Mr Bell appeared for Braelee Pastoral and Mr Levinson for the Minister.

3 Braelee Pastoral conducts a dairy on several sections lying within the Hundred of Mingbool, one of which is Section 309. It has conducted the dairy for some years, over which time the number of cattle in its dairy herd has increased. Its requirements for irrigated pasture have increased pro rata. For the purpose of raising its cattle it has irrigated part of its land. To enable this to occur, it held a licence issued pursuant to Section 35 of the now repealed Water Resources Act 1990, which licence was issued on 28^th November, 1996, and expired, or was due to expire, on 30^th June, 1999. That licence related to Section 309 and contained a water allocation of 68.6 HIE. Counsel advised me that it replaced an earlier licence.

4 On 2^nd July, 1997, the Water Resources Act 1990 was repealed and replaced by the Water Resources Act 1997. Subparagraph 2 (3) of the transitional provisions found in Schedule 3 of the 1997 Act provides that:-

"2 (3) A water recovery licence or a well drillers licence under the Water Resources Act 1990 that was in force immediately before the commencement of this Act will be taken to have been granted under this Act."

5 Also relevant is Regulation 25 of the Water Resources Regulations 1997, the terms of which are:-

"25 A water recovery licence granted under the Water Resources Act 1990 (the 'repealed Act' ) that is taken to have been granted under the Water Resources Act 1997 by virtue of Clause 2 (3) of Schedule 3 of that Act expires when the licence would have expired if the repealed Act had not been repealed."

6 Thus, upon the Water Resources Act 1997 coming into force, the licence held by Braelee Pastoral under the previous Act was deemed to have been held by it under the 1997 Act but subject to an expiration date of 30^th June, 1999.

7 For reasons not disclosed but which I accept to relate to administrative convenience, the Minister wrote to licence holders prior to the expiration of licenses granted to them under the old Act inviting them to apply for substitute licenses under the 1997 Act. Braelee Pastoral received such a letter. Precisely when that letter was sent is not disclosed, although I accept that it was sometime prior to 17^th October, 1997. Similarly, the contents of the letter are unknown. Mr Levinson conceded that the letter contains some anomalies and, when declining my invitation to produce it, advised me that he did not rely upon it in any way. Thus, although I note that the Minister sent a letter to Braelee Pastoral inviting it to apply for a licence under the 1997 Act as constituting a step in the circumstances of this case, I have not taken it into account other than to note it as part of the explanation given by Mr Levinson for the course taken by the Minister. The next step in the events was an application by Braelee Pastoral for an issue of a water licence pursuant to Section 29 of the 1997 Act. The application sought an allocation of 96.6 HIE to be used on Section 309. It is dated 17^th October, 1997. Nothing further occurred until 3^rd April, 1998, upon which day Braelee Pastoral received a further communication from the Minister. The letter is addressed to "The Licence Holder" and to "Dear Sir/Madam". It is clearly a "proforma" letter of the type which would have been sent to many licence holders. The letter, by its terms, are personally non-specific. The letter commences with the words:-

"Please find enclosed your water licence issued under the Water Resources Act 1997, (the 'Act') which replaces your licence under the previous Water Resources Act 1990."

8 The letter then proceeds to outline some of the significant differences between the 1990 and the 1997 legislation. Enclosed, with the letter, was a water licence, which licence, like the one which it replaced, was numbered 9055, contained an allocation of 68.6 HIE and related to Section 309.

9 Nothing further occurred until 28^th August, 2000, upon which day Mr Philip Kuhl, a partner in Braelee Pastoral, wrote to the Manager, Water Resources South East, namely one Mr Schmidt. In the letter, Mr Kuhl queried the allocation of 68.6 HIE in the licence of 2^nd April, 1998, which licence, he said, had only recently come to his attention. The terms of Mr Schmidt's response to this letter are not before me. The copy documents indicate that Mr Kuhl sought the advice of his solicitors, Finlaysons. The next document on the record is a facsimile transmission dated 13^th October, 2000, from Mr Schmidt to Finlaysons, which refers to a letter dated 27^th September, 2000, from Finlaysons to Mr Schmidt. The facsimile contained the following:-

"You refer to an application made by Braelee Pastoral on 17 October 1997, seeking an allocation of 28 haIE in addition to the 68.6 haIE allocation which had been endorsed on their licence issued under the Water Resources Act 1990. You state that Braelee Pastoral has not been notified of the decision regarding this application. Our records indicate, however, that your clients were advised of the determination in correspondence dated 3 April 1998, which also enclosed the licence issued under the Water Resources Act 1997. Please note that this current advice does not constitute a notification of a determination."

