MacFarlane v Minister for Natural Resources, Environment & Heritage [2012] NTSC 98

 

PARTIES:                                         MACFARLANE, Lindsay Stuart

                                                         MACFARLANE, Bettina Margaret

 

                                                         v

 

                                                         Minister for Natural Resources, Environment and Heritage

 

TITLE OF COURT:                           SUPREME COURT OF THE NORTHERN TERRITORY

 

JURISDICTION:                               SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

 

FILE NO:                                          34 of 2011 (21109162)

 

DELIVERED:                                   6 DECEMBER 2012

 

HEARING DATES:                           12-13 JUNE 2012

 

JUDGMENT OF:                              KELLY J

 

CATCHWORDS:

 

ADMINISTRATIVE LAW – Water Act (the “Act”) – Judicial Review of a decision of the Minister for Natural Resources, Environment & Heritage (the “Minister”) – the plaintiffs made an application for a licence to extract ground water – the plaintiffs’ application was rejected by the Controller of Water Resources (the “Controller”) – upon application for review the Minister upheld the Controller’s decision – Controller and later Minister took into account the fact that a water allocation plan for the area was being developed – whether that was an irrelevant consideration – Controller and later the minister took into account the existence of a number of 12 month licenses granted by the Controller after the plaintiffs’ application – whether that was an irrelevant consideration – whether the Minister failed to take into account a relevant consideration being the unlawful delay in dealing with the plaintiffs’ application – the plaintiffs failed to establish that the Ministers decision to uphold the decision of the Controller to refuse their application was vitiated by one of the above factors – plaintiffs’ application dismissed   

 

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; followed

 

Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223; applied

 

Water Act s 14, s 18, s 22, s 22B, s 24, s 30, s 31, s 32, s 44, s 45, s 47, s 59, s 60, 71B, 71C, s 90

 

REPRESENTATION:

 

Counsel:

    Plaintiff:                                      D Grieve QC with D Coulton

    Defendant:                                    C Smyth

 

Solicitors:

    Plaintiff:                                      Maleys

    Defendant:                                    Solicitor for the Northern Territory

 

Judgment category classification:    B

Judgment ID Number:                       KEL12026

Number of pages:                             22


IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

MacFarlane v Minister for Natural Resources, Environment & Heritage [2012] NTSC 98

No. 34 of 2011 (21109162)

 

 

                                                     BETWEEN:

 

                                                     LINDSAY STUART MACFARLANE

                                                     BETTINA MARGARET MACFARLANE

                                                         Plaintiffs

 

                                                     AND:

 

                                                     MINISTER FOR NATURAL RESOURCES, ENVIRONMENT AND HERITAGE

                                                         Defendant

 

CORAM:     KELLY J

 

REASONS FOR JUDGMENT

 

(Delivered 6 December 2012)

 

[1]       Mr and Mrs MacFarlane own a property called “Stylo” near Mataranka.  They wanted to engage in irrigated horticulture on the property and, to that end, on 9 May 2005 they submitted an application for the grant of a ground water extraction licence under s 60 of the Water Act.  The application was for a licence to extract 5,000ML (mega litres) per year from the Tindall Limestone Aquifer, Mataranka for a period of 10 years.

[2]       The Water Act (“the Act”) is the legislation which governs the use of water resources in the Northern Territory.  Under s 22 of the Act the Minister may, by notice in the Gazette, declare a part of the Territory to be a water control district for a purpose specified in the notice and allocate a name to the district.  The effect of declaring a part of the Territory to be a water control district is that the regulatory provisions of the Act in relation to the licensing of bores and other matters become applicable within that district.[1]

[3]       Section 22B(1) of the Act provides that the Minister may, by notice in the Gazette, declare a water allocation plan in respect of a water control district.

[4]       As at the date Mr and Mrs MacFarlane applied for a ground water extraction licence under s 60 of the Act, there was no declared water allocation plan which applied to the Mataranka area where the MacFarlanes had their property.[2] 

[5]       No decision was made in relation to the MacFarlanes’ application for a ground water licence and there was no further communication between the MacFarlanes and the department in relation to the application until 20 October 2006 when Mr Ian Lancaster, the Director of Water Management, who held the position of Controller of Water Resources (“the Controller”)[3] wrote to Mr and Mrs MacFarlane in the following terms:

“This letter is in regard to your application for a groundwater extraction licence from the Tindall Limestone Aquifer, Mataranka.  As you may be aware all applications for extraction of water from this aquifer (Mataranka) have been put on hold pending the formation of a Mataranka Water Advisory Committee and the subsequent completion of a Water Allocation Plan encompassing this water source.

