BRITZA and SHIRE OF GINGIN

[2022] WASAT 58

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION:   BRITZA and SHIRE OF GINGIN [2022] WASAT 58

MEMBER:   MS M CONNOR, MEMBER

MS C BARTON, MEMBER

MR P CURRY, SENIOR SESSIONAL MEMBER

HEARD:   3, 4, 5, 8, 9 AND 19 NOVEMBER 2021

FURTHER WRITTEN SUBMISSIONS FILED 10 AND 11 JANUARY 2022

DELIVERED          :   4 JULY 2022

FILE NO/S:   DR 283 of 2020

BETWEEN:   CARL GARY BRITZA AND MATTHEW GARY BRITZA

Applicants

AND

SHIRE OF GINGIN

Respondent

Catchwords:

Town planning - Development - Review of conditions of approval - Time limited approval - Beyond power  - Operational inconsistency - Refusal in disguise - Whether avocado orchard capable of approval - Water abstraction from unproclaimed watercourse  - Whether minimum discharge flow of 2 ML/day leaving site is sufficient to protect downstream environment of watercourse - Effects of climate change - Implementation of operating strategy - Notification on title - Whether conditions have planning purpose - Nexus - Reasonableness - Words and phrases:  'Sensibly diminished' - 'Environmental flow'

Legislation:

Environmental Protection Act 1986 (WA), s 5
Interpretation Act 1984 (WA), s 5
Land Act 1933 (WA)
Local Government Act 1919 (NSW)
Metropolitan Region Scheme
Mining Act 1906 (NSW)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 3, cl 66, cl 66(1), cl 67, cl 68, cl 72
Planning and Development Act 2005 (WA), s 3(1), s 3(1)(c), s 141(1)(a), s 252, s 252(1), s257B(3)
Planning Regulations Amendment Regulations 2020 (WA), reg 74(2), Pt 2, Pt 8, Pt 9, cl 90(2)
Rights in Water and Irrigation Act 1914 (WA), s 2(1), s 3(1), s 4(2), s 5A, s 5C, s 20(1), s 20(1)(c), s 22, s 26B, s 26GC, s 26GD, s 26GD(2), s 26GF, s 26L
Shire of Gingin Local Planning Scheme No 9, cl 1.4, cl 1.6, cl 3.2.7, cl 3.3, Sch A, Sch 1
State Administrative Tribunal Act 2004 (WA), s 27(2), s 31
Town Planning and Development Act 1928 (WA), s 8A
Transfer of Land Act 1893 (WA), s 70A
Water Agencies (Powers) Act 1984 (WA), s 34

Result:

Application for review allowed in part
Decision of the respondent varied

Category:    B

Representation:

Counsel:

Applicants	:	Mr P Lachore
Respondent	:	Mr H Jackson SC

Solicitors:

Applicants	:	Pacer Legal
Respondent	:	McLeods

Case(s) referred to in decision(s):

Allsure Pty Ltd and Western Australian Planning Commission [2006] WASAT 145

Antonas and Town of Vincent [2006] WASAT 303; (2006) 45 SR (WA) 327

Associated Minerals Consolidated Ltd v Wyong Shire Council [1974] 2 NSWLR 681

Barker v Edgar [1898] AC 748

Bestry Property Group Pty Ltd and Western Australian Planning Commission [2019] WASAT 15; (2019) 96 SR(WA) 311

Croft v City of Gosnells (1998) 19 SR (WA) 282

Garbin v Wild [1965] WAR 72

Goodwin v Phillips (1908) 7 CLR 1

Grace and City of Nedlands [2010] WASAT 53

Jemena v Mine Subsidence Board (2012) 193 LGERA 303

Kaard and City of Nedlands [2005] WASAT 2

Kipa Freeholds Pty Ltd v Development Assessment Commission (1999) 101 LGERA 414

Koltasz Smith and Partners v Western Australian Planning Commission (2000) 23 SR (WA) 266

Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672

Saraband Investments Pty Ltd and Shire of Serpentine-Jarrahdale [2021] WASAT 53

Two Rocks Investments Pty Ltd and Western Australian Planning Commission [2019] WASAT 59

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. Mr Carl Britza and Mr Matthew Britza (applicants) seek review by the Tribunal under s 252(1) of the Planning and Development Act 2005 (WA) (PD Act), of conditions d, g and h imposed on the development approval granted by the Shire of Gingin (Shire, Council or respondent) on 20 April 2021 for 'Proposed Agriculture Intensive (Annual and Perennial Horticulture) and Retrospective Development Approval for Existing Agriculture Intensive (Annual Horticulture) and Associated Structures' (proposed development) on No 115 (Lot 1) Rig Road, Red Gully (subject land or site).

2. The conditions read as follows:

   …

   d.This development approval is granted for a limited period and shall expire on 17 November 2027;

   …

   g.The applicant/operator is required to implement the approved operating strategy dated 25 February 2021, including submitting annual water monitoring/data in the approved operating strategy to the Shire of Gingin;

   h.A notification, pursuant to Section 70A of the Transfer of Land Act 1893 is to be placed on the Certificate of Title of the proposed development lot advising that the Agriculture Intensive land use is not serviced by a water licence, but rather by an operating strategy. The notification is to state as follows:

   WATER EXTRACTION - The agriculture intensive land use sources water from the Red Gully South waterway, which may be an unreliable water source.  The land use is subject to conditions of development approval which include requirements to:

   (a)comply with the Operating Strategy including the ongoing monitoring and reporting of waterway levels; and

   (b)reduce or cease the use in some circumstances.

   (c)limit the term of the approval to seven (7) years.

   Further information may be obtained from the offices of the Shire of Gingin[.]

3. In these reasons, we will firstly describe the subject land, the proposed development, and the applicable legislative framework.  We will then set out the four principal issues for determination in these proceedings and address each of the issues in turn.

4. The Tribunal heard expert evidence from Mr Terry Freimond, an agronomist; Dr John Ruprecht, a qualified engineer and consultant in water resource management including hydrology; Ms Suzanne Smart, an environmental scientist with 16 years hydrological professional experience; and Ms Amanda Butterworth, a town planning consultant; called on behalf of the applicants; and Mr Brent Searle, an agronomist; Dr James Reginald Davies, an hydrologist; Dr Ryan Vogwill, an hydrogeologist; and Mr Joe Algeri, a town planning consultant; called on behalf of the respondent.

5. For the reasons given below, we have determined that the 'correct and preferable decision at the time of the decision upon the review', under s 27(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) in the exercise of planning discretion, is to vary the decision of the Shire made on 20 April 2021 to delete condition d in its entirety and delete conditions g and h and substitute new conditions.

Subject land

1. The subject land is more particularly described as Lot 1 on Diagram 40630 being the whole of the land contained in Certificate of Title Volume 423 Folio 51A.

2. The subject land comprises a total area of 787 hectares of which:

   a)48.6 hectares is currently used for the purpose of Agricultural Intensive (annual horticulture), specifically the growing of potatoes under centre pivot irrigation using water extracted from the Red Gully South waterway (Red Gully South); and

   b)the remainder of the land is not under cultivation and includes some remnant vegetation.

3. Red Gully South runs through the subject land, entering the site at the approximate mid-point of the southern boundary at an approximate height of 160 metres Australian Height Datum (AHD)[1] and flows in a north-west direction for approximately 2.1 kilometres, until entering a pond upstream of a road locally known as Arndell Way.  After passing through a culvert under the road, it flows for another 285 metres approximately, before leaving the site on the western boundary, at more or less the mid-point of that boundary and at approximately 140 metres AHD.  Red Gully South then continues to flow in a north-west direction until it meets Red Gully Creek just east of the Brand Highway, inside the Moore River National Park.

   [1] Applicants' Bundle of Documents dated 4 June 2021 (Exhibit 14) page 151.

4. Red Gully South has a catchment of approximately 28 kilometres² and a mainstream length of 8 kilometres from its origin to its point of discharge into Red Gully.  Red Gully South flows all year and is an unproclaimed surface water area under the Rights in Water and Irrigation Act 1914 (WA) (RIWI Act).

Proposed development

1. The applicants commenced the commercial growing of potatoes on the subject land using a pivot irrigation system in 2015.  Initially an area of 16 hectares was cultivated, which was subsequently expanded to 48.6 hectares using two pivot irrigation systems. 

2. On 18 December 2019 the applicants lodged an application for development approval for:

   a)Retrospective approval for use and works comprising:

   i)the growing of potatoes on 48.6 hectares using two pivot irrigation systems, rotated over three sites.  Each pivot covers 16.2 hectare of land, and as such, only 32.4 hectares of land is used at any one time.

   ii)the following existing structures associated with the use:

   •eight sea containers comprising five 20 foot containers and three 40 foot containers used for storage purposes;

   •a transportable building used as a lunch (crib) room, which is proposed to be moved from its current location to behind the existing hay shed; and

   •a transportable dwelling.

   b)Proposed development approval for use and works comprising:

   i)an expansion in the area used for the growing of potatoes from 48.6 hectares to 145.8 hectares, which will create nine pivot irrigation cleared areas, but with only two pivots operational at any one time (32.4 hectares);

   ii)use of an additional 23 hectares for the growing of avocados; and

   iii)the associated clearing of remnant vegetation.

3. Water from Red Gully South is proposed to irrigate the potato crop and avocado orchard.  Crop irrigation requirements are to be implemented according to soil moisture levels, measured through capacitance soil moisture probes, and a telemetered system for efficient response to changes in rainfall/irrigation.[2]  The applicants intend to balance the water required between growing the avocado orchard and the potato crop by expanding the existing potato crop to 32 hectares in the medium term but ultimately scaling back the potato crop to 16 hectares by the time the avocado orchard reaches maturity. 

   [2] Respondent's s 24 bundle of documents dated 21 May 2021 (Exhibit 4) Tab 12, page 184.

4. A hydrological report (June 2018 report) to support the proposed intensive agriculture on the subject land was prepared by Hyd2o Hydrology (Hyd2o).  The purpose of the June 2018 report was to demonstrate that adequate water supply is available for agriculture and that a flow regime of at least 2 Megalitres (ML)/day[3] will be maintained within Red Gully South.[4]

   [3] Department of Water and Environmental Regulation required the proponent to demonstrate that a flow regime of 2 ML/day will be maintained.

   [4] It should be noted that McCamey's Crossing is not the outflow point from the site as Red Gully South extends for another 285 metres downstream to the outflow point.  Monitoring measured an additional average flow of 0.47 ML/day being contributed to waterway for to its outflow from the site.

5. The site was monitored via a continuous flow measurement device during the low flow summer season from 21 December 2017 to May 2018 directly downstream of McCamey's Crossing (a constructed pond for irrigation purposes) to estimate discharge and daily flow volumes to quantify the baseflow of the waterway.  The measured discharge volumes were used to assess the viability of streamflow to supply short, medium and long-term water requirements of the proposed agricultural pursuits. 

6. The monitoring revealed that the total daily flow at McCamey's Crossing varied from 3.8 ML/day to a maximum of 6.2 ML/day.  The median flow over the monitoring period was 4.2 ML/day and a mean flow of 4.2 ML/day.

7. The water demand to support the intensive agriculture use was estimated to be as follows:

   The short term [Year 1] water use for the site is estimated as 315 ML/annum which will enable the irrigation of young avocado trees, maintain a winter crop of 32 ha potatoes and minimise erosion.  The estimated maximum daily use of water is 1.77 ML/day in September.  The medium term [Year 5] water use for the site is estimated as 485 ML/annum.  The estimated maximum daily use of water is 2.20 ML/day in September.