10 Further correspondence passed between Mr Schmidt and Finlaysons. The next relevant one is dated 24^th October, 2000, from Mr Bell, of Finlaysons, to Mr Schmidt, wherein, of the letter dated 3 April, Mr Bell said:-

"I refer to your facsimile dated 13 October 2000, in which you indicated this correspondence amounted to advice of the Department's determination. With respect, this standard letter does not make any comment about the specific application our client made for the 28 hectare allocation. On that basis we take the view that this correspondence does not amount to notification of the decision relating to that component. .....

Accordingly, we believe a decision has not yet been made and we formally ask the Department to refuse the application so that an appeal can be instituted. If we do not receive a response within 7 days, we will institute an appeal in any event."

11 The appeal thus foreshadowed was instituted by notice of appeal dated and filed in this Court on 6^th November, 2000.

12 The right of appeal which Braelee Pastoral purports to exercise lies in subsection 142 (1) of the 1997 Act which provides:-

"(a) An applicant for the grant of a water licence, a well driller's licence or a permit may appeal to the Court against a refusal to grant the licence or permit or the imposition of conditions in relation to the licence or permit."

13 Thus the first question raised is whether, in the circumstances of this case, there is any "refusal to grant the licence" against which Braelee Pastoral can appeal. This resolves itself into the question of whether the letter dated 3^rd April, 1998, from the Minister to Braelee Pastoral, together with the water licence which accompanied it, constituted a determination of Braelee Pastoral's application of 17^th October, 1997. Stated briefly, Mr Bell submitted that there is no evidence that the Minister (including his appropriate delegate) has ever turned his mind to the additional water allocation applied for in the application of October, 1997, and that, in so far as the licence given to Braelee Pastoral related only to its then existing allocation, the October application has never been dealt with. In support of this submission, he has produced, from the Minister's file relating to the Braelee Pastoral licence, an interoffice memorandum dated 13^th September, 2000, bearing an indecipherable signature, which appears to indicate that the application for the increased allocation "was not acted upon". Although the terms of this memorandum (at least on one reading) tend to support Mr Bell's submission, I prefer to base my decision upon the correspondence between the parties rather than upon a memorandum lying within the depths of the departmental file. Mr Bell further submitted that, if I construe the letter of 3^rd April, 1998 (including the accompanying licence), as constituting a determination of the application, I should regard the Minister's decision as not having been communicated to Braelee Pastoral and thus extend the six week appeal period found in subsection 142 (4) of the 1997 Act sufficiently to include the appeal currently before the Court.

14 For the Minister, Mr Levinson submitted that the situation is quite straight forward, namely that in October, 1997, Braelee Pastoral applied for a water licence and that on 3^rd April, 1998, it received a response to that application, which response included a licence for 68.6 HIE. Further, that if Braelee Pastoral was dissatisfied with the decision, it had right of appeal to this Court - to which right the letter specifically referred - which right it chose not to exercise. The six week appeal period expired well over two years ago, and any leave to extend the time in which to appeal should not now be granted.

15 Having considered the matter, I have come to the conclusion that the Minister's submission cannot stand. The simple, inescapable fact is that Braelee Pastoral Company held a licence under the 1990 Act, which licence was numbered 9055, contained a water allocation of 68.6 HIE and related to Section 309. On 3^rd April, 1998, Braelee Pastoral received a letter enclosing a "water licence issued under the Water Resources Act 1997, (the 'Act') which replaces your licence under the previous Water Resources Act 1990", with which letter was enclosed a licence also numbered 9055, containing a water allocation of 68.6 HIE and applying to Section 309. It seems to me that the only reasonable construction which can be placed on that letter is that the licence forwarded with it constituted a replacement of the licence previously held under the 1990 Act. In my view, the letter clearly states that such is the case. I can see no reasonable basis for construing either the terms of the letter or the licence accompanying it as a response to the application made by Braelee Pastoral in the proceeding October. That application sought a licence different in a material respect to the one then held pursuant to the 1990 Act and subsequently held pursuant to the 1997 Act. The letter of 3^rd April did not refer in any way to that application, but solely to the replacement of the licence held under the 1990 Act with one held under the 1997 Act.

16 Hence I conclude that there is no evidence upon which I can reasonably conclude that the Minister has made a decision with respect to the application of October, 1997, against which Braelee Pastoral has any right of appeal. Thus this appeal is not properly before the Court. Logic demands that I strike it out. However, in view of the injunction imposed upon the Court by subsection 21 (1)(c) of the Environment, Resources and Development Court Act which requires the Court to "act according to equity, good conscience and the substantial merits of the case and without regard to legal technicalities and forms", I think the appropriate course is that I exercise the power conferred upon the Court by subsection 142 (7)(a) and remit the application to the Minister for further consideration.

17 The order of the Court is that the application for the grant of a water licence pursuant to Section 29 of the Water Resources Act 1997 made by Braelee Pastoral on the 17^th October, 1997, be referred to the Minister for Water Resources for further consideration.