At this state it is envisaged that a Mataranka Water Advisory Committee will be formed within the next six – twelve months.  The Water Advisory Committee will advise Government on matters pertaining to water resources within the Mataranka region.

As you may be aware licensees under the NT Water Act 1992 are required to provide the Controller of Water Resources with monthly usage figures from each bore on their licence.  To assist in regional water allocation planning/management and the assessment of your application I would appreciate if you could provide monthly water use figures (see attached form) faxed or emailed to Dianna Owens ….. in the Katherine Office.

I apologise for the lengthy delays in the processing of your licence and will endeavour to keep you informed as plans for a Mataranka Water Advisory Committee progress.  Your cooperation in this matter would be greatly appreciated.”

[6]       At this stage there was nothing in the Act which specified any time limits within which the Controller was obliged to make a decision in relation to an application for a licence. 

[7]       There was no further communication between the department and the MacFarlanes until March 2007 when Daniel Connor, Water Resource Planner with the department wrote to the MacFarlanes informing them that the department was in the process of preparing a draft water allocation plan and establishing a Mataranka Water Advisory Committee and inviting them to an initial consultative meeting in Mataranka in April.  The MacFarlanes did not attend that meeting and there was a brief exchange of emails in which Mr and Mrs MacFarlane offered Mr MacFarlane’s services as a member of the Water Advisory Committee.  That offer was not taken up. 

[8]       In November 2008 a consultant engaged by the MacFarlanes submitted an amended application for a ground water licence.  The amended application was for an increased amount of ground water to be extracted pursuant to the licence (from 5,000 mega litres per year to 5,780 mega litres per year).  Mr Lancaster (who was still the Controller) responded to this application in the following terms:

“Please be aware that these ‘applications’ are being accepted by the department at this stage as expressions of interest (EOI’s) to enable scenario planning to be undertaken to inform the department and the Mataranka Water Advisory Committee MWAC about the level of development that may be sustainable with regard to extraction of water from the Tindall aquifer in that region.  The applications will not therefore be ‘processed’ in the normal manner due to the current planning exercise and the imminent alteration to the formal approved application.

Formal applications for groundwater extraction will be called for from all potential entitlement holders in the area, once the department and the MWAC have a better understanding of what that level of sustainability may be.  It is expected that some level of feedback on these EOI’s will be able to be provided in the new year once the groundwater model has been completed and the scenario’s run.”

[9]       In November 2008 amendments were introduced into the Act which prescribed a timetable for dealing with applications for water extraction licences.  Section 71B obliges the Controller to publish a notice setting out prescribed information in relation to an application for a water extraction licence within 30 days of receiving the application and provides that a notice must include an invitation to make written comments about the application within 30 days after publication of the notice.  Section 71C provides that the Controller must make a decision in relation to the water extraction licence application as soon as practicable after the end of the period allowed for comments and if possible within 30 days after the end of that period.  Section 110 of the Act is a transitional provision which applies those sections to existing licence applications.  Hence, under these new provisions, the Controller was obliged to publish notice of the MacFarlanes’ application within 30 days of the amendments coming into force and make a decision in relation to that application as soon as practicable after the 30 day period for comment specified in that notice had expired.  The Controller did not publish a notice and did not make a decision within the required time frame.

[10]     In December 2008 the MacFarlanes’ consultant sent to the department certain further information which apparently had been requested in support of the application for the ground water licence, and the MacFarlanes also wrote to the department also enclosing “further information as requested”.

[11]     On 17 December 2008 the Daly Roper Water Control District was declared by notice in the Gazette.  It is common ground that Stylo is within the Daly Roper Water Control District.  As explained above, the effect of the declaration of a Water Control District is that the regulatory provisions of the Act in relation to the licensing of bores and other matters became applicable within that District, making it unlawful for anyone to take water from a bore on land within that district except pursuant to a licence granted under s 60 of the Act or for the uses set out in s 14 of the Act.[4]

[12]     On 21 January 2009, Mr Lancaster wrote to the MacFarlanes referring to their licence applications as “expressions of interest” and advised:  

“As you may be aware, there are currently processes underway for the development of a water allocation plan for the Tindall aquifer in the Mataranka region.  This planning process was started through the appointment of the Mataranka Water Advisory Committee (MWAC) specifically formed to provide community advice on the Mataranka Water Allocation Plan (MWAP).

