Decision Date: August 9, 2005
Panel: Alan Andison, David H. Searle, Q.C., Robert Gerath
Keywords: Water Act – ss. 19(1)(a), (b), (c), and (3) 92(1) (b) and (c); water licence; standing; riparian rights; jurisdiction; transfer of appurtenancy, notice of transfer, minimum water levels
Joanne McClusky and Terry and Joyce Mulligan appealed the separate decisions of the Assistant Regional Water Manager (the “Regional Manager”) authorizing the transfers of appurtenancy of two conditional water licences. Appurtenancy refers to the attachment of a water licence to specific lands. As part of the transfers, two water licences were issued to the Sunshine Coast Regional Water District, in substitution for two licences previously held by another party. Together, the two licences authorize the diversion of over 11 million gallons of water per year from Hotel Lake.
The Board found that the Appellants met the criteria to be considered riparian owners who “consider that their rights are or will be prejudiced by the order” as is required under the Water Act, and therefore, they had standing to appeal.
The Appellants submitted that the original licences should have been cancelled or suspended for lack of beneficial use and, therefore, the transfers should not have occurred. The Board held that the appeals before it were against the transfers of appurtenancy of the licences. Thus, the issue of beneficial use and cancellation of the original licences is irrelevant to the appeals and ultimately beyond the jurisdiction of the Board in the appeals.
The Board also found that it was not necessary for the Comptroller or the Regional Manager to require notice of the requested transfers. Further, if any lack of notice resulted in procedural unfairness, the hearing of the appeals would cure any errors.
The Board noted the large volume of water that can be diverted under the transferred licences, and that although it is the same volume as was authorized under the previous licences, that volume was not actually diverted by the holder of the previous licences. The Board also noted that only a small portion of the water volume allocated under the licenses was needed by the Sunshine Coast Regional District to meet current demand. The Board held that further studies, as well as the setting of a minimum water level for Hotel Lake are needed in order to properly manage the water resource. Therefore, the Board sent the matters back to the Regional Manager with directions to limit the amount of water withdrawn from the lake until further studies were completed.
The Board also found that no special circumstances had arisen that would attract or result in an order of costs for any party.
Accordingly, the appeals were allowed in part, and the decisions were sent back to the Regional Manager to be amended according to the Board’s directions.