Ashworth v State of Victoria [2003] VSC 194

2. This is a proceeding instituted by writ, in which the plaintiff, the owner and occupier of farming land, seeks certain declaratory relief in respect of his rights to use water on his own land.

6. The plaintiff, Allen Ashworth ("Mr Ashworth"), owns and occupies a farming property in Upper Lurg Road, Lurg, in this State.

9. The defendant, the State of Victoria ("the State"), is sued as the authority responsible for the provisions of the Water Act 1989 ("the Act") and their enforcement.

13. The plaintiff's solicitors, in March this year, filed and served upon the State a notice to admit facts pursuant to Rule 35.03 of the Rules of Court. The State did not dispute any of those facts and accordingly, by reason of Rule 35.03(2) the State of Victoria admits the facts.

16. The plaintiff did not call any additional evidence. I find the following facts -

(1) That Mr Ashworth is and has been since in or about 1972, the owner and occupier of a property known as Upper Lurg Road, Lurg, in the State of Victoria being the whole of the land comprised in Lots 2 and 3 on Plan of Subdivision 84563.

(2) Four dams are located on the land.

(3) None of the dams receives water from a stream or from a waterway or bore within the meaning of those expressions as used in the Water Act 1989.

(4) The dams are filled:

(a) by run-off from rain falling on the land; and

(b) by water seeping from springs on the land

which make their way to the dams otherwise than by means of a waterway.

(5) That since in or about the year 1972 Mr Ashworth has used the land for the purposes of grazing, pasture and cropping.

(6) Since in or about the year 1972 Mr Ashworth has conducted on the land the business of beef production.

(7) Since in or about the year 1972 Mr Ashworth has irrigated the pasture and the crops from the dams on his property.

22. The State of Victoria tendered in evidence certain documents as an aid to the interpretation of the provisions of the Act.[1]

(i) a copy of the second reading speech for the Water (Farm Dams) Bill 2001;

(ii) the explanatory memorandum for the said Bill;

(iii) the final report of the Farm Dams (Irrigation) Review Committee dated April 2001;

(iv) the Victorian Government's response to the final report, dated July 2001.

35. The facts leading to the dispute which brought the parties to this court can be briefly stated. For many years, Mr Ashworth farmed his property and used the water in his dams for whatever purpose he wished. The Water Act was passed in 1989 and except for certain items in Schedule 13, was in operation by 1 November 1990.

38. The purposes of the Act are set out in s.1. The first purpose was to -

"(a) To re-state, with amendments, the law relating to water in Victoria."

42. The Act did not interfere with Mr Ashworth's use of the water from rain or existing naturally on his land.

45. However, in the year 2002 a number of amendments were made to the Act by the Water (Irrigation Farm Dams) Act 2002 ("the Farm Dams Act"). It is those amendments with which this present proceeding is concerned. The amendments, according to the State, have the effect of requiring Mr Ashworth to obtain a licence if he wishes to take and use water from a spring, soak, or a dam on his land for use other than for domestic and stock use. If he takes water from a spring, soak or a dam and uses it other than for domestic and stock use without a licence, he will be guilty of an offence. The offence carries a penalty of 20 penalty units or imprisonment for three months.

48. Section 8 of the Act was amended and arguably the effect of the amendment is that he is no longer permitted to use water that occurs on his land in a spring, soak or dam other than for domestic and stock use without a licence.

51. Mr Ashworth does not have a licence. He objects to the interference with what he sees as his right to use the water in his dams as he thinks fit, hence, the dispute between the parties.

54. Mr Ashworth seeks declaratory relief to the effect that he is entitled to use the water on his land which flows otherwise than in a regular or defined course, whether it originates from rainfall or otherwise, as his own. He also seeks a declaration that it is not an offence for him to take and use water from his dams without being the holder of a licence.

57. The State contends that he is not entitled to use water from a spring or soak or from his private dams save for domestic and stock use, without a licence. Further, the State pleads that the declaratory relief should be refused on discretionary grounds as the claim is at present hypothetical and seeks to pre-empt the determination of issues in the event Mr Ashworth is charged with an offence under the Act.

60. Mr Nash QC who appears with Mr N. Jones for Mr Ashworth, informed the court that Mr Ashworth is not permitted, without a licence to that effect, to wash down his dairy, use water for his crops (other than domestic), or to use water for irrigation in any way.

63. It is noted that any rainwater which is supplied to the dam from a roof of a building can be used for any purpose. However, that is a matter of no consequence in the present proceeding.

