Michelmore v Minister for Environment and Conservation

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
MICHELMORE AND ORS v MINISTER FOR ENVIRONMENT AND CONSERVATION
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice Vanstone)
10 December 2004
ADMINISTRATIVE LAW - APPEALS FROM ADMINISTRATIVE AUTHORITIES - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS
ENERGY AND RESOURCES - WATER RESOURCES
The appellants, dairy farmers in the south-east of South Australia, unsuccessfully applied to the Minister for Environment and Conservation for a licence to take water from an unconfined aquifer for the purpose of milk cooling and washing down their dairy - the Minister refused the application on the ground that it was not possible to endorse a water allocation on the licence consistently with the relevant water allocation plan, in that the appellants' application was made over a month after the expiration of the period within which, pursuant to the plan, such applications were to be made - held that the Environment, Resources and Development Court had correctly dismissed the appeal from the Minister's determination.
Water Resources Act 1997 s 29(3), s 35(1) and s 142; Environment, Resources and Development Act 1993 s 21(1) and s 33(1), referred to.
Saunders v Minister for Environment and Heritage [1998] EDLR 97; Spinato v Minister for Environment and Heritage (2000) EDLR 108; Gilmore v Minister for Water Resources [2001] SAERDC 7; Spehr v Minister for Water Resources [2001] SAERDC 31; McKay v Minister for Water Resources [2002] SAERDC 36, not followed.
Schultz v Minister for Environment and Conservation [2003] SAERDC 12; Welford v Minister for Environment and Conservation [2004] SAERDC 83; Elandes Nominees Pty Ltd v Minister for Water Resources [2002] SAERDC 130; Strachan v Minister for Water Resources (No 1) [2001] SAERDC 37; Bald v Minister for Environment and Conservation [2003] SAERDC 77, considered.

MICHELMORE AND ORS v MINISTER FOR ENVIRONMENT AND CONSERVATION
[2004] SASC 415
Full Court: Doyle CJ, Perry and Vanstone JJ

DOYLE CJ. I would dismiss the appeal.
I agree generally with the reasons given by Perry J for so deciding. I add the following brief observations.
There are two bases upon which the appeal might succeed. The first would be to show that the Minister was wrong in deciding that the grant of a water allocation would not be consistent with the relevant water allocation plan: see s 29(3) of the Water Resources Act 1997 (“the Act”) and s 35(1) of the Act. If the Minister was wrong in that respect, the matter should be remitted to him for further consideration, because he refused the application for a licence on the specific ground that he could not grant a water allocation consistently with the relevant plan. The second basis on which the appeal might succeed is to show that the Environment, Resources and Development Court, or this Court on appeal, is not subject to the same restrictions as the Minister, and in particular can grant a licence, or authorise the grant of a licence, even if to do so would not be consistent with the relevant water allocation plan.
As to the first of these grounds, having regard to the circumstances identified by Perry J, the grant of the water allocation sought by the appellant would not be consistent with section 6.2.2 of the relevant plan. It would not be consistent with that provision because the application for the licence was received outside the period specified in sub paragraph (d) of the provision.
It is clear from a reading of the plan as a whole that s 6.2.2(d) does not specify a period for the making of an application for reasons based on nothing more than administrative convenience. It is apparent from the provisions of the plan referred to by Perry J, that the plan contains a carefully limited exception to what would otherwise be a bar to the grant of a water allocation to the appellant. The operation of this aspect of the plan is affected by matters of timing. From a reading of the plan there is good reason to insist, in the plan, on an application for an allocation, of the kind sought by the appellant, being made in a timely manner. I can find nothing in the text of the plan to support the submission that a decision by the Minister, involving a departure from this aspect of the plan, would be a decision consistent with the plan.
In short, the argument, put in various forms, to the effect that the specification of a period for the making of an application is a mere matter of machinery that can be varied by the Minister, should be rejected.
As to the second aspect of the submissions for the appellant, I agree with Perry J that the Court should reject the submission that the Environment, Resources and Development Court or this Court has a power, in the circumstances, which is wider than that exercised by the Minister. I agree with Perry J that the statutory provisions relied upon by the appellant do not support that conclusion.
Subject to those comments, I agree generally with the reasons of Perry J.
PERRY J. The appellants operate a dairy farm at Naracoorte.
They appeal to this Court against an order of the Environment, Resources and Development Court (“the ERD Court”). The order of the ERD Court in turn dismissed the appellants’ appeal to that court from the refusal by the Minister for Environment and Conservation (“the Minister”) of an application made by the appellants for a licence to take water from a source described as an unconfined aquifer, for the purpose of milk cooling and washing down their dairy.
