Lymberopoulos v Minister for Environment and Conservation - [2005] SASC 2

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
LYMBEROPOULOS & ORS v MINISTER FOR ENVIRONMENT AND CONSERVATION
Judgment of The Honourable Justice Debelle
14 January 2005
ENERGY AND RESOURCES - WATER RESOURCES - POWERS, DUTIES AND LIABILITIES OF STATUTORY AUTHORITIES
Application for water licence - date of application - whether permissible to amend application - determining relevant water allocation plan
Water Resources Act 1990 s35; Water Resources Act 1997 s 29, s 35; Acts Interpretation Act 1915 s 24, referred to.
Director of Public Works v Ho Po Sang [1961] AC 901; NSW Aboriginal Land Council v The Minister (1988) 14 NSWLR 685; Attorney-General (Queensland) v Australian Industrial Relations Commission (2002) 213 CLR 485; Independent Holdings Ltd v City of Adelaide Planning Commission (1994) 63 SASR 318, applied.
The Corporation of the City of Marion v Becker (1973) 6 SASR 13; Hancock Development Corporation Pty Ltd v City of Tea Tree Gully (1986) 42 SASR 584, distinguished.

LYMBEROPOULOS & ORS v MINISTER FOR ENVIRONMENT AND CONSERVATION
[2005] SASC 2
Land and Valuation Division

DEBELLE J This appeal from a decision of a judge of the Environment, Resources and Development Court arises out of the refusal of an application for the grant of a water licence under the Water Resources Act 1997.
Background
On 24 April 1997 Kon Lymberopoulos, the first named appellant, lodged an application dated 18 April 1997 for the grant of a water licence to take water from a proclaimed water course, lake or well. The water was required to irrigate a vineyard comprising 40 hectares. The application was made under s 35 of the Water Resources Act 1990 (“the 1990 Act”). On 2 July 1997 the Water Resources Act 1997 came into operation. For convenience, this Act will be called “the 1997 Act”.
The application lodged under the 1990 Act was dealt with under the 1997 Act. After the application had been lodged, protracted negotiations and a long correspondence ensued between Mr Lymberopoulos and the relevant government department. In 1997 that department was called “the Department of Environment & Natural Resources”. Later it was called “the Department for Environment, Heritage & Aboriginal Affairs”. For convenience, it will be referred to as “the Department”. Finally, by letter dated 8 September 2003, a delegate of the Minister refused the application for a water licence. That letter was addressed to Mr Lymberopoulos, his wife Fiona Jane Lymberopoulos and Michael Leonard King, who are partners in a vineyard on the land for which the grant of the water licence was sought. All three appealed to the Environment, Resources and Development Court (“the Environment Court”) pursuant to s 142 of the 1997 Act. The Minister was the respondent to the appeal.
The parties to that appeal joined in asking the Environment Court to determine two preliminary questions which were expressed in these terms:
1.What is the relevant water application the subject of the appeal and on which date was it applied for?
2.What is the relevant water allocation plan for the assessment of the application the subject of the appeal?
The judge in the Environment Court held that the application the subject of the appeal was dated 8 September 2003. She further held that the relevant water allocation plan is the Clare Valley Prescribed Water Resources Area Water Allocation Plan, adopted by the Minister on 22 December 2000. From that decision the appellants have appealed to this Court.
In order to understand the issues, it is necessary to examine in greater detail the negotiations and the correspondence between the appellants and the Department.
An Application for a Water Licence
By an application dated 18 April 1997 and lodged on 24 April 1997, Mr Lymberopoulos applied for a water licence. The application received the Department’s file number WR 46/97. The application was made under s 35 of the 1990 Act and was made on the approved form. It related to three parcels of land, being Section 106 and part Sections 288 and 289 in the Hundred of Clare. The land is comprised in three Certificates of Title which were named on the application form.
The application form required certain information to be provided. In answer to the question “Proclaimed area/watercourse” Mr Lymberopoulos correctly answered “Clare Valley”. The purpose of the proposed use of water was stated to be to irrigate by drip irrigation 40 hectares of vines. The application form made provision for additional information to be supplied. Mr Lymberopoulos provided further information on attached sheets, which included two sketch plans of the land. Other additional information made it clear that Mr Lymberopoulos sought a water allocation of 40 ML.
In the additional information Mr Lymberopoulos expressed an intention to take water from a number of sources. Both the 1990 Act and the 1997 Act define the expression “to take” quite widely. It includes
·to take water by pumping or syphoning the water;
·to stop, impede or divert the flow of water over land (whether in a watercourse or not) for the purpose of collecting the water;
·to divert the flow of water in a watercourse from the watercourse; and
·to permit water to flow under natural pressure from a well.
As will be seen, the application sought to use water in each of those ways.
