ACT CIVIL & ADMINISTRATIVE TRIBUNAL

GARRY O’DONNELL V ENVIRONMENT PROTECTION AUTHORITY (Administrative Review) [2010] ACAT 51

AA 5 of 2010

Catchwords:	 ADMINISTRATIVE REVIEW – unlicensed bore – question of receipt of payment for a bore licence – inaction by parties – delay in processing the application for licence

Legislation:		ACT Civil and Administrative Tribunal Act 2008, s.79.
Land (Planning and Environment) Act 1991, s.171.
			Water Resources Act 1998 (Repealed), ss.35 and 77.
			Water Resources Act 2007

Case law:		Environment Protection Authority v Rashleigh 
[2005] ACTCA 42
Creaser v Savannah Association (2003) ACTCA 26
McEwen v Siely (1972) 21 FLR 131

Tribunal:		Mr Bill Stefaniak, Appeal President

			
Date of Order:			11 August 2010	

Date of Reasons for Decision:	11 August 2010

AUSTRALIAN CAPITAL TERRITORY		)
CIVIL & ADMINISTRATIVE TRIBUNAL	)	AA 5 of 2010

BETWEEN:

GARRY O’DONNELL 
Appellant

AND:

ENVIRONMENT PROTECTION AUTHORITY
                                                      		           Respondent

TRIBUNAL:		Mr Bill Stefaniak, Appeal President 

DATE:		11 August 2010

ORDER

1.	The appeal is dismissed.  

………………………………..
		Mr Bill Stefaniak
	             Appeals President

DECISION

1.	On Monday the 5th July 2010 this appeal was heard.  I now give my decision and the reasons for it.

2.	The accepted facts in this matter are that Mr Gary O’Donnell purchased No. 30, Mugga Way, in 1988, and the property had a bore.  It would appear that the bore was inoperable when he purchased it because the casing wall had collapsed.   In 1989, he relined and recased the bore and installed a new pump.  There was evidence that this had cost him about $25,000. 

3.	Mr O’Donnell used the bore to develop his extensive garden on the property.  Evidence was before the tribunal in the form of Google Earth photographs of the garden.  

4.	Prior to July 2003, the respondent had letter-boxed in Mugga Way and was, in the words of the appellant’s counsel, “proactively seeking licenses to take ground water in the Mugga Way district in relation to the Burley Griffin aquifer”.  In the tribunal hearing at first instance, there was considerable evidence as to whether Mr O’Donnell made an application in June or July of 2003.  There was considerable evidence given as to whether in fact the documents were ever received or indeed were actually ever sent, and there was speculation in relation to forged applications and forged documents such as the cheque butt.  

5.	The evidence before the tribunal both at first instance and upon Appeal was that no money was received by the Environment Protection Authority (EPA).  Mr O’Donnell maintained he sent the money but the learned President and Member who decided the matter at first instance did not accept that an application had been made prior to the 17th of October 2003.  This particular finding was not disputed on appeal.  So, the relevant date is 
17th of October 2003.  

6.	It was accepted by both parties that had an application actually been made in June or July of 2003 it is highly likely that Mr O’Donnell would have been given a licence to enable him to extract water from the Burley Griffin aquifer.  

7.	There was also evidence before the tribunal at first instance that as at 
the 17th of October 2003 the aquifer was being fully utilised by existing licence holders and that no further licences were to be given at that point in time.  There was further evidence before the tribunal that the practice was to have people put on a waiting list.  There was considerable argument put in relation to two cases involving a Mr Rashleigh and a Mr Cutter.  Rashleigh’s case in particular went as far as the ACT Court of Appeal.  

8.	In Rashleigh’s case an application was made in November 2003 and a licence was refused in December 2003.  After a lengthy court process through the AAT, the Supreme Court and the Court of Appeal, the matter was settled out of court by the Department agreeing to granting a licence to Mr Rashleigh.  
A similar licence was granted to Mr Cutter  in his case which closely followed the Rashleigh decision.  It would appear that no other licences were granted.  

9.	There was considerable argument before me in relation to what could be taken out of Rasheigh’s case.  Suffice to say, the Department saw fit to grant a licence for whatever reason,  I do not know.  It was not put before the tribunal.  It would appear and no one can point out any other licences being granted after October 2003 in any circumstances other than to Mr Rashleigh and to Mr Cutter.  In both those instances, it would appear the EPA had refused licences and the matter was then taken further by the applicants and ultimately settled out of court following the Rashleigh decision in the Court of Appeal. 

