(vii) Mr Green also referred to the provisions of ss 31, 131 and 151 which are now repealed. Section 31 contemplated proposals concerning existing and future works; s 131 contemplates existing and proposed works; and s 151 addressed existing or proposed works.
25 Mr Green submitted that the review of the above provisions of the Water Act emphasises that it is s 13A alone which limits itself to future constructions. He submitted that the review adds emphasis to the policy underlying the language of s 13A that the section is only addressing a situation where the applicant is going to construct his own work.
26 Counsel have been unable to refer to any authorities which assist in resolving the issue which here arises. There was a decision of Hardie J in the Land and Valuation Court in Siderovich v Water Conservation and Irrigation Commission (1965) 90 WN 356 in which the appellant was successful in obtaining a licence on an application under s 13A in respect of work already constructed and in use, but his Honour remarked at 359 that in that case no point was taken against the appellant that the power conferred by s 13A was not available by reason of the fact that the works were already constructed and in use.
27 Having reflected on the competing submissions, I have reached the conclusion that Mr Robson is correct in the way in which he asks the Court to analyse this application and that the necessary elements exist for the plaintiff to pursue an application under s 13A. The application should be treated as an application for a licence to construct the works, being the installation of the pump, the creation of the augment channel and the construction of the connecting pipeline, and the taking and using of the water obtained thereby, for the purposes specified in the application. The plaintiff does not occupy the land where those various works are to be undertaken and in respect of those works the requirements of s 13A are satisfied. True it is that the use of those works will result in water passing along the existing syndicate channel, but the defendant is not being asked to license use of that channel.
28 The analysis of the application in the manner for which Mr Robson contends does not leave the members of the existing channel syndicate without an opportunity to voice their opposition.
29 By reason of s 13A(3) the relevant provisions of s 11 would apply to this application. The Ministerial Corporation must publish a notice of the application in the Gazette and in a local newspaper (s 11(1)), and the syndicate members, and any other local occupiers whose interests may be affected by the granting of the application, may lodge an objection with the Ministerial Corporation within the time provided by s 11(2).
30 If the Ministerial Corporation thereafter decides to refuse the application, then there is provision for an appeal against that refusal to the Land and Environment Court under s 11(4). The members of the syndicate would be afforded the opportunity of being heard on the appeal pursuant to s 13A(3).
31 If, on the other hand, the Ministerial Corporation decides that the application should be granted, then s 13(4) provides for a public hearing as to the desirability of granting the application, and the sub-section provides for the opportunity for members of the syndicate to be heard in opposition to the application. The protocol under s 13(4) is quite detailed.
32 Having concluded that the current application is properly to be regarded as an application for a licence to do only that to which s 13A extends rather than an application for a licence to use the existing syndicate channel, I also conclude that the plaintiff is entitled to the declaration sought in para 2 of the summons filed in this matter.
33 I have not heard any submissions as to costs. If the parties cannot agree on the appropriate order as to costs, the matter may be relisted for submissions as to costs on a date to be arranged with my associate.