66. The question whether or not Mr Ashworth is entitled to use water from a spring, soak or from a private dam without a licence depends upon the interpretation of the Act as amended. The operation date for the new licensing regime for Mr Ashworth is 1 July 2003.

70. Water is a precious commodity. The main source of water is rain, but in addition, there are many underground water reserves in this State. The recent drought conditions have reduced dramatically the water supplies in this State and speaking in the year 2003, every member of the community in this State realises and appreciates the importance of conserving water and controlling its use. Our forefathers appreciated the importance of regulating the use of water and the Legislatures over the years have enacted legislation to regulate the use of water. There has, over the years, progressively been more regulation of the use of water in this State and the rights of the land holder have been diminished. It is clearly in the interests of the public that water use is regulated to ensure that the precious resource is available to all and the effect of drought is minimised. Water is one of the few necessities of life.

73. In 1989, the Parliament of Victoria enacted the Water Act 1989. It comprises 331 sections and 14 schedules. One of its purposes was to re-state the law relating to water in Victoria. See s.1(a). The Act was effectively in operation from 1 November 1990. The Act repealed a number of Acts. See s.325 and Schedule 13. There is little doubt that the object of the legislation was to bring together under one Act the statutory provisions concerning water. This is made clear by reference to the purposes set out in s.1 of the Act.

76. The Farm Dams Act, No. 5 of 2002, was passed by the Parliament and assented to on 3 April 2002. Its provisions were and are to come into operation on a variety of dates. See s.2 of that Act and s.3 of the amending Act, Water (Irrigation Farm Dams) Amendment Act 2002 ("Farm Dams Amendment Act"), No. 6 of 2002.

79. The Farm Dams Act creates an offence for any person, unless authorised, to take or use water from a spring, soak or dam for use other than domestic and stock use. See s.63(1A) of the Act. By reason of s.63(4) any person who had taken and used water from a spring or soak or a dam not on a waterway during the period of ten years immediately prior to the commencement of the Farm Dams Act would not be committing an offence to use the water without authority, but will be liable on and after 1 July 2003.

82. It follows that Mr Ashworth will not be committing an offence taking or using water from his dam for a purpose other than for domestic and stock use without a licence until on or after 1 July 2003.

85. It is the amendments to the Act brought about by the Farm Dams Act 2002 which has brought the parties to court.

88. The reason for the Farm Dams Act is stated in the explanatory memorandum to that Act.

"The Water Act 1989 (The Water Act) requires that people obtain a licence to take water from a waterway for irrigation or other commercial use. On many smaller waterways dams are built to enable water harvested during the wetter months to be used in the summer time. The Water Act relies on the definition of a waterway to manage the water resources in a catchment. The definition of waterway leaves the potential for large irrigation and commercial dams to built outside the management regime and to have a detrimental effect on downstream water users. There is therefore a gap in Victoria's water allocation framework."

95. Reference was then made to draft and final reports of the Victorian Farm Dams (Irrigation) Review Committee and the Government's response in 2001.

"The Water (Irrigation Farm Dams) Act 2002 (the Act) amends the Water Act to complete Victoria's water allocation framework by requiring the licensing of all irrigation and commercial use in the catchment. Existing irrigation and commercial dam owners who are not currently required to be licensed will have the choice of applying for either -

* a registration licence (the first five year registration licence is free and a nominal fee will apply for renewal of registration licences); or

* a standard take and use licence which is transferable.

The use for domestic and stock purposes by farmers is not affected by the amendments." (Emphases added).

105. Going to the Farm Dams Act, the purposes are set out in s.1 and so far as are relevant, provide -

"The purpose of this Act is to amend the Water Act 1989 -

(a) to require the use of water in private dams or from springs or soaks for commercial and irrigation purposes to be licensed;

(b) to provide for the declaration of water supply protection areas and the preparation and implementation of management plans for those areas;

(c) to require certain dams to be licensed;

(d) ...

(e) ... "

(Emphasis added).

Rights

112. Part 2 of the Act deals with "Rights and Liabilities". Division 1 deals with "Rights".

115. The heading to s.7 is "Continuation of the Crown's Rights to Water". This does not form part of the Act. See s.36(2A) of the Interpretation of Legislation Act 1984 ("Interpretation Act"), because the Act was passed prior to 1 January 2001 and the heading was not inserted after 1 January 2001. Indeed, I did not understand Counsel to contend otherwise.

