Jones v the Water Administration Ministerial Corporation

NEW SOUTH WALES SUPREME COURT

CITATION: JONES v THE WATER ADMINISTRATION MINISTERIAL CORPORATION [2004] NSWSC 1039

CURRENT JURISDICTION:

FILE NUMBER(S): 30041 OF 2002

HEARING DATE{S): 16 October 2003

JUDGMENT DATE: 09/11/2004

PARTIES:
DONALD JONES
(Plaintiff)

THE WATER ADMINISTRATION MINISTERIAL CORPORATION
(Defendant)

JUDGMENT OF: Levine J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
N Perram
(Plaintiff)

B Green
(Defendant)

SOLICITORS:
Jackson Smith Solicitors
(Plaintiff)

P Percival
Legal and Compliance
Department of Land and Water Conservation
(Defendant)

CATCHWORDS:
Administrative law - prerogative relief - Water Act 1912 - Water Management Act 2000 - non-formation of opinion to do an act - consequential accruing right - decision not to form opinion not revocable - aquifer licences - bores

ACTS CITED:
Interpretation Act 1987
Water Act 1912
Water Management Act 2000

DECISION:
1. I declare that decisions made by the defendant under Part 5 Division 3 of the Water Act 1912 on 28 February 2002 to refuse the plaintiff's applications 70BL227196 and 70BL227197 for licences under Part 5 Division 3 are null and void and of no effect.
2. I order that the defendant in accordance with s115(1) of the Water Act 1912, on payment of the prescribed fee by the plaintiff, issue a licence to the plaintiff in the prescribed form, subject to such limitations and conditions as the defendant may deem fit and proper in respect of the bore licence applications 70BL227196 and 70BL227197 in the Lower Lachlan Ground Water Management Area (GWMA 012).
3. I declare that the decisions made by the defendant after 28 February 2002 to advertise the plaintiff's applications 70BL227196 and 70BL227197 for licences under Part 5 Division 3 of the Water Act 1912 are null and void and of no effect and that they be quashed.
4. I declare that the decision made by the defendant on or about 11 February 2003 to refuse the plaintiff's applications 70BL227196 and 70BL227197 for licences under Part 5 Division 3 of the Water Act 1912 is null and void and of no effect and is quashed.
5. I order the defendant to pay the plaintiff's costs.
6. The exhibits are to be returned.

JUDGMENT:

[2004] NSWSC 1039

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST
JUSTICE DAVID LEVINE
TUESDAY 9 NOVEMBER 2004
30041 OF 2002
DONALD JONES
(Plaintiff)
v
THE water administration ministerial corporation
(Defendant)
JUDGMENT (Administrative law – prerogative relief – Water Act 1912 – Water Management Act 2000 – non-formation of opinion to do an act – consequential accruing right – decision not to form opinion not revocable – aquifer licences – bores)