At the time when the application was lodged, the subject land had four dams varying in capacity from 3 ML to 8 ML. The additional information in the application stated that it was proposed to construct a 50 ML dam in the position of one dam, that another be demolished to allow water to flow down to the new dam, and that the third dam be used as a sump to transfer water to the new dam. A watercourse was to be maintained to allow water to fill the new dam. In the additional information, Mr Lymberopoulos also expressed an intention to drill a new well to supply further water. This part of the additional information was in these terms:
“Proposal:-
1.A well permit be sought to attempt to locate reliable ground water on the property to suppliment [sic] the surface water and guarantee the necessary water requirements for the vineyard.”
I find that the application expressed an intention to drill for ground water and to use that water to supplement the surface water stored in the proposed dam.
Finally, the additional information stated that it was proposed to transfer water from existing bores on Section 397, a neighbouring parcel of land owned by L K Vineyards, which was to be used to supplement the surface water held in the new dam. This intention was expressed in paragraph 2 of the additional information under the heading “Proposal”.
To summarise, the application lodged on 24 April 1997 sought approval for the use of both surface water and ground water in five separate ways, namely,
1.     the construction of a 50 ML dam;
2.maintenance of an existing watercourse to allow water to fill the new dam;
3.     use of an existing dam as a sump;
4.     the drilling of a new well to supplement the surface water; and
5.the transfer of ground water from existing bores on neighbouring land to supplement the surface water.
The total usage in each year was to be 40 ML.
On 24 April 1997 Mr Lymberopoulos also lodged an application to construct a 50 ML dam. On 20 May 1997 he was granted a permit to construct an investigation well on Section 106.
As already mentioned, on 2 July 1997 the Water Resources Act 1997 came into operation. It repealed the 1990 Act. On 3 July 1997, acting pursuant to the powers vested in him by clause 2 (15) of Schedule 3 of the 1997 Act, the Minister adopted a series of water management policies: see Government Gazette 3 July 1997 at p 31. The policy adopted for the Clare Valley was called the “Clare Valley Proclaimed Wells and Surface Water Area Water Management Policy” (“the 1997 Plan”).
An Approval in Principle
The application was considered by the Department and the Clare Valley Water Resources Committee. The committee had an advisory role only. On 24 July 1997 the Department wrote to Mr Lymberopoulos informing him that, subject to provision of agreements and issue of licences to adjoining property owners and diversion and metering conditions, the Department approved in principle
1. the construction of a 23 ML dam;
2.the diversion of a maximum of 8 ML annually from an existing dam to the new dam;
3. the holding of 5 ML at a dam for irrigation purposes; and
4.the transfer of 20 ML from water licences on adjoining land held by L K Vineyards and Mr Lymberopoulos.
Mr Lymberopoulos was not content with what the Department had indicated in its letter of 24 July. He began what was to be about six years of negotiations with the Department.
Further Negotiations
It appears that pursuant to the permit issued on 20 May 1997 an investigation well was dug on Section 106 but that it did not yield a suitable source of water. It was decided to drill another well and, on 18 September 1997, Mr Lymberopoulos lodged an application to drill a well on Sections 288 and 289. On 10 October 1997 the application was granted. This well was called “the Rosehill well”. The Rosehill well yielded a high volume of good quality water. It was decided to seek to use the Rosehill well. However, on 23 March 1998 the Department informed Mr Lymberopoulos that the Rosehill well did not meet the requirements of Section 6.3.1 of the 1997 Plan. The defect was the fact that the Rosehill well was closer than 200 metres to another operational well. The letter went on to state:
“Therefore, if you were to provide a written request to this department for endorsement of the well on your licence (to be issued for the above property) as a source of irrigation water, your request would be refused.”
The letter also stated that, if Mr Lymberopoulos wished to discuss any of the issues raised in the letter, he should contact the Licensing Unit of the Water Resources Group of the Department.
Mr Lymberopoulos sought advice from Water Search, a firm of ground water and geological consultants. By letter dated 21 April 1998 Mr Cobb of that firm suggested a course of action to seek to avoid a refusal. It involved drilling an observation well and subjecting the Rosehill well to tests to measure its rate of flow. Acting on that advice, Mr Lymberopoulos applied for and obtained a permit to sink an observation well. On 10 August 1998 Water Search reported on its tests and observations and Mr Lymberopoulos delivered the report to the Department, which by this time was called the Department for Environment, Heritage & Aboriginal Affairs.
The Department commissioned Primary Industries & Resources SA (“PIRSA”) to examine the report by Water Search. The PIRSA report disagreed with the conclusions in the Water Search report.
Mr Lymberopoulos continued to seek to use the Rosehill well as part of the water to irrigate the land the subject of the application WR 46/97 as well as on other land. In a letter dated 31 January 1999 he submitted that, with appropriate control to minimise the impact on other operational wells, the well could be used in this way.
Proposals for Subject Land and Other Land
Negotiations continued concerning water for the land the subject of the application and other land. It seems that Mr Lymberopoulos sought to draw 60 ML per annum from the Rosehill well. Ultimately, on 28 October 1999, the Department wrote to Mr Lymberopoulos concerning the application for the grant of a water licence. In the course of that letter the Department advised that it would not agree to the extraction of 60 ML of ground water from the Rosehill well.
