WATER ADMINISTRATION MINISTERIAL CORPORATION v MILLS ENGSTA PTY LTD v MILLS

Court of Appeal (NSW)|2000-06-26|Before: Mason P, Meagher JA, Powell JA, Bignold J

Reported Decision : 48 NSWLR 249 110 LGERA 371

CITATION : WATER ADMINISTRATION MINISTERIAL CORPORATION v MILLS ENGSTA PTY LTD v MILLS [2000] NSWCA 194 FILE NUMBER(S) : CA 40651/99; 40653/99 HEARING DATE(S) : 26 June 2000 JUDGMENT DATE : 28 July 2000

PARTIES : WATER ADMINISTRATION MINISTERIAL CORPORATION v MILLS & ORS ENGSTA PTY LTD v MILLS & ORS JUDGMENT OF : Mason P at 1; Meagher JA at 59; Powell JA at 60

Appellant: P McClellan QC/M Hadley (Water Administration) COUNSEL : Appellant: W Davison SC/P Clay/A Pearman (Engsta) Respondents:F Donohoe Appellant: Paul Percival Esq, Director Legal Services, Department Land & Water Conservation (Water Admin) SOLICITORS : Appellant: McIntosh, McPhilamy & Co (Engsta) Respondents: Callachor & Helby CATCHWORDS : Water and watercourses - control of works on river banks and flood plains - s171(1)(a) and s174(2)(a) Water Act 1912 - controlled work having proscribed effect - scope of the power to approve controlled works - conditional or unconditional approval - conditions which may be imposed - (D). DECISION : Appeal upheld.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40651/99 CA 40653/99 MASON P MEAGHER JA POWELL JA

WATER ADMINISTRATION MINISTERIAL CORPORATION v MILLS & ORS ENGSTA PTY LTD v MILLS & ORS The appellant owned a farming property near Forbes. In 1959 a levee bank was constructed on the property on the southern bank of the Lachlan River closing off a flood runner. The levee bank directed flood waters away from the property and back into the main flood plain channel. In 1988 the appellant applied for approval of the levee bank. On 26 July 1995 the Ministerial Corporation granted its approval pursuant to s 171 of the Water Act 1912. The determination of the Ministerial Corporation was referred to the Local Land Board pursuant to s171(5) of the Act. The Local Land Board confirmed the Determination of the Ministerial Corporation.

On appeal to the Land and Environment Court, Bignold J found that the Board lacked the power to confirm a determination approving a controlled work if it was satisfied that it had the proscribed effect, at least without imposing conditions designed to remove that effect. The proscribed effect is found at 174(2)(a), namely that the controlled work was likely to affect, materially and prejudicially, the distribution of flood waters in the vicinity of the work. The levee had that proscribed effect and the Board was found to have erred.

Held (by Mason P, Meagher JA and Powell JA agreeing) upholding the appeal:

Just as the Corporation was entitled to grant unconditional approval having regard to wider considerations, so long as consonant with the statutory scheme as a whole and fair procedure, the tribunal (and, on appeal the LEC) had a corresponding power to confirm an unconditional determination of approval.

These powers of unconditional approval are not limited substantively by any express provision in the Act. Subsection (3) of s171 and subsection(2) of s174 only limit in terms the power to "impose any condition" or to "refuse to grant" (Corporation) or "cancel an approval" (tribunal). Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 (referred); Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566 (referred); Water and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 (referred); Oshlack v Richmond River Council (1998) 193 CLR 72 (referred); Chakravarti v Advertiser Newspapers (1998) 193 CLR 519 (referred); Western Australia v The Commonwealth (1975) 134 CLR 201 (referred); Cooper Brookes (Wollongong Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; Julius v Lord Bishop of Oxford (1880) LR 5 App Cas 214 (referred); Gartner v Kidman (1962) 108 CLR 12 (referred).

