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. The background to this appeal may be summarised as follows. Yandyguinula Creek, which is a tributary of the Monongolo River, and which extends to the Great Dividing Range, flows in a manner which is described in part of the evidence as being generally quite reliable. Nevertheless, it is said, on occasions low flows occur. Low flows became of concern to local landholders in 1994 because of the number of people reliant on the creek catchment for stock and domestic purposes. A public meeting was held on 12 February 1994 to advise landholders of their rights and of the requirements of the Water Act 1912. Mr and Mrs Eldridge, the second respondents to this appeal, occupy land at some distance from the Yandyguinula Creek. They graze cattle and sheep, there is a sawmill on the property and also a dwelling house. Apparently some years before March 1994 Mr and Mrs Eldridge had installed a diversion pipeline by means of which they drew water from the Yandyguinula Creek to their property. 2 UNREPORTED JUDGMENTS Not being riparian owners, they needed a licence under the Water Act in order to enable them to do this lawfully. They did not obtain such a licence at the time the line was installed. However it appears that, at or about the time of the meeting in 1994 to which I have referred, they were advised by the authorities of the necessity to obtain a licence under s12 of the Water Act, and accordingly they applied for one. So far as appears from the evidence Mr and Mrs Eldridge have never been advised or represented by lawyers in relation to this matter. The application for a licence was filled in in the handwriting of one of them. The scheme of the relevant provisions of Div 3 of PtII of the Water Act 1912 may be summarised as follows. S10 of the Act provides that an occupier of land whereon any work is constructed or used or is proposed to be constructed or used for the purpose of, amongst other things, water supply, may apply to the Ministerial Corporation for a licence to construct and use the work. Subs(3) of s10 provides that an application for such a licence is to be accompanied by particulars as to certain matters. I will return to that subject a little later. S11 provides that when an application is made under s10 the Ministerial Corporation shall cause to be advertised a notice containing particulars of the application. The section goes on to provide that a local occupier or a statutory authority whose interests may be affected by the granting of the application may within a certain time lodge with the Ministerial Corporation an objection to the application. Subs(5) of s11 provides that where the Ministerial Corporation decides that an application should be granted but an objection has been lodged, the Ministerial Corporation shall direct the local Land Board or a Magistrate to hold a public inquiry as to the desirability of granting the application or as to the period, terms, limitations and conditions proposed to be applied to the licence as the case may be. At such an inquiry the applicant and objectors sometimes are entitled to be heard. The local Land Board or Magistrate as the case may be is required following the inquiry to report in writing upon the inquiry to the Ministerial Corporation. Where the inquiry is as to the desirability of granting the application and the report of the local Land Board or Magistrate is in favour of granting the application, the report is to embody the period, terms, limitations and conditions to apply to the licence. Subs(6) of s11 provides: "6. Where an inquiry is held under subs(5) the Ministerial Corporation or the applicant or any person or authority so interested as aforesaid may within 28 days from the announcement of the decision as provided for in the said subsection appeal to the Land and Environment Court against the decision of the local Land Board or Magistrate, the decision of the court shall be final." The licence, if any, is granted by the Ministerial Corporation (s12). The Ministerial Corporation advertised the application made by Mr and Mrs Eldridge and a number of objections were received. They included an objection by Mrs Noble, the present appellant. Mrs Noble is the owner of some land downstream of the point in Yandyguinula Creek from which Mr and Mrs Eldridge draw water. All of the other objections were withdrawn but Mrs Noble pursued her objection and a hearing was conducted by the local Land Board. The local Land Board made its decision on 16 March 1995. The concluding paragraph of the Board's decision is expressed in the following terms: WROBLE v DEPARTMENT OF LAND AND WATER CONSERVATION and ANOR (Gleeso& CJ) "Accordingly the Board is in favour of granting the application for a five (5) year period on the terms, limitations and conditions contained in the Schedule of Works (exhibit 3) and the Condition Statement (exhibit 4) as amended to include the provisions of both. " Dealing with the central issue of the desirability of the grant of the licence the Board said: "No persuasive evidence was produced to the Board to support the contention that Mrs Noble's interests will be adversely affected if the application is granted. However the Board accepted that the grant of the licence should be subject to amended conditions. In particular the Board accepts that a single control point at Begby's Crossing may not be sufficient to adequately protect the interests of the other water users, therefore the Board agrees that