   …

   The long term [Year 12] water use for the site is estimated as 473 ML/annum.  The estimated maximum daily use of water is 1.96 ML/day in March 2018.  Daily flow volumes in March 2018 were 3.92 ML-4.33 ML.  In this long term scenario water use will be directed towards the mature avocado trees will(sic) the scale of the potato crop reduced so more water is available.[5]

   [5] Respondent's s 24 bundle of documents dated 21 May 2021 (Exhibit 4) Tab 9, page 133.

8. An Operating Strategy (OS March 2019) was submitted in support of the proposed development.  According to Ms Smart, OS March 2019 was developed in conjunction with and approved by the Department of Water and Environmental Regulation (DWER).  The management objective was based on maintaining the discharge criterion of a minimum of 2 ML/day from the site in order to mitigate any potential impacts on Red Gully South.  To ensure that this flow regime was maintained it was considered that the 'stage height in the pond should be 10.5 mSL (metres Station Level) (Table 1) which correlates to a flow of 1.54 ML/day leaving McCamey's Crossing and 2.01 ML/day discharging from the site'.  Table 1 of the OS March 2019 shows the minimum stage levels and adopts a conservative approach, as requested by DWER, that the first year of monitoring 2 ML/day will be initially maintained at Mc Camey's Crossing.[6]

   [6] Respondent's s 24 bundle of documents dated 21 May 2021 (Exhibit 4) Tab 10, pages 161-162.

   Table 1: Minimum McCamey's Crossing Stage Level

Location	Pond Height	Discharge at Property Boundary	Staff Gauge Level	Monitoring Period
McCamey's Crossing	10.52 mSL	2.47 ML/day	0.52 m	For first year
McCamey's Crossing	10.50 mSL	2 ML/day	0.50 m	Beyond the first year

1. Table 2 of the OS March 2019 outlines the management objectives, the measurement and management response.

   Table 2: Management Objectives

Subject	Management Objective	Measurement	Management Response
McCamey's Crossing (Pond)	Maintain pond water levels to above a trigger level of 10.52 mSL for the first year and 10.50 mSL beyond that period.	Weekly water level monitoring of the staff gauge at McCamey's Crossing during Dec-Apr in the first year.  Jan-Apr in subsequent years. If water levels are approaching the trigger level inspections will occur daily until water levels recover.	Monitor a trigger level and impose contingency measure (Section 3) should trigger levels be breached.
Reliable water supply	To maintain a consistent water supply that satisfies the demands of the farming practise (sic).	Continuous water level monitoring of pond stage to determine any trends in water levels.	Utilise best farming practises (sic) and techniques to minimise demand for irrigation water.

1. OS March 2019 committed to:

   •an annual report of the monitoring being provided to DWER for review in 2019 after one additional year of monitoring;

   •pumping being reduced by increments of 10% until flows are suitably recovered, if pond levels breached; and

   •pumping to cease until water levels recover, if reduction in pumping is unsuccessful.

2. Hyd2o prepared a further report (October 2019 report) presenting the results of monitoring over the period of April 2018 to June 2019 in comparison with the results recorded in the June 2018 report.[7]  Based on the results collected during the monitoring period the following conclusions were made:

   …

   •Water quality of the site is unchanged over the monitoring period.

   •the minimum flow that occurred at [McCamey's Crossing] was 2.57 ML/day which was measured in March 2018.  This exceeds the short term management objective of 2.47 ML/day.

   •An average of 0.7 ML/day is contributed to Red Gully South down stream of [McCamey's Crossing] and the estimated minimum flow discharging from the site boundary during the monitoring period is 3.27 ML/day.

   •The data collected in 2019 is consistent with 2018 and management recommendations made in the operating strategy are to be upheld with the long-term management objective of achieving a flow of 2 ML/day discharging from the outflow[.][8]

   [7] Respondent's s 24 bundle of documents dated 21 May 2021 (Exhibit 4) Tab 13.

   [8] Respondent's s 24 bundle of documents dated 21 May 2021 (Exhibit 4) Tab 13, page 215.

3. A farm management plan (FMP), prepared by Western Agronomy, was also submitted as part of the documentation supporting the proposed development.[9]  The FMP detailed the proposed management practices to be implemented, which included:

   •managing soil erosion;

   •water use;

   •fertilizer application;

   •air pollution - chemical spray drift, noise, dust and odour; and

   •stable fly breeding.

   [9] Respondent's s 24 bundle of documents dated 21 May 2021 (Exhibit 4) Tab 12.

4. In accordance with cl 66(1) of Sch 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (deemed provisions) the respondent provided a copy of the application to DWER, the Department of Biodiversity, Conservation and Attractions and the Department of Primary Industries and Regional Development (DPIRD) for objections and recommendations.  Responses were received from DPIRD and DWER.

5. DPIRD advised that it did not object to the proposed development but made a number of comments relating to chemical use and spray drift, soil management and of particular relevance, the following in relation to water use:

   The proponents need to maintain 2 ML/day (megalitres per day) flow in Red Gully South waterway to meet Department of Water and Environmental Regulation recommendations.  To support their horticultural production and manage wind erosion risk, the proponents need to access approximately 0.84 ML/day.  DPIRD has found that the measured streamflow from this source has halved over the last 20 years.  Measured flow from the Red Gully South waterway has reduced from 8.5 ML/day in 2000, to the flow of 4.7 ML/day in 2017/18.  This is consistent with reduced rainfall and drier climatic conditions that are predicted to continue.  DPIRD suggests that by relying on this water resource, the long-term viability of this venture may be limited.[10]

   [10] Respondent's s 24 bundle of documents dated 21 May 2021 (Exhibit 4) Tab 18, page 290.

6. DWER had no objection to the proposed development and relevantly, in addition to others, provided the following comments:

   Further to previous advice provided, the Department has negotiated an acceptable proposal with the proponent and their consultants.  The Department endorsed the Lot 1 Rig Rd, Red Gully: Basic Operating Strategy (Hyd2o, March 2019), which was prepared to manage water abstraction and ensure the maintenance of existing downstream flows, in agreement with the Department.

   …

   The Department does not have any statutory mechanisms to ensure that the proposal operates in accordance with the Operating Strategy and that monitoring data is provided to the Shire of Gingin.  Therefore, it is recommended that should the proposal be approved, it is appropriately conditioned to enable compliance with the Operating Strategy, reporting requirements to the Shire to ensure the submission of all data and an annual report, as well as ensuring the appropriate implementation of contingency measures, should they be required.[11]

   [11] Respondent's s 24 bundle of documents dated 21 May 2021 (Exhibit 4) Tab 19, pages 292-293.

7. The Council at its meeting of 17 November 2020 granted development approval to the proposed development subject to 13 conditions and 15 advice notes.[12]

   [12] Respondent's s 24 bundle of documents dated 21 May 2021 (Exhibit 4) Tab 26.

1. On 20 December 2020 the applicants sought review by the Tribunal of seven conditions imposed on the development approval, namely d, e, f, g, h, i, and k.

2. As part of the proceedings in this matter the parties engaged in mediation, which resulted in an amended Operating Strategy (OS Feb 2021) being provided to the respondent, which included the following notable modifications:[13]

   [13] Respondent's s 24 bundle of documents dated 21 May 2021 (Exhibit 4) Tab 27.

   1.Table 1: Minimum McCamey's Crossing Stage Level substituted with the following table:

   Table 1:  Minimum McCamey's Crossing Stage Level

Location	Pond Height	Discharge at Property Boundary	Staff Gauge Level	Monitoring Period
McCamey's Crossing	10.5 mSL	2.24 ML/day	0.50 m	2021-2027

2.Table 2: Management Objectives amended to delete reference to the trigger level of 10.52 mSL for the first year in 'Management Objective' under the 'Subject' heading 'McCamey's Crossing (pond)' and the inclusion of two further Subject headings - 'Outflow Culvert' and 'Water usage (pump)', together with corresponding 'Management Objective', 'Measurement' and 'Management Response'.  For convenience, the entirety of modified Table 2 has been replicated:

Table 2:  Management Objectives

Subject	Management Objective	Measurement	Management Response
McCamey's Crossing	Maintain pond water levels to above a trigger level 10.50 mSL.	Weekly water level monitoring of the staff gauge at McCamey's Crossing during Dec-Apr in the first year.  Jan­Apr in subsequent years. If water levels are approaching the trigger level inspections will occur daily until water levels recover.	Monitor a trigger level and impose contingency measures (Section 3) should trigger levels be breached.
Outflow Culvert	Maintain discharge of 2ML/day and quantify additional flow contributed downstream of McCamey's Crossing	Monthly water level monitoring of the staff gauge during Dec-April.	Report staff gauge levels and flow (via existing rate curve) in annual monitoring reports.
Water usage (Pump)	Maintain discharge of 2 ML/day during periods where trigger levels may be approached.	If water levels are reaching trigger levels assess the suitability of varying the pump rate to achieve desired outflow.	Vary the pump rate to avoid a trigger breach.
Reliable water supply	To maintain a consistent water supply that satisfied the demands of the farming practises (sic).	Continuous water level monitoring of pond stage to determine any trends in water levels.	Utilise best farming practises (sic) and techniques to minimise demand for irrigation water.

3.The modifications to Section 2 - Monitoring included:

•the installation of a staff gauge assembly indicating water level at the outflow culvert;

•deletion of reference to the 10.52 mSL pond level in the first year; and

•Table 3:  Surface Water Monitoring amended to include monitoring of the Outflow Culvert Staff Gauge; the Shire notified within seven days of a breach at McCamey's Crossing Staff Gauge and advised of actions taken; data downloaded from logger to be provided to the Shire every three months via email; and an annual report being provided to the Shire, rather than DWER.

4.The Contingency Plan required the reporting of any breach and associated action to be reported to the Shire within 7 days.

1. Consequently, the respondent sought and obtained further comment from DWER.[14] The Tribunal, pursuant to s 31 of the SAT Act, invited the respondent to reconsider its decision.

   [14] Respondent's s 24 bundle of documents dated 21 May 2021 (Exhibit 4) Tab 29.

2. The Council at its meeting of 20 April 2021 varied its previous decision by amending five conditions and deleting one condition.[15]  The Tribunal, by order of 11 May 2021, granted leave to the applicants to amend their grounds to a review of conditions d, g and h imposed on the development approval granted by the respondent on 20 April 2021.

   [15] Respondent's s 24 bundle of documents dated 21 May 2021 (Exhibit 4) Tabs 30 and 31.

3. A further amended Operating Strategy (OS June 2021) was submitted to DWER on 3 June 2021, which included the following notable modifications:[16]

   [16] Applicants bundle of documents dated 4 June 2021 (Exhibit 14) Tab 8.

   1)'Section 1 Management Objectives' amended to delete reference to the Shire;

   2)'Table 2:  Management Objectives' amended to delete the two additional 'Subject' headings included in OS Feb 2021, being - 'Outflow Culvert' and 'Water usage (pump)', together with corresponding 'Management Objective', 'Measurement' and 'Management Response'.

   3)The modifications to 'Section 2 - Monitoring' included:

   •the removal of the staff gauge assembly indicating water level at the outflow culvert; and

   •'Table 3:  Surface Water Monitoring' amended to delete monitoring of the Outflow Culvert Staff Gauge; DWER notified within seven days of a breach at McCamey's Crossing Staff Gauge and advised of actions taken; and removal of the requirement to provide the data downloaded from the logger to be provided to the Shire every three months via email; and an annual report being provided to DWER.

   4)The Contingency Plan now required the reporting of any breach and associated action to be reported to DWER 'and potentially the Shire of Gingin' within seven days.

