KIRWAN and DEPARTMENT OF WATER

The case of Kirwan and the Department of Water involved a dispute concerning the amendment of water licenses to reduce the amount of water that could be taken from the Lower Gascoyne Alluvial aquifer in the Carnarvon horticultural area, within Sub-area A of the Gascoyne Groundwater Area. The applicants, who had acquired properties and associated water licenses in 2007, challenged the Department's decision to reduce their water entitlements based on the Lower Gascoyne River Groundwater Management Strategy (2004). The central legal issues were the interpretation of the seven-year period for assessing water usage and whether there was a compelling reason to deviate from the Strategy in the applicants' circumstances.

The court addressed whether the seven-year period for assessing water usage began in 2004 or at the time of the applicants' purchase of the properties and licenses. It considered the wording of the Strategy, which stated that licenses utilising less than their annual entitlement over seven years would be reviewed by the end of the seventh year and that entitlement reductions would generally be 50% of the difference between the licensed entitlement and the highest three annual metered draws over the seven years. The court found that the seven-year period should commence from the date of the applicants' acquisition of the licenses. However, it also considered whether there was a cogent reason to deviate from the Strategy in this particular case. The court concluded that there was no such reason, as the Strategy was designed to manage the over-allocation of water resources sustainably.

The outcome was that the decisions to amend the water licenses by reducing the quantity of water that could be taken were affirmed. The applicants' challenge was dismissed, and the court upheld the Department's actions in accordance with the Strategy to ensure the sustainable allocation of water resources.