The Department’s letter of 28 October 1999 also referred to discussions and correspondence with Mr Lymberopoulos and asked Mr Lymberopoulos to confirm if the details set out in the letter were a true representation of his proposed irrigation strategy. It is necessary to set out the terms of this letter.
“Receipt is acknowledged of your proposal to use water from the irrigation of the land described as Sections 103, 106 and 107, Hundred of Clare and Pt Sections 77, 102, 288, 289 and 397, Hundred of Clare. It is also acknowledged that the proposal has been discussed by you, myself and Michelle Goody on 27 October 1999 to clarify further the proposed irrigation strategy.
It is our understanding that strategy 1 of your correspondence is as follows:
·To maintain the extraction of 20 megalitres of groundwater from the bores listed as a source of water for the LK Vineyards licence (Lic 9715 – well number 2337) and the licence held by yourself and Fiona Lymberopoulos (Lic 9723 – well number 2338). This water would be used for the irrigation of the proposed 20 hectare development described as the Springs on Section 103, Hundred of Clare.
·The construction of a 14 megalitre dam on the Springs property pursuant to the advice given in a letter to Mr V M Kelly of 13 February 1998. Please note that although the reference on top of this letter is WR 91/97 it should read WR 45/97.
·The extraction of approximately 60 megalitres of groundwater from well number 2863 (Rosehill bore). Approximately 30 megalitres of this water is to supply the 40 hectares development described as Rosehill. The remaining 30 megalitres of water is to supply the Ashton property. This property is currently licensed for a development of 10.6 hectares of vines irrigated from well number 1464, and you have made reference to a proposed additional planting of 15.4 hectares of vines.
·The use of the 5 megalitre dam located in the south west corner of Section 106, Hundred of Clare to store water from the Rosehill bore before pumping to the Ashton development.
·The use of the 23 megalitre dam located on Section 288 289, Hundred of Clare to store water from the Rosehill bore before pumping to the Rosehill development.
·The use of well number 1915 (Sluggett bore) primarily as a backup supply for the Springs development.
·The use of well number 2894 (Springs bore) primarily as a backup supply for the Springs development.
To allow us to make an accurate assessment of your application we require you to:
·Confirm in writing that the details outlined in this letter are a true representation of your proposed irrigation strategy, or outline where your proposal is not accurately represented.
·Confirm the volume of water proposed to be extracted from well numbers 2863 (Rosehill bore), 1915 (Sluggett bore) and 2894 (Springs bore).
During discussions yesterday it was also found that you made application for an increase in licence 9715 from 6.0 hectares of vines by 9.5 hectares of vines to a total of 15.5 hectares of vines, and that this increase was never finalised. This increase was based on a claim of prior financial commitment which was discussed by the Clare Valley Water Resources Committee in July 1996. This matter is now being addressed.
Should you have any queries regarding the assessment of your proposal to take water please contact Michelle Goody on 85 622 154 or 0418 824 231 or regarding a water licensing query please contact Patrick Corcoran on telephone number (08) 8204 9085.”
It will be noticed that the letter refers to irrigation, not only of Section 103 and part Sections 288 and 289 which was the land the subject of the application lodged on 24 April 1997, but also of other land. Mr Lymberopoulos had interests in other land on which vineyards had been or were being established. He was endeavouring to achieve an overall irrigation strategy for the land, the subject of the application lodged on 24 April 1997, as well as for the other land. The Department’s letter refers to three developments, namely, the Rosehill development, the Springs development and the Ashton development. The Rosehill development only had been the subject of the application lodged on 24 April 1997. It is apparent from the Department’s letter that it was writing in respect of more than one development and that it was aware that Mr Lymberopoulos sought an overall irrigation strategy. The letter bears the references “WR 46/97 and 9715” and at the end of the first paragraph it refers to “the proposed irrigation strategy”. In other words, the letter was clarifying the position in respect of the application lodged on 24 April 1997 as well as other applications.
On 31 October Mr Lymberopoulos wrote to the Department stating that its letter of 28 October was “a fair representation of our request for water use”. His letter indicated that it was proposed to share the water between two vineyards, the Rosehill vineyard which was the subject of the application on 24 April 1997 and the Ashton vineyard.
It is apparent from the documents tendered in the Environment Court
·that for some time Mr Lymberopoulos had been seeking an overall irrigation strategy in respect of at least three vineyard developments including the land the subject of the application WR 46/97;
·that by no later than 4 February 2000 the Department was aware that the application WR 46/97 lodged on 24 April 1997 was being made on behalf of Mr and Mrs Lymberopoulos and Mr King;
·that no later than October 1999 in respect of the application lodged on 24 April 1997 Mr Lymberopoulos was seeking to persuade the Department to permit the drawing of water from the Rosehill well by suggesting various alternatives; and
·that the application WR 46/97 lodged on 24 April 1997 had not been finally determined.
That last conclusion is confirmed by the Department’s letter of 4 February 2000 and other letters.