4. During preparation for the final hearing, the issue of water salinity was identified as a concern by the agronomist experts as it was considered that it was highly probable that with the continued cropping of potatoes and additional fertiliser inputs that the electrical conductivity (salinity measure) recorded in February 2018 will increase.[17]

   [17] The Hyd2o report (June 2018) indicated an electrical conductivity of 939uS/cm 10 metres downstream from McCamey's Crossing.

5. The agronomy experts agreed that water salinity would not be an issue for potato production at the recorded levels and as such, considered the water usage as specified in the June 2018 report to be correct.  Further, it was agreed that the water usage for the avocado crop is correct without flushing/leaching being taken into consideration.  However, salt levels tolerated by avocado crops are considerably lower than the tested water quality on the site, and as such, both experts agreed that for the months November to April in the long-term (years 7-10) estimates of irrigation use an additional 20% water usage will be required for flushing/leaching of the avocado crop.  As part of the conferral of the agronomists, a revised table (Table 3) was prepared for the estimated long-term irrigation use incorporating additional water usage for flushing/leaching of the avocado crop.  The following estimates for daily water extraction with flushing and daily discharge for the potato and avocado crops have been extracted from Table 3:

   Extract of Table 3: Estimated Long Term (Years 7-10) Monthly Irrigation Use (Megalitres)[18]

   [18] Joint Statement of Mr Terry Freimond and Mr Brent Searle dated 17 September 2021 (Exhibit 11).

Nov	Dec	Jan	Feb	March	April
(a) Estimated Daily Use with Flushing	1.98	2.19	2.08	2.23	2.24	1.58
(b) Estimated Daily Flow (Hyd2o report [June 2018])	4.10	4.10	4.10	4.10	4.10	5.10
Daily Discharge = (a) - (b)	2.12	1.91	2.02	1.87	1.86	3.52

1. Table 3 shows that in December, February and March the estimated daily discharge after pumping to irrigate the potato crop and 23 hectares of avocados will be less than the 2 ML/day flow recommended by DWER.

2. In response to the evidence of the agronomists, the applicants sought leave of the Tribunal, which was granted, to amend the development plan reducing the area for growing avocados to 20 hectares.[19]

   [19] Britza Farm Map - Exhibit 15.

3. A further report was prepared by Hyd2o (October 2021 report) to determine water use with a reduced avocado crop.[20]  The assumptions adopted to calculate water usage included a leaching fraction of 0.20 based on the agreed position of the agronomists.  In regard to the long-term scenario, the report concluded as follows:

   [20] Hyd2o prepared an earlier report dated September 2021 that adopted a leaching faction of 0.23.

   … Daily water use … is estimated as a peak daily rate of 2.04 ML/day during March when streamflow is expected to be 4.18 ML/day at Mc Cameys Crossing and 4.87 ML/day at the outlet.  The estimated discharge at the outlet with the proposed water use is 2.83 ML/day which is above the 2 ML/day discharge criteria.

   Streamflow in Red Gully South Waterway has been observed at its minimum level in February with the median February flow over the monitoring period calculated as 4.06 ML/day at McCameys Crossing.  Daily water use in the long term scenario is estimated as a daily rate of 1.97 M/day (sic).  During this scenario the estimated discharge at the outlet is estimated as 2.78 ML/day which is above the 2 ML/day discharge criteria.

   In all months, in all scenarios provided, the discharge criteria of 2ML/day was able to be met.[21]

Planning framework

State

Planning and Development Act 2005 (WA)

[21] Hyd2o Report (October 2021) (Exhibit 20) page 3.

1. The purposes of the PD Act relevantly include -

   …

   (b)provide for an efficient and effective land use planning system in the State; and

   (c)promote the sustainable use and development of land in the State.[22]

   [22] Section 3(1) of the PD Act.

2. Section 241(1)(a) of the PD Act states as follows:

   (1)In determining an application in accordance with this Part the State Administrative Tribunal is to have due regard to relevant planning considerations including -

   (a)any State planning policy which may affect the subject matter of the application[.]

Metropolitan Region Scheme

1. The subject land is zoned 'Rural' in the Metropolitan Region Scheme.

State Planning Policies

1. State Planning Policy 1 - State Planning Framework (2017) (SPP 1) unites existing State and regional policies, strategies and guidelines within a central State planning framework to provide a context for decision-making on land use subdivision and development in Western Australia.  It informs decision-makers in the planning process on those aspects of State level planning policy which are to be taken into consideration, and given effect to, in order to ensure integrated decision-making across all spheres of planning.  SPP 1 includes all current planning policies, strategies, operational policies, position statements and guidelines of the Western Australian Planning Commission (WAPC).  The following State planning policies listed in SPP 1 are relevant in the consideration and determination of this matter:

   •State Planning Policy No 2 - Environment and Natural Resources Policy (2003) (SPP 2) - the objectives of SPP 2 are:

   •to integrate environment and natural resource management with broader land use planning and decision-making;

   •to protect, conserve and enhance the natural environment ; and

   •to promote and assist in the wise and sustainable use and management of natural resources.

   Clause 5.2 'Water Resources' provides that decision­making should:

   (i)consider mechanisms to protect, manage, conserve and enhance:

   a…

   bWaterways;

   …

   (ii)Take account of the availability of water resources to ensure maintenance of water quality and quantity for existing and future environmental and human uses.

   •State Planning Policy No 2.5 - Rural Planning (2016) (SPP 2.5) - the purpose of SPP 2.5 is to 'protect and preserve Western Australia's rural land assets due to the importance of their economic, natural resource, food production, environmental and landscape values. Ensuring broad compatibility between land uses is essential to delivering this outcome'. Section 5.8 'Intensive agriculture' relevantly provides as follows:

   … Several localities in Western Australia produce much of the State's produce, including … Gingin Brook …

   In order to operate effectively, producers may require areas of high agricultural productivity, water availability, suitable climatic conditions and ready access to markets and freight networks.

   WAPC policy in regard to intensive agriculture is:

   (a)intensive agriculture is generally supported and encouraged on rural land provided rural amenity and environmental impacts can be effectively managed[.]

   Clause 5.10 'Managing and improving environmental and landscape attributes' relevantly provides:

   … Environmental and landscape attributes will be managed and improved by:

   …

   (f)making planning decisions that support the protection of water resources and their dependent environments in order to maintain or improve water quality.

   •State Planning Policy No 2.9 - Water Resources (2006) (SPP 2.9) - the objectives of SPP 2.9 are to:

   1.protect, conserve and enhance water resources that are identified as having significant economic, social, cultural and/or environmental values;

   2.assist in ensuring the availability of suitable water resources to maintain essential requirements for human and all other biological life with attention to maintaining or improving the quality and quantity of water resources; and

   3.promote and assist in the management and sustainable use of water resources.

   Clause 5.1 'General Measures' includes:

   …

   (ii)Aim to prevent or, where appropriate, ameliorate the following potential impacts:

   •any adverse effects on water quality and quantity and, as a minimum, proposed development should aim to maintain water quality and ensure water quantity is compatible with the receiving water;

   …

   •any potential adverse effects on environmental water requirements and, as a minimum, proposed development should aim to maintain natural flow regimes and variability[.]

   (vi)Recognise and take into account State Government management strategies for water resource issues such as water protection areas, wetland protection, water provision for environmental flow requirements, riparian management and water allocation plans.  (see schedule 3 for information about sources regarding these types of documents.)

   (vii)Recognise and take into account water resource management plans as required by the Rights in Water and Irrigation Act 1914.

   (viii)Recognise and take into account relevant accredited natural resource management strategies, endorsed by state government statutory authorities, that contain recommendation to address water resource matter.

   Clause 5.3 'Wetlands, Waterways and Estuaries' include:

   (i)Protect, manage, conserve and enhance the environmental functions and values of waterways and estuaries.  The natural alignment of waterways should be retained except where adjustments are unavoidable and do not compromise the natural environmental values.

   •Draft State Planning Policy 2.9 - Planning for Water (August 2021) (draft SPP 2.9) and associated guidelines and explanatory note - the intent of draft SPP 2.9 is:

   To ensure that planning and development considers water resource management and includes appropriate water management measures to achieve optimal water resource outcomes.

   Draft SPP 2.9 includes mapping that identifies sensitive water resource areas.  The subject land is within an area that is mapped as being a sensitive water resource area.

   The objectives of draft SPP 2.9 are set out at cl 5 and include:

   5.1Protect and improve the environment, social, cultural and economic values of the State's water resources.

   …

   5.4Ensure the secure and sustainable supply, use and re-use of water resources.

   5.5Ensure future development is resilient to the water­related impacts of climate change[.]

   Clause 6 of draft SPP 2.9 lists outcomes specifying the role of planning and development in contributing to the overall objectives of the policy.  This includes:

   6.1Planning and development maintains or enhances water quality and hydrological regimes to protect public health and support healthy ecosystems through the:

   i.protection of sensitive water resources;

   ii.…

   iii.appropriate siting and management of land uses; and

   iv.maintenance of natural flows in waterways, … to sustain aquatic and terrestrial habitats[.]

Local

Shire of Gingin Local Planning Scheme No 9

1. Shire of Gingin Local Planning Scheme No 9 (LPS 9 or Scheme) applies to the municipal district of the Shire.  LPS 9 is comprised of the Scheme Text; Scheme Maps; the deemed provisions, the supplemental provisions contained in Sch A of the Scheme and the Scheme Map.  To the extent of any inconsistency between a deemed provision with another provision of LPS 9, the deemed provision prevails, and the other provision is, to the extent of the inconsistency, of no effect.[23]  Clause 1.4 of LPS 9 also provides the that the Scheme is to be read in conjunction with the local planning strategy.

   [23] Section 257B(3) of the PD Act.

2. Clause 1.6 of the LPS 9 sets out the aims of the Scheme.  The relevant aims in relation to this matter include:

   …

   (h)Facilitate more intensive and diversified use of rural land for higher value products, including horticulture, intensive animal husbandry and farm forestry, which are compatible with surrounding farming practices.

   …

   (q)Promote sustainable management and land use to ensure the quality and adequate supply of groundwater and surface water bodies within the Scheme area.

   (r)Protect the natural environment and biodiversity while ensuring appropriate development opportunities within the scheme area are realised.

   (s)Minimise land degradation and vegetation loss through integration of landcare principles within the planning process.

3. The subject land is zoned General Rural under LPS 9. Clause 3.2.7 of the Scheme sets out the objectives of the General Rural zone as follows:

   a)manage land use changes so that the specific local rural character of the zone is maintained or enhanced;

   b)encourage and protect broad acre agricultural activities such as grazing and more intensive agricultural activities such as horticulture as primary uses, with other rural pursuits and rural industries as secondary uses in circumstances where they demonstrate compatibility with the primary use;

   c)maintain and enhance the environmental qualities of the landscape, vegetation, soils and water bodies, to protect sensitive areas especially the natural valley and watercourse systems from damage; and

   d)provide for the operation and development of existing, future and potential rural land uses by limiting the introduction of sensitive land uses in the General Rural zone.

4. There is no dispute between the parties that the land use being applied for is 'Agriculture - Intensive', which is defined as follows in the Land use definitions of Sch 1 - Dictionary of Defined Words and Expressions of LPS 9:

   Agriculture - intensive

   means premises used for trade or commercial purposes, including outbuildings and earthworks, associated with the following –

   (a)the production of grapes, vegetables, flowers, exotic or native plants, or fruit or nuts[.]

5. Clause 3.3 of the Scheme provides for a Zoning Table which indicates, subject to the provisions of the Scheme, the uses permitted in the Scheme area in various zones.  Agriculture – Intensive is designated as a 'D' use in the General Rural zone in the Zoning Table of the Scheme.  'D' means that the use is not permitted unless the local government has exercised its discretion by granting development approval.