Background
The appellants’ application for a licence was made pursuant to the relevant provisions of the Water Resources Act 1997 (“the Act”).
Under s 7 of the Act, authorisation in the form of a water licence is required by the appellants before they are able to take water for the purposes in question.
Water licences are granted by the Minister.
Pursuant to s 29(1) of the Act, a water licence granted by the Minister, if endorsed with a water (taking) allocation, authorises the holder of the water licence to take water from a prescribed water course, lake or well.
Each catchment water management board established pursuant to the Act[1] must prepare a water allocation plan in relation to the water resources of its catchment area (see Part 7, Division 3, s 101 et seq).
[1] See s 53 of the Act.
Section 29(4)(b) provides that a water licence granted by the Minister under the relevant Part of the Act must be endorsed with a water allocation.
Section 29(3) of the Act provides in part:
“(3)The Minister may refuse to grant a water licence-
(a) if it is not possible to endorse a water allocation on the licence consistently with the relevant water allocation plan; .”
Section 35 of the Act is relevantly in the following terms:
“Basis of decisions as to allocation
35.(1) The Minister’s decision on the grant or variation of a water licence-
(a)as to the water allocation to be endorsed on the licence, must be consistent with the relevant water allocation plan; and
(b)as to the conditions to be attached to the licence, must not be seriously at variance with the relevant water allocation plan,
and the Minister’s decisions under both paragraphs (a) and (b) must-
(c)be made in the public interest; and
(ca)….
(2) In this section-
“the relevant water allocation plan” means the water allocation plan for the water resource from which the water is to be allocated …”
Reading the two sections together, I am of the view that the word “may” in s 29(3) does not identify a discretion. Rather, s 29(3) obliges the Minister to refuse an application if to grant it, would not be consistent with the relevant water allocation plan.
For the purposes of the Minister’s consideration of the appellants’ application, the relevant water allocation plan was entitled the Water Allocation Plan for the Naracoorte Ranges prescribed Wells Area (“the plan”).
Section 6 of the plan deals with the allocation of water from the unconfined aquifer.
Section 6.2 deals with the principles upon which an allocation may be made from the unconfined aquifer.
The first part of principle 6.2 limits the total allocation which may be made from the unconfined aquifer. The limit is expressed in the following terms:
“6.2 Principles
Limit to total allocation
1.Water shall not be allocated from the unconfined aquifer (by water (holding) or water (taking) allocation) where the allocation would cause the total amount allocated on all licences for the relevant management area to exceed the Volume for Licensed Allocation (VLA) for the relevant management area (see Table A), except where:
(a)    Water is to be allocated to existing non-licensed users in accordance with principles 6.2.2 and 6.2.3 (Unlicensed pre-existing water use);
(b)    A water allocation is to be taken from another management area in accordance with principles 6.2.30 (Crop rotations) or 7.2.15 (Applications to transfer water (taking) allocations - Destinations); or
(c)    Water is allocated above the VLA in the relevant management area at the date of adoption, in which case the taking of water will not cause significant adverse impacts on the unconfined aquifer within the relevant management area, and provided that where water is allocated above the VLA the total amount allocated on all licences within the relevant management area does not exceed the PAV for that management area (see Table A). Where water is allocated above the VLA within the relevant management area at the date of adoption, no further water shall be allocated, except where principles 6.2.1(a) and (b) apply.” (my emphasis in italics)
Principle 6.2.1(a), which I have highlighted, provides that principles 6.2.2 and 6.2.3 will apply to the allocation of water to existing non-licensed users.
At the relevant time, the appellants were, and remain, existing non-licensed users within the meaning of that expression, in that they were taking water without the requisite licence endorsed with an appropriate water allocation.
Principles 6.2.2 and 6.2.3 are as follows:
“Unlicensed pre-existing water use
6.2.2Water may be allocated to existing non-licensed water users where:
(a)It can be demonstrated that the water use in its present form at the date of application, was also in existence during the year prior to 10 April 1997;
(b)Water is used for the following:
ŸOperation of a dairy licensed by the Dairy Authority of South Australia at the date of application, (including wash down, washing up and milk cooling);
ŸIntensive animal keeping;
ŸAn intensive plant production system such as greenhouses, hydroponics or nurseries;
ŸIndustry; or
ŸRecreation;
(c)The source aquifer nominated on the application is the aquifer from which the unlicensed water was being taken at 12 February 2001; and
(d)An application for a water allocation is received no earlier than 5 pm on 30 June 2002 and no later than 5.00 pm on 31 July 2002.