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40651/99 CA 40653/99 MASON P MEAGHER JA POWELL JA

WATER ADMINISTRATION MINISTERIAL CORPORATION v MILLS & ORS ENGSTA PTY LTD v MILLS & ORS

Control of works on river banks and flood plains 1 Part VIII (ss165-186) of the Water Act 1912 (the Act) was added in 1983. It enables the body now known as the Water Administration Ministerial Corporation to regulate the construction of certain works on flood plains and to remove or modify such works. The body is a successor to the Water Resources Commission and it is sometimes referred to as the Department of Water Resources (the two bodies are separate but complementary: see Water Administration Act 1986, ss6-7). 2 The background of Pt VIII was explained in the Minister's second reading speech as follows: Since 1960 more than 500,000 hectares have been licensed for irrigation along the western streams. Earthworks associated with this irrigation development can affect the flow of floodwaters over a wide area. This is so because the building of an embankment such as a levee bank by one landholder could divert floodwaters to other properties to the detriment of several landholders. Such a situation has often arisen. Because of these problems the Water Resources Commission designed coordinated floor-mitigation schemes and by concerted effort gained voluntary acceptance of those schemes. The voluntary acceptance and voluntary compliance have, to a degree, been successful. This is because it has been the only avenue available for the implementation of flood-mitigation schemes. However, there is an obvious flaw in that a future change of intent by any landholders or a change in ownership of a property could place a flood-mitigation scheme in jeopardy. Furthermore, the individual landholder on the flood plain who suffers from another's indiscriminate earthwork construction should have recourse through the Water Act. Such recourse is already available to his neighbour if he is located on the river-bank. It should be available to the flood plain dweller. In the proposed part VIII the bill will provide a system of regulation by means of a scheme similar to the licensing scheme contained in part II of the Act. Therefore, if a person desires to construct a controlled work, which includes embankments and levee, that person will be required to obtain an approval. This would apply to a landholder situated near a river or lake or a landholder on a flood plain. The bill will provide for a right of objection by interested persons and for a hearing of that objection. The bill also will empower the commission to remove or modify works that are not subject to a current approval. Generally speaking, approvals will be in force for five years and be subject to renewal. Landholders throughout the State have sought to have control of levees on flood plains and these proposals are supported by a wide cross-section of rural and local government bodies. This bill is intended to ensure the permanent effectiveness of the commission's flood-mitigation schemes and to permit the removal of offending works on flood plains. ( New South Wales Parliamentary Debates, Legislative Assembly 13 October 1983 pp1685-6) 3 The key concept in Part VIII is that of "controlled work", which includes a levee which is situated or proposed to be constructed upon land that forms part of the bank of a river or is within a flood plain (s165). Land may be specified as a flood plain (s166). 4 It is an offence to construct a controlled work otherwise than pursuant to an approval which is in force and in accordance with the conditions of such approval (s180(1)). Unapproved works may also be removed or modified by the Ministerial Corporation if the Corporation "is satisfied that, unless the controlled work is so removed or modified, the controlled work is likely to affect, materially and prejudicially, the distribution of flood waters in the vicinity of the work" (s179(1)). (I shall refer to this recurring notion of a controlled work satisfying the decision-maker of being likely to affect, materially and prejudicially, the distribution of flood waters in the vicinity of the work as "having the proscribed effect".) 5 The Ministerial Corporation's power to remove or modify works having the proscribed effect extends to a controlled work constructed before the commencement of Pt VIII (s179(5)(a)) and it would appear that it is on this basis that it is common ground in the present appeal that approval may be sought in relation to a levee built before 1983. 6 Application for approval is to be made in prescribed form by the occupier of the land upon which the controlled work is situated or proposed to be constructed, such form to be lodged with the Ministerial Corporation (s167). 7 The Ministerial Corporation may refuse to determine the application on certain grounds (s168). Subject to this, the Corporation must publish notice of the application before it may be determined (s169). Objections may be lodged by affected persons and statutory authorities (s170). 8 Section 171 deals with the determination of applications and it provides (in part): Determinations 171 . (1) The Ministerial Corporation shall determine an application for an approval (other than an application that has been withdrawn):

(a) except as provided by subsection (2), by granting an approval for the controlled work the subject of the application, subject to such conditions (if any) as the Ministerial Corporation thinks fit to impose; or

(2) The Ministerial Corporation shall not grant an approval to the applicant or applicants therefor if the whole or any part of the land upon which the controlled work the subject of the application is situated or proposed to be constructed is not occupied by the applicant, or by at least one of the applicants, as the case may be.

