Draycott Pty Ltd v Minister for Environment and Conservation - [2007] SASC 463

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
DRAYCOTT PTY LTD v MINISTER FOR ENVIRONMENT AND CONSERVATION
[2007] SASC 463
Judgment of The Full Court
(The Honourable Justice Debelle, The Honourable Justice Sulan and The Honourable Justice Vanstone)
21 December 2007
ENERGY AND RESOURCES - WATER - WATER MANAGEMENT - WATER USAGE RIGHTS
Respondent takes ground water from wells for irrigation – Minister published notice pursuant to s 132(1) of Natural Resources Management Act 2004 prohibiting the taking of additional water from wells – Minister had regard to rate at which water may in the future be taken from wells – whether Minister had taken an irrelevant consideration into account when making notice – whether when determining “the rate at which water is taken” the Minister can have regard to future rates of extraction – appeal dismissed.
Natural Resources Management Act 2004 s 16(1); Water Resources Act 1997 s 7, s 125, s 132(1), s 132(5), s 155(1), s 155(2), s 156, referred to.

DRAYCOTT PTY LTD v MINISTER FOR ENVIRONMENT AND CONSERVATION
[2007] SASC 463
Full Court: Debelle, Sulan and Vanstone JJ

DEBELLE J: This is an appeal from a judge of this court granting orders in the nature of a declaration that a notice published by the Minister for Environment and Conservation on 30 November 2006 and an authorisation granted by the Minister under that notice are both invalid.
The respondent Draycott Pty Ltd (“Draycott”) undertakes farming activities on the outskirts of Peake. Its land is within the Hundred of Peake. Its farming activities include irrigation of a variety of crops. The water used for irrigation is ground water taken from wells. Draycott is one of only three persons who take water from the aquifer in the Hundred of Peake for commercial purposes. It is the largest user of water. It extracts between 2,600 ML to 3,000 ML per annum Others take water for stock and domestic water. Draycott plans to increase its area of irrigated crops and take a greater quantity of water from its wells. As will shortly appear, Draycott has applied to take up to 4,000 ML per annum.
Draycott has extracted water on such a large scale and to such an extent that it has caused the water level in the aquifer to fall markedly. Others who take water from the aquifer for stock and domestic purposes have had to incur expense in lowering pumps to be able to continue to take water.
Before February 2005 no restrictions existed upon the quantity of water that could be taken from wells in the Hundred of Peake. On 3 February 2005 the Minister for Environment and Conversation (“the Minister”) issued a notice pursuant to s 16(1) of the Water Resources Act 1997 prohibiting the taking of water from wells in the Hundred of Peake except in the circumstances prescribed in the notice. Persons already taking water from wells were one of the prescribed exceptions, those persons being required to take no more than the amount of water taken in previous years. Draycott took steps to seek to increase its allocation of water. Those steps were unsuccessful. It led to an application by Draycott for judicial review. Those proceedings were resolved by agreement between the parties. It is not necessary for the purposes of this appeal to examine those proceedings.
The Natural Resources Management Act 2004 repealed the Water Resources Act. Although parts of the Natural Resources Management Act came into operation on 2 September 2004, that part which repealed the Water Resources Act did not commence until 1 July 2005. On 30 November 2006 the Minister published in the Government Gazette a notice pursuant to s 132(1) of the Natural Resources Management Act and dated 21 November 2006. That notice replaced the notice published on 3 February 2005. The notice prohibited the taking of underground water in the Hundred of Peake except in the circumstances prescribed in the notice. The notice was in these terms:
NATURAL RESOURCES MANAGEMENT ACT 2004
Notice of Prohibition on Taking Water From Wells in the Hundred of Peake
PURSUANT to section 132(1) of the Natural Resources Management Act 2004 (the Act), I, Gail Gago, Minister for Environment and Conservation in the State of South Australia and the Minister to whom the administration of the Act is committed, I, am of the opinion that:
(a)     the rate at which water is taken from wells in the Hundred of Peake is such that there is a risk that the available water will not be sufficient to meet future demand, and that
(b)     the rate at which water is taken from wells in the Hundred of Peake is likely to affect the quality of the water in the relevant aquifer, and that
(c)     the rate at which water is taken from wells in the Hundred of Peake is such that the underground aquifer is likely to suffer damage.