The Department’s letter dated 4 February 2000 deals with the various applications which Mr Lymberopoulos had made. The letter has the reference “WR 46/97 and Lic 9741” and is addressed to Mr and Mrs Lymberopoulos and to Mr King. It is, therefore, evidence of the Department’s knowledge that the application WR 46/97 was being made on behalf of Mr and Mrs Lymberopoulos and Mr King. Page three of that letter expressly dealt with the application WR 46/97. It confirmed the approval in principle set out in the Department’s letter of 24 July 1997. The letter also stated that, if it was intended to proceed with an application to use 60 ML of underground water from the Rosehill well for the Rosehill and Ashton developments, the application would in all likelihood be refused. The letter stated that favourable consideration might be given to the following option
Source of Water  Area of Development
23 ML dam  12 hectares
6 ML dam  4 hectares
Well 2340 on Section397  12 hectares
Well 2336 on part Section 77*  12 hectares
_________
40 hectares
_________
(*This may be an error and should read Well 2338 on part Section 397. However, it is immaterial for present purposes)
The letter concluded by stating that if the appellants had any further queries they should contact officers in the Department who were named in the letter.
Negotiations between the appellants and the Department continued throughout the remainder of the year 2000 and the years 2001, 2002 and 2003 in respect of the application WR 46/97 and the other applications.
On 1 March 2002 the Department wrote to Mr Lymberopoulos informing him, among other things, that in relation to the application WR 46/97, favourable consideration would be given to an allocation of
·15.7 ML from the Rosehill well;
·10 ML from the 23 ML dam;
·3 ML from the 6 ML dam.
The letter did not say anything about transferring water from bores on neighbouring land.

By May 2002 the appellants had engaged a firm called Streamline Environmental Consultants (“Streamline”) to advise them. On 15 May 2002 Streamline wrote on behalf of the appellants to the Department, setting out an overall irrigation strategy for the land the subject of the application lodged on 24 April 1997 and for other land. In that letter it stated that there were now 41 hectares of vines on the Rosehill property for which water was sought for irrigation. On 15 May Streamline informed the Department that the appellants sought to irrigate 41 hectares by drawing water from the following sources
·23 ML dam yielding   21 ML
·Sluggett well yielding   2 ML
·Well 2336 yielding   9 ML
·Well 2340 yielding   9 ML
______
41 ML
______
This was the first time the Sluggett well had been nominated as a source of water. In this letter of 15 May it was proposed to use the 15.7 ML allocation from the Rosehill well to irrigate the Ashton vineyard.
The Department continued to adhere to its view that it would permit no more than 15.7 ML to be drawn from the Rosehill well. That appears, not only in its letter dated 1 March 2002, but also in two letters dated 17 September 2002 and 15 November 2002 respectively.
The negotiations continued. Different irrigation strategies were proposed and commented upon by the Department. It is unnecessary to examine the details of this correspondence, save to note that by letter dated 3 December 2002 Streamline informed the Department that the appellants understood their application to relate to 40 hectares of vines, utilising the Rosehill well at a maximum extraction rate of 24 ML per annum. Streamline confirmed that proposal by letter dated 2 January 2003 when the appellants officially stated they sought inclusion of the Rosehill well in their application WR 46/97 and sought an allocation of 24 ML from that well. An Irrigation Management Plan enclosed in the letter stated that the balance of the required water was to come from the following sources
·Sluggett well yielding   2.0 ML
·23 ML dam yielding  21.0 ML
·6 ML dam yielding  2.5 ML
The Irrigation Management Plan acknowledged that the total sought to be taken was 49.5 ML but stated that the excess would be used on the Ashton and Springs developments.
Further correspondence and negotiations followed. The correspondence exchanged between the appellants and the Department examined various proposals to allocate water from different sources amongst the vineyards in which Mr Lymberopoulos had an interest. Those proposals were described in the Department’s letter of 26 February 2003 as “the complex water source sharing nature of the licences and licence applications”.
By letter dated 11 April 2003 the Department informed the appellants that it would not favourably consider the taking of 24 ML from the Rosehill well unless the appellants entered into the arrangements proposed in that letter. The letter proposed alternative options and spelled out requirements which had to be satisfied before a water licence could be issued. The letter required a response within 60 days. The letter stated that if no response was received within 60 days, the application would be considered as it currently stood and might be refused.
Streamline met officers of the Department on 12 May and wrote to the Department on 5 June 2003. The letter expressed general agreement with the allocation nominated in the letter of 11 April but the appellants did not accept the conditions relating to the Rosehill well. Further negotiations followed.