6. Clause 3 of the deemed provisions empowers the respondent to make planning policies in respect to any matters relating to planning and development of the Scheme Area. The respondent has adopted 'Local Planning Policy 1.6 - Agriculture Intensive' (LPP 1.6) which applies to agriculture intensive uses within the Shire.

1. Clause 67 of the deemed provisions provides that in considering an application for development approval, the local government (and the Tribunal on review) is to have due regard to a range of specified matters to the extent that, in the opinion of the decision-maker, those matters are relevant to the development the subject of the application.[24]  The pertinent matters relating to this application are as follows:

   [24] The Tribunal notes that reg 74(2) of Pt 2 of the Planning Regulations Amendment Regulations 2020 (WA) (Amendment Regulations), which came into operation on 15 February 2021, amended cl 67 of the deemed provisions. However, cl 90(2) of the amended deemed provisions provides that amendments to Pt 8 and Pt 9 made by the Amendment Regulations do not apply in relation to an application for development approval made before commencement day. As the application for development approval was made before 15 February 2021, cl 67 of the former deemed provisions apply in this case.

   •the aims and provisions of LPS 9 (subclause (a));

   •the requirements of orderly and proper planning (subclause (b));

   •any approved State planning policy (subclause (c));

   •any policy of the State (subclause (f));

   •any local planning policy for the Scheme Area (subclause (g));

   •the likely effect on the natural environment or water resource and any means that are proposed to protect or to mitigate impacts on the natural environment (subclause (o));

   •any submissions on the application (subclause (y));

   •the comments or submissions received from any authority consulted under cl 66 of the deemed provisions (subclause (za)); and

   •any other planning consideration the local government considers appropriate (subclause (zb)).

2. Pursuant to cl 68 of the deemed provisions, the local government (and the Tribunal on review) may determine an application for development by:

   a)granting development approval without conditions; or

   b)granting development approval with conditions; or

   c)refusing to grant development approval.

Local planning strategy

1. The Shire of Gingin Local Planning Strategy (2012) (LP Strategy) sets out the Council's vision for the municipality and the long-term directions for land use and development.  The relevant passages of the LP Strategy relied by the parties are:

   2.1State and Regional context

   …

   The Shire has an economic base of agriculture and fishing, however in recent years Gingin has become known for its horticultural industry.  The presence of water resources, suitable soils and climate and proximity to markets, has made Gingin an important area for horticultural expansion, catering for new producers and growers displaced by increased urbanization in the Perth Metropolitan Region[.]

   2.3.3Townsites

   2.3.3.1Gingin

   …

   The area surrounding the town of Gingin offers three important elements for the production of intensive agricultural produce: suitable soils, ideal climatic conditions and fresh groundwater.  As a result Gingin is well-placed to take advantage of this potential, which can improve the local economy and sustain population growth in the town[.]

   3.6Environment

   The objectives include:

   …

   •Promote sustainable management and land use to ensure the quality of groundwater and surface water bodies within the Shire.

   •Promote and pursue a sustainable balance between the competing demands of land required for natural vegetation and land required for rural/agricultural purposes.

   •Protect the natural environment and biodiversity while ensuring appropriate development opportunities wit in the Shire are realised.

   •Minimise land degradation and vegetation loss through integration of landcare and natural resources management principles within the planning process[.]

2. The Policy Position and Actions include:

   …

   No 7Ensure that changes of land use and new development do not increase run off, soil degradation, nutrient/salinity levels or effluent release to watercourses.

   …

   No 10Prepare Local Planning Policies that deal specifically with horticulture/intensive agriculture to address the concerns and issues associated with soil erosion, export of nutrients, land capability, compatibility with surrounding land uses and water availability[.]

Local Planning Policy 1.6 - Agriculture Intensive

1. The policy objective for Local Planning Policy 1.6 - Agriculture Intensive (LPP 1.6) is:

   To provide standards for different forms of irrigated horticulture in order to prevent adverse impacts on:

   (i)the natural environment; and

   (ii)surrounding properties.

2. Clause 3.1.2 of LPP 1.6 states:

   Council will process development applications for Irrigated Horticulture purely on land use planning grounds, without regard for viability considerations, such as Water licensing.  All Planning Approvals will be copied to the Department of Water for its records in dealing with Water Licensing.

3. LPP 1.6 at cl 3.1.12 also states:

   All Planning Approvals for Irrigated Horticulture will incorporate the following advice notes to the Applicant:

   a)The applicant is reminded that this Planning Approval is not to be interpreted as approval to extract and utilise groundwater supplies, nor does it imply that the Shire of Gingin has knowledge in relation to availability of ground water supplies.

   b)The applicant is reminded of the need to seek and obtain a suitable groundwater licence from the relevant licensing authority prior to utilising the land for Irrigated Horticulture.

4. The proposed development complies with all the setback requirements of LPP 1.6.

Other

Environmental Guidance for Planning and Development - Guidance Statement No 33

1. The Environmental Protection Authority's (EPA) Environmental Guidance for Planning and Development - Guidance Statement No 33 (2008) (GS 33) provides information and advice to assist participants in land use planning and development processes to protect, conserve and enhance the environment and describes the processes the EPA may apply under the EP Act to land use planning and development in Western Australia.[25]

   [25] Respondent's s 24 bundle of documents dated 21 May 2021 (Exhibit 4) Tab 3.

2. Part B of GS 33 contains the EPA's advice on protecting a range of biophysical factors.  Chapter B5 deals with 'waterways' which is defined to include 'river and stream systems including permanent, seasonal and ephemeral drainage lines'.  This chapter is intended to compliment the guidance in SPP 2.9 and should be read in conjunction with it.  The EPA's objective for waterways is to 'maintain their integrity, ecological functions and environmental values'.

3. B5.2 of GS 33 states:

   The position of the [EPA] is that all waterways have environmental significance.  Each waterway and its catchment needs to be carefully managed through the informed efforts of the people whose activities and decisions directly or indirectly affect the waterway's health based on the following principles:

   Maintaining ecological health

   It is preferable to maintain the natural dynamic water regime of each waterway in terms of water quality, water course alignment, flow quantity and the timing of flows in and entering the waterway[.]

   Informed management and decision-making

   Decisions on land use, development and management along a waterway and in each catchment need to be made on an informed basis, taking into account waterway and catchment process and attributes, and related environmental values, issues and threats to values (see B5.1) as well as the significance of the waterway, and the potential for direct, indirect and cumulative impacts from development.  … Information to assist decision-making on a project should also be sufficient to show that best practice measures have been identified and will be applied, and that environmental objective will be met.

   Environmental objectives

   …

   In catchments where a thorough consultative process to develop waterways management objectives has not been completed, the EPA recommends that a precautionary approach be taken to decision making on projects that may directly, indirectly or cumulatively affect waterways.

   No loss of the waterway function … should occur as a result of incremental developments.

   The EPA urges that action is taken to improve environmental outcomes for waterways where possible.

4. B5.3 and Table A1 of GS 33 identifies key agencies and their role in '[providing] advice or regulate activities or developments of relevance to the protection of waterways and land use planning'. 

Water use legislation and policy framework

Rights in Water and Irrigation Act 1914

1. The management, use, and protection of water resources within the State is regulated by the provisions of the RIWI Act.

2. Part III of the RIWI Act provides for the control of water resources. The objects of this part, relevantly include:

   (a)to provide for the management of water resources, and in particular -

   (i)for the sustainable use and development[26] to meet the needs of current and future users; and

   (ii)for the protection of their ecosystems and the environment in which water resources are situated, including by the regulation of activities detrimental to them;

   and

   (b)to promote the orderly, equitable and efficient use of water resources; and[.]

   [26] The reference to 'use and development' includes domestic, commercial, recreational, cultural and navigational purposes: s 4(2) of RIWI Act.

3. Under s 5A of the RIWI Act, '[t]he right to the use and flow, and to the control, of the water at any time in any … watercourse; or … wetland; or … underground water source, … vests in the Crown[,] except as allocated under [the RIWI] Act or another written law'. Relevantly, a 'watercourse' is defined in s 3(1) of the RIWI Act to mean:

   …

   (a)any river, creek, stream or brook in which water flows;

   (b)any collection of water (including a reservoir) into, through or out of which any thing coming within paragraph (a) flows;

   (c)any place where water flows that is prescribed by local by-laws to be a watercourse,

   and includes the bed and banks of any thing referred to in paragraph (a), (b) or (c).

4. Pursuant to s 20(1)(c) of the RIWI Act, the applicants, as owners of riparian land through which runs a watercourse to which Div 2 applies, are entitled to take water free of charge without the need for a licence under s 5C of RIWI Act 'to the extent that the flow of water in the water course … is not thereby sensibly diminished'.

5. Section 22 of the RIWI Act gives the Minister enforcement powers relating to, amongst other things, the taking of water where the Minister is of the opinion that the person is not taking all reasonable steps to minimise the degradation of the watercourse or should not, in the public interest, be permitted to continue. The Minister may give directions relating to:

   … the purposes for which, or the extent to which, water may be diverted, taken or used by that person in the exercise of those rights and specifying the extent, if any, to which, the manner in which, and the conditions upon which, that person may divert, take, or use such water otherwise than in the exercise of those rights[.]

6. Further, Div 3A of Pt 3 of the RIWI Act provides limitations on rights conferred by and under Div 1B, 2 and 3. Under s 26GC of the RIWI Act, the Minister may -

   (1)… by notice in writing served on a person give directions to the person -

   (a)Restricting -

   (i)the amount of water that the person may take from the water resource; or

   (ii)the rate at which the water may be taken by the person from the water resource; or

   (iii)the purpose for which the water taken from the water resource my be used by the person;

   or

   (b)prohibiting -

   (i)the taking of water by the person from the water resource; or

   (ii)the purpose for which water taken from the water resource by the person may be used;

   or

   (c)imposing on the person obligations in terms of any combination of the matters in paragraphs (a) and (b).

7. Section 26GD sets out when s 26GC applies, and relevantly s 26GD(2) provides as follows:

   …

   (2)Section 26GC also applies so as to enable the Minister to give directions to a person who is taking water from a water resource[27] if in the opinion of the Minister the taking of the water is having a harmful effect on the water resource or the water being taken -

   (a)is being improperly used; or

   (b)is being wasted; or

   (c)is having a harmful effect; or

   (d)is not being used to the best advantage.

   [27] Water resources includes - (a) watercourses and wetland together with their beds and banks; and (b) other surface waters; and (c) aquifers and underground water: s 2(1) of RIWI Act.

8. Pursuant to s 26GF where a notice has been served on a person under s 26GC, any right that the person has under s 20 is displaced by, or has effect subject to, the provisions of the notice so long as it continues in force.

Other

1. The parties also referred to the following documents:

   •Gingin surface water allocation plan (DWER 2011);

   •Gingin surface water allocation plan methods report (DWER 2011);

   •Groundwater-surface water interaction along Gingin Brook Western Australia (DWER 2011);

   •Operational Policy 5.10 - Managing breaches of the Rights in Water and Irrigation Act 1914 on watercourses in Western Australia (DWER 2010);

   •Managing unlicensed groundwater use (DWER 2019);

   •Compliance and enforcement policy (DWER 2015); and

   •Selection of future climate projections for Western Australia (DWER 2015).

Issues

1. During the final hearing (hearing) it was agreed that the following are the principal issues for determination in this review.

   1)Whether condition d can be lawfully imposed, and if so, whether the condition is appropriate and reasonable in the circumstances of this case.

   2)Whether condition g can be lawfully imposed, and if so, whether the condition is appropriate and reasonable in the circumstances of this case.