10.	On the 17th of October 2003 there was a discussion between Mr O’Donnell and members of the EPA.  It was pointed out to Mr O’Donnell  that they had not received anything.  Mr O’Donnell insisted he had sent documents and a cheque and wanted to talk to a superior officer, which he did.  He then sent what is purported to be a copy of his application and documentation to show that he had sent a cheque.  Nothing further then appeared to occur until January 2007 between the EPA and Mr O’Donnell when a letter was sent to him from the EPA stating that his assessment still had not been done.

11.	During this period of time, Mr O’Donnell, for reasons unknown to the tribunal and not advanced to the tribunal, in 2006, handed in his Crown lease and was granted a new Crown lease.  Pursuant to section 171 of the Land (Planning and Environment Act 1991 new Crown leases gave all rights to ground water to the Territory.  In Crown leases prior to 1992, such as Mr Donnell’s 1988 Crown lease, the lessees of  properties were able to extract ground water and had a right to do so as the lease was silent on the issue, and any property in ground water flowing under a person’s property, was not vested in the Territory.  That law changed as at 1992 and there were some further changes as pointed out by counsel.  From 1998 onwards it became clear that the ACT Government was keen to regulate bores in the ACT and was also keen to very much restrict private use of such bores.  There was evidence that currently there are some licensed 96 bores in the Territory.  

12.	I accept that the law as at 17th of October 2003 enabled a person in Mr O’Donnell’s place to make application for a licence.  I accept that at that time he had to have a licence by law and could simply not continue to operate an unlicensed bore.  But he had the legal entitlement to seek a licence.  He had a bore that was operating at the time.  Had he actually applied in June 2003 it would appear he would have been granted a licence.  

13.	As at the 17th of October 2003 it is quite clear from the evidence before me that the Department was not granting licences.  The two persons who received licences after that, Mr Rashleigh and Mr Cutter, received licences as a result of the action they took.  But I am unable to say exactly what happened there as there was no evidence forthcoming why the Department agreed to grant licences by a consent order made after the Court of Appeal handed down its decision in Mr Rashleigh’s case.  Suffice to say, after 2003, it became progressively more difficult for anyone who did not have a licence to get one apart from the above two above named gentlemen who did so as a result of taking on the Department – an action in the AAT at first instance.  

14.	I am perplexed as to why there was no further action by both the EPA and by Mr O’Donnell.  This matter, I think, is a relatively simple one when one gets down to basics.  Mr O’Donnell as at the 17th of October 2003 had a right even then to apply for a licence – a licence it was highly unlikely he would be given.  He would have a reason to expect to be put on a waiting list, and, if the situation changed, have his licence re-assessed.  He does not appear to have been put on one, although the letter of January 2007, which counsel for the respondent, EPA, indicated was a mistake (which I am at a loss to see why) indicates that his application was still there and in the words of the EPA – see T 16 – “Your application will remain unassessed until the moratorium period ceases.  Please be aware that your application will be considered in the light of the amended administration scheme.....thus there is no guarantee that you will receive a licence at the end of the moratorium.”

15.	This leads me to believe that his application was still current and had not been simply dismissed out of hand.  Had it in fact been dismissed out of hand by the passage of time or indeed if no action had been taken (as was the case), 
Mr O’Donnell would be more than entitled, according to law, to take that matter to the AAT.  In fact the law on this matter is quite clear.  
Section 77(1)(c) of the Water Resources Act 1998 (in force until 1/8/2007) provides that applications may be made to the AAT for review of a decision of the Authority “ under section 35(1) refusing to grant a licence to take water”.   Section 77(3) further provides “If the Authority fails to make a decision of the kind referred to in (1)(c) ... within a reasonable time, the authority shall be taken to have made a decision refusing to grant a licence....”

16.	The tribunal at first instance accepted, (and I would also accept) that 
Mr O’Donnell is a very experienced businessman.  Mr O’Donnell has numerous business interests throughout Australia and has done very well as a result of his business acumen.  He was apparently pursuing this matter in relation to a bore licence himself.  Obviously his garden is very important to him.  There is evidence before the tribunal that he was utilising the bore since, it would seem, 1989 to water his garden.  His evidence indicated he was doing this right up until June 2008 (illegally it seems, as a result of not having a licence from 2003 onwards but as he said at T 6 openly, as he had “posted a notice on the front gate, identifying to all and sundry that I was for irrigation purposes, using bore water“).

