Telford v Minister for Water Resourcesnam No ERD-01-1080 [2002] SAERDC 4 (16 January 2002)

Last Updated: 24 June 2002

Court

ENVIRONMENT RESOURCES AND DEVELOPMENT COURT

Judgment of His Honour Judge Bowering

Hearing

10/01/2002.

Catchwords and Materials Considered

ENERGY AND RESOURCES --- WATER RESOURCES

Water Resources Act - Sections 29, 30, 35 and 142 - application for increased water allocation - whether right of appeal against refusal - declaration that appellants have a right of appeal.

• Water Resources Act 1997 ;
• Environment, Resources & Development Court Act 1993 ;
• Walkley v Dairy Vale Co-operative Ltd (1972) 39 SAIR 327 ;
• Russell v State Planning Commission (1984) 115 LSJS 305 at 312 ;
• Tree Gully (1985) 42 SASR 584 at 589 , referred to.

Representation

Appellant: RICHARD LEIGH & HEATHER GAYE TELFORD
Counsel: MR R ROSS-SMITH - Solicitors: W.S. DEGARIS & CO

Respondent: MINISTER FOR WATER RESOURCES
Counsel: MS M SCHUTZ - Solicitors: CROWN SOLICITOR'S OFFICE

ERD-01-1080

Judgment No. [2002] SAERDC 4

16 January 2002

RICHARD LEIGH & HEATHER GAYE TELFORD

V

MINISTER FOR WATER RESOURCES

(ERD-01-1080)

[2001] SAERDC 4

JUDGEMENT OF HIS HONOUR JUDGE BOWERING:

1. Mr Richard Telford and Mrs Heather Telford are the owners of a dairy property situated in Part Section 415, Hundred of Kongorong. The property is used for the grazing of dairy cattle and has located upon it a dairy in which, presumably, the cattle are milked. The property is divided into a number of allotments, namely, Certificates of Title Registered Book Volume 5277 Folios 169, 205, 206 and 207. The dairy is located on the land comprised in Title 5277/205, with respect to which Mr Telford holds Water Licence 12744 issued pursuant to Section 29 of the Water Resources Act 1997 and conferring an annual water allocation of 10,000 kilolitres. Also issued pursuant to Section 29 is Water Licence 12808 held by both Mr & Mrs Telford and conferring an annual water allocation of 85 haIE (hectares irrigation equivalent) with respect to the whole of the property and which is to be used for pasture irrigation. The licence is subject to a number of conditions, one of which, condition 13, requires the use of the water allocated to comply with the Irrigation Development and Management Programme dated 13th July, 1998, and submitted to the Minister prior to the issue of the licence. That programme shows the mode of irrigation as involving the use of two pivot sprays, one irrigating 60.7 hectares and the other 24.3.

2. By application which appears to have been made on 28th June, 1999, Mr & Mrs Telford applied to the Minister to vary Licence 12808. The variation proposed was an increase in the water allocation endorsed upon the licence of 30 haIE, the approval of which would result in a total water allocation of 115 haIE. Accompanying the application was an amended Irrigation Development and Management Programme, the practicable effect of which was to amend the Irrigation Development and Management Programme approved when Licence 12808 was first issued. Whereas the original program proposed two pivot sprays irrigating 60.7 and 24.3 hectares respectively, the amended programme proposed two irrigation pivots irrigating 60.7 and 54.3 hectares respectively.

3. Following correspondence between the parties, the Minister's decision was communicated to Mr & Mrs Telford by letter dated 16th August, 2001. Their application was refused. The letter of refusal contained an endorsement, in bold print, advising them Section 142(1)(a) of the Water Resources Act conferred upon them a right of appeal to this Court against the refusal set out in the letter. They have so appealed.

4. The rights of appeal to this Court conferred by the Water Resources Act are, to the extent that they are relevant to these proceedings, found in Section 30 and subsection 142(1). Those provisions are as follows:-

"30. (1) A water licence may be varied by the Minister -

(a) at any time with the consent of the licensee; or

(b) where the licensee provides for intervals at which the conditions of the licence may be varied - at those intervals if, in the Minister's opinion, the variation is necessary or desirable to more effectively regulate the use of the water from the resource in accordance with the relevant water allocation plan and this Act; or

(c) at any time if there has been an alteration to the water allocation plan in accordance with which the water allocation was endorsed on the licence and the variation is necessary, in the opinion of the Minister, to prevent the licence from being inconsistent (as to the quantity of water allocated or the basis on which it is allocated) or seriously at variance (as to the licence conditions) with the plan; or

(d) if he or she is authorised to do so by section 39 or 43; or

(e) at any time in order to reflect a reduction in the water allocation of the licence by the Minister under section 37.