For these reasons, independently of one another, I have decided to prohibit and hereby do prohibit the taking of water from all wells (whether prescribed or not) in the Hundred of Peake, otherwise than in the circumstances specified in Schedule 1 below.
SCHEDULE 1
1.A person may take water from a well in the Hundred of Peake in accordance with the terms of a written authorisation granted under this Notice by me or my agent or delegate.
2.An authorisation under this Notice shall be granted to:
(a)     A person (a Current User), who has been taking water from a well in the Hundred of Peake during the period 1 July 2001 to 3 February 2005 inclusive (the Relevant Period), entitling that person to take, from the source specified in the authorisation:
·    where the water taken during the Relevant Period was to water a crop or crops, the amount of water reasonably necessary, in my opinion, to water that crop or those crops, the amount being determined taking into account the maximum area of each crop or crops irrigated, the water requirements of the respective crop or crops and the irrigation capacity of the irrigation equipment used to water the crop or crops; or
·    where the water was taken during the Relevant Period for any other purpose, the amount of water which, in my opinion, is reasonably necessary to continue that purpose in the manner in which it had been undertaken during the Relevant Period.
The source specified will be the resource or resources from where water was taken during the Relevant Period.
(b)     The transferee under a contract for the sale or other transfer of land where the transferor of the land is the holder of an authorisation under this notice, entitling that person to take the same amount of water from the same source as the transferor was authorised to take.
3.Subject to Clause 4, below, an authorisation under this Notice may, in my discretion or that of my agent or delegate, be granted on application to a person (‘a Prospective User’) who did not take any water from a well in the Hundred of Peake, but who needs water for a development, project or undertaking:
·to which that person was legally committed during the Relevant Period; or
·in respect of which that person had, in my opinion, committed significant financial or other resources during the Relevant Period;
which authorisation will, if granted, entitle that person to take an amount of water from a well or wells in the Hundred of Peake as endorsed on the licence, which amount shall be the amount that in my opinion, is reasonably necessary to undertake the development, project or undertaking to which that person was committed.
4.Without limiting the discretion to refuse an authorisation under Clause 3, a Prospective User must not be granted an authorisation (or must only be granted a restricted authorisation subject to conditions relating to the manner of taking water) where, in my opinion or that of my agent or delegate:
(a)     the taking of water from wells will detrimentally affect the ability of other persons to take water from any well for domestic purposes or for watering of stock (other than stock being intensively farmed); or
(b)     the taking of water from wells will detrimentally affect the capacity of any well to meet the current or future demand, including the demands of ecosystems dependent on that water resource.
5.Until authorised under this Notice, a Current User may continue to take an amount of water equivalent to the maximum amount taken in any one financial year during the Relevant Period, from the same sources and for the same purpose or purposes as that person took during the Relevant Period without a written authorisation.
6.This Notice does not apply:
(a) to the taking of water directly from a well pursuant to section 7(5) of the Act for domestic purposes or for watering of stock (other than stock being intensively farmed); or
(b)     to the taking of water for fire-fighting purposes or public road making purposes; or
(c)     to the taking of water for the purpose of the application of chemicals to non-irrigated crops or non-irrigated pasture; or
(d) to the taking of water for the purpose of the application of chemicals to control a plant or animal belonging to a class of plants or animals to which a declaration by the Minister under Chapter 8, Part 1 of the Act applies.
In this Notice
‘Maximum area’ for a particular crop means the maximum areas of land planted to a particular crop in any one financial year during the relevant period.
‘Water requirement’ of a crop means the reasonable rate of irrigation (expressed as a volume of water per hectare) to properly produce that crop.
‘Irrigation capacity’ of irrigation equipment means the amount of water that can be applied by the usual operation of that equipment in its condition at 3 February 2005 under usual pumping rates, hours of operation and seasonal fluctuations.