17.	Despite the inactivity of the EPA, one would also assume that Mr O’Donnell could have taken any number of steps himself.   One step if he had wanted to pursue the matter further would be to either by telephone calls or in writing (or both) after the 17th of October chase up the EPA on the cheque issue.  It is perplexing that he chose not to do so.  Similarly, upon not hearing anything from the EPA for months on end, he could have simply taken the matter out of their hands by going to the AAT to force them to make a determination and to seek the licence that way.  He also could have simply indicated that he would cancel the cheque that had not been cashed and sent them a new cheque.

18.	Evidence was given as to what happened when cheques were sent to the EPA.  They had a structure in place.  They would be noted and a receipt would be sent out.  There is no evidence to counter that that was what occurred in the normal course of events when cheques were sent.   

19.	As a result of the doubts raised in the tribunal at first instance in relation to whether a cheque was actually sent or not, and indeed whether notations on the photocopy of the cheque butt before the tribunal were an afterthought,
I have grave doubts as to whether in fact Mr O’Donnell is correct in saying a cheque was sent.  But if one was, he could simply cancel it because it had not been received and had not been cashed, and send a new one.   He chose not to do so.  He chose not to appeal to the AAT.  He chose not to engage in further correspondence with the Department.  He continued to use his bore.   He, for whatever reason unknown to the tribunal, handed in his lease in 2006 and got a new one – a new one which from that date effectively cancelled any rights he would have to extract ground water or to get a licence.  

20.	As already indicated, this does not affect his legal position as at the 17th of October 2003.  But it is a factor in terms of what this tribunal should do with the matter.  He received a letter, which he indicated in evidence he cannot recall receiving, dated January 2007, in relation to his application and in relation to the fact that nothing seemed to be happening.   He takes no action in relation to that although, in fairness, he did indicate he did not recall receiving it and the next thing he recalls is June 2008 when the Department was again chasing him up because he did not have a licence and wanting to take further action – action that resulted in an order that his bore be concreted and capped.  It is curious then, that upon receiving notification that was what the Department wanted to do, he then goes to the AAT and for the first time since October 2003, opens up all of these other matters.  

21.	On the other hand, it is curious that the Department, after the conversations which may well have been fairly heated by the sound of it, on the 17th of October 2003 did nothing more, and did nothing more until January 2007.  Whether this was malicious, incompetent or done for some other reason, I do not know.  It was put to me that the Department is under no obligation to do anything if an application is made and there is no cheque given.  Common courtesy and good business practice, however, would indicate that a government department could at least indicate to an applicant that “you have not sent us any money, please send us the money so that we can process your application” and matters would go from there.   This was not done.  

22.	Perhaps it was not done because at the time Mr O’Donnell was adamant that he had sent a cheque, and when the Department could not find that for whatever reason they took no further action.  May be it was because 
Mr O’Donnell himself was not pushing the issue any further.  I simply do not know.  I do think that the Department should have indicated to him that they did not have any cheque, and that he needed to send a new one for his application to proceed further.  That was not done.  On the view I have taken, the law entitled him at least to make an application and have it considered as at October 2003. 

23.	Is that fatal to the EPA?  Learned Counsel to the EPA, Mr Mossop, directed the tribunal’s attention to a number of cases and also statutes which indicate that the Department was not under a duty to do anything further.  Page 1 of the schedule to the determination made by the Minister under the Water Resources Act 1998 states “Section 35 – Application fee for a licence to take water – Fee payable 2003-2004 - $107.15.  Payment Requirements on application for a licence.”  See also Creaser v Savannah Association 
(2003) ACTCA 26.  In that case at paragraph 66, the Court held “Mr Upton did not pay his fee (for a licence to sell fireworks).  This failure was, itself, a sufficient basis for refusing his application. (italics added)” 

24.	That certainly on a cold interpretation of the law was a justification for the Department doing nothing and would support an argument legally they did not have to do anything with an application that was not accompanied by a cheque or some money order.  Natural justice may however indicate that the Department could at least have contacted someone who fails to send the required payment.  With the greatest respect to the appellant’s learned counsel’s Supplementary Submission of 16 July 2010, the letter of 17 January 2007 from the respondent certainly indicated that the matter was alive, and the appellant could, and indeed should, I feel, have taken some further.action then, even if it was only to formally reply to that correspondence.  He did not do so.  One cannot get away from the fact that there was a series of things that the applicant could have done himself and should have done himself.  