   3)Whether condition h is appropriate and reasonable in the circumstances of this case.

   4)Is condition d a 'refusal in disguise', and if so:

   a)Can the Tribunal lawfully consider the merits of the application as a whole?; and

   b)Is the refusal of the application as a whole the correct and preferable decision?

2. The order of determining the issues has been influenced by the considerations and findings of issue 1, and as such, after addressing issue 1, we have proceeded to determine issue 4 prior to dealing with issues 2 and 3.

Whether condition d can be lawfully imposed, and if so, whether the condition is appropriate and reasonable in the circumstances of this case

1. For convenience, we set out condition d again here:

   This development approval is granted for a limited period and shall expire on 17 November 2027.

2. Clause 72 of the deemed provisions provides power to the local government (and the Tribunal on review) to impose conditions limiting the period of time for which development is granted.

3. The Tribunal has previously observed that time-limited consents are generally appropriate 'where there is likely to be some change in the planning framework or in the character of a locality, or where there are management issues which it is appropriate to monitor after a certain period of time'.[28]

   [28] Grace and City of Nedlands [2010] WASAT 53 at [70].

4. The respondent asserts that:

   … the sustainability of the proposed development, particularly the medium to long term effect on Red Gully South and the waterways further downstream due to the extraction of water necessary to service the proposed development:

   (i)is central to whether the application should be granted; and

   (ii)remains uncertain.[29]

   and that the imposition of a condition limiting approval to November 2027 is to:

   enable the collection and consideration of 10 years of monitoring data to facilitate the more complete assessment of the likely medium and long term effects of the proposed development on the Red Gully South and the waterways downstream.

   [29] Respondent's Amended Statement of Issues, Facts and Contentions dated 11 August 2021 (Exhibit 2).

5. Mr Lochore, counsel for the applicants, contends that condition d cannot be lawfully imposed for essentially three reasons.  First, condition d is beyond power, second, it amounts to a refusal in disguise and, third, it does not satisfy the Newbury tests for validity.

Beyond power

1. First, the applicants contend that condition d, which places a time limit on the approval, is ultra vires (or beyond power) because it is inconsistent with s 20(1) of the RIWI Act which does not impose a temporal limitation on the statutory entitlement to take surface water from Red Gully South.

2. Section 20(1) of the RIWI Act provides:

   (1)The owner or occupier of any land (riparian land) alienated from the Crown through or contiguous to which runs any watercourse, or contiguous to which, or partly within which, is situate any wetland, has the right, as such owner or occupier, to take water in that watercourse or wetland free of charge -

   (a)for the domestic and ordinary use of himself and of his family and servants; and

   (b)for watering cattle or other stock, other than those being raised under intensive conditions as defined in section 21(4); and

   (c)to the extent that the flow of water in the watercourse or the amount of water in the wetland, as the case may be, is not thereby sensibly diminished, for any other purpose,

   but the right described in paragraph (c) may be made inapplicable to, or be restricted in relation to, any riparian land by the provisions of local by laws that apply to the land, and that paragraph is to be read subject to any such provisions.

3. Whilst the applicants ultimately acknowledged that we are entitled, under the planning regime, to consider the impact of the proposed horticultural use on 'environmental flow',[30] they say that condition d constrains the applicants' statutory right to take surface water from Red Gully South under s 20(1)(c) of the RIWI Act.[31]  As we understand it, the applicants' position is based on the principle of statutory construction enunciated in Goodwin v Phillips[32] (Goodwin) that a 'general' provision (the planning regime as provided by the PD Act) must yield to a 'specialist' provision (the water regime as provided by the RIWI Act).[33] That is, the applicants say that the RIWI Act has a 'proviso effect' which, in certain circumstances, gives rise to an 'operational inconsistency' as that term is understood in the jurisprudence of s 109 of the Commonwealth Constitution.[34]

   [30] 'Environmental flow' describes the quantity, timing and quality of water flows required to maintain the ecological values of the water-dependent ecosystems.

   [31] Applicants' closing submissions dated 9 November 2021, para 387; Applicants' further closing submissions dated 23 December 2021, paras 6-10 and para 26.

   [32] Goodwin v Phillips (1908) 7 CLR 1 at 14. See also Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 678.

   [33] Applicants' SIFC, para 90 and para 102; Applicants' further closing submissions dated 23 December 2021, para 7.

   [34] Applicants' further closing submissions dated 23 December 2021, paras 12-13.

4. The applicants observed that in Garbin v Wild (1965) WAR 72 (Garbin) the general provisions of the Land Act 1933 (WA) in that case yielded to the special provisions of the RIWI Act. Based on Garbin, the applicants say that the RIWI Act is still properly characterised as 'specialist legislation' that deals with a particular and limited subject matter.[35]  The applicants also say that the current case is analogous to Garbin where the Goodwin principle of statutory construction squarely applies.[36]

   [35] Applicants' closing submissions dated 9 November 2021, paras 351-352.

   [36] Applicants' closing submissions dated 9 November 2021, para 354.

1. In contrast, it is the respondent's position that the planning and water regimes are not inconsistent but, rather, are co-extensive and, therefore, both must be complied with.[37] Further, the respondent does not accept that the operational effect of condition d is to limit in time the applicants' right to take surface water under s 20(1)(c) of the RIWI Act because the condition is silent on the question of water and its extraction. Rather, the respondent says that condition d is concerned solely with the duration of the approval as it relates to the proposed horticultural use.[38]

Are the PD Act and RIWI Act co-extensive?

[37] Respondent's Reply SIFC dated 19 July 2021, para 24.

[38] Respondent's reply to applicants' further closing submission dated 7 January 2022, paras 13-14.

1. In determining whether the RIWI Act and PD Act are capable of co­existing, the following questions are relevant to our determination. First, are the provisions of the PD Act and RIWI Act inconsistent? Second, if so, does the 'general legislation' (the PD Act) yield to the 'specialist legislation' (the RIWI Act)?

2. In Associated Minerals Consolidated Ltd v Wyong Shire Council (1974) 2 NSWLR 681 (Wyong), exploratory and drilling operations had commenced on land that was the subject of mining leases issued under the Mining Act 1906 (NSW) but before the Local Government Act 1919 (NSW) and other planning controls applied to the land. The Privy Council concluded that the mining operations were not exclusively governed by the mining legislation but that both Acts applied because they had different purposes, each of which was capable of being fulfilled.[39]  In reaching this conclusion, the Privy Council observed:[40]

   In its wider presentation the argument raises the issue, which frequently arises, of the interrelation in law of two statutes whose field of application is different, where the later statute does not expressly repeal or override the earlier.  The problem is one of ascertaining the legislative intention: is it to leave the earlier statute intact, with autonomous application to its own subject-matter; is it to override the earlier statute in case of any inconsistency between the two; is it to add an additional layer of legislation on top of the pre-existing legislation, so that each may operate within its respective field?

   [39] Wyong at 686. See also Jemena v Mine Subsidence Board (2012) 193 LGERA 303 at 50.

   [40] Wyong at 686.

3. The Privy Council in Wyong had regard to the maxim 'Generalia specialibus non derogant', as explained in the following passage from Barker v Edgar:[41]

   The general maxim is, 'Generalia specialibus non derogant'.  When the Legislature has given its attention to a separate subject, and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly.  Each enactment must be construed in that respect according to its own subject-matter and its own terms.

   [41] Barker v Edgar [1898] AC 748, at [754].

4. In respect of this passage, the Privy Council, in Wyong, observed that the maxim or principle that later 'general legislation' is not intended to interfere with earlier 'specialist legislation' cannot be applied strictly because legislative intention is paramount:[42]

   The principle stated in this passage and others to similar effect is of course, unexceptional, but cases are rarely so simple as this, for even where the earlier statute deals with a particular and limited subject matter with which the later statute is concerned, it is still a matter of legislative intention, which the courts endeavour to extract from all available indications, whether the former is left intact, or is superseded, and the cases in which the latter has been held are almost as numerous as the former.

   [42] Wyong at 686.

5. Having regard to the principles enunciated in Wyong, we next consider the purpose and subject matter of the RIWI Act and PD Act to determine whether the legislature intended that the PD Act should be read subject to the RIWI Act or overrides it, or whether they are capable of co-existing.

6. The RIWI Act provides for rights in water resources, and regulates the management, use and protection of water resources within the State. The right to the use and flow, and to control of water at any time in any watercourse, wetland or underground water source vests in the Crown except as allocated under the RIWI Act or another written law.[43] It is an offence to take water from any watercourse, except under, and in accordance with, a licence granted by the Minister under s 5C(1)(d) of the RIWI Act or a right conferred by the RIWI Act or another written law.

   [43] RIWI Act, s 5A.

7. The purpose of the PD Act, which was enacted after the RIWI Act, is to provide for an efficient and effective system of land use planning, and to promote the sustainable use and development of land in the State.[44]  The expression 'land' in the context of land use planning and development includes 'water'.[45] There is no indication from the provisions of the PD Act that water resources are excluded from land use planning considerations or decision-making. Relevantly, SPP 2.9, a state planning policy made under the PD Act, is aimed at promoting the management and sustainable use of water resources.

   [44] PD Act, s 3(1).

   [45] For the purposes of the PD Act, 'land' includes buildings and other structures, land covered with water, and any estate, interest, easement, servitude or right in or over land: Interpretation Act 1984 (WA), s 5.

8. The provisions of the PD Act and RIWI Act do not, respectively, prevail over any other written law. Their status can be contrasted to, for example, the Environmental Protection Act 1986 (WA) which expressly provides that its provisions prevail over any other written law to the extent of any inconsistency.[46]

   [46] Environmental Protection Act 1986 (WA), s 5.

9. We are satisfied that the provisions of the PD Act and the RIWI Act are not inconsistent. Both Acts operate within their respective fields and can co-exist because they have different purposes, each of which is capable of being fulfilled. Consequently, we find that the State planning and water regimes are co-extensive. Our finding is consistent with long­established practice in Western Australia.[47]

   [47] See, for example, Croft v City of Gosnells (1998) 19 SR (WA) 282; Saraband Investments Pty Ltd and Shire of Serpentine-Jarrahdale [2021] WASAT 53.

10. We are not persuaded that Garbin and Goodwin are relevant to our determination in the manner contended by the applicants.  In Garbin, the Full Court of the Western Australian Supreme Court found that there was an express provision in the Land Act 1933 (WA) that meant water rights conferred under that Act were subject to the RIWI Act. The Full Court stated:

    The Land Act 1933 (No. 37 of 1933, s. 15) expressly enacted for the first time that the grantee's water rights were subject to the Rights in Water and Irrigation Act 1914, and those rights have been expressly subject to the legislation ever since and, as pointed out, the legislation of 1962 made express reference to the existing wells. By s.14 of the Interpretation Act 1918-1962 the original reference to the Rights in Water and Irrigation Act is deemed to include a reference to all subsequent amendments to these provisions.

11. We consider that Garbin can be distinguished from the circumstances of this case because we find that there is no express provision in the PD Act which requires it to be read subject to the RIWI Act. Therefore, the applicants' reliance on this authority to assert that the PD Act should be read subject to the RIWI Act is misplaced.

Is there 'operational inconsistency' at play?

1. The applicants contend that condition d, which imposes a time limit on the approval, is inconsistent with s 20(1) of the RIWI Act because it will operate to prevent the applicants from exercising their statutory entitlement to take surface water. This is referred to by the applicants as an 'operational inconsistency' which, the applicants contend, renders condition d ultra vires or beyond power. For this reason, the applicants say that if the Tribunal were to impose such a condition it would amount to an error of law.[48]

   [48] Applicants' further closing submissions dated 23 December 2021, para 28.

