NOBLE v DEPARTMENT OF LAND AND WATER CONSERVATION and ANOR [1997] NSWCA 225

NOBLE v DEPARTMENT OF LAND AND WATER CONSERVATION and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, HANDLEY and SHELLER JJA 19 February 1997, 19 February 1997 [1997] NSWCA 225

LICENCE — Application under Water Act 1912 — Requirement to provide particulars with application held to be directory only — substantial compliance with requirement — McRae v Coulton (1986) 7 NSWLR 644 followed — "particulars of application" — Water Act s10(3), s11(1).

WATER ACT — LICENSING

On an appeal to the Land and Environment Court, from a Local Land Board, under s11 of the Water Act 1912, following a favourable report by the Board concerning an application for a licence under s12, it was argued that the applicants for the licence had failed to give, in their application, all the particulars required by the Act. The Court held that the requirements of the Act were directory only, and that there had been substantial compliance — HELD — The Court's decision was correct.

Mr Rae v Coulton (1986) 7 NSWLR 644 followed.

Gleeson CJ This is an appeal from a decision of Bannon J in the Land and Environment Court given in February of last year.

The first respondent, the Department of Land and Water Conservation, has taken the point that no appeal lies to this Court from the decision of Bannon J. In that respect the respondent points to the provisions of s11(6) of the Water Act 1912 and in particular the stipulation that the decision of the Land and Environment Court in a case such as the present "shall be final". Reliance is also placed upon Farrant v Water Conservation and Irrigation Commission (1959) SR (NSW) 283. The point has not been fully argued, and in the view that I take of the manner in which the court should dispose of the grounds of appeal it is not necessary for us to decide it. It suffices to say that I should not be taken to have determined the existence of the right of appeal contended for by the appellant.