This Notice will remain in effect for two years unless earlier varied or revoked.
Dated 21 November 2006.
GAIL GAGO, Minister for Environment and Conservation
The notice permits a person who had been taking water from a well or wells in the period 1 July 2001 to 3 February 2005 (defined in the notice as “a current user”) to continue to take water from the same wells until the notice ceased to operate or until the Minister issued an authorisation under the notice but the amount of water was limited to the maximum taken in any one financial year in the period 1 July 2001 to 3 February 2005: paragraph 5 of the notice. Draycott could, therefore, continue to take some 2,600 to 3,000 ML of water per annum until it received an authorisation under the notice or until the notice ceased to operate. The notice stated that would remain in effect for two years (that is to say, until 21 November 2008) unless earlier varied or revoked.
On 22 February 2007 the Minister issued an authorisation (called a “current user authorisation”) permitting Draycott to take only 1,394.96 ML of water from its wells for irrigation. On 3 April 2007 Draycott applied for the following orders
1an order in the nature of certiorari quashing the notice published on 30 November 2006;
2an order in the nature of certiorari quashing the current user authorisation issued on 22 February 2007; and
3orders in the nature of declarations that both the notice issued on 30 November 2006 and the current user authorisation are invalid.
On 22 October 2007, a judge of this court upheld the application by Draycott and made an order in the nature of a declaration that both the notice published on 30 November 2006 and the current user authorisation were invalid. From that decision the Minister has appealed to this court.
The issues turn on the meaning and effect of s 132(1) of the Natural Resources Management Act which provides:
(1)     If, in the opinion of the Minister –
(a)     the rate at which water is taken from a watercourse, lake or well (whether prescribed or not) –
(i)is such that the quantity of water available can no longer meet the demand or there is a risk that the available water will not be sufficient to meet future demand; or
(ii)is affecting, or is likely to affect, the quality of the water in the watercourse, lake or underground aquifer; or
(iii)in the case of water taken from a watercourse or lake – is having a serious effect on another watercourse or lake, or the level of water in an underground aquifer, that depends on water from the watercourse or lake for replenishment; or
(b)     the rate at which water is taken from a well (whether prescribed or not) is such that the underground aquifer is likely to collapse or suffer any other damage; or
(c)     the rate at which surface water is taken (whether from a surface water prescribed area or not) –
(i)is such that the surface water available can no longer meet the demand; or
(ii)is having a serious effect on a watercourse or lake, or the level of water in an underground aquifer, that depends on the surface water for replenishment,
the Minister may, by notice published in the Gazette and in a newspaper circulating in that part of the State in which the watercourse, lake or well or the surface water is situated-
(d)     prohibit or restrict the taking of water from the watercourse, lake or well or the taking of surface water; or
(e)     limit the quantity of water that may be taken from the watercourse, lake or well, or from any surface water; or
(f)    direct that dams, reservoirs, embankments, walls or other structures be modified to allow water to pass over, under or through them.
I will return to consider the meaning of s 132(1).
It will have been noticed that the Minister may publish a notice pursuant to s 132(1) whether or not a watercourse, lake or well has been prescribed. Section 125 of the Natural Resources Management Act (“the Act”) authorises the Minister by regulation to declare a watercourse, lake or well to be a prescribed watercourse, lake or well. The wells from which Draycott takes its water are prescribed wells. That is in consequence of a regulation made on 27 October 2005 by which the Minister declared wells in the Hundred of Peake, Roby and Sherlock to be prescribed wells. The declaration fixed a prescribed period which is to end on 27 October 2008. Section 155(1) of the Act provides that an existing user of water may, subject to a restriction or prohibition under s 132 of the Act continue to use water without a licence until the end of the prescribed period or if the existing user applies for a licence, until the application is granted or refused. On 27 April 2006, Draycott applied for a licence. It sought to take between 3,763 ML and 4,000 ML per annum. The variation in demand is caused by the differing needs of different crops. The application has not yet been determined.