2. The respondent contends that condition d does not operate in a manner that is inconsistent with the applicants' statutory entitlement to take water from Red Gully South.

3. On a proper construction of condition d, we find that it imposes a time limit on the approved use of the land for horticulture, and not on the applicants' use of surface water.  That is, condition d relates to the carrying out of the approved horticultural activity and does not prevent the applicants from taking water from Red Gully South in accordance with their statutory entitlement.  Consequently, we find that the applicants' right to take water from Red Gully South is unaffected by condition d.

4. For these reasons, we find that condition d, which places a time limit on the approval for the applicants' horticultural activities, is not inconsistent with the applicants' statutory entitlement to take surface water under s 20(1) of the RIWI Act.

5. The applicants relied, by way of analogy, on the juridical concept of operational inconsistency as it applies to conflicts between Commonwealth and State laws. We do not consider that the authorities relied on by the applicants are of assistance in our determination, particularly given our findings that the PD Act and RIWI Act are co­extensive and condition d does not interfere with the operation of s 20(1)(c) of the RIWI Act.

6. We therefore do not accept the applicants' contention that the condition d is beyond power.

Refusal in disguise

1. Second, the applicants submit that in circumstances where, the earliest new avocado seedlings could be planted is Spring 2023 and they would not reach maturity until sometime in the period 2030 to 2035, imposing a time limit requiring development to cease by no later than November 2027 is tantamount to a refusal of this aspect of the proposed development.  It is our understanding that the applicants do not assert that the whole decision is a refusal in disguise.

2. The respondent disputes that condition d is a refusal in disguise but submits if it is, then the Tribunal is entitled to look at whether the application should be refused in its entirety.

3. We are cognisant that the proposed development seeks both retrospective and prospective approval for various activities, including the growing of potatoes and avocados, and the erection and placement of a number of structures on the subject land.  We accept the applicants' assertion that, except for the avocado orchard component, the time limited period specified in condition d does not have the effect of refusing the development applied for and as such, we have proceeded to determine this issue on that basis.

4. The agronomy experts, in their joint conferral statement and in their oral evidence, agreed that it would take between seven to 10 years for an avocado tree to reach maturity and that the trees produce a commercially productive (positive cashflow) crop in years six to eight.  It was further agreed that the supply of trees will take 12 to 14 months and that the trees should be planted in Spring, therefore planting was likely to occur in Spring 2023.  Given this evidence, it can be deduced that the avocado trees will have been planted for just over four years at the expiry of the development approval and will not have reached maturity and as such, will not be capable of producing a commercially viable crop.

5. Ms Butterworth, in considering the evidence of the agronomists holds the opinion that 'the imposition of a condition that would result in the approval expiring before the crop is capable of producing a commercially productive crop is tantamount to a refusal of the avocado orchard'.[49]  Mr Algeri considers the imposition of condition d to be merely a commercial risk for the applicants and considers 'the fact that a particular crop cannot be harvested within a particular timeframe should not be a reason why any time limit should be longer or should not apply at all'.[50]

   [49] Witness statement of Amanda Jane Butterworth dated 1 October 2021 (Exhibit 22) page 38.

   [50] Witness statement of Joe Algeri dated 1 October 2021 (Exhibit 9) pages 27-28.

6. We agree with Ms Butterworth and consider the imposition of condition d to be a refusal in disguise of the avocado orchard.  It is analogous to granting approval to a use that requires the construction of a building to enable it to operate and time limiting the approval to expire prior to the completion of the building works.  We find that the time limit as specified in condition d has the effect of preventing the realisation of the proposed activity for which approval is being sought, and as such, the purported consent is not a consent to the intended land use at all.

7. There is a line of authorities that speaks to the imposition of conditions on an approval that in substance and effect reflects a refusal of an application.  In Koltasz Smith and Partners v Western Australian Planning Commission (2000) 23 SR (WA) 266 (Koltasz Smith), the former Town Planning Appeal Tribunal held, at [47], '[i]n ordinary circumstances, the Tribunal should not embark upon a review of the approval when it is a condition that is the subject of appeal'. The Tribunal in Kaard and City of Nedlands [2005] WASAT 2, determined at [27] that, although Koltasz Smith was a subdivision appeal, similar considerations arise in the context of an application for review brought under s 8A of the Town Planning and Development Act 1928 (WA).[51]

   [51] The comparable section of the PD Act to s 8A of the Town Planning and Development Act 1928 (WA) is s 252 of the PD Act.

8. Further, the Tribunal in Allsure Pty Ltd and Western Australian Planning Commission [2006] WASAT 145 at [22] found that in the unusual circumstances where the Tribunal has considered and construed the decision the subject of the review, and has determined that, in substance and effect, the decision was to refuse the application, it is open to, and necessary for, the Tribunal to determine for itself whether approval should be granted and if so, subject to what conditions, even though the applicants only sought review of a particular condition of approval.

9. We find ourselves in a similar circumstance where we have determined that condition d of the purported consent issued by the respondent is not a consent for the intended land use.  Therefore, we find that the proceedings are, in substance, an application for review of the refusal of the Shire to approve the avocado orchard component of the proposed development even though the applicants did not appreciate that fact when it filed the application for review. 

10. The applicants also argue that condition d has the effect of significantly altering the development approval and strikes at the heart of the activity by unreasonably restricting what is intended. 

11. The respondent denies that condition d has the effect of significantly altering the development approval and argues that whilst the condition imposes a temporal restriction on the development, it does not confine or restrict the activity in any way during the term of the approval.

12. The purpose of a planning condition is to regulate incidental aspects of the development.  As Debelle J articulated in Kipa Freeholds Pty Ltd v Development Assessment Commission (1999) 101 LGERA 414 at 423:

    The power to impose conditions is vested in a planning authority for the purpose of enabling it to regulate incidental aspects of the development so that it does not have an adverse effect upon the amenity of the neighbourhood of the development, either in the course of construction or when the development is completed. … The power to impose conditions is not provided to enable a planning authority to alter the nature of the proposal and hedge it about with conditions which are unworkable, unenforceable, and seek to confine the development form being used in the ordinary way. Resort to the use of such conditions is tantamount to an acknowledgement that the proposed development is inappropriate for the subject land. If a planning authority imposes this latter kind of condition, it is using the power to impose conditions for a purpose which was not intended because it goes beyond incidental aspects of the intended land use and strikes directly at the intended land use[.]

13. Although we agree that condition d does not confine or restrict the ordinary activity of the avocado orchard in any way during the term of the approval, the condition does, however, go beyond regulating incidental aspects of the intended land use as it, in effect, prevents the realisation of the proposed development and therefore strikes at the heart of the activity for which approval is being sought and is tantamount to an acknowledgement that the avocado orchard is an inappropriate use for the subject land.

14. In these unusual circumstances, we find that it is within the jurisdiction of the Tribunal, in reviewing the respondent's decision, to determine for itself whether the avocado orchard should be approved and, if so, subject to what conditions.

Newbury Tests

1. The applicants contend that the condition d cannot lawfully be imposed, because it is in breach of all three of the so-called 'Newbury tests'[52] for the validity of a condition of planning approval.

   [52] See Bestry Property Group Pty Ltd and Western Australian Planning Commission [2019] WASAT 15; (2019) 96 SR(WA) 311 at [90] - [93]; Two Rocks Investments Pty Ltd and Western Australian Planning Commission [2019] WASAT 59 at [289] - [290].

2. In light of the Tribunal's determination that condition d is in essence a refusal in disguise, the Tribunal has not considered and expressed findings in relation to the Newbury tests.

Should development approval be granted to the avocado orchard activity of the proposed development?

1. There is no dispute that the avocado orchard falls within 'Agriculture - Intensive' land use class for the purposes of LPS 9, which is a discretionary use in the General Rural zone.

2. The LP Strategy, which is to be read in conjunction with LPS 9, identifies the vision and long-term direction for the Shire as an important area to the State and region for horticultural expansion.  Consistent with the LP Strategy, one of the objectives of the General Rural zone is to encourage the development of intensive agricultural activities as primary uses in the zone.

3. The fundamental concern of the respondent regarding the avocado orchard is the medium to long-term effect on Red Gully South and the waterways further downstream due to the abstraction of water necessary to irrigate the intensive agricultural activity.

4. It is uncontroversial that the applicants' hydrological consultants have worked with DWER over a considerable period of time in order to demonstrate that the water flow downstream of the subject land will not be 'sensibly diminished'[53] as a result of irrigating the avocado orchard and potato crop.

   [53] In Saraband Investment Pty Ltd and Shire of Serpentine-Jarrahdale [2021] WASAT 53 at [39] the Tribunal considers 'the term 'sensibly diminished encapsulates a form of degradation to a water resource, in respect of downstream users or the environment, where the sustainable limit of take is exceeded'.

5. According to the evidence, it would appear that DWER informed the respondent that DWER and the applicants had negotiated an acceptable proposal which included the management of water abstraction and maintenance of existing downstream flows through the endorsed OS March 2019.[54]  Notwithstanding this advice, the respondent is not confident that even if the requirement for a minimum discharge flow of 2 ML/day leaving the site is maintained, the downstream impacts will be acceptable.  The respondent contends that the development approval should be time limited in order to be certain of the effect of the proposed development on Red Gully South, which at the conclusion of the time limited approval can be verified from 10 years of stream flow monitoring data.[55]

   [54] Respondent's s 24 bundle of Documents dated 21 May 2021 (Exhibit 4) Tab 19.

   [55] The need for 10 years of monitoring data (commencing at the end of 2017) to establish long-term trends originates from DWER indicating the 10 years of summer streamflow monitoring would appear to be sufficient to capture the within-year and across-year variation in minimum summer flows.

1. The respondent says that for the Tribunal to find that the proposed development warrants approval, the Tribunal must be satisfied that the 2 ML/day discharge criterion, if met, will protect the downstream environment and that there will be enough water to both irrigate the development and provide the 2 ML/day downstream.

Can the 2ML/day, if met, protect the downstream environment?

1. There is a fundamental principle embodied in the State and local planning framework relating to 'water resources', that is, to protect, manage, conserve and enhance the environmental functions and values of waterways. Apropos LPS 9, this principle finds expression as one of the objectives of the General Rural zone, which is 'to maintain and enhance the environmental qualities of … water bodies, to protect sensitive areas especially … watercourse systems from damage'.

2. The respondent says that the 2 ML/day discharge criterion, as recommended by DWER, cannot be relied on to ensure that the downstream environment is protected for the following reasons.  First, using the environmental flows from North Dandalup catchment to determine a 2ML/day downstream flow for Red Gully South is not an appropriate approach. Second, the 2 ML/day discharge criterion is at the lower end of the range contemplated by DWER to be sufficient to ensure that environmental flows are maintained. Third, the 2 ML/day discharge criterion does not take into account a drying climate and diminishing flows.   Further, the respondent also submits that the abstraction of 50 per cent of the summer flow from Red Gully South ought to raise concerns about the downstream impacts in terms of water quantity and quality.

3. Dr Davies is of the opinion that the proposed taking of water will result in a reduced flow and water level downstream that will be 'visual to the eye' (sensibly diminished) and that the taking of water will not be sustainable given climate change induced impacts in south-west Western Australia.[56]  He advocates that detailed studies on the effect of climate change on streamflow should be performed prior to any decision on minimum rate of discharge.  From his analysis of rainfall trends in the Gingin area and comparison of flows, Dr Davies concludes that:

   There's not much of a margin for error.  There's not much of an allowance there for climate change.  It could very easily - in my opinion, the flow could very easily be dropping below two megalitres per day.  So that … it would be impossible for the applicants to maintain two megalitres per day, because there would not be two megalitres per day coming in, even without any irrigation.[57]

   [56] Expert Witness Statement of Dr Jim Davies filed on 3 September 2021 (Exhibit 6), para 4.1.

