Beaudesert Shire Council v Smith [1966] HCA 49

High Court of Australia Taylor, Menzies and Owen JJ. Beaudesert Shire Council v Smith [1966] HCA 49

ORDER Judgment of the Supreme Court of Queensland varied by substituting for the sum of £5,000, the sum of £1,000; appeal otherwise dismissed.

Cur. adv. vult.

The Court delivered the following written judgment:—

Aug. 26 Taylor, Menzies and Owen JJ.

The respondents are the executors of the will of Patrick Reilly Smith, deceased, who died before an action begun by him against the appellant was decided.

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.

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 his 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.