In the MWAP area there is uncertainty regarding the availability of water resources for extractive purposes, and for the environmental and cultural water requirements that compete for the resource.  In line with the National Water Initiative, provision of water for environmental and cultural purposes will be prioritised.

In December 2008 changes to the Northern Territory Water Act mean that there are now new rules and processes for licensing of all water extraction in the NT.  This includes new forms, timelines for approval and the need for advertising of all new applications.  These changes will need to be discussed with the MWAC before formal applications can be accepted.

Consequently it was decided that expressions of interest from land holders who have expressed a desire to develop an irrigated agricultural enterprise would be solicited.  I thank you for the documents provided to allow consideration of the proposal by the MWAC.  Formal applications in the new format will be requested once there is sufficient information available to be able to better indicate the quantum of water which may be available for extraction.

Development during the planning process is discouraged, as licences to extract water cannot be guaranteed.  Further, a new Water Control District has been declared for the region, which means it will be illegal to extract water for any purpose other than for stock or domestic without a licence, this declaration also means that a bore construction permit is now required prior to any drilling operations in the region.  Bore construction permits and water extraction licences will not be issued if there is a lack of available water for extraction.  Therefore, given the current level of knowledge, and the large amounts of water sought it is recommended that further development be delayed.  Although the size of the consumptive pool, or the amount that may be sustainably extracted from the resource in that area, has not yet been determined, it is highly unlikely that the amount being sought for these developments will be available.

It is expected that the draft Mataranka Water Allocation Plan will be released mid 2009 with the final Plan declared early in 2010.  Please note that regular meetings of MWAC will be occurring during this time, and updates of the planning process will be provided.”

 

[13]     The MacFarlanes’ consultant responded on their behalf that the documentation submitted on behalf of the MacFarlanes was not an expression of interest but a licence application.  Further correspondence ensued.  Mr Lancaster wrote to the MacFarlanes on 1 May 2009 (inter alia) in the following terms: 

“….. Current options as far as I can determine therefore are:

1.  Process the application in its current form, which may mean refusal on the basis of insufficient identification of a suitable water source, and the fact that there is a planning process underway;

2.  hold the application until such times as that information can be supplied, or

3.  request the formal withdrawal of the application, which can be facilitated by signing the attached letter.

Could you please advise as to your preference in this matter?  If number 3 is the preferred option could you please sign and return the attached formal withdrawal letter.

In light of the current Water Allocation Planning Process I would strongly recommend that any drilling program is postponed until assurances can be given regarding the quantity of water which may be available for the proposed development on portion 6403.  I would also like to inform you that it is not expected that all bores will be drilled for the full level of development on any property prior to the issue of entitlements, after the plan has been declared; however it is expected to see sufficient access to a water supply for the first stage of the proposed development.

Other developments in the region will be issued with a single year entitlement with sufficient water for the current level of development only, as advised by the Mataranka Water Advisory Committee.  All applicants with valid pending applications are being asked to formally withdraw their applications until such times as the planning process has been completed.”

 

[14]     It is common ground that other landowners in the area who had submitted licence applications withdrew their applications in response to similar requests from the department.  The MacFarlanes, however, did not.

[15]     In the mean time, in 2009, the Controller, on his own motion under s 60(1), granted to other landowners (who had withdrawn their applications to await the outcome of the Mataranka Water Allocation Plan) short term ground water licences for 12 months.  Some or all of these were re-issued for a further 12 months when the original short term licences expired in 2010.  (In at least one case, the fresh licence issued in 2010 was for an increased quantity of water.)

[16]     On 10 August 2010, the Controller (who by this time was Ms Leeder) notified the MacFarlanes that she had rejected their licence application and enclosed reasons for her decision.[5]  Those reasons included the following: 

“In making my decision to refuse to grant the applications, I was strongly influenced by the fact that the Water Allocation Plan (WAP) for the Tindall Limestone Aquifer, Mataranka is incomplete.  A Plan is expected to be released for public consultation in 2010 and completed in 2011.  The Plan will define a sustainable level of extraction and provide guidance on the granting and management of licences in this area.”