   [57] ts 209, 5 November 2021.

4. Further, Dr Davies considers that salinity in Red Gully South is also likely to increase in the future due to the impacts of climate change, and as such, will result in a higher leaching fraction for avocado irrigation than allowed for in the October 2021 report.  He concludes that the discharge criterion of 2ML/day will not be met in all scenarios because the October 2021 report:

   •did not allow for reduced streamflow in Red Gully South associated with climate change;

   •used the incorrect soil type for calculating avocado irrigation requirement;

   •used a leaching fraction less than recommended by WA DPIRD for 1990 to 2014 climate; and

   •did not apply an upward adjustment factor for leaching fraction based on climate change since 2014 to the present or into the future.[58]

   [58] Supplementary Report of Dr Jim Davies dated October 2021 (Exhibit 7).

5. Dr Vogwill expresses concern about the transparency of DWER's recommended discharge rate and considers that the adoption of the 3 ML/day minimum daily flow criterion would have been a more appropriate precautionary approach.  He also says that the proposed abstraction will reduce downstream water availability and the proposed abstraction's impact in terms of reduced flow, which only just meets the 2 ML/day discharge criterion, will mean that for some parts of the year no abstraction should occur downstream of McCamey's Crossing unless it is clear there are other inflows not currently accounted for.[59]

   [59] Expert Witness Statement of Dr Ryan Vogwill dated 31 August 2021 (Exhibit 8).

6. In addition, Dr Vogwill is concerned that the reduced flow during the summer periods will affect water quality in the downstream and in­situ riparian environment, but the extent of change is not known.  In oral evidence, Dr Vogwill was unable to say whether the existing flows are beneficial or causing impacts to the environment because there has not been any survey work done in that part of the catchment.[60]  He also expressed concern that the removal of half the water from the system in the driest part of the year will reduce the length of the area downstream that will be hydrated which will reduce the aquatic habitat.[61]  He considers that further hydrologic analysis needs to assess flow impacts in the context of future land degradation and a drying climate, which will establish if the proposed abstraction is sustainable.

   [60] ts 269, 8 November 2021.

   [61] ts 269, 8 November 2021.

7. Dr Ruprecht, in his evidence, was at pains to point out that Red Gully South is an unproclaimed surface water area and that the applicants have a clear right to take water without the need for a licence to the extent that the flow of water is not sensibly diminished.  On comparing the hydrology of Red Gully South to pre-clearing catchments, Gingin Brook at Gingin and DWER's advice, he considers the 2ML/day minimum flow leaving the site to be potentially greater than would be expected for a catchment of the size of Red Gully South and is supported as an upper limit environmentally sustainable flow.[62]  He estimated 0.4 ML/day as an appropriate criterion for minimum flow.[63]  Dr Ruprecht accepts that the 2ML/day discharge criterion did not take into account climate change and that water availability has been assessed for the current climate.  He submits that 'if a drying climate is considered a possible scenario then the flow criterion needs to change appropriately as well'.  He considers a drying climate as one of the risks associated with agricultural development and notes that the applicants are prepared to take that risk.

   [62] Expert Report of Dr John Ruprecht dated 8 September 2021 (Exhibit 21).

   [63] Joint Witness Statement of Dr Vogwill, Dr Davies, Ms Smart and Dr Ruprecht signed and dated 21 September 2021 (Exhibit 12).

8. Ms Smart points to DWER's advice explaining its assessment on sustainable abstraction of water from Red Gully South and setting downstream discharge at 2ML/day 'in order to ensure not sensibly diminishing flows'.[64]  She contends that there is sufficient data to confirm that 2ML/day flow leaving the site can be maintained with the proposed water use, and in addition, contingency measures are included in the operating strategy detailing how the proposed activities can be adjusted during dry periods to ensure minimum flows downstream are maintained. Whilst Ms Smart acknowledges that a drying climate scenario was not detailed in the Hyd2o reports, it was understood that the 2ML/day would be maintained with reduction in streamflow becoming a commercial risk for the proponent.

   [64] Respondent's s 24 bundle of Documents dated 21 May 2021 (Exhibit 4) Tab 24.

9. In the context of the planning framework, we must be satisfied that the proposed development 'promotes the sustainable use and development of land'[65] which, in this instance, requires a balanced approach to the provision of land for intensive agriculture to 'protect and preserve Western Australia's rural land assets' as advocated in SPP 2.5 and the need to protect, manage, conserve and enhance the environmental functions and values of waterways as embodied in SPP 2.9.

   [65] Section 3(1)(c), PD Act.

10. The local planning framework plainly promotes and encourages more intensive agricultural activities in the General Rural zone, whilst seeking to maintain and enhance the environmental qualities of the water bodies and protect watercourse systems from damage.  The type of agricultural land use being applied for accords with the long-term direction envisaged for the Shire as promoted in the LP Strategy and is consistent with the land use objective of the General Rural zone as specified in the Scheme.  However, the Tribunal in determining this application must be satisfied that there is sufficient water available in Red Gully South to deliver both for the proposed development and to protect the environment downstream.

11. Although the Tribunal heard evidence questioning the veracity of the DWER's recommended 2ML/day minimum discharge criterion to achieve a sustainable abstraction limit, we accept DWER's assessment that the recommended environmental flow is adequate to maintain the ecological values and downstream environment of Red Gully South for the following reasons.  First, DWER, as the regulator of the State's water resources, has the capacity and expertise to determine abstraction limits that it considers will not sensibly diminish downstream flow.  Second, we are satisfied that DWER has undertaken flow, water quality and ecological monitoring to develop sustainable abstraction and release strategies for other unproclaimed waterways to ensure stream connectivity and dissolved oxygen levels are maintained over the dry season to protect environmental flows and that this data informs the 2ML/day minimum discharge criterion.  Third, whilst DWER has identified that the volume of water required for the applicants' horticultural activity may not be achievable in the long-term, it has worked with the applicants to develop an operating strategy to maintain downstream flows at 2ML/day or above, which includes contingencies that would require pumping to cease. 

12. Consequently, based on DWER's evaluation of current rainfall and stream flow data for other unproclaimed waterways, we are satisfied that there is sufficient water to both irrigate the proposed development and protect the downstream environment, contingent on the 2 ML/day minimum discharge criterion being maintained downstream of the site.

13. However, from the evidence before us it would appear the 2ML/day discharge criterion did not take into account climate change and that DWER has 'not assessed the sustainability of the of proposed agricultural production … focused on sustainable abstraction of water from Red Gully'.[66]

    [66] Respondent's s 24 bundle of documents dated 21 May 2021 (Exhibit 4) Tab 24.

14. There was agreement by the environmental experts, and we accept, that as a general proposition the south-west of Western Australia is drying and there is an overall downward trend in rainfall due to climate change.  However, the observations regarding trends were disputed by the experts.  Dr Davies and Dr Vogwill maintained that the drying trend was accelerating in the Gingin region while both Dr Ruprecht and Ms Smart argued that the trend line for annual rainfall for the last 20 years in the Gingin area shows a flattening of the trend.[67]  Dr Ruprecht suggests that 'there seems to be step changes' and observed that there had been a significant drying trend, which has stabilised over the last 20 years where the rainfall for Gingin has stayed fairly constant.[68]  However, he accepts that 'it is most likely that there may be reduction further [in rainfall], but the observed data for the last 20 years doesn't indicate that'.[69] 

    [67] Figure 4 of Annexure: Climate Change and Red Gully South Waterway (Exhibit 28).

    [68] ts 299-300, 8 November 2021.

    [69] ts 219, 5 November 2021.

15. There is no dispute that climate change is likely to impact on the environment flow of Red Gully South, but the extent of impact is unknown.  We accept that the impacts of climate change on the proposed development may be two-fold as there may be a greater demand to increase irrigation to the crop and less supply due to diminishing flows in Red Gully South, as a consequence of drier climatic conditions and reduced rainfall.  We also accept that this threat could affect the sustainability of the proposed development in its current form.  However, we are persuaded that there are a number of available solutions that the applicants could implement to redress such impacts that will sustain the proposed land use, which include a reduction in the size of the orchard, the construction of an off-line storage dam, buying in water, and changing agricultural practices such as leaving fruit on the trees and pruning trees.

16. The task of the Tribunal is to balance the objectives of land use development, sustainability, and the protection of the watercourse. These are elements of orderly and proper planning and matters that we are required to have due regard to in determining this application. On the evidence, we are satisfied that there is sufficient water available to meet the demands of the proposed development and protect the downstream environment if the 2ML/day flow discharge criterion is maintained in accordance with the operating strategy. Further, should the 2ML/day discharge criterion prove to be insufficient due to climate change to ensure that of the flow of water in the water course is not sensibly diminished there are provisions under the RIWI Act for the Minister to control the taking of water in an unproclaimed surface water area and that remedies are available to the applicants to implement to ensure the sustainability of the proposed development. Therefore, we consider the avocado orchard capable of approval, in the exercise of planning discretion, if the monitoring and triggers that are identified in the operating strategy are in place for the life of the development.

Whether condition g can be lawfully imposed, and if so, whether the condition is appropriate and reasonable in the circumstances of this case

1. For convenience, we set out condition g again here:

   g.The applicant/operator is required to implement the approved operating strategy dated 25 February 2021, including submitting annual water monitoring/data in the approved operating strategy to the Shire of Gingin[.]

2. The applicants contend that condition g fails the three Newbury tests.  Firstly, the applicants submit that condition g has no planning purpose because it is stepping into the regulatory area of DWER to an impermissible extent.[70] The applicants submit that a condition cannot be imposed because of any perceived inadequacies of the RIWI Act or the regulatory and enforcement activities of DWER. The applicants assert that DWER has the power to, and has expressed the intention to, exercise sufficient oversight of the exercise of the applicants' water right.[71]  Further, the applicants assert the respondent does not have the expertise or resources to meaningfully assess or control matters of water abstraction.

   [70] Applicants' closing submissions dated 9 November 2021, para 624.

   [71] Applicants' closing submissions dated 9 November 2021, para 628.

3. Secondly, the applicants argue that notwithstanding DWER endorsed the OS March 2019 and requested a condition requiring compliance with the operating strategy be imposed on any approval, condition g in effect 'places sort of a straitjacket on the exercise of the water right'[72] and could potentially be inconsistent with the RIWI Act if the water source is in a proclaimed area.

   [72] ts 431, 9 November 2021.

4. Thirdly, the applicants contend that there is a lack of requisite 'nexus' or connection between the condition and the proposed development because it is argued that the development application was made squarely based upon the existence, and proposed exercise, of the water right; did not seek approval for any water allocation; and sought approval for the land use, being the irrigated horticultural development.[73]

   [73] Applicant's Amended Statement of Issues, Facts and Contentions dated 28 September 2021 (Exhibit 13), para 92.

5. Fourthly, the applicants submit that it is legally unreasonable to impose a planning condition that duplicates a requirement under other legislation.  

6. For the following reasons, the Tribunal concludes that imposing a requirement for ongoing compliance with an operating strategy, as provided in condition g, is a valid exercise of power under the PD Act.

7. The imposition of a condition on a planning approval that requires compliance with a management plan associated with an aspect(s) of a development is common and does have a planning purpose in that it seeks to regulate the ongoing use of a development to ensure that the impacts are managed and the mitigating measures that form part of the approval are realised.  The applicants accept that such a condition is not necessarily problematic 'as long as it does not purport to manage water abstraction or direct impacts of water abstraction'.[74]

   [74] Applicant's Amended SIFC dated 28 September 2021 (Exhibit 13), para 166.