By what is described as a “re-amended” summons filed on 18 March 2003 the plaintiff seeks the following relief:
1A declaration that the decisions made by the defendant under Part 5 Division 3 of the Water Act 1912 on 28 February 2002 to refuse the plaintiff’s applications 70BL227196 and 70BL227197 for licences (“the decisions”) under Part 5 Division 3 of the Water Act 1912 are null and void and of no effect.
2In the alternative, an order in the nature of certiorari that the decisions be quashed.
2AAn order that the defendant in accordance with section 115(1) of the Water Act 1912, on payment of the prescribed fee by the plaintiff, issue a licence to the plaintiff in the prescribed form, subject to such limitations and conditions as the defendant may deem fit and proper in respect of the Bore License applications numbered respectively 70BL227196 and 70BL227197 in the Lower Lachlan Ground water Management Area (GWMA 012).
3Alternatively an order in the nature of mandamus that the defendant consider and determine the plaintiff’s application for the licences according to law.
4A declaration that the decisions made by the defendant after 28 February 2002 to advertise the plaintiff’s applications 70BL227196 and 70BL227197 for licences under Part 5 Division 2 of the Water Act 1912 are null and void and of no effect.
5An order in the nature of certiorari that the decisions referred to in paragraph 4 be quashed.
6A declaration that the decision made by the defendant on or about 11 February 2003 to refuse the plaintiff’s applications 70BL227196 and 70BL227197 for licences under Part 5 Division 2 of the Water Act 1912 is null and void and of no effect.
7 An order in the nature of certiorari that the decisions referred to in paragraph 6 be quashed.
To make sense of the relief sought and the evidence tendered in support of it, it is necessary to refer in some detail to the complex legislative background.
Two Acts operate for the purposes of the plaintiff’s case, namely the Water Act 1912 and the Water Management Act 2000. The latter Act largely replaces the former, however, this case falls in what counsel for the plaintiff described as a “troublesome changeover period”.
Chapter 3 of the Water Management Act (“WMA”) in Part 2 is concerned with access licences under the general heading of “water management implementation”.
S56 relevantly identifies an access licence as one that entitles its holder
“(b)       to take water:
(i)    at specified times, at specified rates or in specified circumstances, or in any combination of these, and
(ii)    in specified areas or from specified locations,
(the "extraction component")”.
S57 of the WMA provides for categories of licences, relevantly, “(h) aquifer access licences”. “Aquifer” means “a geological structure or formation, or an artificial landfill, that is permeated with water or is capable of being with water”: that definition is from the Dictionary to the WMA which has force by operation of s4.
Part 3 of Chapter 3 of the WMA deals with the process of approving applications for access licenses. At the time of the hearing of this summons Parts 2 and 3 of Chapter 3 of the WMA were not currently in force. The WMA 2000 was assented to on 8 December 2000 and commenced on 1 January 2001; however, relevantly, parts of it which were not commenced included Parts 2 and 3 of Chapter 3. That this is so is evident from the “Table of Acts” set out in the legislation after “Historical Notes” on page 276 of the Statute.
Chapter 9 of the WMA is headed “Miscellaneous” and in s401 enacts that the Acts listed in Schedule 7 are “repealed”. Schedule 7 identifies the Water Act 1912 No 44 as one of the acts “repealed”. Thus far it would appear to be of relative simplicity to follow the legislative scheme that ultimately will come to the point that is acutely relevant to the present summons. However, the “Table of Acts” to which I have referred (in the context of excepting Parts 2 and 3 of Chapter 3 from the date of commencement of the WMA) also excepts Schedule 7 and Parts 3, 4, 6, 7 and 10 of the Water Act 1912 from being repealed.
Thus it comes about that recourse must now be had to the Water Act.
Part 5 of the Water Act 1912 broadly speaking deals with “Artesian Wells”. This apparently has some similarity with the concept of “aquifer”, referred to in the WMA.
Before, however, dealing with the significance of this area, counsel was good enough to inform me that attention must be paid to the Water Management Amendment Act 2002, which relevantly inserts a s129A into the WMA which is as follows:
“129A Application of Part
This Part (s118A excepted) does not apply to any part of the State to which Part 3 of Chapter 3 of the Water Management Act 2000 applies in relation to water supply work or aquifer interference approvals within the meaning of that Act”.
The asserted significance of this is rather diminished by my being informed that the Amendment does not operate in the present circumstances.
Certain Parts of the Water Act as do apply must be now considered. Part 5 already referred to (“Artesian Wells”), in Division 1 contains s105:
“105 Definitions
In this Part, except in so far as the context or subject-matter otherwise indicates or requires:
"Artesian well" includes an artesian well from which the water does not flow naturally, but has to be raised by pumping or other artificial means, and
"Bore" means any bore or well or any excavation or other work connected or proposed to be connected with sources of sub-surface water and used or proposed to be used or capable of being used to obtain supplies of such water whether the water flows naturally at all times or has to be raised either wholly or at times by pumping or other artificial means, but does not include a work to which Part 2 extends.
"Licence" means a licence in force under this Part.
"Sub-surface water" means water under the surface of the ground whatever may be the geological structure in which it is standing or moving.
"Sub-surface water basin" means land overlying, as nearly as may be determined by known facts, a distinct body of sub-surface water.
"Water allocation", in relation to a licence, means the volume of water to which the licensee of the bore is restricted by means of a condition of the licence referred to in section 115 or 116 or by means of a notice referred to in section 117A (3) (a)”.
Division 3 of Part 5 of the Water Act deals with licences.
S112 is as follows:
“112   Bores to be licensed
(1)    The sinking of a bore shall not be commenced, nor shall a bore be enlarged, deepened, or altered unless:
(a)    in pursuance of a licence issued under this Part, or
(b)    the bore is to be sunk, enlarged, deepened, or altered by the Crown.
(2)    If any person contravenes the provisions of this section, the said person, and the owner of the bore in respect of which the contravention has occurred, shall be guilty of an offence and shall be liable, on conviction:
(a)    where the offence was committed by a corporation—to a penalty not exceeding 200 penalty units and, in the case of a continuing offence, to a further penalty not exceeding 20 penalty units for each day the offence continues, or
(b)    where the offence was committed by any other person—to a penalty not exceeding 100 penalty units and, in the case of a continuing offence, to a further penalty not exceeding 10 penalty units for each day the offence continues.
(3)    This section extends to any bore that was constructed, or was otherwise in existence, before 1912”.
S113 (“Application for licence”) lies at the heart of the matter:
“113(1)    Application for a licence for any new bore, or for enlarging, deepening, or altering any existing bore, shall be made to the Ministerial Corporation in the form prescribed, accompanied by the prescribed plans and descriptions, together with a statement of the purposes for which it is proposed to utilise the water.
(2)    On application being so made, and if in the opinion of the Ministerial Corporation the bore is or will be an artesian bore or the circumstances so warrant, the Ministerial Corporation shall cause to be advertised once in the Gazette and once in a public newspaper circulating in the neighbourhood where the bore or the site thereof is situate a notice:
(a)    acknowledging the receipt of the application, and
(b)    requesting all persons interested to inform the Ministerial Corporation whether they support the application or object thereto, and if they do so object, the reasons therefor, and
(c)    stating the last day on which such information will be received and the name or official designation and address of the person to whom it should be sent.
(3) An application for a licence in respect of any bore that was constructed before the commencement of this subsection (as inserted by the Water Legislation Amendment Act 1999) is not required to be advertised in accordance with subsection (2)”.