 

[17]     Later in the written reasons, the Controller set out the matters she took into consideration as required by s 90(1) of the Act.  Under the heading “(ab) any water allocation plan applying to the area in question” she wrote:

“There is no WAP for this area.  A WAP for the Tindall Limestone Aquifer, Mataranka is being developed and is due to be released for public comment in 2010.  The WAP is expected to be completed in 2011.  I have treated this as relevant for the purposes of section 90(1)(k) of the Act.”

 

[18]     Under the heading “(c) any adverse effects likely to be created as a result of activities under the permit, licence or consent on the supply of water to which any person other than the applicant is entitled under the Act” she wrote: 

“The total amount of water that was allocated to all licences and domestic and stock users in 2009 is 4,100ML and it is expected that usage in 2010 will increase to 5,100ML.  If the applications were granted, the total amount for 2010 would increase to 23,537ML.

As stated in point (a), without a WAP to define the sustainable level of extraction and to provide guidance on the management and granting of licences, extracting water above 6,400ML may pose an unacceptable risk to natural ecosystems and stock and domestic users, that are dependent on this resource.”

 

[19]     Under the heading “(k) other factors the Controller considers should be taken into account or that the Controller is required to take into account under any law in force in the Territory”, she wrote (inter alia): 

“(v)  The impending declaration of the WAP

As I have said earlier in these reasons, my decision to reject the four applications has been influenced by the fact that the WAP is being developed and should be in place by 2011.  In my opinion, as far as possible, it is desirable that water resource management in the proposed WAP area should be in accordance with the regime to be established in the WAP.  I recognise that this might cause frustration to applicants such as the MacFarlanes.  However, I also consider that the inconvenience to them will be partly offset by the grant of the 12 month 500 ML licence.”

 

[20]     In addition to rejecting the MacFarlanes’ application, the Controller, on her own motion pursuant to s 60(1) of the Act, granted them a ground water extraction licence to extract 500ML per annum for a period of 12 months. 

[21]     The MacFarlanes applied to the Minister pursuant to s 30 of the Act to review the Controller’s decision to refuse their application. 

[22]     On receipt of an application to review a decision of the Controller, the Minister is empowered (but not obliged) to refer the matter to the Review Panel established under s 24 of the Act with a request that the Review Panel advise the Minister on what action the Minister should take.[6]  The Review Panel consists of a chairman appointed by the Minister and two others chosen from a panel of eight people appointed by the Minister with relevant qualifications or experience in bore drilling, primary industry, secondary industry, Aboriginal affairs, public health, environmental management, fisheries and mining.[7]  The Review Panel has a range of powers to receive documentary and oral evidence. [8]  It makes a recommendation to the Minister[9] and is obliged to give written reasons for that recommendation.[10]  The Minister is not obliged to accept the recommendation of the Review Panel but may uphold the action or decision of the Controller; substitute for the decision the decision that, in the opinion of the Minister, the Controller should have made in the first instance; or refer the matter back to the Controller for reconsideration of the decision with or without directions.[11]

[23]     In this case, the Minister decided to refer the matter to the Review Panel which made a written recommendation to the Minister on 31 January 2011 recommending that the Minister uphold the decision of the Controller.  On 28 February 2011, the Minister wrote to the MacFarlanes, through their solicitor, (relevantly) as follows:  

“I have now received the report and recommendations of the Water Resources Review Panel, and have carefully considered it, along with all the relevant material, including the detailed submissions provided by Counsel on behalf of your clients, as well as the relevant provisions of the legislation and the regulations.  I have determined to accept the advice of the Water Resources Review Panel and uphold the Controller of Water Resources’ original decisions, in accordance with section 30(4) of the Water Act.”

 

[24]     A copy of the report and recommendations of the Review Panel was enclosed with the Minister’s decision.

[25]     In these proceedings, the MacFarlanes seek judicial review of the Minister’s decision to uphold the decision of the Controller. 

[26]     This is an application for judicial review of the decision of the Minister.  It is not an appeal.  It is no part of the function of this Court to enquire into the merits of the Minister’s decision or the Controller’s decision.  In order to succeed the MacFarlanes will need to show that in making his decision to confirm the decision of the Controller, the Minister acted on a wrong principle, took into account irrelevant considerations or failed to take into account relevant considerations or that the decision was manifestly unreasonable in the sense of being a decision which no reasonable Minister could come to.[12]  Moreover the ground of failure to take into account a relevant consideration can only be made out if the Minister has failed to take into account a consideration which he is bound to take into account in making the decision under review either explicitly under the Act, or by implication from the subject matter, scope and purpose of the Act.[13]

[27]     The plaintiffs contended that the Minister erred by taking into account the following irrelevant considerations:

(a)      the pendency of the Mataranka Water Plan; and

(b)     the water being extracted from the aquifer pursuant to a number of 12 month licences granted by the Controller in 2009 to landowners in the district who had withdrawn their original licence applications.