(3) Notwithstanding subsection (1), the Ministerial Corporation shall not:

(a) impose any condition upon an approval granted in respect of a controlled work, except where it is satisfied that, unless the controlled work complies with that condition, the controlled work is likely to affect, materially and prejudicially, the distribution of flood waters in the vicinity of the work; or

(b) refuse to grant an approval in respect of a controlled work, except where it is satisfied that the controlled work is likely to affect, materially and prejudicially, the distribution of flood waters in the vicinity of the work. …. (5) Where:

(a) an objection to the granting of an approval has been made under section 170 and has not been withdrawn before the application for the approval is determined; and

(b) the Ministerial Corporation determines that application by granting an approval, the Ministerial Corporation shall, before the expiration of 28 days after it has caused notice of its determination to be served on the applicant, refer its determination, together with each such objection, to a prescribed tribunal for inquiry and report. 9 A "prescribed tribunal" is a stipendiary magistrate or a local land board (s165). 10 Section 173 deals with the procedures to be adopted by the prescribed tribunal in holding its inquiry into a referred determination. 11 Section 174 relevantly provides: Decision of prescribed tribunals 174. (1) A prescribed tribunal shall, after holding an inquiry in relation to a referred determination, decide:

(b) to vary the approval the subject of the determination: (i) by removing from the approval any condition imposed thereon under section 171 (1) (a); or (ii) by imposing on the approval such conditions (in addition to, or in substitution for, any condition imposed thereon under section 171 (1)(a)) as it thinks fit; or

(c) where the determination has been referred to it under section 171 (5) to cancel the approval the subject of the determination.

(2) Notwithstanding subsection (1), a prescribed tribunal shall not:

(b) cancel an approval granted in respect of a controlled work, except where it is satisfied that the controlled work is likely to affect, materially and prejudicially, the distribution of flood waters in the vicinity of the work.

(3) Where a prescribed tribunal makes a decision in relation to a referred determination, it shall:

(b) as soon as practicable thereafter report in writing upon the decision to the Ministerial Corporation.

(4) An appeal may be made to the Land and Environment Court, in accordance with rules of court, against any decision made by a prescribed tribunal in relation to a referred determination:

(b) by the applicant to whom the determination relates; or

(c) by any other person who has made any submission to the prescribed tribunal in relation to the determination, before the expiration of 28 days after the announcement of the decision under subsection (3)(a)….

12 Unless cancelled, an approval has effect for 5 years from the date on which the Ministerial Corporation made the determination granting approval (s175(b)). An approval may be renewed (s176). It enures for the benefit of the occupier for the time being of the relevant land (s177). It may be cancelled in accordance with certain procedures, cancellation being subject to a right of appeal to the Land and Environment Court (s178).

Engsta's application 13 Engsta Pty Ltd owns a property "Buyuma". The property abuts the south bank of the Lachlan River and is within the designated Lachlan River flood plain (New South Wales Government Gazette 19 July 1985 p3709). 14 In 1959/60 the then owner of "Buyuma" constructed a levee bank that closed off a depression known as the "Buyuma flood runner", thereby directing flood waters away from "Buyuma" and back into the main flood plain channel. Complaints were made to the Department about the levee at that time. Floods in 1974 and 1976 reignited complaints and led to public meetings. At those meetings and subsequently, the occupiers on the northern side of the river made representations to the Department for protection of their land from flood waters. 15 In 1979 the Water Resources Commission issued Guidelines for Flood Plain Development - Lachlan Valley - Gooloogong to Gemalong Gap. Those guidelines spoke of the need for rational flood plain management involving a comprehensive scheme for the entire area. The scheme was designed to restore, as far as possible, the natural pattern of flood channels and to approximate the natural distribution of flood waters in both rate and volume of flow. It noted that in some areas it was neither practicable nor appropriate to seek a return to natural conditions where a particular pattern of development had existed for a long time. 16 In 1988 Engsta applied to the Water Resources Commission under s167 for approval of the levee bank. The application was advertised. Objections were lodged by three "local occupiers" Mr G Doyle of "Springfields", Mr C Glasson of "Tallawalla Farm" and Mr G Mills. Their properties are on the northern bank of the Lachlan River. The nub of their objections was that the Buyuma levee restricted the flood plain and created a funnel effect that pushed more water onto the objectors' properties than would otherwise have come in times of flood. 17 The Commission entered into a process of discussion and meetings with interested parties. During this period the 1979 Guidelines were reviewed, following a 1990 flood. 18 Ultimately the Commission issued a Determination on 26 July 1995 approving the application subject to two conditions: 1. The location and nature of the Approved controlled works as shown on a plan retained in the office of the Department of Land & Water Conservation (copy attached), shall not be altered. 2. The works shall be constructed and maintained in such manner as will ensure their safety and as will preclude the possibility of damage being occasioned by them, or resulting from them, to any public or private interest.