The “Ministerial Corporation” is defined in s4 of the Water Act as “the Water Administration Ministerial Corporation constituted by the Water Administration Act 1986”. The WMA creates a new Ministerial Corporation; it is by no means obvious that the two Ministerial Corporations are one and the same entity, although nothing appears to turn on that.
Sub-s(2) of s113 is a provision, it is said, which imposes a duty upon the Corporation to advertise after a “condition precedent” is established. That “condition precedent” is the formation of an opinion. That opinion must be either that the bore will be an artesian bore or alternatively, if the circumstances so warrant, otherwise. It is argued that the duty on the Ministerial Corporation is to advertise and that which triggers the exercise of that duty is the formation of the opinion. A peculiarity, to say the least, of sub-s(2) is that “artesian bore” is not one of the things which is defined in the legislation by s105; a “bore” is defined and “artesian well” is defined.
S114 of the Water Act is as follows:
“114   Inquiry
(1)    The Ministerial Corporation may where, in its opinion, the circumstances so warrant, and after the day mentioned in paragraph (c) of subsection (2) of the preceding section, cause a public inquiry to be held as to the desirability of granting the application. The inquiry shall be held by the local land board. The Ministerial Corporation shall cause particulars as to the time, date, and place of the inquiry to be advertised once in the Gazette and once in a public newspaper circulating in the neighbourhood where the bore or the site thereof is situate. The local land board shall report in writing to the Ministerial Corporation upon the inquiry.
(2)    All persons whose interests appear to be affected by the granting of the application shall be permitted to attend at the inquiry and be heard in support of, or in opposition to, the granting of the application”.
This contains a drafting error. The reference in the first paragraph to “paragraph (c) of subsection (2) of the preceding section” is a reference not to s113A(2)(c), but rather to s113(2)(c). To apply s113A(2)(c) to s114 makes absolutely no sense at all, of course.
Thus, what s114(1) does is after that day referred to in s113(2)(c) has expired, it confers a power on the Corporation to hold a inquiry if it so desires. It does not have to do so.
S115 of the Water Act provides for the issue of licences:
“115 (1) In any case where an application has not been advertised pursuant to section 113 (2) the Ministerial Corporation shall, as soon as practicable after it has investigated and considered the application and on payment of the prescribed fee, issue a licence to the applicant in the prescribed form, subject to such limitations and conditions as it may deem fit and proper”.
As counsel observed, it is apparent that a power is conferred upon the Corporation to investigate and to consider the application. However there is no power conferred by sub-s(1) of s115 to refuse the application which appears at first blush to be a rather unusual feature of the section, namely an investigative power without what appears to be any consequences of an adverse finding of that investigation. The solution, however, lies elsewhere in that, although the Corporation must issue the licence, there remains the question of what terms and conditions the license is to be issued upon. S116 of the Water Act relates to the conditions that may be imposed.
Another feature of sub-s(1) of s115 is that it is activated whenever an application has not been advertised pursuant to s113(2), giving rise to what Mr Perram described as a question of familiarity in legal analysis which is: when does something which does not happen, happen? Whilst it is true under s113(2) that at the first moment the application is received it is not advertised, it cannot be the case that s115 instantly, the moment it is not advertised, requires the issue of a licence. The plaintiff does not contend this. What the plaintiff does contend is that if the Ministerial Corporation in fact forms an opinion that it ought not to be advertised, that is, forms the opinion that the factual precondition to sub-s(2) of s113 is not there, then s115 cuts in and requires the issue, subject to investigation and payment of the prescribed fee, of the relevant licence.
S117 (“Benefit of licence”) states:
“117 A licence shall be deemed to be held by and shall operate for the benefit of the lawful occupier for the time being of the land whereon the bore is sunk or is proposed to be sunk”.
Although the plaintiff does not put it so high as to say that the section creates a fully-fledged property right in the sense of real property legislation, at least, for the purposes of administrative law, the section creates what will then be called a right or interest in the sense of a licence.
S117A (“Declaration of restricted sub-surface water area”) is in the following terms:
“117A(1)             The Ministerial Corporation may, by order published in the Gazette, declare any sub-surface water basin, or any part thereof, to be a restricted sub-surface water area.
(2)    The Ministerial Corporation may, by a like order, at any time:
(a)    vary, whether as to the whole or any part, or revoke the order of any restricted sub-surface water area, or
(b)    amend the boundaries of any restricted sub-surface water area.
(3)    In respect of any restricted sub-surface water area:
(a)    the Ministerial Corporation may by order in writing direct the licensee of any bore, whether sunk or commenced to be sunk before or after the proclamation of the restricted sub-surface water area:
(i)    to restrict or control the rate of flow or pumping or the manner of extraction of water from the bore, or the quantity of water which may be allowed to flow or be pumped therefrom in any stated period of time or its usage,
(ii)    to take such measures or precautions as may be specified in the order for the protection of the quality and prevention of pollution or contamination of any sub-surface water wherever pollution or contamination, in the opinion of the Ministerial Corporation, is or may be caused by abandoned, defective or improperly constructed bores through the interconnection of strata or the introduction of unsuitable surface water into the sub-surface water,
(iii)    to furnish to the Ministerial Corporation at such intervals as may be specified in the order a report of static water level in the bore from a point of measurement predetermined by the Ministerial Corporation and of the quantities of water pumped from the bore,
(iv)    to provide, fit and maintain a metering or measuring device acceptable to the Ministerial Corporation which will adequately and continuously record the quantity of water flowing or pumped from a bore from which water is used,
and may, in any such order, set forth such requirements as it deems necessary for proper compliance with a direction contained therein,
(b)    the Ministerial Corporation may by order in writing to the licensee of any bore referred to in paragraph (a):
(i)    specify the minimum distance or distances at which any bore may be sunk from any other bore or bores wheresoever situate,
(ii)    direct the licensee of any bore the sinking of which is completed after the proclamation of the restricted sub-surface water area and from which water is to be used for other than stock, domestic or home garden purposes to furnish to the Ministerial Corporation within ninety days of completion of equipping the bore such detailed particulars of the equipment installed, including the capacity of any pump, as the Ministerial Corporation may require”.
When a declaration of the kind is made it can be made on particular terms, and once made it takes effect as an administrative order and prevents the issue of further licences.
Thus concludes an outline of the legislation.
The plaintiff’s first affidavit was sworn on 6 May 2002.
The annexures are the important components. Annexure C is a letter dated 26 August 1998 from a company, Riverina F. A. R. M. Pty Ltd, to the Land and Water Conservation Officer, Mr Gordon Lennox, in Forbes. The letter informs that Riverina has been engaged by the Jones family as Agricultural Consultants to assist in developing the farming program for the family. The purpose of the letter is to seek Mr Lennox’s assistance in obtaining an irrigation licence. Reference is made to a proposed application for a subdivision which will result in two properties, the holdings being as follows:
“Roeta: Total area: 7024 ha of which 259 ha is currently irrigated but will be expanded to 1500 ha.
Current water allocation: 4008 ML. Request this be increased to 7500 ML.
Iota: Total area: 3946 ha
Current water allocation: 0 ML. Request a 6600 ML currently no irrigation has been developed but 1100 ha of development is intended. Note application has been made to Mr Doug Campbell / Sharon Hawke, Land and Water Conservation, Dubbo”.

