The Court of Appeal today refused an application for leave to appeal brought by Stanley Rural Community Inc (‘Stanley Rural Community’).  In 2013, Indigo Shire Council refused the applicant, Stanley Pastoral Pty Ltd (‘Stanley Pastoral’), a permit for the use and development of its land, a use which included the extraction of 19 megalitres of groundwater from its land at Cue Springs Road, Stanley. It was uncontroversial that several aspects of the proposal (including the construction of storage facilities and a heavy vehicle access track) required permission under the Indigo Planning Scheme.

Stanley Pastoral applied to the Victorian Civil and Administrative Tribunal (‘the Tribunal’) for a review of the decision of the Indigo Shire Council to refuse to grant the permit. The Tribunal allowed the application for review and granted the permit subject to certain conditions. Stanley Rural Community applied for leave to appeal from the Tribunal’s orders pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998. A judge in the Trial Division dismissed the application.  Stanley Rural Community appealed to the Court of Appeal.

The case concerned the relationship of the Water Act 1989 and the Planning and Environment Act 1987.  Under s 8(4) of the Water Act, a person has a right to use water taken or received by that person in accordance with a licence issued under that Act.  Stanley Pastoral held a licence under s 51 of the Water Act to ‘take and use’ groundwater on its property.  Stanley Pastoral proposed to use its s 51 licence as part of a commercial operation to extract and sell groundwater.  Stanley Rural Community contended that, in order to do so, Stanley Pastoral required a permit under the Planning and Environment Act. The Court held today that s 8(4) of the Water Act embraced both the extraction and use of water. Further, the Court held that the effect of s 8(6) of the Water Act was that the right conferred by s 8(4) was not limited by anything in the Planning and Environment Act as that Act did not make express provision in relation to the extraction of groundwater.

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NOTE:  This summary is necessarily incomplete. It is not intended as a substitute for the Court’s reasons or to be used in any later consideration of the Court’s reasons.

Read the Court's full judgment on AustLII (External link)

 

Author
Supreme Court of Victoria
Publisher
Supreme Court of Victoria
Date of Publication

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