6.2.3Water shall be allocated for unlicensed pre-existing water use in the following manner:
(a)    Where water remains available, or becomes available for allocation within a management area, up to 200 ML shall be reserved for the purposes of allocation to unlicensed pre-existing water use, subject to 6.2.2 and 6.2.3(b) - (d), until 5.00 pm on 31 July 2002;
(b)    The water allocation shall meet the applicant’s reasonable requirements up to 10 megalitres per annum, except for dairies which milk in excess of 300 cows in which case the allocation shall meet the applicant’s reasonable requirements;
(c)    In the case of dairies, the water allocation shall be calculated as whichever is the greater of, the reasonable requirements of the water user at the time of application, or the average of the annual reasonable requirements over the preceding three year period; and
(d)    Allocations granted under section 6.2.2 are exempt from sections 6.2.4 (Unallocated water), 6.2.11 (Quantity for allocation), 6.2.14 to 6.2.18 (Active and expeditious use of water), and 6.2.19 to 6.2.23 (Hydrogeological effects).
Where the 200 ML set aside in accordance with this principle has not been allocated then any remaining water shall be available for allocation in accordance with this Plan.” (my emphasis)
Of importance for present purposes is principle 6.2.2 (d). This obliged an applicant who was an existing non-licensed water user, to lodge an application for a water allocation within a precisely defined time frame, that is, no earlier than 5.00 pm on 30 June 2002 and no later than 5.00 pm on 31 July 2002.
In this case, the appellants lodged an application for a water taking licence, which included an application for a water allocation, 34 days after the expiration of that period, namely, on 3 September 2002. I will refer in due course to the explanation for the application being made out of time.
The Minister took the view that because it was out of time, the application should be refused. His statement of the grounds for doing so appears in a letter from the Minister’s delegate to the appellants dated 11 November 2002, which is relevantly in the following terms:
“I refer to the application for water taking licence (for unlicensed pre-existing water use) received by this department on 3 September 2002 seeking an allocation of 18250.0 kL for use on CT 5446/721.
The application is refused on the basis that I am unable to allocate the water in a manner that is consistent with the water allocation plan for the Naracoorte Ranges Prescribed Wells Area adopted on 29 June 2001. In particular, the proposed water use would not be consistent with principle 6.2.2(d) of the water allocation plan. Specifically, your application was received after the closing date of 5.00 pm on 31 July 2002.”
Proceedings before the ERD Court
An affidavit was tendered before the ERD Court sworn by Mr Drew Laslett, who is employed by the Department of Water, Land and Biodiversity Conservation, formerly the Department for Water Resources (“the department”). Since 2001, he held the office of manager of water licensing, South East region, which encompasses the area occupied by the appellants’ dairy farm.
Mr Laslett explained the allocation criteria contained in section 6 of the plan. He identified the appellants’ land as situated within the Joanna Management Area for the unconfined aquifer. He explained that Table A in section 12 of the plan provides that the Volume for Licensed Allocation (I will describe this as the VLA - see principle 6.2.1) for that area is 8,670 megalitres, and that the total licence allocations as at 23 May 2001 amounted to 10,223 megalitres. It follows, as he explains in his affidavit, that no water in that area was available for allocation, unless an exception applied pursuant to clause 6.2.1 of the plan.
So far as existing non-licensed water users were concerned, he explained that an advertisement entitled Amnesty for Unlicensed Water Users was published in eight different newspapers circulating in the south-east of the State between 20 and 26 March 2002. The advertisement was in the following terms:
“Comaum-Caroline, Lacepede

Kongorong, Naracoorte Ranges,

Padthaway and Tatiara Prescribed

Wells Areas
Amnesty: Unlicensed Water Use
The SE Catchment Water Management Board advises unlicensed users of groundwater resources (excluding stock and domestic users) that they are now required to hold a water licence. In the past some water uses have been exempt from licensing conditions, or were not considered during the allocation process.
The Board and the Department for Water Resources have been working together to correct this situation by providing eligible unlicensed water users with the opportunity to apply for a water licence in order to legitimate their existing water use through the June 2001 Water Allocation Plans.