The purposes in relation to the proposed irrigation program on Roeta are set out on the second page of the letter:
“The fodder crops most suited to the irrigation program on ‘Roeta’ include:
Winter active pastures;
               Lucerne;
               Grazing Oats;
               Clover;
Corn Silage;
Feed Sorghum;
Feed Barley”.
Accompanying the letter were application forms signed by the plaintiff which are annexures A and B to the affidavit. That form also contains a designated purpose, “farming”, and estimated annual usage in megalitres of 7500, and the form further indicates that “bores” are being sought in terms of “the type of work” to “irrigate forage and cash crops” and will involve a mixture of “bore pumps”.
Annexure B is the application for the Iota sub-development, the purpose being for farming, the estimated megaliterage being 6600, again a mixture of “bore pumps”.

Both applications are dated 26 August 1998.
The reply is constituted by annexure D to the affidavit, a letter signed on behalf of the Regional Director, Central West, Land and Water Conservation. That letter is dated 8 December 1998. In its second paragraph it states:
“The Department is concerned that the current level of allocation which has been issued in the Lower Lachlan Groundwater Management Area may exceed the sustainable yield of the groundwater resource. As a result the Department introduced an embargo on 23 October 1998 and from that date onwards will not accept applications for new high yield bore licenses and the Lower Lachlan Groundwater Management Area”.
The area of land is within the Groundwater Management Area and obviously the plaintiff’s application predated the embargo imposed on 23 October 1998 pursuant to s113 of the Water Act.
The letter goes on to state:
“In order to assess the impact that the existing licensed bores may have on the resource, the Department is currently undertaking a hydrogeological study which involves a detailed review of the sustainability of the aquifer system. It is expected the hydrogeological study will be completed in early 1999.
While your application was received prior to the embargo the Department is not in a position make [sic] a determination on the application until it is satisfied that the total level of allocation does not exceed the sustainable yield for the Lower Lachlan groundwater aquifer.
Upon the completion of the study, the Department will make a determination on you [sic] bore license application and you will be advised accordingly”.
An almost identical letter is written in relation to the second application.
It is clear from the terms of the letter that the application has not been refused.
Annexure F to Mr Jones’ first affidavit is a letter from the plaintiff to Mr Russell of the Department of Land and Water Conservation in reference to the applications and providing further explanations, as I understand it, as to intentions and the effect of the embargo.
The next communication of significance is annexure H, from Mr Russell to the plaintiff. It is dated 14 May 1999. It is not a refusal of the application but, it is contended, is “almost a refusal”. Reference is made again to the study being conducted and Mr Jones is informed that, “If this reveals that there is additional water which can be allocated in the future your application may be considered at that time if you wish to leave it in abeyance but it is likely that any allocation which may be issued will be less than what has been applied for”. The letter concludes, “If no response is forthcoming the Department will assume that you wish to continue with your application”. The option had been put to Mr Jones to withdraw the application and have a refund of the fee.
Annexure J is a letter to the Regional Director, Central West Land and Water Conservation (a Mr Don Martin) from a firm, Herron Todd White, engaged by the plaintiff. It is a lengthy letter and indicates that effectively that the Joneses had come up with a new farming proposal which was not the production of feed, but rather the production of olives. The significance of olive production is this: olives require much less water. Thus what was sought, although not in terms referred to, was an amendment of the application to seek a smaller allocation in respect of the licences because the area of the land upon which the olive production was to take place was less and the water requirement for that produce was also less. The letter concludes with the following paragraphs:
“Water
To achieve these goals and benefits, a critical and essential element is the availability of irrigation water. To ensure maximum production of quality oil, olive trees require between 6 and 8 Megalitres per planted hectare of water. The water is best delivered by a micro irrigation system, being the most efficient from a productive and water usage viewpoint. Drainage is unlikely to cause any problems. Bearing in mind the proposed size of the development, an additional 4000 Megalitres of water allocation by way of additional bore licence, will be required to allow the development to proceed.
We are aware that Mr and Mrs Jones applied for additional bore licence prior to the embargo which was placed on the granting of such licences by the Land and Water Conservation. The Jones’ are also keenly aware of the need to practice conservation, combined with responsible management of underground water stocks. Their present irrigation system is designed with conservation and full and proper use of available water in mind. Accordingly we have little hesitation in seeking a review of the decision made by the Authority, to defer consideration of an additional licence, particularly in view of the extenuating circumstances and the many benefits such approval would provide to the Hillston district.
We also seek an interview, at your convenience to further discuss and, if necessary broaden aspects outlined in this application”.
The response is from the Minister and is dated and is dated 2 February 2000. It is of no particular significance except for stating:
“Whilst I acknowledge the perceived benefits of your client’s proposed olive enterprise, it would be inappropriate for the Department to consider any new groundwater allocations until the results of that study are to hand. The Government is committed to ensuring that our water resources are sustainably managed and shared equitably between all competing interests”.
Annexure M is a letter from Land and Water Conservation to the plaintiff dated 3 September 2001. It is in the following terms:
“I refer to your application under the Water Act for a licence for a bore in the Lower Lachlan Groundwater Management Area.
On 12 March, 1999 a statutory embargo on the issue of further high yield groundwater licences was put into effect.
The Department is concerned that the amount of licensed entitlement already issued may exceed the current estimate of sustainable yield. Therefore it is not appropriate for the Department to issue additional entitlements that clearly cannot be supported by the aquifer as that would greatly erode the reliability of existing licence holders.
Therefore the Department intends to refuse your application for a bore licence for irrigation and farming purposes. One month from the date of this letter the Department will formally refuse your application unless you can show cause why your application should not be refused”.
It will be seen that the last paragraph still does not amount to a refusal, but rather an intention to do so unless cause is shown why the application should not be refused.
The next communication (exhibit O) is from the plaintiff’s solicitors to Mr David Thomas of Land and Water Conservation dated 12 September 2001. It is a letter in response to the letter of 3 September. It states:
“We are instructed to commence proceedings in relation to the conduct of your department that will have the effect of requiring the issue of the relevant licences to our client. It is our opinion that the decision to refuse the applications for licences is erroneous and likely to be set aside. It seems to us that the Department has failed to take into account relevant considerations and the decision has been made unreasonably.
We invite the Department to reconsider its decision and issue the licences to our client.
In the event that we have not been advised that this decision has been made within seven days we anticipate receiving instructions to commence proceedings”.
To the extent that there is a reference to “refuse the applications for licences”, that represented a slight misconception on the part of the author of the letter as at the date thereof there had been no “refusal”.
Exhibit P is a letter dated 28 February 2002 from Land and Water Conservation to the plaintiff, the opening paragraph of which is:
“Thank you for your submission in response to the Department’s letter of 3 September 2001. The Department has now reviewed the points raised by you in response to that letter and following consideration, has decided to formally refusal of [sic] your application”.
Mr Thomas, of Forbes, employed in the Department of Land and Water Conservation as Natural Resource Officer, swore an affidavit on 18 February 2003 upon portions of which the plaintiff relied. Mr Thomas deposes to the receipt on or about 31 August 1998 of the two applications from the plaintiff; the imposition of the embargo on 23 October 1998 (annexure A to his affidavit being the extract from the Government Gazette) and the approval to refuse 29 applications for licences for bores on 15 August 2001. This last mentioned development is set out in annexure C to Mr Thomas’ affidavit, an internal memorandum dated 13 August 2001 which makes reference to 29 pre-embargo applications being “still on hand and need to be dealt with”. There is a recommendation in annexure C that the Regional Director approves the action to refuse the pre-embargo groundwater licence applications.
The institution of proceedings then intervened, suggesting that the power under s113(2) of the Water Act had not been properly activated. By letter dated 3 July 2002 (annexure D to Mr Thomas’ affidavit) an admission is made that the Corporation accepted that it had not made a decision in accordance with the Water Act 1912, it withdrew its letter of 28 February 2002 advising of its determination refusing the application, and advising that it would now “proceed to consider the application in accordance with the Act”.