Inquiry and decision of land board 19 In accordance with s171(5) the Determination was referred to the Local Land Board of the Land District of Forbes for inquiry and report. 20 The inquiry before the Land Board lasted 15 days in 1997. There was evidence from the three objectors as well as other occupiers of properties on the north bank of the Lachlan River. This wider class of objectors forms the group of respondents in each of the two appeals, except that the Ministerial Corporation is an additional respondent in the Engsta appeal. 21 It was common ground before the Board that the only issue to be determined was whether the "controlled work" had the proscribed effect, namely whether it was "likely to affect, materially and prejudicially, the distribution of flood waters in the vicinity of the work" (cf s171(3)). It was also common ground that the objectors bore the onus of establishing such a likely effect. 22 In its Report issued on 24 November 1997 the Board summarised the conflicting evidence about the impact of the Buyuma levee. It is clear that the Board considered that the impact of the Buyuma levee had been exaggerated by the objectors and that it was relevant that they had purchased land in the vicinity of the works with knowledge of the existence of the levee, which had stood for many years notwithstanding complaints. 23 At the conclusion of its Report the Board held that: Whilst the Board accepts that the 'Buyuma' levee bank has an impact on the flood waters in the vicinity of the works, the Board is not satisfied that the impact would be 'likely to affect, materially and prejudicially, the distribution of flood waters in the vicinity of the work'.

Accordingly the Board confirmed the Determination, under s174(1)(a) of the Act . 24 The opening part of the sentence just quoted shows that the Board was not denying that the levee bank had some effect upon the flooding of the objectors' lands. The Board found that several factors contributed to the flooding of the objectors' lands, the Buyuma levee being only one of them. The critical conclusion was that the impact of the levee on the objectors' lands was not such as to be described as "materially and prejudicially" likely to affect the distribution of flood waters over those lands, which were (implicitly) treated as being "in the vicinity of" the Engsta levee bank. This appears most clearly from the following portion of the antepenultimate paragraph in the Report: The words 'materially and prejudicially' denote something more than just having an impact on the distribution of the flood waters. The words 'materially and prejudicially' must be read conjointly, there must be an affect on the distribution of the flood waters, that is in the circumstances of the case material and prejudicial.

25 In recording this, I am going no further than suggesting that it is at least strongly arguable that the Board addressed the issue presented to it by the parties to the inquiry and stated by it throughout its Report. This said, the Board's conclusion was not beyond appellate review on fact or law. That is because s174(4)(c) gave those who made submissions to the Board an unrestricted right of appeal to the Land and Environment Court (LEC) from the decision of the "prescribed tribunal". The objectors appealed to the LEC, joining the Ministerial Corporation and Engsta.

Appeal to the Land and Environment Court 26 Bignold J held that the appeal to the LEC was by way of rehearing, without prejudice to the power of the Court to receive further evidence. (A cross appeal challenging this determination was not pressed in this Court, rightly so in view of s39(3) of the Land and Environment Act 1979.) 27 Evidence was tendered by both sides, but his Honour found it unnecessary to receive it because he concluded that the Board had erred in its approach to the issue before it and that only one outcome was reasonably open. 28 Broadly, three things happened in the LEC: 1. The respondents to the appeal in that Court (the Ministerial Corporation and Engsta) advanced for the first time the argument that the inquiry before the Land Board had proceeded on an unduly narrow issue. They contended, as they contend in this Court, that the Ministerial Corporation (and on appeal the Land Board) (and on further appeal the LEC) had the power to make or confirm a determination approving a "controlled work", notwithstanding the fact that it had the proscribed effect. Bignold J rejected this submission as a matter of statutory construction. In his view, there was no power to approve a work that had the proscribed effect except subject to conditions that would remove that effect.

On this basis, Bignold J held that the correct issues had been tendered to the Land Board and that the Land Board had addressed the correct issue at the beginning and end of its Report.