an additional control point should be located (at a certain place)." The reasons for decision of the Board show that at the hearing of the inquiry the agent who appeared to represent Mrs Noble raised certain issues concerning deficiencies in the form of the application signed by Mr and Mrs Eldridge and other related points concerning the competency of the application. Referring to the decision of Sugerman J in Hobart v Mobbs reported in the Law Book Company Land Law Service Monthly Notes vol 5, July 1959, p3, the Board expressed serious reservations as to whether or not these were issues which were proper to be raised for its consideration. Those reservations were based upon the consideration that, under s11(5) of the Water Act 1912, what the Board was doing, pursuant to a direction of the Ministerial Council, was conducting an inquiry as to the desirability of granting the application and as to the period, terms, limitations and conditions proposed to be applied to the licence. It is the Ministerial Corporation under s12 of the Act which has the ultimate function of issuing the licence in the event of a favourable report from the Land Board. Nevertheless, the points having been raised, the Land Board dealt with them on their merits. Since to some extent the points have been raised again in the present appeal and were argued before Bannon J it is appropriate to refer to those which are presently material. Mention was earlier made of the fact that when Mr and Mrs Eldridge applied for a licence they filled the form of application out themselves. $10(3) of the Act requires that certain particulars are required to be given in or with the application for a licence. They include, in para(b) and para(c), particulars of the maximum rate at which water may be taken from the river or lake, and particulars of the estimated quantities of water proposed to be taken annually. The form of application as filled out by Mr and Mrs Eldridge did not contain particulars of the kind referred to in para(b) and para(c). In effect, the relevant portions of the form of application were left blank. In relation both to the complaint that the application did not contain to the extent mentioned above the necessarily particulars and, also, to a complaint about the advertisement inserted by the Ministerial Corporation under s11 the Land Board made the following observations. This was a case in which the application was for the licensing of a use which had been in operation for several years. The pipe in question had been installed a number of years previously and any local occupier who wanted to understand the effect of the pipe on the flow of water in the creek could go and look at it. 4 UNREPORTED JUDGMENTS Furthermore, in the course of the hearing before the Land Board evidence was given about the maximum rate at which water may be taken from the river or lake and the estimated quantity of water proposed to be taken annually pursuant to the use in respect of which Mr and Mrs Eldridge were seeking a licence. The Board said: "Whilst the Board accepts that the information contained in the application form is an essential ingredient in assessing the impact that the granting of a particular application may have on objectors or local occupiers, the circumstances of this case, that is an application to license an existing 40 millimetres poly pipeline to take water from a creek by way of a gravity flow through that pipeline for domestic purposes are such that no downstream water user would or could be misled or unaware of the impact that the application will have on their interests in this matter. The Department of Water Resources made all the necessary information available to occupiers in the form of a schedule of works of the proposed conditions that will attach to the licence." In other words, whilst expressing misgivings as to whether these really were matters for the Board's consideration, the Board decided, giving reasons for that decision, that no unfairness resulted from the deficiencies in the application and from the form of the Ministerial Corporation's advertisement. When the appeal from the Board's decision came before Bannon J both the present appellant, Mrs Noble and Mr and Mrs Eldridge appeared in person before his Honour. The Department was represented by counsel. No attempt was made in the appeal to this Court to challenge the decision of the Board or the decision of Bannon J on the merits of the matter, that is to say, the question of the desirability of granting the application. The points that are sought to be argued in this court relate to technical issues as I shall explain them. The first point raised on behalf of the appellant in this Court concerns what is said to be a deficiency in the decision of Bannon J. It is argued that nowhere in his Honour's decision did he specify the term of the licence. The statute provides that the maximum term of the licence may be ten years. In a passage in the concluding part of the decision of the Board which I have already quoted the Board reported to the Ministerial Corporation that it was in favour of granting the application for a five year period upon certain terms and conditions. Bannon J at the conclusion of his reasons for judgment said: "T accept Mr Webb's evidence and uphold the view of the Land Board and grant the licence on the conditions set out in Ex 12 and permit the schedule of works authorised as set out in Ex 13." In my view, it is perfectly clear that his Honour intended the effect