[28]     The plaintiffs further contended that the Minister failed to take into account a relevant consideration, namely that the Controller unlawfully delayed in dealing with the plaintiffs’ application.

The pendency of the Mataranka water allocation plan

[29]     The fact that the Mataranka Water Plan was under development was said to be an irrelevant consideration for a number of reasons.

[30]     First, it was submitted that the Controller had assumed that she could not grant ground water licences in the Mataranka area until the Mataranka Water Plan had been finalised.  This would have amounted to the Controller misconstruing her powers under the Act and the plaintiffs submitted that this error was perpetuated by the Review Panel in its recommendation and by the Minister in accepting that recommendation.  However, the submission is factually wrong.  The Controller said that she would not grant a long term licence while that Plan was not yet finalised, for the reasons she elaborated on in the reasons for her decision – not that she could not – and the Review Panel agreed with her reasoning.

[31]     Section 90(1) provides that in deciding whether to grant a licence the Controller must take into account any of the factors listed in paragraphs (a) to (k) that are relevant to the decision.  Those factors include:

(ab)    any water allocation plan applying to the area in question; and

(k)           other factors the Controller considers should be taken into account or that the Controller is required to take into account under any other law in force in the Territory.

[32]     The plaintiffs submitted that because the draft water allocation plan which was in the process of development was not (or not yet) a water allocation plan within the meaning of s 90(1)(ab), the Controller was not entitled to take it into account when making her decision.  That submission ignores the effect of paragraph (k).  In her reasons for decision, the Controller specifically adverted to the fact that there was as yet no water allocation plan in existence to be taken into account under paragraph (ab), but took into account under paragraph (k) the fact that a plan was being developed and that as far as possible, it was desirable that water resource management in the area should be in accordance with the regime to be established in the plan that was being developed.  Subject to the plaintiff’s argument about the lawfulness of the proposed water allocation plan (discussed below) she was perfectly entitled to do so.  It was clearly a relevant consideration in determining whether to grant a long term licence (for 10 years) that a water allocation plan was in the process of development and that the grant of a long term licence might adversely affect the operation of that plan when it came into existence.  The Review Panel agreed with that reasoning and the fact that the plan was being developed was also a relevant consideration for the Review Panel and the Minister.

[33]     The plaintiffs’ third basis for contending that it was not proper for the Controller, the Review Panel and the Minister to take into account the existence of the draft water allocation plan was that the draft plan could not lawfully be made under the Act. 

[34]     The initial form of this submission was simply that only one water allocation plan could lawfully be declared in respect of a water control district.  That submission was based on the plaintiffs’ construction of s 22B(1) of the Act which provides:

“The Minister may, by notice in the Gazette, declare a water allocation plan in respect of a water control district.”

 

The plaintiffs contended that the use of the indefinite article meant that the Minister could declare only one water allocation plan in respect of any given water control district. 

[35]     Further support for this contention was garnered from sub-section 22B(4) which provides:

Water resource management in a water control district is to be in accordance with the water allocation plan declared in respect of the district.”

 

The plaintiffs contended that the use of the definite article supported the view that there could only be one water allocation plan that answered the description “the water allocation plan declared in respect of the district”.

[36]     The final form of the plaintiffs’ contention (as developed in oral submissions) was that it was only lawful under the Act for one water allocation plan to be declared in relation to any one water control district, moreover that that plan must provide the same regime in relation to the whole district – both ground water and surface water – and that water rights must be freely tradable within the district in relation to water from all sources.  