By reference to s113, because the matter had not been advertised and therefore a right to a licence arose under s115, it is contended that what the Department sought to do by this letter of 3 July was effectively take back its decision that it did not need to advertise and, therefore, to activate the machinery of s113(2). Annexure H1 to the affidavit contains Government Gazette extracts notifying of the applications, advertising them, and ultimately on 11 February 2003 (annexure J) the plaintiff was informed that four objections were received to the applications, the grounds of the objections being “the aquifer is already over committed and granting of additional licences will impact upon the aquifer and existing licence holders”. The applications therefore were refused.
By an affidavit sworn 27 February 2003 the plaintiff swears that none of the objections referred to in annexure J to Mr Thomas’ affidavit was forwarded to him and he was not asked to address the sustainable yield question.
Also tendered as exhibit A was an answer to an interrogatory dated 13 February 2003 in the following terms:
“1A.Did the Ministerial Corporation prior to 20 February, 2002 form the opinion not to advertise pursuant to section 113(2) of the Water Act, 1912?
1B. Answer: Yes.
2A.Did the Ministerial Corporation’s delegate prior to 20 February, 2002 form the opinion not to advertise pursuant to section 113(2) of the Water Act, 1912?
2B Answer: Not applicable”.
At this point in the evolution of the proceedings before me, the plaintiff identified three bases upon which the relief was being sought. First, once the opinion was formed under s113(2), that is, an opinion not to advertise, the plaintiff obtained an accrued right under s115, and thus it became impossible, assuming any power could be found in the Act or in any other, to revoke that decision because there was an accrued right. A right had accrued, and first of all there was no power to take back the non-formation of the opinion, or what was described as the “negative opinion which had been formed”.
Second, the plaintiff complains as per the material set out in his affidavit of 27 June 2003, that effectively he was not asked about the reasons why his licence application should be refused, assuming that there was power to refuse. The grounds upon which the applications were refused, being apparent from the last annexure to Mr Thomas’ affidavit, referred to four objections having been received, presumably pursuant to the process of statutory exhibition, and also the Department referred to the fact that it did not believe that the aquifer could support any new licence entitlements. Thus the refusal of the applications. The four objections and whatever information the Department was acting upon in relation to the aquifer’s sustainable use aspects were matters which administrative law needed to be put to the plaintiff before the licence applications were refused.
The third argument was candidly acknowledged as “slightly more arcane”. It is to this effect: when the Department indicated in July 2002 that it was proposing that it had in fact taken back its decision not to form the opinion that it needed to advertise, that itself was a decision that affected the rights and interests of the plaintiff. Again, that was a matter upon which they received no natural justice, and if that argument is accepted, one is led back to the automatic statutory entitlement under s115(2).
In cross-examination the plaintiff agreed that for some time he had been a member of the Lower Lachlan Ground Water Management Committee. He attended meetings on the 28 and 29 October 1999 when the issue of sustainable yield for the aquifer was discussed. In his capacity as a member of the Committee he received a copy of the minutes of the meetings; on or about the 28 or 29 October 1999 at the Hillston Ex-Services Club he was a late arrival at the meeting at which was present a Mr Martin O’Rourke (who gives evidence in these proceedings). Mr O’Rourke had given a presentation on his investigations of the sustainable yield for the relevant aquifer and figures were given as to the annual average recharge in megalitres and sustainable yield calculations in megalitres per year which, according to the plaintiff, was subject to discussion and debate.
Three documents constituting exhibit 1 were tendered, being the minutes of the meeting held on 28 and 29 October, a document headed “Memorandum” and the attachment referred to therein namely the Lower Lachlan Ground Water Management Area 012 Status Report Presentation prepared by Martin O’Rourke.
Exhibit 2 is made up of three documents, being the minutes of a meeting held on 16 and 17 May 2001, recharge estimates for the Lower Lachlan Ground Water Management Area 012 and a document relating to available groundwater resources and sustainable yields. The plaintiff agreed that early in 2001 he attended a committee meeting and a general public meeting when issues of the groundwater calculations were presented at Hillston.
He agreed that he was, in particular, present when a presentation was given when the subject of discussion by Ms Sue Hamilton was the long-term recharge for the aquifer with a calculation of 105,000 megalitres per year. This document was admitted as exhibit 3, and pursuant to s136 of the Evidence Act the use of this exhibit and others containing what appeared to be statements of expert opinion were limited to the extent that the documents would not be used as evidence of the truth of that which the hydrogeologist and others were saying, but rather merely as evidence of the fact that Mr Jones received the documents with their contents.
In his oral testimony, in cross-examination the plaintiff confirmed that none of the four objections was brought to his notice.
In re-examination he said that the committee to which reference had been made was a committee which came into existence to deal with the new regulations relating to sharing plans in the new Water Management Act of 2000. The functions of the committee did not include dealing with the plaintiff’s licences.
Mr David Thomas was cross-examined briefly on his affidavit of 18 February 2003 to the contents of which a great deal of reference has been made. He agreed that it was correct that prior to announcing the Department’s decision to withdraw the letter of 28 February 2002 (see annexure D to Mr Thomas’ affidavit) Mr Jones was not consulted.
Mr O’Rourke was cross-examined in relation to an affidavit sworn by him on 1 July 2003. Mr O’Rourke is an hydrogeologist, which gives him an expertise in aquifers. He was familiar with the aquifer which is the subject of these proceedings.
Paragraph 10 of Mr O’Rourke’s affidavit is in the following terms:
“10In 1998 it was estimated that the average annual recharge for LLGWS was between 105,000 and 150,000 ML. The recharge for LLGWS comes largely from river leakage, and river flooding from the Lachlan River and its effluents and some localised rainfall”.
The opening of the cross-examination in relation to that paragraph was as follows:
“Q.I think at paragraph 10 of your affidavit you said that in 1998 it was estimated that the average annual recharge for the ground water source was between 105,000 megalitres and 150,000 megalitres. Do you see that?
A.           Yep.
Q.The mechanisms by which an aquifer is recharged include discharge through the beds of rivers?
A.           That’s correct.
Q.           And through rainfall through the ground as well?
A.           Correct.
Q.And sometimes just through natural water sources under the ground as well?
A.           Possibly.
Q.           Are there any other recharge sources for an aquifer?
A.           Flooding.
Q.           Flooding in addition to rain I take it?
A.           Yes, and possibly from irrigation leakage.
Q. And there is in fact no way that you are able to measure directly the recharge process, is there?
A.Not directly. It can be measured in various spots in the extrapolator.
Q. When you say it can be measured in various spots, do you mean in certain locations?
A.           You can measure infiltration rates.
Q.          What do you mean?
A.           The rate the water will infiltrate downwards.
Q.           Would that, as a consequence, change the level?
A.           It can do.
Q.How can the rate of the water infiltrated measure the recharge process?
A. If there is a zero infiltration rate there will be no discharge.
Q.If the infiltration is a positive number, what does that mean for the recharge rate?
A.           Well then there will be recharge coming in the aquifer.
Q.           At that level?
A.           At that point.
Q.The way in which you seek to measure the infiltration into an aquifer is through the device called a piezometer?
A.           That’s incorrect.
Q.           How do you measure the recharge?
A.           Through a lysimeter.
Q.           What is a lysimeter?
A.A lysimeter is an instrument used for recording the passage of water, not infiltration, through a level from point A to point B.
Q.           What is a lysimeter; a spike in the ground or a tube?
A.Lysimeters can be – there are different types of them. They can be a section of ground that’s been cut out of the ground, suspended on springs. The weight of the rainfall flow-in is recorded. Evaporation is recorded coming off. And the amount of flow-through is recorded. The other method is to use a suction cap, which works on pressure. There are a number of other methods also which I don’t recall but are published in many texts.
Q.Are these lysimeters, in this case, located throughout the ground water source?
A.           There are none installed.
Q.In fact, in calculating the recharge rate in this aquifer, you had no reference to lysimeters?
A.           That’s correct.
Q.In fact, the only device you had reference to was a piezometer, correct?
A.That is incorrect. A piezometer records water level changes in level and water pressure. A lysimeter measures water pressure at a point.
Q.Can you tell his Honour what were the devices used by the Department to measure or estimate the recharge rate for this aquifer?
A.The recharge rate for this for this aquifer was determined based on a model that was produced for the Murrumbidgee aquifer. That aquifer is similar in structure and nature to the Lachlan aquifer or the Lower Lachlan aquifer. A percentage is based on the sizes. Approximately 40 per cent from the model that was used for the Murrumbidgee was used to produce the average annual recharge of 105,000 megalitres.
Q.This is the case, the theoretic basis upon which the recharge rate was calculated was using a model designed in relation to another aquifer?
A.           That’s correct.
Q.Can you just tell his Honour what were the pieces of empirical fact which were inserted into that model to come up with the recharge rate?
A.I don’t know because I didn’t have anything to do with that model”.