Eligible uses for water include:
Ÿ   The operation of a dairy licensed by the Dairy Authority of SA (including wash down, cleaning milking equipment and milk cooling)
Ÿ   Intensive animal keeping
Ÿ   Intensive plant production (such as greenhouses, hydroponics or nurseries)
Ÿ   Industry (wineries, processing plants etc)
Ÿ   Recreation (irrigation of sports grounds, parks, public amenities etc).
Applicants are eligible to apply for an allocation of up to 10 megalitres (with the exception of dairies milking in excess of 300 cows, which may apply for a larger volume) provided that they can demonstrate that the water use in its present form at the date of application was also in existence in the year prior to April 10 1997.
Applications must be received no later than 5 pm Thursday 31^st July 2002
A minimal processing fee applies.
Please contact the Department for Water Resources for more information on (08) 8735 1134”
As well as the advertisement, two media releases were prepared by the South East Water Catchment Management Board. Articles based on the media releases, which contain similar content to that which appears in the advertisement, were published in four newspapers circulating in the South East between 12 March and 27 June 2002.
To further publicise the pre-existing unlicensed water allocation principles, two radio interviews were conducted on 18 March 2002 and 24 June 2002 respectively on radio stations broadcasting in the South East. Those interviewed were the chief executive officer of the South East Catchment Water Management Board and the Board’s water planning officer.
On 7 June 2002, Mr Laslett mailed a two-page pro forma letter to dairy farmers in the area advising them that they may be eligible for a water licence and allocation, on the basis that they were existing non-licensed water users. The form of application intended for use by non-licensed water users who sought an allocation of water, was enclosed with each letter.
Mr Laslett said in his affidavit that a red date stamp had been placed on the back of each envelope, indicating that the application contained in the envelope was due on 31 July 2002.
In his evidence given at the hearing before the ERD Court, Mr Laslett explained that the letter was sent out to about 350 recipients. They were potential water users who were in areas covered by five different water allocation plans.
He said that the pro forma letter was sent to Mr Andrew Michelmore, one of the appellants.
Mr Laslett produced in evidence a sample of one of the letters, the text of which he said was the same as that sent to Mr Andrew Michelmore. The text is as follows:
“Dear Sir/Madam
RE: UNLICENSED WATER USE PROJECT
On 29 June 2001 the Minister for Water Resources adopted new water allocation plans for the Lacepede-Kongorong, Comaum-Caroline, Naracoorte Ranges, Padthaway and Tatiara Prescribed Wells Areas.
These water allocation plans allow for some existing unlicensed water uses to be granted a water licence and allocation. Unlicensed water uses that may be granted a water allocation include the operation of a dairy (wash down and milk cooling), intensive animal keeping, intensive plant production (such as greenhouses, hydroponics or nurseries), industry (including wineries, processing plants etc) or recreation (irrigation of parks, sports grounds, public amenities etc). Please note that the taking of water for stock and domestic use does not require a licence.
Our records indicate that you operate a dairy. If you do not have an industrial water allocation for your dairy, you may be eligible for a water licence and allocation to meet your reasonable requirements for dairy wash down and/or milk cooling. Alternately, if you currently have an industrial water allocation for your dairy, but the number of cows you milk has increased since this licence was issued, you can apply for an increase to your water allocation.
The water allocation plans stipulate that any water allocation for the operation of a dairy shall be calculated as the greater of either the reasonable requirements at the date of application or the average of the annual reasonable requirements over the preceding three year period.
To be eligible for a water licence, the unlicensed water use (ie dairy operation) must also have been in existence during 1997.
If two applications are received for the one dairy operation then an application by the owners of the dairy will take precedence over any application from a share farmer.
An application form for a Water Taking Licence (for unlicensed pre-existing use) is enclosed. Please note: Applications can only be received between 30 June 2002 and 5 pm on 31 July 2002 and must be accompanied by the $143.80 fee. After 31 July 2002, the opportunity to obtain a water allocation under this clause of the water allocation plan will lapse. Any continuing water use without a licence, other than for stock or domestic use, will be in breach of the Water Resources Act 1997 and may result in the user being subject to penalties under the Act.
You should also note that all new water allocations are to be metered. It will be a requirement of all water licences issued for existing unlicensed water use that water meters be fitted by 30 June 2003.
Please do not hesitate to contact Nick McIntyre on 8735 1132 if you require any further information on this matter.”

The appellant Andrew Michelmore (“Mr Michelmore”) gave evidence at the ERD Court hearing on behalf of the appellants. He explained that he operates the dairy farm, which he owns in conjunction with the other two appellants, who are his parents. His parents have retired and do not have any active physical involvement in the business. However, they take part in the making of any major decisions concerned with the operation of the farm.