On 25 June 2003 Streamline sent the Department by facsimile transmission details of allocations of water sought for the Ashton vineyard and the Rosehill vineyard. For the Rosehill vineyard an allocation was sought to irrigate 41 hectares. This represented a return to 41 hectares notwithstanding that on 3 December 2002 the application was said to be to irrigate 40 hectares. The sources for the water were
Area to be irrigated
Rosehill well  7.9 hectares
Sluggett well  2.0 hectares
6 ML dam  2.5 hectares
23 ML dam  15.6 hectares
Watercourse  4.0 hectares
Well 2340  9.0 hectares
___________
41.0 hectares
___________
On 10 August 2003 Streamline submitted an amended Irrigation Management Information Form for the Rosehill vineyard. The proposal sought water to irrigate 41 hectares at a maximum annual irrigation rate of 100 millimeters per hectare per annum. The maximum volume of water applied for was 41 ML. The sources for that supply were nominated as being
·Rosehill well  24.0 ML
·23 ML dam   15.6 ML
·6 ML dam yielding  2.5 ML
·Watercourse  4.0 ML
·Well 2340  9.0 ML
_______
55.1 ML
_______
It is obvious that there is an error in calculating the amount of water to be used from each source. The application clearly stated that the maximum volume of water applied for was 41.0ML yet the total of 55.1 ML exceeds the amount applied for by 14.1 ML. The application was confirmed by facsimile on 8 September 2003.
The Application is Refused
By letter from the Department dated 8 September 2003 the application for a water licence was refused. The letter was signed by a delegate of the Minister. The letter stated that the refusal to grant the licence was grounded on the fact that the appellants had not demonstrated that the taking of 24 ML from the Rosehill well would not affect existing users of water in the area. The letter is curious in that it does not grant a water licence with an allocation less than that sought by the appellants based on the quantities of water that the Department had stated it would favourably consider, including an allowance of 15.7 ML from the Rosehill well. However, that is not an issue for present consideration.
The appellants appealed to the Environment Court from that decision.
There is one further important fact. On 23 December 2000 the Minister adopted a new water allocation plan for the Clare Valley pursuant to Part 7 Division 3 of the 1997 Act. It was called “the Clare Valley Prescribed Resources Area Water Allocation Plan” (“the 2000 Plan”). The 2000 Plan was amended on 4 February, 2001. Broadly speaking, the 2000 Plan imposed a stricter régime than the 1997 Plan for the management of water in the Clare Valley Prescribed Area. However, the 2000 Plan contained a number of provisions which exempted (sometimes subject to certain conditions) water allocations granted or applied for before 20 October 1999. One of the alternative arguments of the appellants is that they are entitled to rely on the benefit of the exemptions in the 2000 Plan on the ground that they had lodged their application before 20 October 1999.
The Date of the Application
It is against that background that the Environment Court held that the appellants had on 8 September 2003 made a fresh application, which was refused on the same day and that the refusal related to no other application than the application made on 8 September 2003. The Environment Court regarded the application of 8 September 2003 as an entirely fresh application. The Court’s reason for this conclusion was that a variation which fundamentally changes the character of the proposal, the subject of the application, is not permissible. The character of an application, the Court held, is determined by the sources from which it is proposed to take the water. The Court held that, as the sources of water changed in each of the proposals made up to and including the application of 8 September 2003, the application of 8 September 2003 constituted a fresh application. It is clear that the reasoning of the judge proceeds on the footing that the identification of the sources of the water and the quantities to be taken from each source constitute an essential part of the application. This conclusion is flawed for a number of reasons.
First, the reasoning misunderstands the requirements of an application for a water licence to take water. An application for a water licence seeks no more than a water licence and if, as here, the applicant seeks to take water, the application is also for an allocation of water. That is the position under both the 1990 Act and the 1997 Act. In this case the initial application was for an allocation of 40 ML of water. Neither the 1990 Act nor the 1997 Act requires the sources of the water nor the quantities of the water taken from each source to be specified in the application. Section 35 of the 1990 Act required an application to be made on a form approved by the Minister. The application form requires the legal description of the land, the subject of the application, the purpose of the proposed use of the water, and details of the irrigation development including the timetable of that development. However, the form does not require the sources of the water nor the quantities of water to be taken from each source to be identified. All that had to be identified in the application as to the source was the proclaimed area or proclaimed watercourse and, in that respect, Mr Lymberopoulos correctly identified the proclaimed area as the Clare Valley. Thus, the effect of the reasoning of the judge is to oblige an applicant to include in the application information which neither the Act nor the approved form requires. That is an impermissible line of reasoning since the Court cannot amend the requirements of the Act or of the approved form of application..
Dr Bleby, who appeared for the Minister, sought to uphold the reasoning of the Environment Court judge by noting what had to be endorsed on the grant of a water licence. In others words, he sought to import into an application as essential features of the application matters which are required to be endorsed upon a licence by s 29 (4) of the 1997 Act. There is no warrant for that approach. What is to be endorsed on the licence cannot affect the content of the application which might in some respect differ from what is ultimately granted. For the reasons already expressed, this approach is not authorised by either the 1997 Act or the 1997 Act nor does it form part of the approved form of application. Furthermore, this submission overlooks the fact that the essence of the grant of a water licence is the allocation of the volume of water which might be taken.