It is against that background that the issues under s 132 must be considered. In publishing the notice, the Minister acted on advice contained in a minute dated 16 November 2006 from Mr R Freeman, the Chief Executive of the Department of Water, Land and Biodiversity Conservation (“DWLBC”). The minute referred to the Department’s dealings with Draycott and to the power of the Minister under s 132. It continued:
Grounds for the issue of a notice of prohibition
Section 132(1) of the Act provides that the Minister may prohibit or restrict the taking of water from a well if in the opinion of the Minister one or more of the thresholds specified in the Act are met. The Act specifies a number of thresholds, three of which have been identified as relevant in the present case.
These thresholds are:
1)    the rate at which water is taken from a well or wells is such that the quantity of water available can no longer meet the demand or there is a risk that the available water will not be sufficient to meet future demand (section 132(1)(a)(i)); or
2)    the rate at which water is taken from a well or wells is likely to affect the quality of the water in the aquifer (section 132(1)(a)(ii)); or
3)    the rate at which water is taken from a well or wells is such that the underground aquifer is likely to collapse or suffer any other damage (section 132(1)(b)).
DWLBC has undertaken a hydrogeological assessment of the underground water resource in the hundred of Peake, based on monitoring data and an underground water flow model. A copy of the assessment is attached for your information (Attachment 3).
Based on this assessment, it is DWLBC’s advice that each of the above thresholds for the issue of a notice of prohibition is satisfied. A summary of the reasons in respect of each threshold is set out below.
Threshold 1: Section 132(1)(a)(i)
In the absence of controls to limit extraction and having regard to likely future demands on the resource, the rate at which water would be taken is such that there is a risk that the quantity of usable water available would not be sufficient to meet the future demand for those presently accessing the water.
The current existing approved extractions have resulted in drawdowns being measured up to 10 km from the irrigated areas and some users having to lower and upgrade pumps to maintain supply. If significantly more water is allocated for use, the underground water flow model predicts that the drawdowns would be deeper and far more widespread resulting in the need for existing water users to undertake ongoing modifications to their existing infrastructure to continue to access water for their current needs. Increased extraction would also result in a risk that the quantity of usable water available would be insufficient to meet the future demands of users, due to declines in water quality in some areas meaning that the quantity of usable water would not be sufficient to meet the demands of all users of the resource.
Threshold 2: Section 132(1)(a)(ii)
In the absence of controls and having regard to likely future demands on the resource, there is a real likelihood that the rate at which water would be taken would affect the quality of water in the underground aquifer. A decrease in pressure as a result of extraction would increase the risk of salinisation both vertically and laterally. There is a real likelihood that lateral salinisation would increase due to a reversal of the current underground water flow to the west, thereby affecting the quality of the water in parts of the aquifer although its progress through the aquifer would be very slow. There is also a risk of vertical salinisation from the overlying more saline aquifer, although it is difficult to quantify the magnitude of this risk on current knowledge.
Threshold 3: Section 132(1)(b)
In the absence of controls and having regard to likely future demands on the resource, there is a real likelihood that the underground aquifer would suffer damage as a result of the rate at which water would be taken from wells, due to the increase in vertical pressure on the overlying confining layer and the aquifer itself.
The damage caused may be both by seepage into the aquifer from the overlying aquifer through fissures and by the breaking away of fragments of the confining clay layer which could block the screens that enable the transmission of water into wells and thus reduce the amount of water available.
Draycott Pty Ltd has commissioned a hydrogeological assessment in support of its submissions regarding the proposal to issue a new notice of prohibition. A copy of the report is attached (Attachment 4).
DWLBC broadly agrees with the most of the statements contained within the report, which are consistent with the hydrogeological assessment undertaken by DWLBC. However, it should be noted that the assessment contained in the report takes into account only existing demands and the proposed additional demands on the resource of the proponent, and as such does not consider the impact of allowing other prospective users to proceed.