of his decision to be that he upheld the decision of the Land Board in relation to the term of the proposed licence, that is to say a period of five years. This was mentioned earlier. It was neither for the Land Board nor for the Land and Environment Court actually to grant the licence. That is the function of the Ministerial Corporation pursuant to s2. His Honour's reference to his granting the licence was a slip. I think there can be no possible room for uncertainty on the part of the Ministerial Corporation as to the term of the licence that Bannon J contemplated it was to grant. That term was to be for five years. This ground of appeal has not been made out. WROBLE v DEPARTMENT OF LAND AND WATER CONSERVATION and ANOR (Gleesoi CJ) The second point taken on behalf of the appellant relates to a matter that was considered in some detail by Bannon J. It concerns the insufficiency of the particulars given in the application filled out by Mr and Mrs Eldridge. I have already mentioned the basis upon which the Land Board considered that question. It has been common ground between counsel for the appellant and counsel for the first respondent on this appeal that it lay within the jurisdiction of the Land and Environment Court to consider issues of law concerning the validity of the application on an appeal under s11 of the Act. That being common ground it is unnecessary for this Court to examine of its own motion that question. I am content to proceed with the consideration of the appeal on the assumption that what is agreed between counsel in that regard is correct, without making any independent decision on the matter myself. A question arose before Bannon J as to whether the provisions of s10(3) of the Act were mandatory or directory. In dealing with that issue his Honour rightly held that the decision of this court in McRae v Coulton (1986) 7 NSWLR 644, a decision relating to cognate provisions of the Water Act, was directly in point, and bound him to decide that the relevant provisions were directory. It is accepted on this appeal that the principles applicable to the making of such a decision are those set out in the judgment of Hope JA at p661. I agree with Bannon J that on the true construction of s10 of the Water Act strict compliance with the provisions of s10(3) is not a condition precedent to the validity of an application. In that respect, as was pointed out by Hope JA in McRae, it is to be remembered that applications for licences under this Act are typically prepared by people who are acting without the benefit of legal advice and commonly relate to installations of a relatively minor nature. As a matter of practical common sense a conclusion that the requirements of s10(3) need to be strictly complied with for an application to be valid would produce unacceptable consequences. Bannon J also concluded that in the facts and circumstances of the present case there had been substantial compliance with the requirements of s10. I also agree with his Honour's conclusion in that regard. In particular, the circumstance that this was an application for the licence of a use and in respect of an installation that had been in existence and in operation for a substantial number of years and that was readily available to be physically inspected by any local occupier who might be minded to object is a material consideration. The third point that was argued on this appeal is not a point that was argued before Bannon J and is, therefore, not referred to in his Honour's reasons for judgment. It concerns the form of notice of the application advertised by the Ministerial Corporation. The argument proceeds upon an assumption as to the meaning of s11(1) of the Water Act which I do not accept. That assumption is that the words "a notice containing particulars of the application" means "a notice containing the particulars of the application required to be given by s10(3)". The argument is that the notice advertised by the Ministerial Corporation did not attempt to repeat the particulars required by s10(3), even to the extent to which those particulars were given by Mr and Mrs Eldridge. In my view, when sl1(1) refers to "particulars of the application" it means such information concerning the application as is necessary to enable potential objectors to decide whether they should give consideration to objecting. This is consistent with the decision in McRae to which reference has already been made. It is also consistent with the meaning which similar words have in cognate provisions of the Water Act, such as s20A. It would be a curious reading of the corresponding words in 6 UNREPORTED JUDGMENTS s20A to take them to require that the advertisement or notice there referred to should repeat in detail all of the particulars required to be given by s20(2). For those reasons, I consider that the third ground relied upon in this appeal by the appellant should not succeed. I am content to deal with this appeal upon the assumption that this is a point that may be relied upon by the appellant notwithstanding that it was not taken before Bannon J. In my view, the appeal should be dismissed with costs. Handley JA I agree. Sheller JA I also agree. GLEESON CJ: The order of the Court will be as I have proposed. Appeal dismissed with costs. Counsel for the appellant: T Robertson Solicitors for the appellant: Woolf Associates Counsel for the respondent: B Green Solicitors for the respondent: Director Legal Services, Department of Land and Water Conservation