118. Section 7(1) gives the right to the Crown to the use, flow and control of all water in a waterway and all ground water.

121. A "waterway" is defined by s.3 and is a very wide definition. It includes, inter alia, river, creek, stream or water course, any natural channel in which water regularly flows and a lake, lagoon, swamp or marsh, but does not include a dam.

124. The word "groundwater" is also defined and means any water in or obtained from an aquifier.

127. The word "aquifier" is also defined and it means "a geological structure or formation or an artificial land fill permeated or capable of being permeated permanently or intermittently with water".

130. The Crown's rights to water are extensive, see s.7(2), but cannot be exercised to limit the right to water conferred on a person by reason of s.8(4)(c) which gives the right to a person to use rainwater and other water that occurs or flows (otherwise than in a waterway or bore) on land occupied by that person. That was a right which Mr Ashworth has enjoyed for many years. It was a right at common law. A land owner had the unqualified right to appropriate for his own use surface water not flowing in a definite and regular channel.[2] The land owner could exercise his right to the water, even though it interfered with his next door neighbour's expectations of water flow, without any liability.[3]

133. Section 8 is concerned with the rights of others to water. It was amended by the Farm Dams Act. It is the amendments which are at the centre of the dispute.

136. It is necessary to set out s.8 as amended by the later Act. The parties' submissions focussed on sub-ss.(4)(c), (5), (5A) and (7). The amendments are underlined.

"8. Continuation of private rights to water

(1) A person has the right to take water, free of charge, for that person's domestic and stock use from a waterway or bore to which that person has access -

(a) by a public road or public reserve; or

(b) because that person occupies the land on which the water flows or occurs; or

(c) in the case of a waterway, because that person occupies land adjacent to it and the bed and banks of the waterway have remained the property of the Crown by virtue of section 385 of the Land Act 1958 or any corresponding previous enactment; or

(d) subject to section 33C, in the case of a bore, because that person occupies it.

(2) If required to do so by the regulations, a person taking water under sub-section (1) must give the Minister, in accordance with the regulations, written notice of the amount taken.

(3) A person has the right to use -

(a) water taken by that person from a waterway or bore under a right conferred by sub-section (1); or

(b) while it is within the waterway or bore, water which that person has the right to take under sub-section (1).

(4) A person has the right to use -

(a) water taken or received by that person in accordance with a licence or other authority issued to that person under this Act or any corresponding previous enactment; or

(b) water lawfully taken or received by that person from the works of an Authority or of any other person; or

(c) rainwater or other water that occurs or flows (otherwise than in a waterway or bore) on land occupied by that person or, with the permission of the other person, on land occupied by another person.

(5) Water referred to in sub-section (4)(c) may be used for any purpose and on any land.

(5A) Sub-sections (4)(c) and (5) do not apply to the use, other than domestic and stock use, of water from a spring or soak or water from a private dam (to the extent that it is not rainwater supplied to the dam from the roof of a building).

(6) A right conferred by this section is limited only to the extent to which an intention to limit it is expressly (and not merely impliedly) provided in -

(a) this Act; or

(b) any other Act or in any permission or authority granted under any other Act; or

(c) the conditions of a licence issued under this Act; or

(d) the prescriptions contained in an approved management plan drawn up under Division 3 of Part 3 for a water supply protection area.

(7) The rights to water conferred by or under this Act on a person who has an interest in land replace any rights -

(a) to take or use water; or

(b) to obstruct or deflect the flow of water; or

(c) to affect the quality of any water; or

(d) to receive any particular flow of water; or

(e) to receive a flow of water of any particular quality -

that the person might otherwise have been able to enforce against the Crown or any other person because of, or as an incident to, that interest.

(8) This section does not authorise any act or omission that may -

(a) cause any water to be polluted; or

(b) obstruct the flow of any water in a waterway; or

(c) erode or otherwise damage the surrounds of any waterway."

143. Section 63(1A) which was inserted by the Farm Dams Act makes it an offence to take or use water from a spring, soak or dam save for domestic and stock use unless licensed. In Mr Ashworth's case he will commit an offence if he uses the water without being licensed on or after 1 July 2003 - see s.63(4).

146. It is the contention of Mr Ashworth that he is entitled as of right to use any water that naturally occurs or flows on his property other than in a waterway or bore and the Act, as amended, does not require him to be licensed. In particular, he maintains the right to use the water in his dams for any purpose that he chooses. The water in his dams does not come from a waterway or bore. It comes from run-off from rain falling on the property and springs.

