Zouki and Ors v Water Administration Ministerial Corporation

Land and Environment Court (NSW)|2001-11-15|Before: Pearlman J, Mr J, Mr P

CITATION : Zouki and Ors v Water Administration Ministerial Corporation [2001] NSWLEC 258 revised - 19/06/2002 No 10194 of 2001 APPLICANT Zouki

RESPONDENT Water Administration Ministerial Corporation

No 10261 of 2001 APPLICANT PARTIES : Hardy Pty Ltd

No 10262 of 2001 APPLICANT Revako Pty Ltd

RESPONDENT Water Administration Ministerial Corporation FILE NUMBER(S) : 10194 of 2001, 10261 of 2001 and 10262 of 2001 CORAM: Pearlman J KEY ISSUES: Section 56A Appeal :- reasons for decision - whether water body a river - no error of law - whether evidence to support finding LEGISLATION CITED: Land and Environment Court Act 1979 s 56A Rivers and Foreshores Improvement Act 1948 s 2, s 22B, s 22D Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367; Collector of Customs v Agfa-Gevaert Ltd (1995) 186 CLR 389; Hope v Bathurst City Council (1980) 144 CLR 1; Knezovic v Shire of Swan-Guildford (1968) 118 CLR 468; CASES CITED: NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509; S v Crimes Compensation Tribunal (1998) 1 VR 83; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; The Australian Gas Light Co v The Valuer General (1940) 40 SR (NSW) 126; Vetter v Lake Macquarie City Council (2001) 178 ALR 1 DATES OF HEARING: 02/10/2001 DATE OF JUDGMENT: 11/15/2001

APPLICANTS Mr J A Ayling SC SOLICITORS Paul Ward-Harvey & Co LEGAL REPRESENTATIVES: RESPONDENT Mr P C Tomasetti (Barrister) SOLICITORS Department of Land and Water Conservation

IN THE LAND AND 10194, 10261 and 10262 of 2001 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 15 November 2001

No 10194 of 2001 KEVIN ZOUKI Applicant v WATER ADMINISTRATION MINISTERIAL CORPORATION Respondent

No 10261 of 2001 HARDY PTY LTD Applicant v WATER ADMINISTRATION MINISTERIAL CORPORATION Respondent

No 10262 of 2001 REVAKO PTY LTD Applicant v WATER ADMINISTRATION MINISTERIAL CORPORATION Respondent

This is an appeal brought under s 56A of the Land and Environment Court Act 1979 against a decision of Commissioner Watts.

The proceedings before the Commissioner comprised three class 1 appeals heard together. They each involved an appeal against stop orders under s 22D of the Rivers and Foreshores Improvement Act 1948 ("the RFI Act") served upon the applicants as joint owners of land at No 9 Davies Road, Padstow ("the site"). The orders were given by the respondent as the relevant constructing authority, and each required the relevant applicant not to engage in excavation of the site nor to obstruct the flow of waters in contravention of s 22B of the RFI Act.

Commissioner Watts dismissed all three appeals. He determined that the water body on the north western boundary of the site, upstream of the weir, was a "river" within the meaning of the RFI Act, that accordingly that part of the site was "protected land" within the meaning of the RFI Act, and that the applicants had contravened or were about to contravene s 22B of the RFI Act in relation to excavation work upon the site.

An appeal under s 56A is confined to a question of law. Although the applicants formulated their grounds of appeal at some length, in essence there are three grounds upon which they claim that the Commissioner erred in law. They are as follows:

(1) The Commissioner erred in law by failing to give reasons for his determination that the water body on the north west of the site upstream of the weir ("the water body") was a "river" within the meaning of the RFI Act; (2) The Commissioner erred in law by finding that the water body was a "river" within the technical meaning of that term under the RFI Act; and (3) The Commissioner erred in law by finding, in the absence of evidence of the fact, that the applicants had or were about to contravene s 22B of the RFI Act. The statutory background

For an understanding of this appeal, it is necessary to outline the statutory context in which the class 1 appeals were brought.

Section 22B of the RFI Act, which appears in pt 3A, provides that a person must not, amongst other things, "make an excavation on, in or under protected land …" without first obtaining a permit under pt 3A. Section 22D provides that, if the constructing authority is satisfied that a person is contravening, or is about to contravene, s 22B, it may, by written notice (called a "stop order"), order the person not to engage in that activity. Section 22L confers a right of appeal to this Court upon a person aggrieved by a decision of a constructing authority under pt 3A.

