Draycott Pty Ltd v Minister for Environment and Conservation - [2007] SASC 371

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
DRAYCOTT PTY LTD v MINISTER FOR ENVIRONMENT AND CONSERVATION
[2007] SASC 371
Judgment of The Honourable Justice David
22 October 2007
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - JURISDICTIONAL MATTERS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR OF LAW
Administrative law – judicial review – application for review of two decisions made by the respondent – decision to issue a Notice of Prohibition pursuant to s 132(1) of the Natural Resources Management Act 2004 (SA) – decision to issue a Current User Authorisation pursuant to the Notice of Prohibition – whether respondent misunderstood the statutory criteria set out in s 132(1) – whether s 132(1) allows the respondent to consider future water usage when forming an opinion about whether to issue a Notice of Prohibition.
Held: Jurisdictional error – s 132(1) of the National Resources Management Act 2004 (SA) requires the respondent to form an opinion based on current water usage – respondent cannot consider future water usage – error of law – Notice of Prohibition and Current User Authorisation set aside.
Natural Resources Management Act 2004 (SA) s 7(1), s 125, s 132(1), s 146; Supreme Court Rules 2006 (SA) r 199; Water Resources Act 1997 (SA) s 16(1), referred to.
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129; Bropho v State of Western Australia (1990) 171 CLR 1; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, applied.

DRAYCOTT PTY LTD v MINISTER FOR ENVIRONMENT AND CONSERVATION
[2007] SASC 371
Civil
DAVID J.
Introduction

This is an application by Draycott Pty Ltd (“Draycott”) for judicial review of two decisions of the Minister for Environment and Conservation (“the Minister”), pursuant to r 199 of the Supreme Court Rules 2006 (SA).
The decisions to be reviewed are:
1.the issuing of a Notice of Prohibition on Taking Water From Wells in the Hundred of Peake[1] (“Notice”) on 30 November 2006, pursuant to s 132(1) of the Natural Resources Management Act 2004 (SA) (“the Act”); and
2.the issuing of a Current User Authorisation dated 22 February 2007, granted pursuant to the Notice of 30 November 2006.
Draycott seeks review of these decisions because the Notice and Current User Authorisation effectively limit the amount of water it can use to irrigate its land. It seeks to have the Notice and Current User Authorisation set aside.
[1] South Australian Government Gazette (No 69, 30 November 2006) 4109‑4110.
Background
Draycott undertakes significant agricultural activities on the outskirts of Peake (a small town between Tailem Bend and Lameroo, in South Australia). Draycott’s total land holding is approximately 707 ha. Prior to February 2005 its activities included the irrigation of approximately 296 ha of that land for crops. This irrigation used approximately 2,600‑3,000 ML of water per year. Draycott intended to expand its crop plantings by approximately 120 ha. This expansion would have resulted in a further 1,000‑1,400 ML of water being required for irrigation each year. The water used to irrigate Draycott’s land is taken from wells in the Hundred of Peake area.
Prior to February 2005 there were no restrictions in place to limit the amount of water Draycott could take from the wells to irrigate its land. On 3 February 2005 the Minister issued a Notice[2] pursuant to s 16(1) of the Water Resources Act 1997 (SA), which prohibited the taking of water from wells in the Hundred of Peake, except in the following circumstances:
[2]    Notice of Prohibition on Taking Water from Wells in the Hundred of Peake, South Australian Government Gazette (No 9, 3 February 2005) 364‑365.
1.If the Minister granted an authorisation to a person who had already been taking water from the wells (a “Current User Authorisation”). In this situation, the authorisation would specify the amount of water which could be taken by the person.[3]
[3]    Notice of Prohibition on Taking Water from Wells in the Hundred of Peake Sch 1 cl 2(a), South Australian Government Gazette (No 9, 3 February 2005) 364‑365.
2.If a person obtained an interest in land from a person who had been issued an authorisation pursuant to the Notice. In this situation the purchaser would be entitled to take the amount of water specified on the authorisation which had been issued to the previous owner.[4]
3.If the Minister granted an authorisation to a person who had not previously taken water from the wells (a “Prospective User Authorisation”). In this situation the authorisation would specify the amount of water which could be taken by the person.[5]
4.If a person had already been taking water from the wells but had not been issued a Current User Authorisation. In this situation the person could take the same amount of water from the wells each year as they had in any one year between 1 July 2001 and 3 February 2005.[6]
5.If the water was to be used for:
·       domestic purposes;
·       watering of stock (other than stock being intensively farmed);
·       fire-fighting;
·       making public roads; or
·       chemical application on crops.
In these circumstances, there was no limit on the amount of water which could be taken from the wells.[7]
[4]    Notice of Prohibition on Taking Water from Wells in the Hundred of Peake Sch 1 cl 2(b), South Australian Government Gazette (No 9, 3 February 2005) 364‑365.