The cross-examination continued to the point where Mr O’Rourke agreed that the process by which he, for himself, had calculated the recharge rate turned upon two theoretical aspects earlier discussed and formulae employed by him and what became known as the “Murrumbidgee model”. The two pieces of empirical evidence referred to were rainfall at the airport and a flood in 1990. In conclusion he described as a “ballpark” figure the 105,000 to 150,000 megalitres, although the “ballpark” figure was within reasonable accuracy at the time the estimation was done. The figures referred to in paragraph 10 of Mr O’Rourke’s affidavit constituted a calculation, and was not his estimation, although he was not able to recall what his own was. He agreed that the figures in paragraph 10 of his affidavit were not his; he would agree that in fact, based on his own measurements, he prepared an estimate but could not recall what it was. He agreed that the 105,000 megalitre figure, so far as he knew anything about it, was prepared by someone else in the Department, and as far as he knew, that figure was prepared on the basis of the “Murrumbidgee model”. He had no knowledge of the empirical data which was then applied to that model to come up with 105,000 megalitre figure nor the 150,000 megalitre figure.
That concluded his cross-examination.
Exhibit 4 was tendered and that was made up of the four notices of objection to which earlier reference has been made, none of which was referred to the plaintiff.
The plaintiff’s first argument relates to s113(2). To the extent that the defendant might have been understood to have said that there was no question about there being an artesian bore, that was a false issue. It is not an opinion whether something is an artesian bore or not that is in issue. It is not the fact that it is an artesian bore which matters; the thing that matters for the purposes of the subsection is the formation of the opinion that emerges from the language. The interrogatories established that the Corporation had formed the opinion that there was to be no advertisement; it necessarily follows, it is argued, that it must have formed the opinion that the bore was to be an artesian bore, and it must also have formed the opinion that the circumstances did not warrant the advertisement.
Once the negative opinion was formed, the plaintiff submits, the plaintiff obtained immediately a statutory right under s115 to have the Corporation investigate and consider its application for the purposes of determining the terms of its grant, not for the purposes of rejecting the application. The question that arises as to whether the letter dated 3 July 2002, being annexure D to Mr Thomas’ affidavit, in which the Corporation accepted that it had not made a decision in accordance with the Water Act and by which it withdrew its letter of 28 February 2002 (annexure P to the plaintiff’s affidavit of 6 May 2002 – the formal refusal) constitutes a revocation of the former opinion and secondly, if it does, whether there is such a power so to revoke. It was argued for the plaintiff that s43(2) of the Interpretation Act 1987 does not assist. That subsection is as follows:
“43(2) If an Act or statutory rule confers a power on any person or body to make an order (whether or not the order must be in writing), the power includes power to amend or repeal any order made in the exercise of that power”.
What the plaintiff says is that the thing being revoked was not the power to make an order: it was in fact the formation of an opinion which gave rise to an accrued right.
S48(1) of the Interpretation Act states:
“48(1) If an Act or instrument confers or imposes a function on any person or body, the function may be exercised (or, in the case of a duty, shall be performed) from time to time as occasion requires”.
The plaintiff argues that it can properly be conceded that the Act did confer a function on the Ministerial Corporation, namely the function of forming an opinion.
In Minister for Immigration & Ethnic Affairs v Kurtovic (1990) 21 FCR 193 Gummow J at 211 said:
“There was “an inconvenient common law doctrine of somewhat uncertain extent to the effect that a power conferred by statute was exhausted by its first exercise”: Halsbury’s Laws of England (1st ed), Vol 27, p 131. However, s33(1) of the Acts Interpretation Act 1901 (Cth) (which was modelled upon s32(1) of the Interpretation Act 1889 (UK)) provides that where an Act confers a power or imposes a duty, then unless the contrary intention appears, the power may be exercised and the duty shall be performed “from time to time as occasion requires”. But in any given case, a discretionary power reposed by statute in the decision maker may, upon a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of the steps or the making of the statements or representations in question, treating them as a substantive exercise of the power. The result is that when the decision maker attempts to resile from his earlier position, he is prevented from doing so not from any doctrine of estoppel, but because his power to do so is spent and the proposed second decision would be ultra vires. The matter is one of interpretation of the statute conferring the particular power in issue”.
See also Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338.
Here the plaintiff submits the consequences of the negative opinion being in fact formed was to confer a statutory right, and the legislation ought not be construed in a way which would derogate from the existence of the right accrued. In other words, s48 of the Interpretation Act would not apply to the situation here in the light of the principles pronounced upon by Gummow J in Kurtovic.
The second submission for the plaintiff is to this effect: assuming there was a power to revoke the decision, and considering the events leading up to the revocation letter of 28 February, no aspect of the decision to revoke the previous opinion was ever conveyed to or put to the plaintiff so that he could make submissions upon it. It was a decision which, if the power existed to revoke it, directly affected the interests of the plaintiff. Prior to the letter of 3 July the plaintiff had a vested right to obtain a licence under the provisions of s115. The letter, in effect, took that right away. The plaintiff did not receive, on ordinary principles, an opportunity to make submissions in relation to the revocation, and on that basis, on what are said to be “ordinary” principles, the decisions are liable to be set aside. The classic statement of principle is set out in the judgment of Aickin J in Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242 at 277:
“That which is done without compliance with applicable principles of natural justice, in circumstances where the relevant authority is obliged to comply with such principles, is not to be regarded as void ab initio so that what purports to be an act done is totally ineffective for all purposes. Such an act is valid and operative unless and until duly challenged but upon such challenge being upheld it is void, not merely from the time of a decision to that effect by a court, but from its inception. Thus, though it is merely voidable, when it is declared to be contrary to natural justice the consequence is that it is deemed to have been void ab initio. Accordingly, it does not follow from the fact that an act is done without compliance with the principles of natural justice that it must be regarded as no act at all and supportable (if at all) as an effective act only on some other basis”.
Mr Perram also referred me to the decision of the High Court in Minister for Immigration v Bhardwaj [2002] 209 CLR 597; with respect, I agree with Mr Perram that the respective views of their Honours in the circumstances of that appeal do not provide assistance in the resolution of the present matter. (I say this having regard to the remarks of the Chief Justice in para [3], [5] and [7] and those of Gaudron and Gummow JJ in paras [48] and [52]).
On the second basis of the plaintiff’s submissions, that there had been a denial of procedural fairness, the consequence of accepting that, is that there was such a denial that the decision to change the opinion was itself a nullity, which means the original negative opinion stays in place and because the negative opinion stays in place, the statutory right arises under s115.
The third and final proposition advanced for the plaintiff is that assuming that the first two propositions are wrong, then the decision to refuse the licence which took place in 2003, that is, the letter of 11 February 2003 (annexure J to Mr Jones’ affidavit), suffered from procedural unfairness. First, the objections which had been made were not conveyed to the plaintiff, and secondly, the hydrological model, such as it would appear to be, was not conveyed to him either, so that he could make submissions in regard to it.
In Re Minister for Immigration and Multicultural Affairs; Ex parte “A” (2001) 185 ALR 489 at 498 paragraph [43] Kirby J said:
“[43] In Australia, it is a basic principle of the common law rules of natural justice that a person whose interests are likely to be affected by an exercise of power will be afforded a fair opportunity to respond to information or relevant material adverse to that person’s interests which the repository of the power proposes to take into account in deciding upon its exercise. In short, a person should ordinarily be afforded the opportunity to provide evidence or material to rebut information or material tendered against that person’s interests. As well, the person should be afforded the opportunity of persuading the decision-maker, by oral or written submissions, as to the significance of the adverse evidence or material and the way in which it might be reconciled with the person’s claim”.