While the wells in the hundred of Peake are prescribed, a water allocation plan has not yet been prepared to guide the granting of licences. Section 155(1)(a) provides that an existing user may subject to a restriction or prohibition under section 132, continue to use water without a licence until the end of the prescribed period (which in this case expires at midnight at the beginning of 27 October 2008) or until the application for a licence is approved or refused. This means that in the absence of a restriction or prohibition under section 132 of the Act, there is limited control over the ability of an existing user to take water.
(It is unnecessary to refer to attachments 3 and 4)
It was on these grounds that the minute recommended that the Minister publish a notice under s 132. The Minister acted on the advice contained in the minute.

Stripped to essentials, Draycott’s case was that the Minister had taken an irrelevant consideration into account when making the notice in that she had had regard not only to the rate at which water was presently being taken from wells in the Hundred of Peake but also to the rate of which water may in the future be taken from those wells. The latter was said to be the irrelevant consideration. The judge upheld that contention and declared the notice to be invalid. The judge’s reasons were that s 132(1) authorises the Minister to form an opinion under s 132(1) by having regard only to the rate at which water is presently being taken from wells. She could not have regard to the rate at which water may be taken from wells in the future. The judge found that the Minister had formed her opinion by having regard to both the current rate at which water is being taken as well as to the future rate. The future rate was, he said, an irrelevant consideration so that the notice was invalid. As the current user authorisation had been made under an invalid notice, it followed that it was also invalid.
On the hearing of this appeal, it was not disputed that the advice to the Minister in the minute dated 16 November 2006 had regard to both the rate at which water was currently being extracted as well as to future rates of extraction. There can be no doubt that the minute refers on at least three occasions to “likely future demands on the resource”. In addition, the second paragraph under the heading “Threshold 1” refers to both rates of extraction under current approvals as well as to the possibility of more water being allocated for use in the future. It was common ground also that the Minister had regard to both current rates of extraction and future rates of extraction when forming the opinion that the notice under s 132(1) should be published. The question on this appeal is whether s 132(1) permits the Minister to have regard, among other things, to future rates at which water will be extracted when forming the opinion that a notice should be published prohibiting or restricting the taking of water.
It is first necessary to determine what is meant by the expression “the rate at which water is taken” in s 132. The expression is used in paragraphs (a), (b) and (c) of s 132(1) as well as in s 132(5). Its meaning must be considered having regard to the objects and purposes of s 132. Reference to s 132(1) shows that the intention is to enable the Minister to protect sources of water by taking steps to try to ensure that the extraction of water will be at a rate that will not, among other things,
·cause the quantity of water to be insufficient for either current or future demands: s 132(1)(a)(i),
·affect the quality of water taken from a particular source: s 132(1)(a)(ii),
·seriously affect another source of water: s 132(1)(a)(iii), or
·cause an underground aquifer to collapse: s 132(1)(b).
It is readily apparent that the intention is to enable the Minister to take action to prevent any adverse effect upon the quantity of water available or the quality of the water or to prevent damage to a source of water be it a watercourse, lake or an underground aquifer. That purpose is consistent with the objects of the Act as prescribed in s 7 of the Act.
The word “rate” in the expression “the rate at which water is taken” requires a calculation to be made. It is the measurement of the amount of water taken divided by the period of time over which that water is extracted. In that sense, the word “rate” has the same meaning and purpose as it has in the expressions “rate of speed” or “rate of interest”. One difficulty is that neither s 132 nor any other provision in the Act prescribes the period over which the extraction of water is to be measured to determine that rate.
The use of the word “is” in this context does not refer to the rate on the day when the Minister forms her opinion nor to any other single day. That would make nonsense of the provision. The absurdity of such a construction is demonstrated if it is assumed that the Minister forms her opinion on a day after heavy rains have fallen when no water has been extracted for a period, be it several days or several weeks, from a well because rainfall has provided adequate water. Obviously, it is necessary for the Minister to have regard to a longer period in order to assess the rate at which water is being taken. For these reasons and given the purposes of the Act and the particular purpose of s 132, it would be reasonable for the Minister to determine the rate at which water is currently being taken by reference to a period of, say, 12 months and base her opinion on that rate. There is no requirement that it be a period of 12 months. The Minister is at liberty to determine the rate of extraction over a longer or shorter period according to the particular circumstances of each individual case.