[5]    Notice of Prohibition on Taking Water from Wells in the Hundred of Peake Sch 1 cl 2(c), South Australian Government Gazette (No 9, 3 February 2005) 364‑365.
[6]    Notice of Prohibition on Taking Water from Wells in the Hundred of Peake Sch 1 cl 4, South Australian Government Gazette (No 9, 3 February 2005) 364‑365.
[7]    Notice of Prohibition on Taking Water from Wells in the Hundred of Peake Sch 1 cl 5, South Australian Government Gazette (No 9, 3 February 2005) 364‑365.
The Notice specified that a Current User Authorisation could only be issued for watering of crops that were already being watered using water from the wells.[8] This meant that a Current User Authorisation could not be issued for any crops that had not yet been planted. The Notice also specified that the amount of water which would be allocated under a Current User Authorisation was the amount which the Minister thought necessary to water the existing crops.[9]
[8] Notice of Prohibition on Taking Water from Wells in the Hundred of Peake Sch 1 cl 2(a), South Australian Government Gazette (No 9, 3 February 2005) 364‑365.
[9] Ibid.
In addition, a Prospective User Authorisation could only be issued to a person who had not previously taken water from the wells.[10] Draycott clearly did not fit this category as it had previously taken water from the wells.
[10] Notice of Prohibition on Taking Water from Wells in the Hundred of Peake Sch 1 cl 2(c), South Australian Government Gazette (No 9, 3 February 2005) 364‑365.
As Draycott had previously been taking water from the wells, and had not been issued a Current User Authorisation, it was exempted from the prohibition under the fourth exception.[11] It was therefore allowed to continue taking water from the wells at the same rate as it had previously (ie 2,600‑3,000 ML of water per year), until the Notice ceased to be effective or until the Minister issued an authorisation altering the amount. However, as the Notice prohibited Draycott from increasing its water usage, it was unable to pursue its planned crop expansion.
[11] Notice of Prohibition on Taking Water from Wells in the Hundred of Peake Sch 1 cl 4, South Australian Government Gazette (No 9, 3 February 2005) 364‑365.
Draycott applied for an authorisation, hoping that the Minister would authorise it to take sufficient water from the wells to irrigate its existing crops and its intended crop expansion. On 10 August 2005 the Minister issued a Current User Authorisation for Draycott to take 1,394.96 ML of water from the wells per year for irrigating its crops. This is approximately half the amount that Draycott had previously taken from the wells for this purpose. The Minister declined to issue a Prospective User Authorisation for Draycott.
As Draycott had now been issued a Current User Authorisation, it was no longer exempted from the prohibition under the fourth exception. Draycott was therefore unable to continue to take water at the rate it had previously. Instead, it was now exempted from the prohibition under the first exception and was limited to that amount of water allowed under the Current User Authorisation (ie 1,394.96ML per year). Instead of obtaining an allocation of water sufficient to allow irrigation of the current crops and the proposed crop expansion, Draycott was instead given a total allocation of only half as much water as it had previously used.
In an attempt to remedy this situation, in February 2006, Draycott commenced proceedings seeking judicial review of the Notice, on the ground that it had not been afforded procedural fairness. The proceedings were commenced out of time, but the Court granted an extension of time. A legal representative acting for the Minister then wrote to Draycott advising that the Minister intended to revoke the Notice, and making the following comments:
…
It is not conceded that the present notice is invalid for any lack of procedural fairness, but, since your client has complained strongly that it has not been heard, the Minister’s delegate is prepared to hear your client’s submissions on the terms of a new notice to avoid wasting further time and resources on both sides.
Were your client to succeed on its procedural fairness argument, I note the Minister’s delegate would have to give your client a fair hearing, but he would not be prevented from imposing a new notice. It seems pointless to waste court time over the question of procedural fairness as your client’s concern can be remedied in the manner described below.
The Minister’s delegate has decided that he will recommend the revocation of the existing notice and at the same time, and depending on the persuasiveness of any submissions to be made by your client, either no new notice at all will issue or a new notice will issue (cast in the same or different terms).
…
As suggested, Draycott made submissions to the Minister with respect to its water usage requirements. The Minister revoked the Notice and subsequently issued a new Notice[12] pursuant to s 132(1) of the Act. (This section is in essentially the same terms as s 16(1) of the now repealed Water Resources Act). It is this second Notice which is the subject of these proceedings.
[12] Notice of Prohibition on Taking Water from Wells in the Hundred of Peake, South Australian Government Gazette (No 69, 30 November 2006) 4109‑4110.
The new Notice was published in The South Australian Government Gazette on 30 November 2006 and read as follows:
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 each of 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.