This statement by his Honour is fundamental, but particular emphasis is placed on “relevant material adverse to that person’s interests”, that material having just been identified (see para [73], above). I was referred to the decision of the Court of Appeal in Minister for Local Government & Anor v South Sydney City Council (2002) 55 NSWLR 381 where the concept of “adverse material” was dealt with at length in the judgment of Mason P at 433 and following. It was argued that the South Sydney City Council case was distinguishable, not least because of the comparative simplicity of the quantity and quality of the “adverse material” with which this case is concerned. In the South Sydney City Council case the “adverse material” proposition failed, it is to be noted.
It will be recalled that annexure O to Mr Jones’ affidavit was the letter dated 12 September 2001 in which the solicitor for the plaintiff invited the Department to reconsider its decision (to refuse the applications for licences) and issue the licences to the plaintiff. It will also be recalled that annexure D to the affidavit of Mr Thomas is the letter dated 3 July 2002 in which the Corporation withdrew its letter of 28 February 2002, which advised of its determination refusing the application and informed that it would proceed to consider the application in accordance with the Act.
For the defendant, addressing the three points in reverse order advanced by Mr Perram, it was submitted that as of 12 September 2001 the plaintiff was inviting the defendant to reconsider what it thought was a final decision. It was in fact the equivalent of a “month-long interim order”, so to speak, and to revisit and reconsider that matter to come up with what the plaintiff considered to be a better result. In terms of the proposition that natural justice was needed before the defendant could go back and revisit an erroneous decision, two propositions follow. One is that natural justice is not ordinarily required in such circumstances, and even if it was, the plaintiff had either waived his rights by the letter of 12 September 2001, or the defendant was acting on an invitation of the plaintiff to go back and withdraw the decision and revisit the matter.
To the extent that the plaintiff suggests that at that particular point there was an accrued right which followed the decision not to advertise, and that accrued right was to receive a licence, the defendant understood the plaintiff to be saying he should have been consulted before the defendant withdrew its refusal. This would have brought about a bizarre consequence, that on the face there was a right to receive a licence pursuant to the Act, and there was an apparent refusal by a letter from the Department, at which point the defendant was asked to reconsider that which, whatever it was, the plaintiff still insists nonetheless provided him with an accrued right.
That accrued right was one of which the plaintiff had no notification when the Department made the initial decision not to advertise. The plaintiff was in ignorance of it, could not rely upon it or spend money in consequence upon it. As I understood the defendant’s submission on this aspect, it was simply that the plaintiff waived any rights he had for natural justice to redetermine the question of entitlement to a licence, in circumstances where he nonetheless asserts he had an accrued right, of which by reason of the mechanism of its coming into existence, namely the decision by the defendant not to advertise, he was completely ignorant.
As to the position of the defendant in relation to denial of natural justice in the failure to bring to the attention of the plaintiff the objections, the plaintiff by reason of his position on the Committee and knowledge generally of all the issues involved, was not compromised. My attention was drawn to annexure M, being the letter to him dated 3 September 2001 in which it is stated, “Therefore the Department intends to refuse your application for a bore licence for irrigation and farming purposes. One month from the date of this letter the Department will formally refuse your application unless you can show cause why your application should not be refused”; the response is annexure O, which is the letter dated 12 September to which reference has been made, and which is not a letter showing cause at all, or in any case was suggesting something as to the merits, but advancing the proposition that lawyers should now become involved and that as a matter of law the licence must issue.
The plaintiff had been provided with an opportunity to show cause, and had waived it. Alternatively, sufficient natural justice had been shown, highlighting the problems and the difficulties of sustainable yield, and offering an opportunity to put a case forward, which the plaintiff chose not to do.
More generally the defendant took the position that it is lawfully able to withdraw or re-open a decision (relying on Bhardwaj, supra, and in particular Gleeson CJ at paras [5] and [15], Gaudron and Gummow JJ paras [51] and [52], McHugh J at para [67] and Callinan J at para [165]). Mr Green outlined the statutory structure which disclosed that there was no right of appeal against the decision of the defendant, and argued that the absence of the right of review increases the capacity for “self-correction” by an administrative body: see Gleeson CJ in Bhardwaj at para [8]. In the instant case there was the initial decision to refuse, that is, the determination of 28 February 2002, which was accompanied by jurisdictional error: there is no power to refuse without a prior advertising of the application. The defendant was entitled to “self-correct” in such circumstances and withdraw the erroneous determination.
On the evidence it is clear that at an early stage the defendant accepted that it had made a jurisdictional error in the manner of its determination dated 28 February 2002; by letter dated 3 July 2002 it withdrew its decision to refuse the plaintiff’s application: to this correspondence reference has been made above. To put it another way, as I understand it the defendant’s position is this: if the plaintiff asserts that, notwithstanding an ability to withdraw an erroneous determination in conformity with Bhardwaj, having initially decided not to advertise, the defendant cannot at a later stage revisit that decision as to the requirement for advertising and make a further or different decision. That would result in the consequence that the final decision can be reconsidered but not the interim or procedural steps which give rise to the final decision. It would mean that the interim or procedural error could not be cured, and a necessarily constrained or erroneous result must follow. The decision to advertise is a procedural step: it is not something which would ordinarily attract the consequences of a functus officio submission. It is not the exhaustive power; it is a step towards finally exercising power.
Stating the proposition in this way represents the clash between the two parties conceptually as to what is involved in s113.
Further, as to procedural fairness, I was referred to Reg v Bristol City Council; Ex parte Pearce (1984) 83 LGR 711, a decision of Glidewell J in the Queens Bench Division, where his Honour was called upon to consider an issue not unlike that raised in this case, namely that the plaintiff did not have the opportunity of considering the forms of objection. His Honour declined in the exercise of his discretion to grant the relief sought on this particular subject on the basis that the relevant material “would not have influenced the decision in any event” and the local authority with which he was concerned had otherwise acted fairly.
In Reg v Secretary of State for Health, Ex parte United States Tobacco International Inc (1992) 1 QB 353 at 370F Taylor LJ said:
“Mr. Beloff complains of unfairness in two aspects of the consultation process. First, he renews his attack on the non-disclosure of representations by other interested parties. This was the subject of the application for judicial review rejected by the Court of Appeal on 21 July 1988: Reg. v. Secretary of State for Social Security, Ex parte United States Tobacco International Inc. (unreported), 21 July 1988; Court of Appeal (Civil Division) Transcript No. 634 of 1988. Lord Donaldson of Lymington M.R. said there was “no basis for the contention that each representer should be entitled to see the other representations.” He accepted the Secretary of State’s submission that if he was minded to have regard to any fresh point deriving from the representations and unknown to the applicants, he would apprise the applicants of the point but otherwise he was not under obligation to disclose the 300 representations. Nothing has changed so far as that is concerned, and I see no reason to take a different view at this stage”.
In the present context the decision in each case is of little assistance, in the end, in my view, to the defendant. In the South Sydney City Council case, supra, the Chief Justice said at para [48]:
“The proposition that breaches of procedural fairness with “trivial” consequences can be ignored, has been criticised. (See e.g. Aronson and Dyer, Judicial Review of Administrative Action, 2nd ed, at 377-380.) The test, whether expressed in terms of breach or the exercise of discretion is a high one. It has been variously expressed:

“compliance with the requirements of natural justice could have made no difference” Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 per Mason J, Wilson J, Brennan J, Deane J and Dawson J.
“the breach had no effect on the decision” (Abebe (at [113]) per Gaudron J).
“insignificant, purely formal and immaterial mistakes” (Re Refugee Review Tribunal; Ex parte Aala (at 131 [132]) per Kirby J).
“could not have affected the outcome” (Re Refugee Tribunal; Ex parte Aala (at 122 [104]) per McHugh J; Muin (at 992 [140]; 635 [140]) per McHugh J).
Indeed, in Re Refugee Tribunal; Ex parte Aala (at 108 [57]-[60]), Gaudron J and Gummow J appear to restrict the proposition to situations of futility, at least for purposes of s75(v) of The Constitution”.

It was argued that the four objections, for example, do not raise fresh or even unexpected issues. It is argued that the plaintiff was well aware of the over-commitment of the water source. He had been kept fully informed as to the practical difficulties he faced: on 8 December the plaintiff was informed that the existing allocations were likely to exceed the sustainable yield and (by inference) it was unlikely he would be granted a licence (see annexures D and E to the plaintiff’s affidavit of 6 May 2002). On 14 May 1999 the plaintiff was informed that the existing allocations exceed the sustainable yield and it was unlikely that he would be granted a licence (annexures H and I to the same affidavit of the plaintiff). The plaintiff was aware, and is aware, of the existence of the embargo (which itself asserts that the water source is over-committed) - (annexures F and J to the plaintiff’s affidavit). Annexure K to the plaintiff’s affidavit was a letter from the Minister of 2 February 2002 asserting that the water source is overcommitted. And again, of course, the defendant relies upon the “show cause” letter of 3 September 2001.
By these propositions I am not persuaded as to “triviality”.
Finally, as a matter of discretion relief would not be granted because it would be futile in the light of what is said to be the evidence of the water source being significantly over-committed. The evidence as to that was admitted on a limited basis, namely that Mr Jones had information about it as contained in the documents. I certainly am unpersuaded in relation to the evidence of Mr O’Rourke as constituting substantive cogent material to the opposite effect.
I am persuaded of the cogency of the argument advanced for the plaintiff that other submissions could have been made by the plaintiff on the matters contained in the documentary material before me and added to, as I have remarked, in the non-substantial nature of the evidence of Mr O’Rourke.
I accept the submissions for the plaintiff that the defendant’s position confuses the notion of the revocation of the decision ultimately made to refuse the licence with the revocation of the opinion not to advertise.
Whilst it must be acknowledged that the results are peculiar, in an area apparently plagued with complexities, the construction of s113 as advanced by the plaintiff to my mind is correct. The negative opinion was formed, and as a consequence of that s115 is triggered in the plaintiff’s favour, as a matter of right, on the proper construction of the section. I am persuaded that the exercise of the power constituted by the formation of the opinion, upon a proper construction of s113, is not an exercise of a power that can be exercisable from “time to time”. Once the negative opinion in relation to advertising is formed, the power to form that opinion is spent, triggering the rights of the plaintiff under s115. S38 of the Interpretation Act does not apply to obviate that outcome. That being so, all subsequent actions leading ultimately to a refusal of the licences in effect were the exercise of power in a state of artificiality unsupported by the legislative scheme.
The construction of s113 is critical and I accept the plaintiff’s submissions in regard thereto.
Accordingly, I make the following orders:
I declare that decisions made by the defendant under Part 5 Division 3 of the Water Act 1912 on 28 February 2002 to refuse the plaintiff’s applications 70BL227196 and 70BL227197 for licences under Part 5 Division 3 are null and void and of no effect.
I order that the defendant in accordance with s115(1) of the Water Act 1912, on payment of the prescribed fee by the plaintiff, issue a licence to the plaintiff in the prescribed form, subject to such limitations and conditions as the defendant may deem fit and proper in respect of the bore licence applications 70BL227196 and 70BL227197 in the Lower Lachlan Ground Water Management Area (GWMA 012).
I declare that the decisions made by the defendant after 28 February 2002 to advertise the plaintiff’s applications 70BL227196 and 70BL227197 for licences under Part 5 Division 3 of the Water Act 1912 are null and void and of no effect and that they be quashed.
I declare that the decision made by the defendant on or about 11 February 2003 to refuse the plaintiff’s applications 70BL227196 and 70BL227197 for licences under Part 5 Division 3 of the Water Act 1912 is null and void and of no effect and is quashed.
I order the defendant to pay the plaintiff’s costs.
The exhibits are to be returned.

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LAST UPDATED: 09/11/2004

[2004] NSWSC 1039

9 November 2004