Nevertheless, the Board was held to have erred in its approach to the perceived issue and in its assessment of the facts. Broadly stated, it was held to have taken irrelevant considerations into account which showed that it did not (according to his Honour) confine itself to determining whether the levee bank had the proscribed effect. Bignold J held that the findings of the Board and the evidence before the Board led inevitably to the conclusion that the levee bank was likely to affect, materially and prejudicially, the flood waters in the vicinity of the work. His Honour thought that no other conclusion was reasonably open on the primary facts (including the Board's findings). 29 On 5 August 1999 Bignold J allowed the appeal, set aside the decision of the Local Land Board dated 24 November 1997 and cancelled the Determination of the Ministerial Corporation granting approval. In a supplementary judgment on 19 November 1999 the respondents were ordered to pay the applicants' costs of the proceedings in the LEC (Mills & Ors v Department of Land and Water Conservation & Ors [1999] NSWLEC 254). 30 In their appeals to this Court, the Ministerial Corporation and Engsta submit that Bignold J erred in his construction of the statutory scheme. It is submitted that the power to approve a controlled work is not so confined that the existence of the proscribed effect compels the withholding of unconditional approval. 31 This appeal is complicated by a number of factors: the "parties" to the inquiry asked the Board to confine itself to the issue whether the levee had the proscribed effect; the Board professed to address and determine that particular issue; the LEC found that the issue was both relevant and determinative but that the Board had erred in the manner (legally and factually) in which it came to its decision; this Court has jurisdiction only to entertain a question of law on an appeal from an order or decision in Class 3 proceedings and, accordingly, is invited only to determine that Bignold J erred in his construction of the legislative scheme; it is common ground that if such error is found, the proceedings must be remitted to the LEC for further hearing on the basis that that Court may decide to admit further evidence and, in any event, would be required to address the appeal (by way of rehearing) from the Land Board in the light of this Court's construction of the legislation.

The scope of the power to approve controlled works 32 Leaving aside presently irrelevant exceptions, it can be seen that the Ministerial Corporation is required to determine the application ("shall determine"):

• by granting approval, subject to such conditions (if any) the Corporation thinks fit to impose; or

• by refusing to grant an approval (s171(1)). 33 If the application is refused, the applicant may appeal directly to the LEC (s171(6)). 34 If the application is granted (conditionally or unconditionally) over objection, the determination must be referred, together with each objection, to a "prescribed tribunal" for inquiry and report (s171(5)). After holding an enquiry into such a referred determination the tribunal is required to decide ("shall…decide")