[37]     The plaintiffs submitted that this argument was supported by s 22B(5) (a) and (c) which provide:

“(5) A water allocation plan is to ensure in the water control district that:

 

(a)   water is allocated within the estimated sustainable yield to beneficial uses;

…………

 

(c)   the right to take or use water under a licence granted under section 45 or 60 is able to be traded (in part or in full);”

 

[38]     The plaintiffs contended that one can infer from the wording of s 22B(5)(a) that any water allocation plan must apply across the whole water control district.  Further, the plaintiffs contended that the effect of s 22B(5)(c) is that the right to use water under a licence granted under the Act is able to be traded in part or in full by the holder of the licence to any other person who desires to take or use water elsewhere within the water control district, regardless of the water resource to which the licence is expressed to apply.[14]

[39]     I see no support in the Act for the plaintiffs’ contention in this final form.  As Mr Smyth for the respondent pointed out, s 22B(5)(a) does not give any direct right to trade water allocations.  It is a section which specifies the subject matter that must be covered in a water allocation plan: it provides that a plan must ensure water rights are able to be traded (in whole or in part).  Moreover, it is the right given by the licence that will become tradable (on the conditions provided in the water allocation plan).  That is to say, what will be tradable is the right to take water conferred by a licence to take groundwater issued under s 60, or by a licence to take surface water issued under s 45.  One cannot trade what one does not have, and groundwater and surface water licences are issued under different sections.  It cannot be that a person who has a licence under s 60 to take a certain quantity of groundwater can by “trading” confer on someone else the right to take water from a river, when s 44 of the Act provides that that is not lawful except in accordance with a licence issued under s45.  Moreover, the practice of the Controller is to issue such licences to take water from a particular source and location – for example a licence to take groundwater from the Tindall Aquifer at Mataranka.  The consequence of that would be that the licensee can only trade away the right to take that specified quantity of water from that specified source.  I see no reason why this practice is not lawful under the Act.  Further, there is nothing in the Act which specifies that precisely the same regime for water allocation must apply across the whole of a water control district regardless of land use, population density, available water sources in the area etc.

[40]     As to the plaintiffs’ contention in its earlier form, it does not seem to me to be necessary for the purposes of this case to decide whether or not there must be only one water allocation plan for a particular water control district, because there is nothing at all in the Act to support the proposition that “the plan” must apply precisely the same regime across the whole of the water control district regardless of land use, population density etc. in relation to all water resources within the district regardless of the capacity of the different water resources.

[41]     It was undoubtedly lawful for the Minister, acting on the advice of the department, to develop a plan for the allocation of water resources in the Mataranka area, which was within a water control district.  Whether the Act required that plan to be incorporated into one “district plan” along with the Katherine water allocation plan, or allowed a separate water allocation plan to be declared under s 22B(1) with respect to the Mataranka area does not affect the lawfulness of engaging in that planning process, and does not affect the question at issue here which is whether it was relevant for the Controller to take into account that such a plan was being developed when determining whether to grant a long term ground water licence to the applicants which might adversely affect the implementation of that plan when it was finalised – in whatever form it was required to be declared.  Clearly it was a relevant consideration.

The 12 month licences granted in 2009

[42]     In coming to her decision to refuse the MacFarlanes’ application for a groundwater licence, the Controller took into account the volume of water being extracted from the aquifer under a number of short term (12 month) licences granted by the Controller on her own motion to “existing users”.  The plaintiffs say she should not have taken that into account because the decision to grant those licences “ought not to have been made”.

[43]     When the MacFarlanes submitted their initial application in 2005 (and their amended application in 2008) only one groundwater licence had been granted within the Mataranka area.  In 2009, the Controller granted a number of 12 month groundwater licences to people who were described in the Controller’s reasons for decision as “existing users”.  It was contended that, unlike the MacFarlanes, these “existing users” had been unlawfully extracting groundwater without a licence and that the 2009 licences were granted to “regularise” their water use.  In these circumstances the plaintiffs contended that the decision by the Controller to grant those licences “ought not to have been made”.  

[44]     I do not know precisely what was meant by the contention that the decision to grant those licences “ought not to have been made” in the context of an application for judicial review.  Senior counsel for the plaintiff rightly conceded that the grant of the licences was lawful in the sense of being “within power”.[15]  The decision which is under review in this proceeding is the decision of the Minister in 2010 to uphold the decision of the Controller (also in 2010) to refuse the plaintiffs’ licence application.  Whether or not the grantees of the 2009 licences had been unlawfully using groundwater before 2009, it was clearly a relevant consideration in 2010 that there were other users in the area who had existing rights to use water from the same aquifer under lawfully granted ground water licenses.