149. The commencing point of his argument is that s.8(4)(c), combined with sub-s.(5), gives him the statutory right to use rainwater and any other water that occurs or flows on his land (otherwise than in a waterway or bore) for any purpose that he may wish.

152. It was submitted on his behalf that water that got into his dam, whether it be from the heavens, run-off or a percolating spring, was water that always belonged to him at common law and could be used as he wished, that s.8(4)(c) and s.8(5) recognised and preserved his rights and the recent amendments did not in any way interfere with his common law rights.

155. Section 8, sub-sections (1) to (3) deal with a person's right to take water, free of charge, from a waterway or bore, "for that person's domestic and stock use".

158. Section 8(4)(c) deals with the rights of a person to take and use water that occurs or flows on that person's land, otherwise than in a waterway or bore, and sub-s.7 provides that the rights to water conferred under the Act on any person who has an interest in land are to replace any rights that person may have to take or use water. It was submitted on behalf of Mr Ashworth that s.8(7) did not totally cover the field of water rights and that there were common law "rights" in the nature of a privilege to water which were not affected by s.8. It was submitted that s.8(7) extinguished rights to water being rights, not privileges, and only rights that were enforceable against the Crown or any other person. Mr Ashworth enjoyed a privilege to take and use water that occurs in a dam or flows on his land from a spring or soak. It was submitted it was not a right and further not something that he could enforce against the Crown or any other person. It followed that the statutory rights by reason of s.8(7) did not replace the "right" (being a privilege) to take or use the water on his land and hence Mr Ashworth could continue to use the water in his dams without the necessity for a licence.

161. Dr Griffith QC, who appeared with Mr S. McLeish for the State, submitted that the purpose of the amendments to the Act by the Farm Dams Act was to regulate by licence the use of water from a spring, soak or private dam, that it is clear that the rights to water of Mr Ashworth were regulated by the Act and no other law, and that he was obliged to obtain a licence if he wished to use the water for any purpose other than for domestic and stock use. Reference was made to s.8(5A) which made it plain that Mr Ashworth's rights were severely restricted. This conclusion was reinforced when the extrinsic material was considered and the offence provisions put it beyond doubt.

164. If the State's submissions are correct, Mr Ashworth's rights have been severely reduced. Unless licensed, Mr Ashworth may only take and use water from his dams for "domestic and stock use".

167. The definition of "domestic and stock use", in s.3, means water for household purposes, watering of pets, watering of cattle or other stock, for fire prevention and irrigation of a kitchen garden -

"but does not include use for dairies, piggeries, feed lots, poultry, or any other intensive or commercial use."

171. Without being licensed, Mr Ashworth could not wash down his dairy, or grow crops for feed using water from a spring or soak or private dam, other than to the extent that it was rainwater from a roof.

175. In my opinion, whether Mr Ashworth is entitled to use rainwater or other water that occurs or flows on his land, otherwise than in a waterway or bore, for any purpose that he may choose, depends upon the proper interpretation of s.8 of the Act, and in particular, s.8(5A) and s.8(7).

178. The object of interpretation of a statute is to give effect to the intention of Parliament. The primary source of that intention is the words used, construed in their normal and natural meaning, unless, of course, there is something in the Act leading to the conclusion that the words are to be used in some other sense. The provision to be interpreted must be considered as a whole, read in the context of the whole Act and be construed to give effect to the purpose of the legislation. Section 35 of the Interpretation of Legislation Act 1984 requires the court, in the interpretation of the provision of an Act, to prefer a construction that promotes the purpose or object underlying the Act over a construction that would not promote the purpose of the Act. Section 35(b) permits consideration being given to any matter or document that is relevant to the issue.

181. The State tendered in evidence various extrinsic materials. It was submitted that the court should take them into account and reference was made to s.35 of the Interpretation Act.

184. The resort to extrinsic material in determining the intention of Parliament was considered by the Full Court in R v Boucher.[4] The court said -

"Section 35 imposes an obligation upon the courts to seek to ensure that an interpretation of legislation which is consistent with the purpose or object of the act is adopted rather than one which is not. This may be done without reference to extrinsic materials referred to in s.35(b) and for that reason it is not made mandatory that the courts consider that material. It is, however, available to be used by way of confirming, if confirmation is thought necessary, that the interpretation otherwise determined upon from the words used does in fact accord with what was the apparent purpose or object as it emerged (if it did clearly emerge), from the debates in Parliament."