The approved form allows an applicant to provide additional information. In this case Mr Lymberopoulos spelled out the proposed sources of water and the quantities to be taken from each source in the additional information. However, it must be emphasised that this constituted no more than additional information. It did not in any sense alter the essential character of the application which was to take water to irrigate 40 hectares of vines. In short, while it is helpful to provide information as to the sources of water and the quantities to be taken from each source, neither is required to constitute a valid application. Thus, an amendment of the sources of water and the quantities to be taken from each source does not constitute a fresh application nor an amendment of the application but an amendment of the supporting information relating to the application.
If, contrary to the conclusion above, the proposed sources of water constitute an essential part of the application as distinct from amendment of supporting information, there are sound reasons for concluding that amendment of additional information as to the sources of water constitutes an amendment of the application and does not constitute a fresh application. It is necessary, therefore, to consider whether there is power to amend an application.
There is a further reason for considering whether there is power to amend an application. During the negotiations with the Department, the application was amended to seek water to irrigate 41 hectares of vines and by adding two further applicants. I turn, therefore, to consider whether it is possible to amend an application.
Can An Application be Amended?
The Act does not contain any express provision permitting an application to be amended. It is necessary, therefore, to consider whether there is an implied power to amend an application. In this respect, I apply mutatis mutandis the reasoning of King CJ in Independent Holdings Ltd v City of Adelaide Planning Commission (1994) 63 SASR 318 at 326. There does not appear to be any reason why the Minister may not permit amendment of an application. The Act contains no provision prohibiting amendment of applications. It is manifestly convenient that a power to amend should exist to permit correction of factual errors as well as adjustment of details of methods of irrigation or the provision of further information in addition to that provided in the initial application.
It is not difficult to imagine that, as was the experience with this application, there might on occasions be a good deal of discussion with the Department as to what constitutes the most suitable source or sources of water and what quantity of water should be taken from each source. An application might nominate one particular source, say ground water, but, after discussion with the Department, the applicant might accept that other sources are more suitable or that some water should be taken from the nominated source and the balance taken from one or more alternative sources including surface water. Thus, amendments do not in any sense alter the essential character of the application, which is for a nominated quantity of water. It is desirable, therefore, to permit amendment of the quantities of water taken from different sources, particularly if that is done in response to suggestions or directions from the Minister or his Department. Indeed, to decide that it is not possible to amend an application in this way would be to add an unnecessary rigidity to the administration of the Act where it is reasonable to expect there will be occasions when alternative sources have to be considered as well as the volumes to be taken from each source. The contentions to the contrary advanced on behalf of the Minister seek to introduce rigidity where flexibility is required. Again, it is necessary to remember that what an application seeks is an allocation of a volume of water. An applicant’s primary concern is to obtain an allocation, not the sources from which that allocation is to be taken.
For these reasons there is an implied power to amend in respect of the proposed sources of water and the quantities to be taken from each source. Similarly, there is power to amend the quantity of water sought to be taken.
Dr Bleby referred to the fact that the interests of third parties may be affected by the grant of a water licence. In many cases that will be so. However, the Act does not enable third parties to oppose an application or to make representations in relation to it. Instead, as is apparent from the terms of the 1997 Act and in particular s 29 and s 35, the Minister must have regard to the provisions of relevant water allocation plans and the public interest. It is reasonable to infer that the water allocation plans are intended to preserve a limited resource and in that way protect the public interest as well as the interests of third parties. In this respect, both the 1997 Plan and the 2000 Plan contain certain provisions which effectively protect the interests of third parties.
There should, nevertheless, be some limitation on the power to amend. The 2000 Plan provides exemptions for applications lodged before 20 October 1999. It is likely that similar exemptions exist in other water allocation plans. Even if that is not so, the exemptions in the 2000 Plan are reason enough to limit the power to amend so that an applicant who had lodged an application before 20 October 1999 could not under the guise of amendment later substitute what is in effect a fresh application.
The judge in the Environment Court applied the reasoning in The Corporation of City of Marion v Becker (1973) 6 SASR 13 at 23 – 24 per Wells J and in the Full Court at 44 – 45 per Bray CJ and held that an amendment or variation which fundamentally changes the nature of the proposal, the subject of the application, is not permissible. In passing, I note that it is implicit in her reasons that the 1997 Act permits an application to be amended. However, for the reasons which follow, I do not believe that the test in Becker is an appropriate test for determining the restriction upon the power to amend an application under the 1997 Act.