In many ways, this Notice replicated the original Notice. It again prohibited the taking of water from wells in the Hundred of Peake area except in certain circumstances. These exceptions were:
1.If the Minister granted a Current User Authorisation to a person who had already been taking water from the wells. In this situation, the authorisation would specify the amount of water which could be taken by the person.[13]
[13] Notice of Prohibition on Taking Water from Wells in the Hundred of Peake Sch 1 cl 2(a), South Australian Government Gazette (No 69, 30 November 2006) 4109‑4110.
2.If a person obtained an interest in land from a person who had been issued an authorisation pursuant to the Notice. In this situation the purchaser would be entitled to take the amount of water specified on the authorisation which had been issued to the previous owner.[14]
[14] Notice of Prohibition on Taking Water from Wells in the Hundred of Peake Sch 1 cl 2(b), South Australian Government Gazette (No 69, 30 November 2006) 4109‑4110.
3.If the Minister granted a Prospective User Authorisation to a person who had not previously taken water from the wells. In this situation the authorisation would specify the amount of water which could be taken by the person.[15]
4.If a person had already been taking water from the wells but had not been issued a Current User Authorisation. In this situation the person could take the same amount of water from the wells as they had prior to the first Notice being issued.[16]
5.If the water was to be used for:
·       domestic purposes;
·       watering of stock (other than stock being intensively farmed);
·       fire-fighting;
·       making public roads;
·       chemical application on crops; or
·       chemical application to control plants or animals.
In these circumstances, there was no limit on the amount of water which could be taken from the wells. [17]
[15] Notice of Prohibition on Taking Water from Wells in the Hundred of Peake Sch 1 cl 3, South Australian Government Gazette (No 69, 30 November 2006) 4109‑4110.
[16] Notice of Prohibition on Taking Water from Wells in the Hundred of Peake Sch 1 cl 5, South Australian Government Gazette (No 69, 30 November 2006) 4109‑4110.
[17] Notice of Prohibition on Taking Water from Wells in the Hundred of Peake Sch 1 cl 6, South Australian Government Gazette (No 69, 30 November 2006) 4109‑4110.
As Draycott had previously been taking water from the wells, and had not been issued a Current User Authorisation pursuant to this Notice, it was again exempted from the prohibition under the fourth exception.[18] It was therefore allowed to take water from the wells at the rate it had prior to 3 February 2005 (ie 2,600‑3,000ML per year), until this second Notice ceased to be effective or until the Minister issued an authorisation under this Notice. However, the Notice again prohibited Draycott from increasing its water usage, and consequently prevented it from pursuing its planned crop expansion.
[18] Notice of Prohibition on Taking Water from Wells in the Hundred of Peake Sch 1 cl 5, South Australian Government Gazette (No 69, 30 November 2006) 4109‑4110.

On 22 February 2007, pursuant to this Notice, the Minister issued a Current User Authorisation for Draycott to take 1,394.96 ML of water from the wells per year for irrigation (the same amount as the previous authorisation allowed). The Minister has not yet determined whether it will issue a Prospective User Authorisation for Draycott, but it appears unlikely that this will occur as a Prospective User Authorisation cannot be granted to a person who has previously taken water from a well in the Hundred of Peake area.[19]
[19] Notice of Prohibition on Taking Water from Wells in the Hundred of Peake Sch 1 cl 3, South Australian Government Gazette (No 69, 30 November 2006) 4109‑4110.
Jurisdictional Error
At the outset it is important to remember that judicial review considers the decision making process, not the merits of the decision which has been made.
Draycott submits that there has been a jurisdictional error which requires that the Notice, published on 30 November 2006, be set aside. Draycott further submits that the Current User Authorisation should be set aside, either because it was issued under an invalid Notice (if the previous submission is correct) or because the Minister failed to take two irrigated areas into account when issuing the Current User Authorisation (the barley crop and the potato crop). Draycott’s written submissions also argued that there had been a breach of procedural fairness, but this argument was abandoned upon the hearing of the application.
Draycott contends that the jurisdictional error affecting the Notice (and consequently the Current User Authorisation) arises because the Minister misunderstood the statutory criteria set out in s 132(1) of the Act and, following from that, took into consideration irrelevant matters when deciding whether to issue a Notice and a Current User Authorisation.
The evidence in this case was provided by way of affidavits. It is common ground that the decision to issue the Notice was based on the advice given by Mr Robert Freeman, Chief Executive of the Department of Water, Land and Biodiversity Conservation (“DWLBC”), in a memorandum dated 16 November 2006. Attached to this memorandum were written submissions made on behalf of Draycott, a memorandum from the Directors of DWLBC to Mr Freeman, a hydrogeological report prepared on behalf of Draycott (dated September 2006), and a hydrogeological report prepared by DWLBC (dated October 2006). Draycott’s argument is that the memorandum from Mr Freeman shows that the Minister misunderstood the legal criteria which had to be satisfied when forming an opinion about whether to issue a Notice. As such, it is necessary to set out the relevant sections of that memorandum.