188. The court also referred to what was said by Brennan and Gaudron JJ in Catlow v Accident Compensation Commission.[5] Their Honours emphasised that extrinsic material cannot alter the plain meaning of the Act. I considered the question in TXU Electricity Limited v O.R.G.[6] and summarised the approach at paragraph 128 and following. It is convenient to repeat what I said -

"Today, legislation requires the court to construe a subordinate instrument in a manner which promotes the purpose or object underlying the statutory instrument. Such construction is preferred to a construction which would not promote the purpose or object. See s.35 Interpretation of Legislation Act 1984. In construing a provision, consideration may be given to a variety of extrinsic materials provided the material in question is relevant. See s.35(b). The permitted extrinsic material is any matter or document, and the only limitation is that it is relevant to the interpretation. In my opinion, Parliament intended that the court should consider all extrinsic material which may assist it in determining the intention of the framers of the statutory instrument. The important considerations are relevance and care in weighing the extrinsic material. However, as has been pointed out by the High Court in a number of recent cases, the words in the statute are the primary source of the intention, and if they are precise and unambiguous, they best declare the intention of the body responsible for the statutory instrument."

192. In that case I was dealing with a subordinate instrument but the principles stated equally apply to a statute.

195. The State submits that the words are clear and beyond doubt and accordingly, it is unnecessary to go to the extrinsic material but nevertheless submit that reference to the extrinsic material supports its interpretation.

198. This proceeding is concerned with the right of Mr Ashworth to take and use rainwater or other water that occurs or flows on his land, otherwise than in a waterway or bore, and use that for any purpose. Mr Ashworth claims a right to use for any purpose the water that is in the dams on his property, and that water is accumulated rainwater and water percolating through springs on his property. Section 8(4)(c) and s.8(5) gives him that right. However, the amendment made by the Farm Dams Act, which inserted s.8(5A), restricts that right. The new sub-subsection provides that his right to use water from a spring, soak or a private dam other than rainwater supplied to a dam from a roof, does not apply to any use other than domestic or stock use. The sub-section is plain and in my view deprives Mr Ashworth of his right to use rainwater or other water that occurs or flows on his land from a spring, soak or dam for any purpose other than for domestic and stock use. That means the water in his dams and any water from a spring or soak. This conclusion is reinforced by one of the purposes of the Farm Dams Act expressed in s.1. It provides -

"1. Purpose The purpose of this Act is to amend the Water Act 1989 -

(a) to require the use of water in private dams or from springs or soaks for commercial and irrigation purposes to be licensed;"

205. Resort to the extrinsic material is unnecessary but resort to it does confirm that conclusion.

208. The explanatory memorandum to the Farm Dams Act, which I have quoted above, makes it clear that Parliament requires the licensing of all irrigation and commercial use in a catchment and makes it quite clear that existing irrigation and commercial dam owners must be licensed in relation to the use of water in private dams.

211. In a second reading speech on the Farm Dams Bill, the Hon. Ms Garbutt, Minister for Environment and Conservation, observed that the primary purpose of the Bill was to better manage Victoria's water resources and stated -

"The Bill will amend the current right to store water off waterways and use it for any purpose. In future a licence will be required for all irrigation and commercial use in a catchment."

215. After tracing the history of the regulation of water in this State, commencing with the Irrigation Act of 1886, the Minister then referred to the new licensing arrangements and stated -

"The bill will extend the existing licensing arrangements that at present only apply to dams constructed on waterways, to cover all new irrigation and commercial use in the catchment. Licensing is not new to Victoria; it is the primary mechanism of managing the catchment's water resources. Licences are already required for people who take water from a waterway or ground water. This bill will extend the licensing regime to people who take water for other than domestic or stock use from a spring, soak or dam." (Emphasis added).

219. The Bill followed on from the recommendations of the Farms Dams (Irrigation) Review Committee's final report dated April 2001.

222. The Victorian Government considered the review committee's report and published a response dated July 2001.

225. It was noted prior to the recent amendments, that "farmers can currently construct large dams off waterways and use the water captured for any purposes".

"The primary purpose of the Bill will be to amend the current right to store water off waterways and use it for any purpose. In future, a licence will be required for all irrigation and commercial use in a catchment. The existing licensing arrangements, that at present only apply to dams constructed on waterways, will be extended to cover all new irrigation and commercial use in the catchment."