25.	One has to wonder why he was inactive from the 17th of October 2003 until June 2008.  It would seem fairly clear to me that he was continuing to access the bore.  Perhaps we can speculate that he did not take any further action because he was getting all the water he needed from the bore without a licence and that it was only when the Department got its act together and chased him up in June 2008 that he took action.  In many ways, I find the appellant has brought the situation on himself.   

26.	Though, not particularly relevant to an administrative law matter such as this, the rule as to costs in McEwen v Siely (1972) 21 FLR 131 is perhaps of some assistance here.  

27.	In the ACT, the practice in civil matters is for the party who is successful to get costs.  In criminal matters unless it is an indictable matter which goes to trial, the practice is for a successful defendant to get costs unless the rule in McEwen v Siely applies, which is if the defendant brought the prosecution on himself, he should not get costs.  I found that principle probably has some applicability to a situation where an applicant for a licence takes no further steps after encountering a hurdle with the Department and does nothing for a period of some four years and nine months to pursue his application.  

28.	Government departments are not 100% efficient.  Government departments make errors.  Government departments can get very slack at times.  People lose files.  It is common practice for citizens to have to chase up government departments which are less than totally competent in terms of processing matters before them.  I feel Mr O’Donnell has to take some responsibility for his lack of action here.  He cannot rely on the fact that the Department should have done something and the Department did not, as the Department does not have a statutory duty to do anything more than it did because it could not find his application fee.  It told him it did not have his application fee.  There is no evidence that the application fee was ever received by the Department.  The statute law is quite clear on that.  

29.	Natural justice does indicate the government Department should have taken additional steps as I indicated above, but they did not.  Had Mr O’Donnell chased this up and had the Department fobbed him off or been inactive after he made some further attempts to attend to this matter, then I think the Department would have a very real problem here.  For example, had 
Mr O’Donnell followed up his conversation of the 17th of October insisting that he had paid his fee, insisting that the Department check this again, and insisting that they get back to him, and if the Department did not, then he would be on a lot stronger ground.  

30.	I cannot however get away from the fact that the simplest thing here with the Department not receiving a cheque and the cheque not having been cashed, was simply to cancel the cheque and to send another one.  I am at a loss as to why Mr O’Donnell did not do this.  It is interesting that in the tribunal below Member Mr Chenoweth, at page 109, in line 27, asked learned Counsel for 
Mr O’Donnell, Mr Ward   “....why wouldn’t he  have simply cancelled that numbered cheque and issued a new one?”  Mr Ward “ I don’t know”.  
Mr Ward then went on to say that there was no evidence at all that anyone had even looked for the cheque, let alone rang back Mr O’Donnell and said “We can’t find the cheque.  How about you send us through another one.”  

31.	Both parties could have done this better in the days after the 17th of October 2003.  Whilst the Department has some justification at law in not taking it further because there was no cheque, they should not be totally excused for doing so.  Mr O’Donnell certainly should have taken further action as indicated above.   The actions, or rather inactions, of both the Department and 
Mr O’Donnell tend to cancel themselves out.   Had Mr O’Donnell done a little bit more, I would have great sympathy for his plight.  However, him not doing so and then as a result of him in 2006 getting a new lease he killed off his right as of that date to access the water under his property.  

32.	We come to another point in this case, which was mentioned at first instance and I think it is highly relevant.   The actual decision under review is a decision to issue a notice to require the capping of a bore which at the time it was required to be capped, was unlawful and which, under the current statutory regime of the time, could not be rendered lawful.  That statutory regime has not changed.  

33.	Were Mr O’Donnell to be successful it would be very difficult for him to be able now to be retrospectively granted a licence although if it was held that he was entitled to one as at the 17th of October 2003 and should have at least had the opportunity to be considered for one, it may not be impossible.  It is far more likely that had Mr O’Donnell been wronged in October 2003 he would have some action perhaps in damages.  

34.	Mr Ward in his submissions in the tribunal below made much of the fact that Mr O’Donnell seemed to be the odd man out who was not put on the waiting list and evidence was given of a number of applicants in 2003 on the waiting list, 11 of whom had bores that were operative.  Mr Ward (p.132) referring to T-document T16 stated “That’s the 2007 letter in which it is said that his application will remain unassessed.  It’s a clear indication, if any be required, that the respondent knows of the application, considers it to be alive and valid but that it will remain unassessed because of the changes in the statutory provisions.” 