The powers conferred upon a constructing authority under pt 3A of the RFI Act depend, as can be seen, on the particular land falling within the definition of "protected land". Relevantly for the purpose of this appeal, "protected land" is defined in s 22A as meaning: Land that is not more than 40 metres from the top of the bank or shore of protected waters (measured horizontally from the top of the bank or shore)

This definition calls up the definition of "protected waters" which s 22A relevantly defines as meaning "a river". In turn, "river" is relevantly defined in s 2 as follows: River includes any stream of water, whether perennial or intermittent, flowing in a natural channel, or in a natural channel artificially improved, or in an artificial channel which has changed the course of the stream of water …

It is an error of law to fail to give reasons for a judicial decision (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247). The appellants' claim that this error occurred arises out of their contention that a crucial element of the definition of a "river" under the RFI Act is the existence of a "stream of water". They claim that the Commissioner determined that the water body was a "river" without any reference to a finding of a "stream of water" and that thereby he failed to furnish reasons for his determination.

The relevant passages appear in pars 60 and 61 of the Commissioner's judgment as follows: 60 I am satisfied that the water body on the north western boundary of No 9 Davies Road, upstream of the weir, comprises "… a stream of water, whether perennial or intermittent, flowing in a natural channel, or in a channel artificially improved, or in an artificial channel which has changed the course of the stream;" and is not "… influenced by tidal waters". Upstream of the weir it is thus a " river" within the meaning of the RFI Act.

61 In this regard, I accept the evidence of Mr O P Graham and Dr D N Outhet that the water flowpath to the north west of the land at No 9 Davies Road, Padstow conveys stormwater runoff flows from the "… immediate catchment area". The flowpath may be identified on aerial photographs as having a bank and bed and is situated in the lowest part of the landscape. It is clear that this flowpath has been artificially improved by pipes, culverts and concrete lining and shaping. The artificially improved flowpath is ponded by the weir near Salt Pan Creek. The flowpath is open at Davies Road, and runs in culverts under Davies Road. It is also open and in a concrete lined channel to Arab St, and then in pipes further up the catchment.

Paragraph 60 encapsulates the Commissioner's finding, and correctly identifies the relevant elements of the definition with which he was concerned. Paragraph 61 sets out his reasons for that finding. He identified the experts whose evidence he accepted, and he set out various matters of fact which led him to the conclusion that he reached. The fact that par 61 does not specifically mention "a stream of water" does not, in my opinion, evidence a failure to give a reason for the finding. Moreover, I am not persuaded that the Commissioner failed to give reasons for all the elements of the finding he made. He referred to a "water flowpath" in an artificial channel having a bank and bed. Those references, together with his reference to the expert evidence, seems to me to amount to an adequate furnishing of the reasons for his finding. I am particularly mindful, in reaching this conclusion, that the Commissioner constitutes a lay tribunal, and his judgment is not to be afforded the same detailed scrutiny which would be required if it were written by a lawyer (Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367). So long as the Commissioner has exposed a chain of reasoning for his decision, it will meet the requirement to furnish reasons, and I consider that, in this case, that requirement is met.

Accordingly, I hold that this ground of appeal fails.

Mr Ayling SC, appearing for the applicants, formulated their second ground of appeal by means of the following propositions:

(1) The definition of "river" in s 2 of the RFI Act is inclusive, that is, it includes the definition there set out, as well as any other definition derived by reference to the ordinary meaning of the word; (2) In this case, the Commissioner correctly approached the task of definition. He first considered the ordinary meaning of the word by reference to dictionary meanings. That was a question of fact, and is not challengeable upon appeal. Having found that the water body did not satisfy the ordinary meaning of the word "river", the Commissioner turned to the definition set out in s 2;

(3) The definition set out in s 2 is a technical definition. The meaning of a technical legal term is always a question of law (The Australian Gas Light Co v The Valuer General (1940) 40 SR (NSW) 126) and whether the facts as found by the Commissioner satisfy the technical definition is also a question of law (Hope v Bathurst City Council (1980) 144 CLR 1);

(4) In this case, the question as to whether the water body satisfied the technical definition was a question of law;

(5) The Commissioner was wrong in determining that question, because the facts necessarily put the water body outside the technical definition. That is because the only facts available were that the water body carried stormwater runoff after rain and followed the line of the natural depression which drained the catchment. In other words, the water body was simply a drain. There is at law a basic distinction between a river or a stream and a drain (Knezovic v Shire of Swan-Guildford (1968) 118 CLR 468 at 475).

The flaw in these propositions, it seems to me, is the assertion that the definition of a "river" in s 2 is one of a technical meaning. Mr Tomasetti, appearing for the respondent, submitted that the words used were ordinary words of ordinary meaning. I think that submission is correct. Simply because the definition appears in a section of an Act does not automatically cloak the words with a technical connotation. There is nothing that I can find in the RFI Act which would require the words in the definition to have a technical meaning, and there is nothing in the Commissioner's judgment which would indicate that he considered the words to be used in any other sense than that which they have in ordinary speech. The RFI Act is concerned, in general terms, with the improvement of rivers and foreshores and the protection of rivers and lakes; it is not concerned with the technical subjects of geomorphology or ecology. In that context, the definition of "river" is inclusive because its purpose is to extend the beneficial objectives of the RFI Act widely, and therefore the RFI Act adopts an extensive definition rather than a limited definition. That context does not require a special or technical meaning of the word "river" or a special or technical meaning of the words used in the definition of "river".