The phrase “the rate at which water is taken” is expressed in the present tense. It, therefore, signifies the rate at which water is currently being taken. Parliament has, in my view, required the Minister consider only the current rate at which water is being taken and project that rate into the future. That rate will be determined by calculating the amount of water taken over an historical period. In my view, it is not a calculation by reference to future rates of extraction in the sense of rates of extraction in excess of the current rate of extraction. To have regard to the rates at which water will be taken is quite a different thing from having regard to the rates at which water is being taken. It is a misuse of language to say that the expression “the rate at which water is taken” includes the rate at which water will in the future be taken. Had Parliament intended that future rates of extraction would be a relevant fact for the Minister to consider when deciding whether to issue a notice, s 132(1) would have been differently expressed. For example, s 132(1)(a) could have been expressed in these terms:
(a) “the rate at which water is taken and will be taken from the watercourse, lake or well”.
To construe s 132 in that way is to alter its meaning of the expression “the rate at which water is taken”.
The Solicitor-General submitted that the reference to “future demand” in paragraph (i) of s 132(1)(a) entitled the Minister to have regard to the rate at which water would be extracted in the future. Such a construction distorts the meaning of “the rate at which water is taken” and seeks to amend it to “the rate at which water is or will be taken”. It fails to give the words in s 132(1)(a)(i) their ordinary meaning. The expression “future demand” is used in paragraph (i) in contra-distinction to “the demand” which the context indicates must mean “current demand”. The Minister has power to act if, at current rates of extraction, the quantity of water available can no longer meet the current demand for water or there is a risk that it is insufficient for future demand. In reaching that conclusion I acknowledge that the expression “future demand” has the capacity to denote the future demand at any time in the future be that in the immediate or more distant future. An assessment of the future demand will include an assessment of the quantity of water that will in the future be taken and the rate at which the water will be taken and whether it will be taken at the same rate as current rates or at some higher or lower rate. That assessment will, of course, take into account what is known as to the volumes and rates at which water is and will be extracted by those using or likely to use the source of the water. However, what the Minister must consider under s 132 is not any future rate of extraction of water but the rate at which water is currently being extracted. To have regard to what will in the future be taken is not to consider the rate at which water is being taken which is what s 132 requires. The fact on which the Minister must reach an opinion is whether the rate of which water is being taken creates the risk that available water will not be sufficient to satisfy the future demand. Section 132 requires the Minister, when forming that opinion, to consider the rate at which water is being taken in the period before the decision is made under s 132(1), not the rate at which water will in the future be taken. If at some future time, the demand for water increases so that the rate at which water is taken is such that there is a risk that the available supply of water will not satisfy that demand, the Minister will then be able to publish a notice pursuant to s 132(1). If s 132(1) is interpreted in this way, the Minister is able to act whenever she is of the opinion that the rate at which water is being taken has the potential to cause any of the detrimental effects listed in s 132(1). The Minister’s powers are, in reality, quite extensive and sufficient to enable the Minister to take appropriate precautionary action to protect threatened watercourses, lakes or wells.
For all of these reasons, in this context, the word “is” refers to the current position, that is to say, it refers to the rate at which water is being taken over a period of time. It describes a state of affairs. In his reasons, the trial judge described the use of the present tense as being an example of what grammarians call ‘the State Present”. In his submissions, the Solicitor-General said that it was more accurately described as a use of “the Habitual Present”. The use of these terms is described in Quirk et al, A Comprehensive Grammar of the English Language, Longman (1985) at 179-181. It is unnecessary to determine that interesting question. It is more useful to note that the word “is” is intended to note a state of affairs, that is to say, the rate at which water is being taken.
This construction provides a meaning which can consistently be applied to paragraphs (i) as well as to paragraphs (ii) and (iii) of s 132(1)(a) as well as to s 132(1)(b), s 132(1)(c) and s 132(5). There is nothing in these later provisions which suggest that the Minister should have regard to future rates at which water will be taken as well as to current rates.