232. I am satisfied that on a plain meaning of s.8(5A), Mr Ashworth's right to use rainwater or other water that occurs or flows on his land does not apply to water from a spring or soak or water from a private dam (other than rainwater supplied from a roof) and he can only use that water for uses other than domestic and stock use by obtaining a licence to do so. That is the plain meaning of the sub-section. The conclusion is reinforced by consideration of the offence provision found in s.63(1A) and in particular, s.63(4). The extrinsic evidence confirms the interpretation.

235. To meet this conclusion, Mr Nash QC submitted that s.8(5A) whilst taking away some of Mr Ashworth's rights, did not take away all his rights. I agree. He still had the right to use rainwater or other water that occurred or flowed on his land for any purpose, but he could not use water from a spring, soak or private dam except for domestic and stock use. It is water that is either in a private dam or comes from a spring or soak which can no longer be used without a licence, other than for domestic and stock use.

238. Mr Nash QC referred to s.8(7) and submitted that the statutory rights conferred by the Act to, inter alia, take or use water, replaced a true legal right and one that could only be enforced against the Crown or some other person. He submitted that a right which was properly defined as a privilege and which was not enforceable against the Crown or another person was not replaced by the rights given by, inter alia, s.8(4) and (5). This right in the nature of a privilege was left unaffected by s.8 and accordingly could be enjoyed without the requirement of a licence. He submitted, in accordance with well-established authority, that full effect must be given to s.8(7) of the Act and it could not be ignored as being superfluous and of no real practical effect. See Ditcher v Denison,[7] and Cowper-Essex v Acton.[8] However, that is not a universal rule. Sometimes parliaments do enact provisions by way of precaution and sometimes provisions are surplusage. See Hill v William Hill (Parklane) Ltd.[9] Nevertheless, a court should strive to give effect to all words used in a statute.

241. Mr Nash QC referred to the common law rights to water.

245. Mr Nash QC submitted that the common law gave extensive rights to land owners in relation to water naturally on their property. He submitted that the true nature of some of the rights to water was not an enforceable legal right but a privilege and if another land owner did something on his land which interfered with the flow of, for example, natural underground water, the adjoining land owner affected by the interference could not enforce any right to that underground water. It was not an enforceable right. He referred to Bradford v Pickles.[10]

248. At the outset, it must be emphasised what the issues are in this proceeding. This case is concerned with water that is already on Mr Ashworth's land. He has appropriated the water, stored it in his dams and has assumed proprietary rights over it. He proposes to use it for whatever purpose he chooses. The subterranean water that naturally percolates up through the springs has also been appropriated by him. This case is not concerned with a neighbour occupier doing anything on his land or Mr Ashworth's land to interfere with the water that is already on Mr Ashworth's land.

251. The common law concerning rights to water differentiates between water flowing in a known channel and flowing in an unknown channel. At common law there was no property in such water. But rights could be acquired especially as an incident to land occupation. The rights in relation to a flowing stream of water were stated by Parke B in Embrey v Owen.[11]

"The right to have the stream to flow in its natural state without diminution or alteration is an incident to the property and the land through which is passes; but flowing water is publici juris, not in the sense that it is a bonum vacans, to which the first occupant may acquire an exclusive right, but that it is public and common in this sense only, that all may reasonably use it who have a right of access to it, but none can have any property in the water itself, except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during the time of his possession only. But each proprietor of the adjacent land has the right to the usufruct of the stream which flows through it. This right to the benefit and advantage of the water flowing past his land, is not an absolute and exclusive right to the flow of all the water in its natural state; ... but it is a right only to the flow of the water and the enjoyment of it, subject to the similar rights of all the proprietors of the banks on each side to the reasonable enjoyment of the same gift of Providence." (Emphases added).

255. As the dicta makes clear, a land owner can acquire a right of property in water where the water flows onto the property and there is nobody else to share it with him. Also where flowing water is appropriated or taken in possession, the right of property exists during that possession. The case of Holker v Porritt[12] supports those propositions. That case shows the land owner can maintain an action which interferes with his right to the water on his land.