As already stated, an application for the grant of a water licence which seeks to take water is, in essence, an application for the allocation of a volume of water. Thus, the only amendment of consequence would be an amendment to change the volume of water sought to be taken. Other issues are subordinate to the volume of water to be taken. An amendment which seeks to reduce the quantity of water taken, even a substantial reduction, will not be of concern to the Department. In contrast, an amendment which seeks to increase the quantity of water will be a source of concern, given that it affects the allocation of a scarce resource where it is necessary to consider, not only the interests of third parties and the public interest, but also the preservation of that limited resource. For these reasons, I believe that there should be some restriction upon amendment but those restrictions should apply only where it is sought to increase the amount of water to be taken. A test of the kind formulated in Becker and applied in Hancock Development Corporation Pty Ltd v City of Tea Tree Gully (1986) 42 SASR 584 and in Independent Holdings Ltd v City of Adelaide Planning Commission (supra) is not entirely suitable. The only satisfactory test is whether, as a matter of fact or degree, an amendment seeking to increase the amount of the water allocation is so substantial that it constitutes a fresh application. I am conscious of the relatively indeterminate nature of this test. However, I do not believe it is possible to formulate a more satisfactory test. There may be a number of factors which bear upon the question whether the increase is so substantial that it constitutes a fresh application. Those factors may alter according to the circumstances of each application. In this case the amendment seeks an increase of 1 ML. That is not a large volume of water in absolute terms. Furthermore, it represents an increase of only 2.5% of the quantity of water initially sought in this application. There is nothing to suggest that an extra 1 ML will adversely affect the sources of water in this area. As it represents such a slight increase, it is a permissible amendment.
Finally, even if one accepts the test adopted by the Environment Court as correct, what was sought on 8 September 2003 was in substance the same as what was sought in the application made on 24 April 1997. The application lodged on 24 April 1997 had sought approval for a water allocation to be taken from five separate sources, namely,
1.     a new 50 ML dam to be constructed;
2.     maintenance of a watercourse to fill the new dam;
3.     an existing dam to be used to transfer water to the new dam;
4.     the drilling of a new well to supplement surface water; and
5.     the transfer of water from existing bores on neighbouring land.
These are in essence the same five sources listed in the Irrigation Management Plan sent to the Department on 8 September 2003.
1.The Department had refused to permit the construction of a 50 ML dam but had authorised a 23 ML dam: see the Department’s letter of 24 July 1997. The 23 ML dam mentioned on 8 September is, therefore, the same dam, albeit with a reduced capacity.
2.The existing dam to be used to transfer water to the new dam was described as dam number 4 in the original application. In its letter of 24 July 1997 the Department had granted approval, subject to certain conditions, to divert 8 ML to the new 23 ML dam and the retention of a further 5 ML for irrigation. This is the same dam as the 6 ML dam mentioned on 8 September 2003.
3.The watercourse was intended to be as a source to fill the new dam. The application did not identify the volume of water to be taken from the watercourse.
4.The application lodged on 24 April 1997 had proposed to sink a well to provide ground water to supplement surface water and guarantee the vineyard’s water requirements. As already noted, one investigation well was sunk without success. Permission was obtained to drill another well which was the Rosehill well. It is clear, therefore, that at all times, the intention had been to supplement surface water from a new well to be drilled. The Rosehill well was that well.
5.The application had also proposed the transfer of ground water from existing wells. The well 2340 was such a well.
The irrigation plan submitted on 8 September 2003, therefore, referred to the same sources of water as the application lodged on 24 April 1997.

Thus, notwithstanding that in the course of negotiations with the Department the appellants had varied the sources by deleting some and adding others, in the end all of the sources listed in the letter of 8 September 2003 were identified in the application lodged on 24 April 1997.
Even if it is incorrect to conclude that what was being sought on 8 September 2003 was essentially what had been applied for on 24 April 1997, the application on 8 September 2003 was a proper amendment of the initial application. For the reasons already expressed, the application sought an allocation of water and that did not materially alter. The amendments concerned only the quantity from each source, not the source. All of the potential sources had been named with a reasonable degree of particularity in the application lodged on 24 April 1997. The amendments as to the quantities from each source are not of such a degree as to cause it to be a new application. It is the kind of alteration as might often be made in the course of discussion with the Department as to the appropriate amount to be taken from each source.
Additional Applicants
Dr Bleby also contended that there had been another impermissible amendment, namely, the addition of further parties to the application, causing it to be a fresh application. He drew attention to the fact that the original applicant was Mr Lymberopoulos but, at some stage during the application and certainly by 4 February 2000, the applicants were Mr and Mrs Lymberopoulos and Mr King, the three appellants.
This submission must fail. As Dr Bleby conceded, there is nothing in the Act which prevents the holder of a water licence from permitting the water allocation to be made available to others. Difficulties might arise in the future if, say, the holder of the water licence should change his mind and not make the allocation available to others or if he should die. One means of seeking to overcome these difficulties would be to apply for the Minister’s consent to the transfer of the licence and the water allocation pursuant to s 38 of the 1997 Act.
An application to add additional parties does no more than provide full particulars of the intended users of the water. It does not affect the volume of water taken. It does not in any sense change the nature of the application, a conclusion reinforced by the fact that it is possible to apply to the Minister for his consent to a transfer of the water licence and the water allocation. An application to add additional parties is therefore a permissible amendment. In this respect, it is appropriate to emphasise that the essential question is how much water is to be allowed for use on the parcels of land nominated in the applications. The identity of the parties is of lesser concern.