• to vary the approval by removing or imposing conditions; or

• to cancel the approval the subject of the determination (s174(1)). 35 The tribunal's decision is appealable to the LEC (s174(4)). The appeal is a Class 3 appeal (Land and Environment Court Act 1979, s19(h)) and the LEC's powers on appeal include the power to exercise the functions of the proscribed tribunal (id, s39(2)). The court is required to have regard to any relevant Act, the circumstances of the case and the public interest (id, s39(4)). 36 Section 171(3) (in relation to determinations by the Corporation) and s174(2) (in relation to decisions of the prescribed tribunal on referred determinations) correspond in their operation. Each subsection qualifies subsection (1). The subsections limit the power to impose conditions by denying such power "except where it [ie the Corporation/tribunal] is satisfied that, unless the controlled work complies with that condition, the controlled work has the proscribed effect (ss171(3)(a), 174(2)(a)). 37 The subsections also limit the Corporation's power to refuse to grant an approval and the tribunal's power to cancel an approval except where the decision-maker is satisfied that the controlled work does not have the proscribed effect (ss171(3)(b), 174(2)(b)). 38 Bignold J held that these corresponding subsections also limit in a similar way the Corporation's power to grant an approval (s171(1)(a)) and the tribunal's power to confirm the Corporation's determination (s174(1)(a)). On this construction, his Honour held that the Board had erred because its Report disclosed that it had confirmed the determination in Engsta's favour notwithstanding that it ought to have been satisfied that the levee was likely to have the proscribed effect. 39 The major premise in his Honour's reasoning was that the Board lacked the power to confirm a determination approving a controlled work if it was satisfied that it had the proscribed effect, at least without imposing conditions designed to remove that effect. The minor premise was that the Engsta levee had that effect, in the sense that the only conclusion reasonably open to the Board was that it should have been so satisfied. 40 I do not propose to address the minor premise. Its correctness may not raise a question of law. It was not fully debated in this Court. And there is the possibility that fresh evidence may be adduced in the further appeal in the LEC if proceedings are remitted to that Court. I would not wish this to be interpreted as agreement with his Honour's assessment that the Board went beyond the task which it had set itself: the contrary is arguable, for the reasons set out at pars 24-5. There is a further reason why it is unnecessary to consider the correctness of his Honour's minor premise. That is because, on the interpretation which I favour, both the Board and the LEC were entitled to receive and act upon material going beyond the issue of the proscribed effect of the levee. Just as the Corporation was entitled to grant unconditional approval having regard to wider considerations, so long as consonant with the statutory scheme as a whole and procedural fairness, the tribunal (and, on appeal the LEC) had a corresponding power to confirm an unconditional determination of approval. 41 In my view the major premise misconstrues the statutory scheme. My reasons follow. 42 Section 171(3)(a) and s174(2)(a) preclude the imposition of any condition upon an approval except where the decision-maker is satisfied that, unless the controlled work complies with that condition, the controlled work is likely to have the proscribed effect. It follows that the sole permissible trigger for the imposition of conditions is such satisfaction. In my view it also follows, by necessary implication, that the conditions which may be imposed are confined to those which, unless complied with, are reasonably capable of being related to the purpose for which the power to impose conditions is exercised (Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 at 499-500, Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566 at 577). 43 Prima facie, the Corporation's undoubted power to grant unconditional approval (cf s171(1)(a)) and the tribunal's power to confirm such a determination (cf 174(1)(a)) or to render a conditional approval unconditional (cf s174(1)(b)(i)) are at large. At large, in the sense that the discretion is unconfined except in so far as "the subject matter and the scope and purpose" of the Act may enable a Court to identify reasons "definitely extraneous to any objects the legislature could have had in view" (Water and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505. For recent endorsements of this approach, see Oshlack v Richmond River Council (1998) 193 CLR 72 at 81, 84, Chakravarti v Advertiser Newspapers (1998) 193 CLR 519 at 555 n91). 44 These powers of unconditional approval are not limited substantively by any express provision in the Act. Subsection (3) of s171 and subsection (2) of s174 only limit in terms the power to "impose any condition" or to "refuse to grant" (Corporation) or "cancel an approval" (tribunal). To press s171(3) and s174(2) into wider service in the field of unconditional approvals finds no support in the plain words of the sections. Furthermore, it overlooks the distinctions within the respective sections that are drawn between impose/refuse to grant/cancel an approval on the one hand and grant/confirm/remove any condition on the other. The distinction is found within the very terms of s174(1)(b). 45 There is ample work for s171(3) and s174(2) to do without treating their terms as going beyond their express remit. In those circumstances, one is reminded of Stephen J's admonition that "to read words into any statute is a strong thing and, in the absence of clear necessity, a wrong thing" (Western Australia v The Commonwealth (1975) 134 CLR 201 at 251). There are exceptions, where omission would lead to an incongruous result or would defeat the objects of the Act or be "capricious" or "irrational" (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 305, 311, 321). But the present case does not call for such legislative surgery, especially when it is recognised that statutorily extraneous considerations would vitiate the decision in any event and where there is an appeal by way of rehearing to the LEC. 46 I acknowledge that the contrary proposition is arguable, on the basis that one could question what is the point of imposing conditions confined to removing the proscribed effect if the whole issue can be sidestepped by unconditional approval. 47 The answers I would give are: (a) I refer to the textual arguments set out above; (b) The real work of s171(3) and s174(2) is to confine the powers to refuse, cancel or to impose conditions to situations where the moving consideration is the proscribed effect. In other words, one is not dealing with a general town-planning power (see further my remarks below about the limited range of permissible conditions); (c) No one can compel the issuance of unconditional approval;