258. Water which does not flow in some channel but is contained in some way on the land is the property of the person who has the possession. See Ferens v O'Brien.[13]

261. At common law, the owner occupier of land had the right to take and use as his own water flowing on his land which did not flow beyond his land, see Holker v Porritt;[14] water which flowed upon his land otherwise than in a regular or defined water course - see R v Metropolitan Board of Works;[15] water which rises on the land - see Race v Ward;[16] and water which lay on the land as a result of rainfall - see Rawston v Taylor[17] and Broadbent v Ramsbotham.[18]

264. In the late 19th Century/early 20th Century, the Victorian Colonial and State Parliaments passed legislation which gradually restricted the rights of owners of property to take and use water flowing onto their land. See The Irrigation Act 1886, the Water Acts of 1890 and 1905, and The Water Act of 1958. Indeed, the first Act of 1886, vested the right to use all water in any river, stream, watercourse, lake, lagoon, swamp or marsh in the Crown. This provision was indeed revolutionary as it effectively abolished previously recognised riparian rights over flowing water. Nevertheless, until the recent amendments, land owners have always had the right to store and use rainwater and any other water that occurred or flowed on their land otherwise than in a waterway or bore for any use they thought fit.

267. Section 8(7) provides for the replacement of common law rights by statutory rights. But the replaced rights are those enforceable by a landowner against the Crown or any other person. Mr Nash QC submitted that s.8(7) dealt only with a right to, inter alia, take or use water which was a true enforceable right and one that could have been enforced against the Crown or any other person. He submitted that the water collected in the dams on Mr Ashworth's property from rainwater and percolating spring water belonged to Mr Ashworth but he did not have any enforceable right against the Crown or any other person if there was any interference with that water.

270. In support of this submission, reference was made to the decision of the Borough of Bradford v Pickles.[19] In that case, the Bradford Corporation wished to use water from springs for certain statutory purposes. Mr Pickles was a land owner in the area and he carried out certain works on his property which had the effect of interfering with the flow of the underground water. The water was not flowing in any defined stream but was percolating and if he had not interfered with that water it would have reached the Bradford Corporations works. By his works, he deprived them of the water that the corporation would otherwise have obtained.

273. The issues were whether the Corporation had a right to the flow of the water and whether Mr Pickles had no right to do what he was doing on his land - see Lord Halsbury LC at p.592.

276. The House of Lords held that Mr Pickles was quite entitled to do what he did. The House followed an earlier decision[20] which dealt with a situation where an owner of land had sunk a well upon his own premises and thereby abstracted the subterranean water percolating through the soil which otherwise by gravity would have flowed through to the plaintiff. Indeed, in that case, the plaintiff had enjoyed the use of that water for some 60 years. In that case the House held that the land owner had the right to do what he had done, whatever his object or purpose might be, and even though the purpose might be wholly unconnected with enjoyment of his estate. The House held that the Bradford Corporation had no right to the flow of water and Mr Pickles was not doing anything wrong. The case was concerned with an adjoining landowner interfering with the flow of spring water into an adjoining property. The decision affirmed what had been decided earlier that the downstream landowner had no right to an uninterrupted flow of spring water. It was not concerned with the rights of the landowner to water which had flowed onto his property and which he had appropriated for his own use.

279. Mr Nash QC referred to a work on jurisprudence which, he submitted, correctly characterised the right to this percolating water as being a privilege. In the 1964 edition of Dias on Jurisprudence 1964, the learned author stated -

"Bradford Corporation v Pickles shows that a land owner has the privilege of extracting subterranean water, but no right against anyone else who, by abstracting the water before it reaches the land owner, prevents him from exercising his privilege."

283. Mr Nash QC submitted that a land owner's right to use rainwater falling on his land and water seeping from springs on his land are not common law rights but are privileges to take and use, and the statutory rights by reason of s.8(7) did not replace those rights. He submitted that it was only "rights" which give rise to a collateral duty in some other person which are in fact replaced by the rights conferred by the Water Act. He submitted that Mr Ashworth retained his common law privilege to which there was no correlative duty, to use water which flows on his land whether by run off from rain falling on the land or by seepage from springs on his land provided that the water had not made its way into any waterway and did not come from a bore within the meaning of those expressions in the Act. He concluded therefore that Mr Ashworth's common law rights to use the water which fell on his land or which seeped from springs on his land and made its way to the private dams were not replaced by statutory rights pursuant to s.8(7).

286. The rights given by the Act to Mr Ashworth "replace any rights" to, inter alia, "take or use water, that the person might otherwise have been able to enforce against the Crown or any other person because of, or as an incident to, that interest." (Emphasis added).