To interpret s 132(1) in this way does not result in an absurdity and so require the court to construe s 132(1)(a) by reference to anything other than the grammatical and ordinary sense of the words used in the section. In the course of argument, it was suggested that, if the Minister was aware that in the very near future, the rate of extraction would significantly increase, it would be absurd if the Minister could not have regard to that fact. That does not, however, support the Minister’s position. If the Minister is aware that the rate at which water is being extracted is about to be substantially increased, the Minister could delay her decision to publish the notice until after the increase in the rate of extraction had occurred. In this respect, it must be remembered that the Minister may publish the notice if she is of the opinion that there is a risk that the available water will not be sufficient for future demands or if it is likely to affect the quality of water or damage to an aquifer is likely. In short, the Minister has the capacity to take preventative action before any adverse effect occurs. There is nothing in the evidence which suggests that an increase in the rate of extraction of water will have an immediately adverse effect.
This construction may lead to some inconvenience in administering the Act. It might mean that it is necessary for a greater degree of administrative oversight of the rate at which water is being extracted from wells in the Hundred of Peake. However, it does not render the Act unworkable. The Minister may act at any time when the rate at which water is being taken is likely to lead to any of the risks listed in s 132(1)(a) or (b). In reality, the Solicitor-General was asking this court to amend the Act to enable regard to be had to future rates of extraction of water and in that way make the administration of this part of the Act somewhat easier. Neither the context nor the purposes of s 132 nor the purposes of the Act call for such a construction. If the court were to yield to this submission it would be usurping the function of the Parliament.
The Solicitor-General also referred to s 155(2) of the Act which prescribes how the Minister is to determine the allocation of water on the grant of a water licence. Section 155(2) is in these terms:
(2)The water allocation will be the quantity of water that will, in the opinion of the Minister, meet the future requirements of the existing user -
(a)     based on his or her reasonable requirements during the establishment period; or
(b)     for water for a development, project or other undertaking to which he or she was legally committed or in respect of which he or she had committed significant financial or other resources during the establishment period; or
(c)     under both paragraphs (a) and (b).
If, by reason of the criteria listed in s 155(2), the water allocation results in a allocation to Draycott that will cause the rate at which water is taken to be such that it will have any of the effects listed in paragraphs (i), (ii) and (iii) of s 132(1)(a), the Minister will have power to issue a fresh notice under s 132 or reduce the allocation pursuant to s 156.
For these reasons, the Minister could not have regard to the rates at which water will be taken in the future. The Minister did have regard, among other things, to future rates of extraction and to that extent had regard to an irrelevant factor. The fact which grounds the Minister’s jurisdiction to publish a notice is the rate at which water is being taken from wells. The Minister has, therefore, acted in an excess of jurisdiction. The notice published on 30 November 2006 is, therefore, invalid. It follows that the authorisation published on 27 February 2007 is also invalid. I, therefore, with the agree with the conclusion of the trial judge although for different reasons.
I would dismiss the appeal.
SULAN J: I agree with the reasons of Debelle J. I would dismiss the appeal.
VANSTONE J: I agree that the appeal should be dismissed.
I agree that in determining to issue a notice of the type under consideration the Minister is not entitled to have regard to what might be known of the future plans of users to increase levels of extraction of water. That is, the expression “rate at which water is taken” in s 132(1) does not comprehend an assessment of likely future demands having no nexus with existing use. That conclusion is sufficient to dispose of the appeal.
However, it might be that the Minister is not precluded from forming a view based on a pattern of use which shows an acceleration and on a projection based on it. I think the expression “rate at which water is being taken” could comprehend such an extrapolation.
Whether anything might turn, in the future, on any difference in that possible interpretation of the provision, as against that of Debelle J, is not plain to me from the material before us.
I agree that the rate is to be calculated over an historical period. What that time span might be would be for the Minister’s judgement, no doubt informed by expert advice. I would not like to suggest that any particular period is appropriate.
Therefore, while I respectfully agree with the decision of Debelle J, I would prefer to rest my own decision on a slightly narrower basis.