8. The purpose of the condition is not to regulate the use of water for the purposes of the RIWI Act but to ensure that the planning principles as embodied in the planning framework can be satisfied during the life of the approval. The applicants have relied on the operating strategy to demonstrate that the proposed development is sustainable and minimises degradation to the downstream environment of the watercourse and DWER has confirmed that the operating strategy will ensure the maintenance of downstream flows. Clearly, a condition that seeks to enforce the commitments specified in the operating strategy, which forms part of the development application, has a planning purpose.

9. Further, the Tribunal finds that given that sustainability of the proposed use is contingent on water availability from Red Gully South and there is a need to ensure that the downstream environment flows are protected there is a reasonable perceived connection between the proposed condition and the environmental impact that the condition seeks to mitigate (second Newbury test).  A condition requiring the implementation of the operating strategy in the circumstances of this case given the environmental imperatives, would not be legally unreasonable in the sense that the result is so unreasonable that it could not have been reached if proper reasoning had been applied (third Newbury test), particularly given the reliance by the applicants on the operating strategy to demonstrate the merits of the proposed development.

10. There are several iterations of the operating strategy, the differences are highlighted at [27] and [30].  The applicants rely in the proceeding on the OS June 2021 which 'is focused upon demonstrating to DWER the monitoring and contingency planning that the applicants will do in order to ensure that they abstract water in a manner that is consistent with the limit on the water right'.[75]  The applicants submit that reporting should be to the specialist regulator and not the local government as prescribed in OS Feb 2021 and that the outflow culvert monitoring is of no utility because it is so inaccurate and therefore not worth imposing as an extra obligation. 

    [75] Applicant's Amended SIFC dated 28 September 2021 (Exhibit 13), para 206.

11. Dr Davies, Dr Vogwill and Ms Smart raised issue with the reliability of the data collected at the outflow culvert due to the angle of approach of the stream and the changing morphology of the stream from sedimentation.  According to Dr Davies, the variation could be in the order of plus/minus 20 per cent.[76]  Given the concerns expressed regarding the reliability of the data and that DWER has indicated that it was satisfied with the level of monitoring contained in OS March 2019,[77] which did not include the Outflow Culvert Staff Gauge, we are persuaded that the OS June 2021 includes a suitable programme for reliably monitoring surface water flow in Red Gully South.  We will therefore amend condition g to refer to the OS June 2021.

    [76] ts 213, 5 November 2022; ts 281, 8 November 2022; Witness Statement of Ms Smart dated 3 September 2021 (Exhibit 18), para 40.7.

    [77] Respondent's s 24 bundle of documents dated 21 May 2021 (Exhibit 4), Tab 29.

1. Further, the OS June 2021 refers to a monitoring period of 2021 to 2027.[78] If condition g was imposed in its current form, it would be open to the applicants to cease the surface water monitoring programme in 2027. Therefore, to ensure that the applicants remain subject to an ongoing obligation to maintain environmental flow by discharging at least 2ML/day from the site, we consider that the monitoring programme set out in the operating strategy should be linked to the approved use of the land and the monitoring data and continency actions, be reported to both DWER and the Shire. As astutely observed by Ms Butterworth, '[t]his approach will enable the Shire to monitor if the condition is being satisfied, and for DWER to be able to determine whether the flow is not being sensibly diminished and therefore whether the requirements of the RIWI Act to not sensibly diminish the flow are being satisfied'.[79]

   [78] Exhibit 14, page 139.

   [79] Witness Statement of Ms Amanda Butterworth dated 22 October 2021 (Exhibit 22), para 201.

2. Further, we consider that condition g should be amended to acknowledge the possibility of the water source being proclaimed pursuant to s 26B of the RIWI Act or by-laws made pursuant to s 26L of the RIWI Act or s 34 of the Water Agencies (Powers) Act 1984.

3. Consequently, we are satisfied that condition g, as amended and set out below, is appropriate and reasonable in the circumstances of this case:

   Whilst Red Gully South remains in an area that is 'unproclaimed' under the RIWI Act and is not subject to any DWER bylaws, the applicant/operator is required to implement the approved operating strategy dated 3 June 2021, including submitting annual water monitoring data and contingency actions outlined in the approved operating strategy to both DWER and the Shire of Gingin. Monitoring is not to be limited to the Monitoring Period specified in Table 1 of the approved operating strategy but shall continue so long as the approved use is undertaken on the land.

Whether condition h is appropriate and reasonable in the circumstances of this case

1. For convenience, we set out condition h again here:

   h.A notification, pursuant to Section 70A of the Transfer of Land Act 1893 is to be placed on the Certificate of Title of the proposed development lot advising that the Agriculture Intensive land use is not serviced by a water licence, but rather by an operating strategy. The notification is to state as follows:

   WATER EXTRACTION - The agriculture intensive land use sources water from the Red Gully South waterway, which may be an unreliable water source.  The land use is subject to conditions of development approval which include requirements to:

   (a)comply with the Operating Strategy including the ongoing monitoring and reporting of waterway levels; and

   (b)reduce or cease the use in some circumstances.

   (c)limit the term of the approval to seven (7) years.

   Further information may be obtained from the offices of the Shire of Gingin.

2. The applicants made a number of submissions which include the following:

   •planning conditions run with the land and to the extent that a future landowner desires to rely upon and utilise a planning consent, he or she is bound by all conditions imposed upon any approval and therefore condition h serves no planning purpose;

   •there is no justification for changing the long­established position that the onus is on persons relying upon approval to know, and abide by, any conditions.  A Notification on title should not be used in a manner that displaces ordinary due diligence;

   •it is not a function of the respondent to give warning as to the reliability of any water source.  LPP 1.6 states that matters relating to access to water are to be outlined in the advice notes to the approval and does not suggest that such information be placed on title; and

   •if the Tribunal concludes that a prospective purchaser needs to be made aware of the fact that development of the subject land relies upon riparian rights under the RIWI Act, then the notification should only refer to the RIWI Act riparian rights relied upon.

3. The respondent submits that a prospective purchaser ought to know that the proposed development is dependent upon water from an unreliable source and that its ongoing permissibility is dependent on monitoring water usage and satisfying the management objective of the operating strategy.  The respondent asserts that there is a proper planning purpose for the condition as the notification will advise a prospective buyer of the circumstances that impact the enjoyment or use of the property, being the unreliability of the water source, the requirement to comply with an operating strategy, and the existence of a time-limited approval.

4. Section 70A of the TL Act states, in part, as follows:

   (1)Where, in relation to land under the operation of this Act -

   (a)the local government of the district in which the land is situated

   …

   considers it desirable that proprietors or prospective proprietors of the land be made aware of a factor affecting the use or enjoyment of the land or part of the land, the local government … may, on payment of a prescribed fee, cause a notification of the factor to be prepared in an approved form and lodged with the Registrar.

   (2)Where -

   (a)a notification is lodged under subsection (1); and

   (b)a written consent of the proprietor of the land accompanies the notification, the Registrar shall endorse the certificate of title for the land to that effect[.]

5. A condition of development approval which requires notification on title of the continuing effect of another condition can, in certain circumstances, have a proper planning purpose, be reasonably referable to the proposed development and be reasonable and appropriate.[80]

   [80] Antonas and Town of Vincent [2006] WASAT 303; (2006) 45 SR (WA) 327 (Antonas) at [39].

6. The Tribunal in Antonas at [40] articulated the circumstances in which a condition of development approval can properly require notification on title of other conditions of approval as follows:

   In circumstances where a condition of development approval imposes a continuing obligation on the owner or occupier for the time being of the land, which affects the use or enjoyment of the land, and is unusual, it may be appropriate to impose a further condition requiring the proponent to provide written consent to the local government to the notification of the terms of the condition on the title under section 70A of the TL Act.

   (Emphasis added)

7. We find that in the unusual circumstances of this case where there is an issue about the reliability of the water source and a condition of development approval that imposes continuing obligation on the owner or occupier to comply with the operating strategy so long as the approved use is undertaken on the subject land, there is a proper planning purpose, and it is reasonable and appropriate to impose the following condition requiring a notification on title under s 70A of the TL Act. Given our findings above, condition h should be modified to read as follows:

   h.A notification, pursuant to Section 70A of the Transfer of Land Act 1893, is to be placed on the Certificate of Title of the proposed development lot advising that the Agriculture Intensive land use is not serviced by a water licence, but rather by an operating strategy. The notification is to state as follows:

   WATER ABSTRACTION - The agriculture intensive land use sources water from the Red Gully South waterway, which may be an unreliable water source.  The land use is subject to conditions of development approval which include requirements to comply with the Operating Strategy dated 3 June 2021, including the ongoing monitoring and reporting of waterway levels.

   Further information may be obtained from the offices of the Shire of Gingin.

Conclusion

1. The 'correct and preferable decision', under s 27(2) of the SAT Act, is that the application for review should be allowed in part.

2. We find that the State planning and water regimes are co-extensive and imposing a condition time-limiting the development approval is not inconsistent with s 20(1) of the RIWI Act because the applicants' statutory entitlement to take water from Red Gully South remain unaffected. However, we find that a condition that has the effect of preventing the realisation of the proposed activity (avocado orchard) for which approval is being sought is not a consent to the intended land use at all but is a refusal in disguise.

3. In considering the substantial merits of this particular case in light of the objectives of the planning framework and having due regard to the relevant matters specified in cl 67 of the deemed provisions, we consider the avocado orchard warrants approval in the exercise of planning discretion, if the surface water monitoring programme that is identified in the operating strategy is in place for the life of the development.

4. We also find that condition g (implementation of the operating strategy) satisfies the three Newbury tests, and condition h (notification on title) has a proper planning purpose, and it is reasonable and appropriate, and as such, both conditions, in a modified form, should be imposed as conditions of development approval.

5. For the above reasons the Tribunal makes the following orders.

Orders

The Tribunal orders:

1.The application for review is allowed in part.

2.The decision of the Shire of Gingin made on 20 April 2021 pursuant to s 31 of the State Administrative Tribunal Act 2004 (WA) (being a reconsideration of its decision made on 17 November 2020) to grant conditional development approval for 'Proposed Agriculture Intensive (Annual and Perennial Horticulture) and Retrospective Development Approval for Existing Agriculture Intensive (Annual Horticulture) and Associated Structures' on No 115 (Lot 1) Rig Road, Red Gully is varied as follows:

(i)Condition d is deleted in its entirety.

(ii)Condition g is deleted, and the following condition is substituted in its place:

'Whilst Red Gully South remains in an area that is 'unproclaimed' under the RIWI Act and is not subject to any DWER bylaws, the applicant/operator is required to implement the approved operating strategy dated 3 June 2021, including submitting annual water monitoring data and contingency actions outlined in the approved operating strategy to both DWER and the Shire of Gingin. Monitoring is not to be limited to the Monitoring Period specified in Table 1 of the approved operating strategy but shall continue so long as the approved use is undertaken on the land.'

(iii)Condition h is deleted, and the following condition is substituted in its place:

'A notification, pursuant to s 70A of the Transfer of Land Act 1893 (WA), is to be placed on the Certificate of Title of the proposed development lot advising that the Agriculture Intensive land use is not serviced by a water licence, but rather by an operating strategy. The notification is to state as follows:

WATER ABSTRACTION - The agriculture intensive land use sources water from the Red Gully South waterway, which may be an unreliable water source.  The land use is subject to conditions of development approval which include requirements to comply with the Operating Strategy dated 3 June 2021, including the ongoing monitoring and reporting of waterway levels.

Further information may be obtained from the offices of the Shire of Gingin'.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS M CONNOR, MEMBER

4 JULY 2022