289. The right to water that the person has arises by reason of the interest that person has in land or as an incident to that interest. As I have emphasised, the present matter is concerned with water which is already on the land of Mr Ashworth. This case is not concerned with the situation where percolating water is interrupted by the actions of an adjoining land owner. In my opinion, the law is clear. Once the water flows onto a person's property and there is no-one else to share with him the use of that water, that water is owned by the land owner. Further, where flowing water is appropriated or taken into possession, the right to that water exists during such possession. See Holker v Porritt.[21] Indeed, as soon as a person has appropriated water for his own beneficial use, he may sue anybody who does injury to him in respect of such use. See Mason v Hill.[22]

292. In my opinion, the decision in Holker v Porritt is fatal to Mr Nash QC's submission. In that case, a natural stream had been divided immemorially by artificial means into two branches. One branch ran down to a river and the other passed into a farmyard where it supplied a watering trough and the overflow was discharged onto the land. The case was not concerned with the rights of a riparian owner to water flowing in a stream through or past his property. There was an appropriation of the water by the farmer. The court had this to say, at p.62 -

"The water which came down to him at the farm was his own to use it as he pleased. There was no-one entitled to share with him in its use, and no-one who could call him to account for any use which he chose to make of it there. In this respect his position was different from that of a riparian owner, who only shares the use of the water in common with other riparian owners. In collecting the overflow at the trough and conveying it to the mill, he clearly did nothing in derogation of the rights of any other person for which he was not entitled to do in the lawful use and enjoyment of his own property. Nor did he thereby lose any right which he then before had. ... But it is established by many authorities, which are collected in and confirmed by Mason v Hill, that as soon as the owner of land on a stream has appropriated the water to a beneficial use he may sue for the injury done to him in respect of such new use." (Emphasis added).

296. At common law Mr Ashworth had a right to the water that was in his dams and which was percolating up through the surface of his land and collected by him. He could have enforced that right against any person who interfered with the water when it was on his land.

299. Mr Ashworth's right to take or use water on his property which was from a spring, soak or from a private dam was a right, in my view, which he could enforce against the Crown or any other person who sought to interfere with that right by entry onto his land. This case is not concerned, as I have said, with the actions of an adjoining land owner. Mr Ashworth's statutory rights, now severely restricted, replaced his common law rights and s.8(7) does apply and makes clear that his common law rights no longer exist in respect of the rights to water specified in the sub-section.

302. In my opinion, the decision in the Bradford Corporation case is not to the point. The present case is concerned with rights to water actually on Mr Ashworth's land, being water from a spring or soak or from a private dam. Once water is on his land from a spring, soak or contained in a private dam, he would have had rights at common law against others who sought to interfere with his property in that water. It follows, that his common law rights have been replaced by s.8(4)(c) and 8(5) as restricted by s.8(5A).

306. In my opinion, s.8(5A) makes clear, that Mr Ashworth is not entitled to use water on his land from a spring, soak or water from a private dam to the extent that the water supplied to the dam was not from a roof of a building other than for domestic and stock use. Section 8(7) of the Act provides that the statutory rights replace his common law rights. Accordingly, Mr Ashworth is not entitled to any declaratory relief. It is unnecessary for me to consider whether he would have been entitled to the declaratory relief he sought.

309. Subject to any submissions by counsel, I propose to make the following orders -

(i) That the proceeding be dismissed.

(ii) That the plaintiff pays the defendant's costs including reserved costs.

[1] See s.35 of the Interpretation of Legislation Act 1984.

[2] See Rawstron v Taylor [1855] EngR 621; (1855) Exch 369; 156 ER 873.

[3] See Roberts v Fellowes (1906) 94 LT 279.

[4] [1995] VicRp 7; [1995] 1 VR 110 at 123.

[5] [1989] HCA 43; (1989) 167 CLR 543.

[6] [2001] VSC 153.

[7] (1857) 11 Moore PC 325 at 337.

[8] LB (1889) 14 App Cas 153 at 169.

[9] [1949] AC 530 at 546.

[10] [1895] UKHL 1; [1895] AC 587.

[11] [1851] EngR 386; (1851) 6 Exch 353 at 367: 155 ER at 585.

[13] (1883) 11 QBD 21.

[15] (1863) 3B & S 710[1863] EngR 325; , 122 ER 266.

[16] (1855) E & B 702 at 709; [1855] EngR 168; 119 ER 259.

[17] [1855] EngR 621; (1855) 11 Ex 369, 156 ER 873.

[18] [1856] EngR 76; (1856) 11 Ex 971, 156 ER 971.

[19] [1895] UKHL 1; [1895] AC 587.

[20] Chasemore v Richards, [1859] EngR 894; 7 HLC 349.

[22] (1833) 5 B and Ad 1; [1833] EngR 171; 110 ER 692.