Failure to take into account unlawful delay in determining the application

[45]     The plaintiffs contend that the Controller was obliged to determine their licence application within a reasonable time after it was first made in 2005, and in any case after the Act was amended in 2008, was obliged by s 110 of the Act to publish the requisite notice under s 71B and determine the application within the time limits specified in s 71C.  So much may be granted.  However, the plaintiffs contend further that the Controller should have taken into account that, had a decision been made in 2005, the licence application would have been granted, and the Controller should therefore have granted the application in full in 2010 – further that the Minister should have taken those matters into account, reversed the Controller’s decision and granted the licence in full.

[46]     I do not agree.  First, as the Review Panel pointed out, it is pure speculation to assert that the licence “would have been granted” had it been determined in 2005.[16]  If the Controller had refused to make a decision[17] within a reasonable time after the application was lodged in 2005 or within the time prescribed by s 110 in 2008, the MacFarlanes may well have been able to obtain an order in the nature of mandamus compelling the Controller to make a decision – but not an order compelling the making of a decision granting the licence application.

[47]     The contention that the licence would have been granted in full if made in a timely fashion in 2005 was based on the assertion that, until that time, the policy of the department had been to grant or refuse licences according to “the 80/20 principle”, whereby at least 80% of the available water was to be reserved for environmental purposes, leaving a maximum of 20% to be allocated.  The plaintiffs contend that as there was only one other licence in place at the time, application of this principle would have led to the licence being granted.  This does not follow.  The policy was to reserve at least 80% of the available water for environmental purposes – not to always allocate a full 20% to licences.  The policy being applied by the Controller at the time of making the decision to refuse the application was to allocate no more than 5% of the available water, pending the finalisation of the water allocation plan for the district.  This was entirely consistent with “the 80/20 principle”.

[48]     Secondly, and more importantly, what is under review is the decision of the Minister in 2010, on the recommendation of the Review Panel, to uphold the decision of the Controller to refuse the licence application.  In making that decision, the Controller was obliged to take into account those matters set out in s 90 of the Act at the time when the decision was to be made – not what the situation was in 2005.  Those include the matters referred to above.  The Minister was under the same obligation in reviewing the Controller’s decision.

[49]     The plaintiffs have failed to establish that the Minister’s decision to uphold the decision of the Controller to refuse their application for a ground water licence was vitiated by taking into account irrelevant considerations or by failure to take into account a relevant consideration.  Accordingly the plaintiffs’ application is dismissed.



[1]         This comes about in a convoluted way.  The Act contains in Part 6 various restrictions on the use of water, for example s 59 which provides that a person shall not (with some exceptions) take water from a bore except in accordance with a licence and s 60 which makes provision for the grant of licences.  Section 47 of the Act provides that the Administrator may on the recommendation of the Minister, by notice in the Gazette, declare that a provision of the Act does not apply (inter alia) to a bore of a class or description specified in the notice.  In the Gazette of 30 June 1992, the Administrator published a notice under s 47 which provided, essentially, that the restrictions in Part 6 of the Act do not apply except within a water control district.

 

[2]         It must, however, have been in a water control district (presumably the Katherine Water District also gazetted on 30 June 1992) or it would not have been necessary for them to have applied for a groundwater licence as a result of the s 47 notice referred to in footnote 1.

[3]         Appointed under s 18 of the Act

[4]         that is essentially for domestic use, drinking water for stock or irrigation of a domestic garden

          not exceeding 0.5 hectares

[5]         A notice of the intention to make the decision, purportedly pursuant to s 71B was published on 3 March 2010.  As noted, this was not published within the time specified in s 110. 

[6]         S 30(3)(b)

 

[7]         S 24(2) and (3)

 

[8]         S 31

 

[9]         S 24

 

[10]        S 32

 

[11]        S 30(3)(a)

[12]     Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; Associated Provincial Picture Houses Ltd v. Wednesbury Corporation (1948) 1 KB 223

[13]     Minister for Aboriginal Affairs v Peko-Wallsend Ltd per Mason J at pp 39-40

 

 

[14]        Transcript 12 June 2012 p 40

[15]        Transcript 12 June 2012 p 17-18

[16]        Given the subsequent correspondence in 2006 deferring the application pending the planning process, one might guess that had the Controller been compelled to make a decision then, the licence application would have been refused so as not to interfere with that process.  This too is pure speculation.

 

[17]        I say “if” because although the Controller failed to make a decision, he (and later she) did not refuse to make one.