…
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 Peak, 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 [sic] 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 useable 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 the 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] 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 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 resources 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.
…
These sections of the memorandum show that the Minister formed an opinion about whether to issue a Notice by looking at the possible consequences of the rate at which water:
·is presently being taken from the wells; and
·may be taken from the wells in the future.
Draycott’s argument is that s 132(1) requires the Minister to form an opinion based only on the rate at which water is presently taken from the wells and that it cannot form an opinion based on the rate at which water may be taken in the future.
I therefore turn to consider the provisions of the Act. Section 132(1) of the Act provides the following:
(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.
In my opinion, this section of the Act provides a two-step test. The first step involves a threshold test. That is, a Notice cannot be issued unless the Minister has formed an opinion based on the criteria set out in ss 132(1)(a), 132(1)(b) or 132(1)(c). The second step is discretionary. If the threshold test is satisfied the Minister can choose to issue a Notice, but is not obligated to do so. The Notice in this case was issued pursuant to ss 132(1)(a) and 132(1)(b). As such, the Notice will be invalid unless the threshold tests set out in ss 132(1)(a) and 132(1)(b) were met. I am therefore required to determine the basis on which the Minister must form an opinion under ss 132(1)(a) and 132(1)(b).
The law on statutory interpretation is well settled. The Court must apply the ordinary meaning of words used in a statute, unless this would result in an absurd outcome.[20] This does not mean that the words of a particular section should be considered in a vacuum, but one cannot import meaning into the section, which is not available on a literal reading, unless it is required to prevent an absurd or inconsistent outcome.[21] I must therefore first consider the ordinary grammatical meaning of the words used in ss 132(1)(a) and 132(1)(b).
[20] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, 161-162.
[21] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408; Bropho v State of Western Australia (1990) 171 CLR 1, 20‑21.
Sections 132(1)(a) and 132(1)(b) require the Minister to consider “the rate at which water is taken”. It is true that “is” can sometimes include consideration of the past, present and future. However, this is only the case when the thing referred to is timeless and unchanging. Examples of this use of the word include “the Nile is the longest river in Africa” and “Margaret is tall”.[22] In other circumstances, “is” refers to the current situation. As the amount of water which may be taken from a well is not timeless and unchanging, in my opinion, “is” in this context refers to the current rate at which water is being taken. Draycott’s contention, that the Minister cannot consider the amount of water which may be taken in the future when forming an opinion about whether to issue a Notice, is therefore correct.
[22] Randolph Quirk, Sidney Greenbaum, Geoffrey Leech and Jan Svartvik, A Comprehensive Grammar of the English Language (1985) 179-181.
This does not create an absurd outcome, nor is it inconsistent with the statute. The purpose of the statute is to protect our natural resources, including our water resources.[23] A requirement that the requisite opinion in ss 132(1)(a) and 132(1)(b) be based on current water usage is not inconsistent with that purpose because the Minister can still take action:
1.where current water usage is causing concern; and
2.where possible future water usage causes concern.
In the first situation the Minister could issue a Notice under s 132(1) of the Act. In the second situation the Minister could prescribe the water source and issue a licence under ss 125 and 146 of the Act. There is no need for s 132(1) to replicate the power given to the Minister under ss 125 and 146. As such, there is no need to interpret s 132(1) in any way other than on a literal basis.
[23] Natural Resources Management Act 2004 (SA) s 7(1).
Sections 132(1)(a) and 132(1)(b) therefore require the Minister to form an opinion based on the rate at which water is presently being taken from the wells. As already identified, the Minister formed an opinion about whether to issue a Notice by looking at the rate at which water is presently being taken from the wells, and the rate at which water may be taken from the wells in the future.
Conclusion
As the Minister has misunderstood the statutory criteria set out in s 132(1) of the Act, a jurisdictional error has occurred. This jurisdictional error affects the Notice and the Current User Authorisation issued under that Notice. It is therefore unnecessary for me to consider Draycott’s argument that the Current User Authorisation should be set aside because the Minister failed to take two irrigated areas into account when issuing the authorisation.
It is not for me to decide whether a valid Notice could properly be issued in these circumstances. That is an issue of merit which, as already stated, does not fall to be considered under judicial review. However, this may be something for the Minister to consider in due course.
I therefore order that the Notice issued by the Minister on 30 November 2006, and the Current User Authorisation issued to Draycott dated 22 February 2007, be set aside.