2. A licence may appeal to the Court against the variation of his or her licence under subsection (1)(b) or (c)."

"142. (1) The following rights of appeal lie to the Court:

(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;

(ab) an applicant for the allocation by the Minister of water (except reserved water within the meaning of Part 5A) from a water resource may appeal to the Court against a refusal to grant the application or the imposition of conditions in relation to the allocation;

(b) an applicant for the transfer of a water licence or the water allocation or part of the water allocation of a licence may appeal to the Court against a refusal to grant the application or a decision to reduce the water allocation or to vary the conditions of the transferred licence or the licence to which the water allocation is transferred;

(c) the holder of a licence or permit may, if authorised to do so by another provision of this Act, appeal to the Court against the variation, suspension or cancellation of the licence or the variation, suspension or revocation of the permit;

(d) a person who is subject to a direction by the Minister or other authority under this Act may appeal to the Court against the direction;

(e) a person who is subject to a restriction under section 16(5) may appeal to the Court against the restriction;

(f) a person who is expressly given a right of appeal by another provision of this Act may appeal to the Court in pursuance of that right."

5. For the Minister, Ms Schutz submitted that these provisions do not confer, upon Mr & Mrs Telford, a right of appeal against the Minister's decision in the circumstances of this case. The basis of Ms Schutz's submission is that the Environment, Resources and Development Court is a Court established by the Environment, Resources and Development Court Act 1993 and has only such jurisdiction as is specifically conferred upon it by statute. She submitted that the provisions of Sections 30 and 142 of the Water Resources Act are fairly specific, conferring rights of appeal against some decisions of the Minister whilst conferring no such rights with respect to other decisions. Amongst the decisions against which there is no right of appeal is a decision of the type now before the Court, namely, a decision by the Minister to refuse an application to vary an existing water licence. She pointed out that variations to water licences are affected by the Minister pursuant to Section 30 of the Act, subsection (2) of which expressly excludes a right of appeal in the circumstances of this case.

6. Mr Ross-Smith appeared for the appellants. He put forward two submissions. Stated very briefly, the first had the characteristics of an a stoppable argument - it was to the effect that the manner in which the Minister has dealt with the appellants' application has been such that the Court should now preclude him from submitting that the appellants have no right of appeal. The conclusion which I have reached renders it unnecessary for me to consider that submission, although I have reservations as to whether conduct by the Minister can have the effect of conferring a right of appeal if the statute does not. The Court either has or has not jurisdiction to deal with this matter, quite apart from any conduct of the Minister. His second submission was to the effect that, properly construed, the Act does confer a right of appeal upon the appellants against the decision in question.

7. In my view, the first step in resolving this matter is to determine the proper nature of the application made by Mr and Mrs Telford to the Minister. The application is on a form which was supplied to the applicants by the Minister's officers. It is entitled "Application to Vary a Water Licence" and, under the heading, contains the following paragraph:-

"This application is to be completed by the licence holder to request variation of a water licence, eg., increase in water allocation, to add a property to the licence, to add a name of a licensee, etc."

8. On its face, the application was for a variation of the water allocation endorsed on Licence 12808, then held by Mr and Mrs Telford. However, although the Water Resources Act makes specific reference to the making of an application for a licence - see subsection 29(2) - it makes no specific reference to the making of an application to vary a water licence or allocation. Nevertheless, the Act recognises that the Minister may "grant" such a variation - see Section 35 and paragraph 2(15a) of Schedule 3. When granting a variation, he must act consistently with the relevant water allocation plan.

9. Ms Schutz submitted that subsection 30(1) sets out the five situations in which the Minister is authorised to vary a water licence. The first of those is "with the consent of the licensee". The specific exclusion of a licensee who has so consented from the appeal process is, she submitted, significant. However, I do not construe the provisions of Section 30 as applying to a person who has made an application to the Minister for a variation of a water licence, but rather as being a statement of the various conditions precedent which must be met before the Minister, when acting on his own notion rather than upon receipt of an application, can vary a licence. In normal circumstances one would not expect a licensee who has consented to a variation of his licence to seek to appeal against such variation. Thus it is not surprising to find that a person who has consented to such a variation is specifically excluded from the right of appeal against the variation of a licence set out in subsection 30(2). The rights of appeal, in that section, are limited to those licensees who licences are varied pursuant to the powers conferred upon the Minister by subsection 30(1)(b) and (c). Where the Minister acts in the circumstances set out in either placitum (b) or (c), he does not act as a consequence of an application by the licensee, but rather on his own motion. Thus a person the subject of such a variation does not have a right of appeal pursuant to those parts of subsection 142(1) which speak in terms of appeals against refusals of applications. The rights conferred upon such people are recognised by other provisions, namely, subsections 30(2) and 142(1)(c).

10. To sum up, I do not regard Section 30 as applying to a person who has made an application to the Minister. I do not regard the limited rights of appeal conferred by subsection 30(2) as having any bearing on whether people who have submitted an application, such as Mr and Mrs Telford, have a right of appeal in the circumstances of this case. That question must be resolved by reference to other provisions of the Act.

11. As I have said, the Act makes no specific reference to the making of an application to vary a water licence or allocation, although it recognises the power of the Minister to "grant" such a variation. The use of the word "grant" in Section 35 infers, I think, a preceding application. There are certainly no provisions of the Act which suggest that a person cannot make such an application. The Minister provides a form for that purpose. I think that, looking at the Act as a whole, it does confer a right to submit an application for a variation to the Minister. This leads to the question of whether, properly construed, the Act confers a right of appeal upon a licensee who makes such an application.

12. Although the issue is not free from doubt, I have, at the end of the day, come to the conclusion that the Act confers a right of appeal upon Mr and Mrs Telford in the circumstances of this case. Briefly, my reason is that, leaving aside the form of their application, what they have actually applied for is the insertion of a water allocation of 115 haIE in their Water Licence Number 12808 in place of the existing allocation of 85 haIE. Thus, in my view, what they have applied for falls squarely within the definition of "water allocation" as found in subsection 3(1) of the Act. The relevant part of that definition is as follows:

"'water allocation' - (a) in respect of a water licence means the water (taking) allocation or the water (holding) allocation endorsed on the licence."

13. As I construe it, there is nothing in either that definition or elsewhere in the Act which suggests that a water allocation ceases to be a water allocation simply because the person who applies for it already holds an allocation endorsed on the same licence upon which the applicant seeks to have the new allocation endorsed. There is nothing in the Act which suggests that a person who already holds a water allocation has no right to apply for another one.

14. It seems to me that, although the Act requires that a water allocation be endorsed upon a water licence, the Act does not speak of water licences and water allocations as if they are the same thing. For example, subsection 29(1)(a) makes it clear that a water licence need not have a water (taking) allocation endorsed upon it. A water allocation is not part of the conditions of the licence upon which it is endorsed - see subsections 29(4) and (5). Licences and allocations are dealt with by different sections of the Act, namely, Section 29 and 34. Thus I think that it is open to a person who already holds a water licence - which may or may not have a water allocation endorsed upon it - to apply to the Minister for a water allocation, be it a new (or first) allocation, a bigger allocation or an additional allocation. Subsection 142(1)(ab) confers a right of appeal upon a person who has made such an application.

15. I have not overlooked that the form of application lodged by the appellants with the Minister was an "application to vary a water licence" rather than an application for water allocation. In my view, that is neither here nor there. This Court is required, by the provisions of subsection 21(1) of the Environment, Resources and Development Court Act, to "act according to equity, good conscience and the substantial merits of the case and without regard to legal technicalities and forms". I note the comments with respect to "equity, good conscience and substantial merits" clauses which fell from Olsson J in Walkley v Dairy Vale Co-operative Ltd (1972) 39 SAIR 327 and from Matheson J in Russell v State Planning Commission (1984) 115 LSJS 305 at 312. I note also the warning which fell from Jacobs J in Hancock Development Corporation v The Corporation of the City of Tea Tree Gully (1985) 42 SASR 584 at 589, wherein His Honour said that "No dictates of equity, good conscience or the substantial merits of the case can justify stretching the law beyond breaking point ..." in order to achieve a particular result not otherwise properly open.

16. Having considered those authorities, I have come to the conclusion that to refuse the appellants a right of appeal on the basis that the form of application submitted by them referred to an application to vary a water licence rather than to an application for a water allocation would be to fly in the face of the requirements of subsection 21(1) of the Environment, Resources and Development Court Act.

17. In so saying, I have not overlooked Ms Schutz's submission that the use of the new water allocation will involve a change to the Irrigation Development and Management Programme approved when Licence 12808 was issued. In practicable terms, this will involve a variation, not of the licence, but rather to the manner in which a condition of the licence is implemented. I have not overlooked that change - it will constitute a natural consequence of the increased water allocation, should it be approved. However, it seems to me that to refuse the appellants a right of appeal on the basis of that change would be to both overlook the essential nature of their application and constitute a somewhat technical ground of refusal, adoption of which would fly in the face of subsection 21(1) of the Environment, Resources and Development Court Act.

18. I might add that, as I read the Act, there appears to be no compelling reason why Mr and Mrs Telford should not have a right of appeal against a refusal of an application for an additional or increased water allocation, or indeed why any person should not have a right of appeal against a refusal of an application for a variation of a water licence. Given the rather limited basis of the decision in this case - it may have been different if the application had not involved a water allocation - there may be grounds for reviewing the provisions of Section 142. Perhaps the failure to specifically provide a right of appeal against the refusal of an application to vary a licence was an oversight?

19. For these reasons, I am of the view that Mr and Mrs Telford have a right of appeal against the decision of the Minister to refuse to endorse a new water allocation on water Licence 12808. I order that there be a declaration accordingly. I further order that this appeal proceed to conference pursuant to Section 16 of the Environment, Resources and Development Court Act.