35.	Mr Ward went on to say “Everything else is a smokescreen.  The respondent’s view of Mr O’Donnell’s application is that it was made in October.  It was not to be processed because of the changes to the legislation subsequent to October, despite the respondent acting inconsistently with that view in Rashleigh and Cutter and for that reason nothing was done until 2007 when things came to light, not because of anything that Mr O’Donnell did, not because of anything that the EPA did, simply because it became clear that 
Mr O’Donnell was still using the bore water at that time and that’s  why it came to the attention of the respondent.”   

36.	That may well be a fair statement of the situation by Mr Ward .   But it begs a number of questions.  Firstly, could it not be said that the Department’s January letter stating his application will remain unassessed is in much the same category as remaining on a waiting list – a waiting list that is going nowhere because of the changes to the law and the situation that had existed since October 2003, with the exception of the Department, for whatever reason, agreeing to grant licences to Messrs Rashleigh and Cutter after a lengthy court case in Rashleigh? 

37.	Secondly, although evidence before me indicated that Mr O’Donnell has no recollection of receiving that letter, if he in fact did receive it and cannot simply remember now, why wasn’t it a catalyst to him to take further action?  Presumably, it would not have been too late for him to take an action and join in and reap the benefits of the Rashleigh and Cutter matters which, for my understanding, would have still been afoot in January 2007.  Had he done so, it may well be that he too might have been offered a licence.  But he did not. He has to take some responsibility for his lack of action here.  

38.	There is nothing to indicate, apart from the argument above in relation to what should have happened after October 2003, that the Department’s decision in 2008 to cap the bore was unreasonable in all those circumstances.   I do not accept that in itself is the end of it because clearly if Mr O’Donnell had a real expectation that he had a right to be considered for a licence in October 2003 and was not, then, in my view, he would have a case.  But for the reasons stated above, in particular because of his own inaction, and the inaction that continued even after receiving a letter, albeit one in January 2007, that takes him out of the category of persons who could feel justifiably aggrieved as a result of an action, in this case inaction, by a government department to his detriment, and he has very much brought this situation on himself.  The Department’s decision to cap the bore, I find in the circumstances to be a reasonable one.  

39.	If I am wrong in relation to my observations of the law as at the 17th of October 2003 and if Mr Mossop is right in his submissions, I think we are at least on the same wave length when it comes to saying the decision of the Department to cap the bore was correct and should not be touched, albeit for different reasons.  If Mr Ward is correct and I am wrong for my subsequent observations of what could and should have happened and how subsequent events overtook any right Mr O’Donnell may have had on the 17th of October 2003, then I would make this further point.  

40.	Even if the Department should be held to have had a duty to do something further and contact Mr O’Donnell themselves, and ask him to send another cheque, then there is still the issue of whether in fact any proper consideration of the licence application would lead to a licence being granted.   There was an opportunity for Mr O’Donnell to join in, in a Rashleigh and Cutter situation.  It would seem that opportunity was still there in 
January 2007.  

41.	If I am wrong in my decision that the decision of the Department under review should not be touched and that the decision in the lower tribunal should be accepted, then I would think the law as it stands now, public policy, the need to conserve water and the fact that we are going through, if not climate change, a very significant bad drought are considerations that need to be taken into account.  The most likely outcome if Mr O’Donnell were to be successful in this scenario may be some recompense through damages.  That would have to be weighed against the fact that he has enjoyed the benefits of the bore up until June 2008 and again needs to be assessed on the basis of what he could and should have done in terms of prosecuting his rights, which in my view he clearly did not do.  It is not something in my view that the Department alone should have to wear.  

42.	For the reasons stated above, I can see no valid reason for interfering with the decision of the tribunal, which affirmed the decision of the EPA.  The appeal will be dismissed.

Bill Stefaniak
Appeal President

PUBLICATION DETAILS

TO BE PUBLISHED
To be completed by Tribunal Staff

PART A							FILE NO: AA 5 of 2010	

APPELLANT:		GARRY O’DONNELL

RESPONDENT:		ENVIRONMENT PROTECTION AUTHORITY

COUNSEL APPEARING:	APPLICANT:  	Mr C Ward	
RESPONDENT:	Mr D J C Mossop

SOLICITORS: 		APPLICANT:       Rodd J Barnett & Associates
RESPONDENT:   ACT Government Solicitor

OTHER:				APPLICANT:	
RESPONDENT:	

TRIBUNAL MEMBER/S:	Bill Stefaniak, Appeal President

DATE/S OF HEARING:	5 July 2010		PLACE: CANBERRA

DATE OF DECISION:		11 August 2010	PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( )	CASE NOTE ( )	UNREPORTED DECISION ( )

COMMENTS: