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Court of Appeal dismisses appeal

03 June 2016

The Court of Appeal (Chief Justice, Justice Osborn and Justice Beach) today dismissed an appeal by the Hazelwood Power Partnership against a decision of Justice Garde in the Trial Division of the Supreme Court of Victoria. 

The dispute concerned the Morwell Main Drain, which was originally constructed in 1949 by the State Electricity Commission of Victoria as a component of the Hazelwood open cut mine. In 1994, when the Hazelwood mine was privatised, land upon which the drain sits was transferred to the Hazelwood Power Partnership.  

The Morwell Main Drain runs substantially alongside the Princes Freeway, immediately to the south of the township of Morwell. In 2011, a sinkhole formed in the Morwell Main Drain, and cracks developed in the Princes Highway, which was then closed at that location for a period of time. Since that incident, the Hazelwood Power Partnership has asserted that the Morwell Main Drain is the responsibility of Latrobe City Council.  

Section 198 of the Local Government Act 1989 vests ‘public drains’ in the local municipal council. The Hazelwood Power Partnership argued before the trial judge that the Morwell Main Drain was a public drain because it receives water from municipal drains. The Court of Appeal agreed with the trial judge that the legislation used the phrase ‘public drain’ in its ordinary sense, and that, in determining whether a particular drain was a public drain, all the relevant facts and circumstances must be taken into account

In this case, the trial judge, having examined the various relevant facts and circumstances identified by the parties, determined that the Morwell Main Drain was a private drain, not a public drain. The Hazelwood Power Partnership challenged this conclusion. The Court of Appeal agreed with the trial judge that the Morwell Main Drain was originally constructed as a private drain with the purpose of protecting the mine from run-off and that, having regard to all the relevant circumstances, the Morwell Main Drain has remained a private drain, notwithstanding the fact that approximately 70¬–90 per cent of the water that now runs through the drain enters it from connected drains owned and managed by the Latrobe City Council and VicRoads.

The Hazelwood Power Partnership put forward an alternative argument that the flow of water onto its land was unreasonable within the meaning of the Water Act 1989. It contended that it was entitled to injunctions and declarations to prevent the Latrobe City Council from discharging water into the Morwell Main Drain. The Court held that, taking into account all the relevant factors referred to the Water Act 1989, the flow of water was reasonable, and that the Hazelwood Power Partnership would not be entitled to prevent Latrobe City Council from discharging the water into drains which connect to the Morwell Main Drain.

In any event, the Court of Appeal would also have exercised its discretion not to grant relief in the form proposed by the Hazelwood Power Partnership because doing so may have resulted in flooding in parts of the southern area of the township of Morwell.

The decision means that the drain continues to be vested in, and must be managed and controlled by, the Hazelwood Power Partnership.

Read the full judgment on Austlii (External link)

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