(d) If the power to take hostile action against unapproved work is at the discretion of the Ministerial Corporation (cf s179(1)) then there is reason for giving the Corporation the power of approval contended for by the appellants. 48 I have set out my reasons for concluding that the powers in relation to unconditional approvals are not trammelled by the mandate of s171(3) and s174(2) respectively. That does not mean that the powers are at large (cf Browning's Case, discussed above). Nor does it mean that the Corporation, tribunal or LEC would necessarily err if unconditional approval were withheld having regard to the presence of the proscribed effect. The decision-maker's satisfaction that the proscribed effect is present would represent a most significant consideration, because it is the only basis for imposing conditions or refusing/cancelling approval. Its importance is also underlined by s179(1) which conditions the power of the Corporation to remove or modify unapproved works by reference to the proscribed condition. 49 It should also be borne in mind that procedural fairness to persons entitled to make submissions to the tribunal/LEC would require disclosure of the critical material justifying the determination under inquiry or appeal. If that determination is or is proposed to become (cf s174(1)(b)(i)) unconditional by virtue of wider considerations that properly trump the existence of the proscribed condition, then those wider considerations must be put on the table for analysis. This would include matters which s4A of the Act require to be taken into account. 50 It should also be noted that the statutory scheme does not contemplate the imposition of conditions other than those which satisfy the decision-maker that they are directed at avoidance of the proscribed effect. This severely limits the practicality of contemplating unconditional approval, because it is not open to the Corporation, tribunal or LEC to impose binding conditions (cf s178(1), 180(1)(b)) other than those having this limited operation. 51 It would appear that existing departmental practice does not proceed upon such a narrow basis, because in the present case conditions were imposed by the Corporation and confirmed by the tribunal which were not directed at such a narrow field of operation (see par 18 above). It may be that the Act goes a long way towards making such wider class of conditions unnecessary (cf s180(3)). If necessary, perhaps the regulation-making power could also be invoked to similar effect, at least prospectively. But the imposition of conditions having extraneous provenance does not appear justified. 52 If the public interest cannot be satisfied by unconditional approval or approval subject to the limited range of authorised conditions, then the decision-maker may be driven to refusal of the application regardless of its substantial merits. 53 I have addressed inferentially many of the reasons advanced by the learned primary judge for the contrary view (at pp16-19 of his judgment). I would add the following. The present case does not raise the recurring issue whether a power expressed in permissive language is compulsive if the conditions for its operation are satisfied (cf Julius v Lord Bishop of Oxford (1880) LR 5 App Cas 214). No one contends that the Corporation was bound to issue approval. 54 Nor is the issue assisted, in my opinion, by reference to common law. The occupiers of the northern bank may or may not have common law rights in relation to the levee bank (cf Gartner v Kidman (1962) 108 CLR 12 at 47-8), subject to possible limitation defences. But these are not in issue in the present case. Part VIII of the Water Act obviously curtails riparian rights to a degree, according to its terms fairly construed. Whether or not the power to approve unconditionally affects private riparian rights otherwise arising at common law is not to the point, because those opposing Engsta invoke provisions of the Water Act, not the common law. 55 There is no need to address the Corporation's challenge to the adverse costs order made by Bignold J on 19 November 1999 because that order must be set aside in any event, in consequence of the appellants' success on the main point. 56 We were urged by the objector respondents to make no order as to costs in this Court or even to order that their costs be paid by the Ministerial Corporation. It is clear that this is a test case because we were told that several others await this decision. However, that factor is not determinative. As Bignold J pointed out in his judgment as to costs, the proceedings before him were brought by the objectors in their own interests and could not be characterised as public interest litigation. I think that costs should follow the event in this Court, with the objectors receiving a certificate under the Suitors' Fund Act if qualified. 57 As to the costs in the LEC, these should abide the order of that Court at the conclusion of the remitted proceedings. 58 I therefore propose the following orders: 1. Orders made in the Land and Environment Court on 5 August 1999 and 19 November 1999 are set aside. 2. Remit proceedings to that Court for further hearing in accordance with the reasons of this Court. 3. In CA 40651/99 the respondents other than Engsta Pty Ltd are to pay the appellant's costs and are to have a certificate under the Suitors' Fund Act if qualified; no order as to the costs of Engsta Pty Ltd. 4. In CA 40653/99 the respondents other than the Water Administration Ministerial Corporation are to pay the appellant's costs and are to have a certificate under the Suitors' Fund Act if qualified; no order as to the costs of the Water Administration Ministerial Corporation. 59 MEAGHER JA: I agree with Mason P. 60 POWELL JA: I agree with Mason P. **************

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

Court

Decision date

Before

Source

Judgment (46 paragraphs)

Cases Cited (9)