Harris v The Minister for Water, Property and Housing, (The Minister Administering the Water Management Act 2000)

[2021] NSWLEC 1741

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Harris v The Minister for Water, Property and Housing, (The Minister Administering the Water Management Act 2000) [2021] NSWLEC 1741

Hearing dates:

Conciliation conferences on 15 October 2021; 1 & 8 November 2021

Date of orders:

03 December 2021

Decision date:

03 December 2021

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The Stop Work Order issued to Peter James Harris dated 18 June 2021 at Annexure A is amended so as to accord with the Revised Stop Work Order at Annexure C.

(3) The Stop Work Order issued to Justin Timmins at Annexure B is amended so as to accord with the Revised Stop Work Order at Annexure D.

Catchwords:

APPEAL – Water Management Act 2000 – stop work order – conciliation conference – agreement between the parties – orders

Legislation Cited:

Land and Environment Court Act 1979, ss 34, 39

Water Management Act 2000, ss 327, 368

Category:

Principal judgment

Parties:

Peter James Harris (First Applicant)
Justin Timmins (Second Applicant)
The Minister for Water, Property and Housing, (The Minister Administering the Water Management Act 2000) (Respondent)

Representation:

Counsel:
N Archer (Solicitor) (Applicants)
N Forrest (Solicitor) (Respondent)

Solicitors:
Horton Rhodes (Applicants)
Department of Planning, Industry & Environment (Respondent)

File Number(s):

2021/192291

Publication restriction:

Nil

Judgment

1. COMMISSIONER: The applicants, Peter James Harris and Justin Timmins, are holders of licences which authorise the right to take a share component of water from the Barwon – Darling Unregulated River Water Source. The nominated water supply works identified under each licence, and able to be used to take water under it, are identified as being those in Works Approval No. 85WA753317 (Approval).

2. The water supply works the subject of the Approval are all located on or near a cotton farm at Mercadool and include the construction and use of the following:

1. 5 pumps, which are located on the bank of the Water Source (River Pumps);

2. A by-wash dam located many kilometres away for the River and within a creek called Thalaba Creek; and

3. 5 pumps located on the edge of the by-wash dam (Lift Pumps).

3. On 18 June 2021, the respondent, the Minister for Water, Property and Housing (The Minister Administering the Water Management Act 2000) (the Minister) issued a stop work order to (the applicants) alleging breach of the terms of the Approval under s 327(2) of the Water Management Act 2000 (Orders).

4. The applicants have appealed the Orders to the Court pursuant to s 368(1) of the Water Management Act.

5. Pursuant to s 39(2) of the Land and Environment Court Act 1979 (LEC Act), the Court has all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

6. Under s 327(2) of the Water Management Act, the Minister had the following powers:

The Minister may, by order in writing served on any person having control or management of the water management work, direct the person to take specified measures—

(a) to prohibit or discontinue its construction or use, or

(b) to construct or use the work only as specified.

7. This power can only be exercised if the pre-condition in s 327(1) is satisfied:

This section applies to a water management work that, in the Minister’s opinion, is being constructed or used, or is about to be constructed or used, in contravention of this Act.

8. On 15 October 2021, the Court held a conciliation conference under s 34(1) of the LEC Act between the parties. I presided over the conciliation conference. After the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the amendment of the Orders in accordance with Annexures C and D to the executed s34 agreement dated 19 November 2021.

9. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

10. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. provide as follows:

1. The s 327(1) precondition is satisfied at L of the Orders (page 3).

2. The proposed revised stop work orders are in writing as required by s 327(2).

3. The proposed revised stop work orders direct a person to take specified measures (see Measure 2 at pages 3-4 of the Orders) as required by s 327(2).

4. The proposed revised stop work orders prohibit the “use” (as defined in the Dictionary to the Water Management Act) of a “water management work” (as defined in the Dictionary) unless such measures are taken (see Measure 1 at p 3 of the Orders) as required by s 327(2)(a).

11. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

12. The Court orders that:

1. The appeal is upheld.

2. The Stop Work Order issued to Peter James Harris dated 18 June 2021 at Annexure A is amended so as to accord with the Revised Stop Work Order at Annexure C.

3. The Stop Work Order issued to Justin Timmins at Annexure B is amended so as to accord with the Revised Stop Work Order at Annexure D.

13. The Court notes that each party is to pay its own costs of the proceedings.

…………………………

S Dixon

Senior Commissioner of the Court

Annexure A (4420493, pdf)

Annexure B (4420872, pdf)

Annexure C (688211, pdf)

Annexure D (687793, pdf)

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Amendments

30 June 2022 - By the Court’s own motion pursuant to UCPR r 36.17 and with the consent of all parties, the Court amends the judgment of 3 December 2021 in the following ways:

1. Include as Order (1) – “The appeal is upheld.”

2. Remove the last order – “Each party is to pay its own costs of the proceedings” – as an order and include it as a notation in the judgment in a separate paragraph following the final orders.

3. Update the numbering of all orders as a consequence of orders 1 and 2 above.