The situation would be different if the definition of the word "river" could be identified as being used in a sense different from that which it has in ordinary meaning. If it has a different sense, then a reviewable question of law is raised (Collector of Customs v Agfa-Gevaert Ltd (1995) 186 CLR 389 at 397). That is not the case here.

The proper approach, in my opinion, is set out in the judgment of Kitto J in NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 511 - 512, which is cited by Mason J (as he then was) in Hope v Bathurst at p 8. Kitto J put forward three propositions:

(1) It is first necessary to decide as a matter of law whether the Act uses the particular expressions in any other sense than that which they have in ordinary speech; (2) The next question must be whether the material before the Court reasonably admits of different conclusions as to whether the activities in question fall within the ordinary meaning of the words as so determined, and that is a question of law;

(3) If different conclusions are reasonably probable, it is necessary to decide which is the correct conclusion, and that is a question of fact. 17. If, as I hold, the definition of "river" and the words in the definition bear their ordinary meaning, it is necessary to determine whether the evidence admits of different conclusions as to whether the water body falls within that ordinary meaning. The Court on this appeal was taken by Mr Tomasetti to much of the oral and written evidence in order to demonstrate that the weight of the evidence favoured a conclusion that the water body was a "river" within the definition. All that the evidence demonstrates for present purposes, I think, is that it reasonably admits of different conclusions on the question.

That being the case, then, in accordance with Hope v Bathurst (and see also S v Crimes Compensation Tribunal (1998) 1 VR 83 at 88), the question of which was the correct conclusion is a question of fact and not of law, and that question is not amenable to challenge in a s 56A appeal.

A stop order under s 22D is based upon the constructing authority being "satisfied that a person is contravening, or is about to contravene, section 22B …" in that work was being or was about to be carried out without a permit under pt 3A of the RFI Act. On appeal, this Court exercises all the functions and discretions that are conferred on the constructing authority (s 39(2) of the Land and Environment Court Act 1979), and accordingly the Commissioner was required to be satisfied within the terms of s 22D.

The basis of the third ground of appeal is that there was no evidence about which the Commissioner could have been satisfied that there had been or was about to be a contravention of s 22B. Hence, in Mr Ayling's submission, the statutory prerequisites for the making of the stop orders were not in existence, and the stop orders could not therefore have been upheld in the class 1 appeals.

The relevant part of the Commissioner's judgment appears in pars 64 through to 68. First, the Commissioner found that conventional engineering practice "would demand that excavation would need to be carried out to construct" the access driveway, and for this finding, he accepted the evidence of Mr Raft. He rejected the evidence of Mr Vidler, stating, in par 66, that "I consider it impracticable and unlikely, that works associated with the driveway, could be carried out … to avoid the need for excavation".

The Commissioner's ultimate finding was expressed in par 67 as follows: There is excavation work that has been or is to be carried out on No 9 Davies Road which is in contravention of s 22B(1) of the RFI Act and there is a threat that there will be work done in contravention of s 22B(1) of that Act.

The gravamen of Mr Ayling's submission is twofold. First, the Commissioner did not make any finding at all, in the relevant paragraphs of his judgment, that a contravention had occurred. That statutory prerequisite could not therefore have existed. Secondly, the Commissioner made a finding that excavation work was required, but there was no evidence to show that any such excavation work would be carried out without a pt 3A permit. On the contrary, in Mr Ayling's submission, the evidence of Mr Vidler was that, if a pt 3A permit was needed, he would obtain one before doing any excavation work. Therefore the statutory prerequisite of a threat of contravention could not have existed either.

If there had been no evidence which could support the Commissioner's finding, in par 67, that there had been a contravention or was about to be a contravention, then Mr Ayling's submission would be correct - see The Australian Gas Light Company v The Valuer General at p 138; see also Vetter v Lake Macquarie City Council (2001) 178 ALR 1 at par 77). But in pars 30 through to 43, the Commissioner set out the evidence which he stated that he had considered, and that evidence expressly included the expert evidence of Mr Pigeon and Mr Raft to the effect that excavations had been carried out, that no pt 3A permit had been obtained in respect of them, and that further excavation would be necessary. Mr Vidler's protestations in the witness box that he would seek a permit in the future were, in these circumstances, beside the point. There was evidence to sustain the Commissioner's finding about the statutory prerequisites for stop orders, and he committed no error of law in this regard.

For the foregoing reasons, I hold that the applicants' appeal fails. My formal orders therefore are as follows:

(1) The appeal is dismissed; (2) The question of costs is reserved;

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.

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Judgment (45 paragraphs)

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