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O'Keefe v Water Administration Ministerial Corporation.

Pays/Territoire
Australie
Type de cour
Autres
Date
Jan 27, 2010
Source
UNEP, InforMEA
Nom du tribunal
Land and Environment Court of New South Wales
Juge
Lloyd.
Numéro de référence
[2010] NSWLEC 9
Langue
Anglais
Sujet
Eau, Environnement gén.
Mot clé
Droits d'utilisation de l'eau
Résumé
This is an appeal against the decision of the Local Land Board at Orange to grant a s. 10 Water Act 1912 licence to Mr and Mrs Eccleston to construct and use a pump to take water from a dam located on an adjacent property. The appelant have raised a number of contentions, including that the granting of the licence is beyond power and the decisions of the Ministerial Corporation and the board were ultra vires. The Court is of the opinion that theeasement does not constitute the Ecclestons the occupier of the site of the works (the pump) so as to ground an application for a licence under Section 10 of the WA. Interestingly, however, the court noted that Section 13A of the WA enables an applicant who is not an occupier of such land to apply for a licence provided that the conditions precedent set out in the section are satisfied. The Section 13A application provides for the application to be heard by a local Land Board, magistrate or court. In this case the Court determined that it did not matter that the application for a licence had been made under Section 10; the alternative source of power under Section 13A could be relied upon. The Court indicated that provided it were satisfied that it would have had power to hear and determine an appeal from the local Land Board if the application had been made under Section 13A and the Court considered that on the merits the licence should be granted, the Court could grant the licence notwithstanding that the application had been made under the wrong section. The dam on the appleant’s property was, used to collect "harvestable rights" water – this is water which comes within the term "basic landholder rights" under which the landholder without the need for a licence may construct works to collect a specified quantity of water from rainwater runoff on his property (section 53 of the WMA). The appelant argued that the dam served this purpose and fthe easement would interfere with it’s harvestable rights. In addition, he pointed to Section 53(3) of the WMA which prohibited a landholder from supplying other land with harvestable rights water captured and stored on his property. The Court, however, made the point that notwithstanding Section 53 of the WMA, the provisions of the WA concerning granting of licences still applied; the Court considered the competing sections in the light of water management principles and considered that the basic landholder rights of the appelant would not be infringed if a licence were granted.
Texte intégral
COU-156965.pdf