G F Noye Pty Ltd v Resource Management and Planning Appeal Tribunal

• Jurisdiction: Tasmania
• Judge: Crawford J,Evans J,Blow J
• Judgment Date: 19 December 2007
• Court: Supreme Court of Tasmania
• Date: 19 December 2007
• Docket Number: 414/2007

[2007] TASSC 109

SUPREME COURT OF TASMANIA (FULL COURT)

Crawford, Evans and Blow JJ

414/2007

G F Noye Pty Ltd

and

Resource Management and Planning Appeal Tribunal

and

Badham, Anthony J

Water Management Act 1999 (Tas), ss146, 158(1)(c).

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 , applied.

Aust Dig Energy and Resources [1153]

Energy and Resources — Water — Water management — Water usage rights — Controlled works — Permit for dam construction works — Discretion to refuse where adverse effect on person with right to take water from dam — Whether proposed commercial use of water required to be taken into account as a relevant consideration.

REASONS FOR JUDGMENT

FULL COURT

Crawford J

1 I agree, for the reasons given by Blow J, that the appeal should be dismissed.

Evans J

2 I have had the advantage of reading the reasons for judgment prepared by Blow J; I agree with them and likewise would dismiss the appeal.

Blow J

3 This appeal concerns a dam at Premaydena. The dam straddles the boundary between two rural properties. Both properties have changed hands since it was built. The western side of the dam is on land owned by the appellant. The eastern side of the dam is on land owned by the second respondent, whom I will refer to as ‘the respondent’. Much more than half of the dam is on the respondent's land. There have been difficulties between the appellant and the respondent. The respondent wishes to divide the dam by constructing a wall right through it, just to his side of the boundary, and parallel with the boundary. He proposes that there be a two-way spillway so that water can travel from one side of the divided dam to the other if one side is full and the other is not.

4 The proposed works constitute ‘dam works’ for the purposes of theWater Management Act 1999 (‘the Act’). Under the Act, s146(3), it is an offence to undertake dam works without a permit authorising those works. The respondent applied to the Assessment Committee for Dam Construction (‘the ACDC’) for such a permit pursuant to s146(1). The ACDC decided to grant the permit that he sought. The appellant was aggrieved by that decision, and appealed to the Resource Management and Planning Appeal Tribunal (‘the tribunal’) pursuant to the Act, s276. The tribunal conducted a hearing de novo, and dismissed that appeal. The appellant applied under the Judicial Review Act 2000 for the review of the tribunal's decision. That application was heard by a judge and dismissed: Noye v Resource Management and Planning Appeal Tribunal [2007] TASSC 47. This is an appeal from that decision. The tribunal has been named as a respondent to this appeal, but has elected to take no part in the proceedings.

5 The Act, s158(1), lists a number of situations in which the ACDC may refuse to grant a permit for proposed dam works. On the facts of this case, it was open to the ACDC and to the tribunal, standing in the shoes of the ACDC, to refuse a permit only on the basis referred to in s158(1)(c). Under that provision, a permit may be refused where the proposed dam works ‘may adversely affect persons with a right under Part 5 or a licence to take water from a relevant water resource’. The dam is a ‘relevant water resource’. The appellant company is a person with a right under the Act, Pt5, to take water from the dam. Under s48, it has the right to take water for various purposes including domestic purposes and stock watering. The tribunal addressed the question of whether the permit should be refused on the basis that the proposed dam works might adversely affect the appellant, but decided in favour of granting the permit. The appellant contends that it erred in two respects. It contends that the tribunal made findings of fact that were not open on the evidence before it, and it contends that the tribunal failed to take into account a relevant consideration.

Ground 1– Impugned findings of fact

6 The tribunal had evidence that the dam does not fill unless there is heavy rain or wet weather. There was evidence as to how much of the water entering the dam after rain comes from the appellant's property. In a proof of evidence, the sole director and shareholder of the appellant company, Mr Noye, estimated that approximately 93 per cent of the run-off supplying the dam comes from the appellant's property. The previous owner of that property, a Mr Ridler, said in a proof ofevidence that about 80 to 90 per cent of the water filling the dam comes from that property. However, there was evidence that only two streams flow into the dam; that those streams largely collect water from the appellant's property; and that they flow across the boundary onto the respondent's property and enter the dam on his side of the boundary. The tribunal appears to have overlooked the fact that the water flowing from the appellant's property into the divided dam via those streams would enter the respondent's side of the divided dam.

7 The tribunal's reasoning as to the effect of the proposed works on the appellant was set out in pars26 to 28 of its published reasons, which read as follows:

‘26 The evidence as to whether there may be any adverse affect [sic] upon the appellant's Part 5 rights was as follows. In Mr Shackcloth's opinion the appellant's side of the divided dam was only likely to fill during a heavy runoff, because the catchment was “small and unreliable”. If there was limited rainfall the appellant's side of the dam was unlikely to fill. In flooding events water was likely to flow from the respondent's side to the appellant's side, and vice versa, depending upon which side filled first. The evidence of Mr Pryor was that in his opinion the appellant's side would receive sufficient runoff to fill the appellant's side of the dam after the proposed wall; the appellant's usage was relatively light; and that in those circumstances the dam on the appellant's side was unlikely to empty. The appellant's evidence was that almost 90 per cent of the supply into the existing dam was from his property, by way [of] dispersed surface runoff. That would on the evidence take it largely to the portion of the dam on his side of the proposed new dam wall. The opinion of the appellant was that the proposed dam would adversely affect him because the extent of his share of the storage would be considerably reduced, that is from equivalent to 50 per cent of the existing dam, to approximately 10 per cent. The respondent conceded that whether or not the appellant's water resource was affected, would depend upon the seasonal input.

27 Upon the above evidence, the Tribunal. finds that on the one hand, approximately 90 per cent of the catchment which presently supplies the existing dam, is surface runoff from the appellant's property; and that therefore the new dam constituted by the existing wall on the appellant's side and the new wall parallel to the boundary with the appellant's property, would be likely to fill first; and to a greater extent, than the remainder of the dam on the respondent's property; and that in that sense the appellant would therefore be advantaged. The Tribunal notes that the appellant has the option of enlarging the capacity of the storage on his side of the proposed new works, by excavation, subject to any necessary approval.

28 The question then arises as to whether the Tribunal should exercise the discretion to refuse to grant a permit for the proposed dam works, in the above circumstances. Upon the above findings, the Tribunal considers that although there may be some adverse effect upon. the appellant from the proposed dam works, that adverse effect is not sufficient to justify refusal of a permit.’

8 Mr Shackcloth and Mr Pryor, both of whom were referred to in par26 of those reasons, were officers of the Department of Primary Industry, Water and Environment who gave evidence before the tribunal.

9 The appellant seeks to impugn three findings of fact that appear in par27 of those reasons:

• • the finding that the appellant's side of the divided dam ‘would be likely to fill first’;

• • the finding that the appellant's side of the divided dam would be likely to fill ‘to a greater extent’ than the respondent's side of the dam; and

• • the finding that ‘in that sense the appellant would therefore be advantaged’.

It contends that those facts did not exist; that those findings were wrong; and that there was no evidence to support any of those findings.

10 The two parts of the proposed divided dam would not hold equal volumes of water. Mr Pryor gave evidence before the tribunal, which was neither challenged nor contradicted, to the effect that the estimated capacity of both parts of the divided dam was 67 megalitres; and that the estimated capacity of the respondent's side of the divided dam was about 59 to 60 megalitres. It follows that the capacity of the appellant's side of the divided dam would be about 7 or 8 megalitres, or about 10 to 12 per cent of the total capacity of the divided dam.

11 The tribunal received a report from an engineer engaged by the appellant, to which was attached a contour map showing property boundaries, the dam, the two streams, and the approximate boundary of the dam's catchment area. It is apparent from that map that not all of the appellant's part of the catchment area drains into the streams that flow to the respondent's side of the dam. The tribunal also received as an exhibit a diagram prepared by Mr Noye which showed that part of the catchment area drained directly into the appellant's side of the dam. It was open to the tribunal to conclude that run-off from a part of the catchment...