For all of these reasons, the application the subject of this appeal is the application lodged on 24 April 1997.
The Relevant Plan
One of the matters to which the Minister must have regard when determining whether to grant a water licence or an allocation of water is the relevant water allocation plan: see s 29 (3) and s 35 (1) of the 1997 Act. The relevant water allocation plan is a plan for the area prepared and adopted under Part 7 Division 3 of the 1997 Act: see s 3 of the 1997 Act.
The appellants contend that the relevant water allocation plan is the plan in force at the time when they lodged their application on 24 April 1997, that is to say, the 1997 Plan. They submit that, when they lodged their application on 24 April 1997, they acquired a right to have their application determined in accordance with the law in force at the date of the application.
Neither the 1990 Act nor the 1997 Act contained a provision stipulating the law to be applied when deciding an application or the law to be applied in resolving any issue arising out of the determination of an application. In the absence of such provision, the law to be applied when determining the application would be the law in force at the time when the application is determined. Expressed another way, when the application was lodged, the only right which accrued was the public law right to require the Minister to observe his duty to comply with the law as it exists from time to time: Attorney-General (Queensland) v Australian Industrial Relations Commission (2002) 213 CLR 485 at [40].
That same conclusion may be reached another way. Section 35 of the 1990 Act was in these terms:
“35.(1)    The Minister may grant a licence to a person to take water from a proclaimed watercourse, lake or well.
(2)    An application for a licence must be in a form approved by the Minister and must be accompanied by the prescribed fee.
(3)    A licence –
(a)must specify the watercourse, lake or well from which water may be taken;
(b)must limit the amount of water that may be taken;
(c)may fix charges payable to the Minister for the right to take water pursuant to the licence by specifying the charges in the licence or by reference to charges fixed from time to time by the Minister by notice published in the Gazette;
(d)is subject to such conditions as are prescribed from time to time by regulation and to such further conditions as are specified in the licence by the Minister;
(e)remains in force for such term (not exceeding four years) as is stated in the licence.”
The 1990 Act contained no criteria for the grant of a water licence. It is apparent that the Minister had an unfettered discretion whether to grant or refuse a licence. That conclusion is reinforced when s 35 is compared with s 37 of the 1990 Act which spells out criteria which must be satisfied before the Minister may vary the volume of water taken under a licence. Thus, when Mr Lymberopoulos lodged his application under the 1990 Act, the question whether a licence would be granted was open and unresolved. Mr Lymberopoulos did not have any right to the grant of a water licence but, instead, had no more than a hope or an expectation that he would be granted such a licence: Director of Public Works v Ho Po Sang [1961] AC 901 at 921 - 922. He did not have a right which could be implemented by a non-discretional decision of the kind identified in NSW Aboriginal Land Council v The Minister (1988) 14 NSWLR 685 at 696. Instead, Mr Lymberopoulos had the capacity to set in train an application under s 35 of the 1990 Act for the grant of a water licence and a right to require the Minister to determine the application in accordance with the law as it existed from time to time: Attorney-General (Queensland) v Australian Industrial Relations Commission (supra).
When the 1997 Act came into operation on 2 July 1997, the application was dealt with under the 1997 Act. The 1997 Act was an Act which dealt with the same subject matter as the 1990 Act and so, pursuant to s 24 of the Acts Interpretation Act 1915, the Department was entitled to continue to deal with the application as an application under the 1997 Act. The application was, therefore, to be determined in accordance with the 1997 Act. Section 29 of the 1997 Act prescribes criteria for the grant of a water licence and so circumscribes the ambit of the Minister’s discretion. In particular, s 29 (3) (a) authorises the Minister to refuse the grant of a licence if it is not possible to endorse a water allocation on the licence consistent with the relevant water allocation plan and s 35 (1) (a) requires the water allocation to be consistent with the relevant water allocation plan. Thus, it is necessary for the Minister to have regard to the relevant water allocation plan in force at the time when the determination is made.
In this case the decision to refuse the grant was not made until 8 September 2003. At that time the 2000 Plan was the relevant water allocation plan to which the Minister was required to have regard. For these reasons I agree, albeit for different reasons, with the conclusion of the judge of the Environment Court that the relevant water allocation plan is the 2000 Plan, that is to say, the Clare Valley Prescribed Water Resources Area Water Allocation Plan adopted by the Minister on 22 December 2000 and amended on 4 February 2001.
Given that I have held that the application to be determined by the Minister is the application lodged on 24 April 1997, the appellants are entitled to rely on the exemptions to be found in the 2000 Plan in respect of applications lodged before 20 October 1999.
Conclusion
For these reasons I will allow the appeal. The orders made by the Environment, Resources and Development Court on 24 May 2004 will be set aside and in lieu thereof there will be an order that the preliminary questions be answered in these terms
1.The application the subject of the appeal is the application lodged on 24 April 1997.
2.The relevant water allocation plan is the Clare Valley Prescribed Water Resources Area Water Allocation Plan adopted by the Minister on 22 December 2000 and amended on 4 February 2001.