Mr Michelmore said in evidence that he did not receive the letter in the form which Mr Laslett had identified as having been sent to him. He remembered receiving a one-page letter, but he did not recall seeing anything in it which spoke of a time limit to lodge an application.
When shown the pro forma letter tendered through Mr Laslett, he said that he only received the first page of it. The first page did not include the reference to the period during which applications were to be lodged.
Mr Michelmore recalls that enclosed with the letter, was an application form. When asked what he did with it, his evidence was:
“A.The application was put in - when we went through the mail, it was put into the to-do file. Due to having to get my parents to sign it, as with all of our legal documents, and not seeing the due date on it, I didn’t class it as urgent. So I put it aside to do the next time we were travelling up to their place Victor Harbor.
Q.You say that you had to get their signature on it.
A.Yes.”
He said that he did not look at the application form at that stage.
His evidence was that none of the other measures taken by the department to advertise the requirement to lodge the application within the stated time frame came to his attention.
However, Mr Michelmore was aware by June 2002 that the question of a licence for water use was being discussed within the industry. That awareness came about through talking to other dairy farmers.
Mr Michelmore stated that if they did not receive a licence with an appropriate water allocation endorsed on it, the appellants would have to purchase the water from elsewhere, which would be hard to do, and expensive.
The ERD Court judgment
The case was heard by a judge of the court sitting with two commissioners. They published reasons for their decision.
After setting out the relevant statutory provisions and the principles contained in the plan, they noted that the VLA had been exceeded by the total of all allocations on licences in the Joanna Management area by 23 May 2001.
They then referred to the steps taken to advertise the obligation to submit an application within the stated period, and Mr Andrew Michelmore’s evidence as to how it came about that he put the application in late.
They referred to the fact that counsel for the appellants had argued that the court should have regard to s 21(1)(c) of the Act which provides, inter alia, that the Court “must act according to equity, good conscience and the substantial merits of the case and without regard to legal technicalities and forms”.
The reasons proceed as follows:
“[13] We are sympathetic to the appellants’ plight. An administrative oversight will now put them to what may be considerable trouble and expense in finding a water allocation to purchase. However, the WAP [the plan] is unambiguous. It provides a specific time frame within which an application was to be received and considered, and within which an applicant would escape the application of principle 6.1. It is not for this Court to review the provisions of a WAP. Our task is to apply them in accordance with the Act. The decision by the Minister’s delegate was consistent with the WAP. The contrary decision would be inconsistent with the WAP. This is not a matter of legal technicality. It is a matter of applying a clear and inflexible expression of policy in the WAP.”
The arguments on appeal to this Court
Through their counsel, Mr Beamond, the appellants repeated on the hearing of the appeal to this Court, the arguments which had been presented to the ERD Court.
Mr Beamond contended that the ERD Court erred in failing to approach the matter on the basis that its powers were wider than those of the Minister in his consideration of the application. In support of that submission, he referred to two sections of the Environment, Resources and Development Court Act 1993 (the ERD Court Act).
The first was s 21(1) of that Act, which I have quoted in part above. The full text of the section is:
“21(1) On the hearing of proceedings (other than criminal or contempt proceedings) under any relevant Act (but subject to the provisions of any such Act)-
(a)the procedure of the Court will, subject to this Act, be conducted with the minimum of formality; and
(b)the Court is not bound by the rules of evidence and may inform itself as it thinks fit; and
(c)the Court must act according to equity, good conscience and the substantial merits of the case and without regard to legal technicalities and forms.
(2) …..”
The other was s 33(1):
“33(1) If, in proceedings before the Court under this or any other Act, or on an appeal to the Supreme Court from a decision or order of the Court under this Act, it appears to the relevant Court that-
(a)there has been a failure to comply with a requirement of any Act or other law that affects the matter to which the application or appeal relates; and
(b)it would not be unjust or inequitable to exercise the powers conferred by this subsection,
the relevant Court may excuse the failure by ordering that, subject to such conditions as may be stipulated by the relevant Court, the requirement be dispensed with to the necessary extent.
(2) …..”
In both sections, the reference to “the Court” means the ERD Court.
Section 33(1) applies in its terms to both the ERD Court, and the Supreme Court when the Supreme Court is hearing an appeal from the ERD Court.
In my view, neither section assists the appellants.
The right of appeal to the ERD Court is conferred by s 142(1) of the Act. Section 142(7) provides:
“7.On an appeal the Court [the ERD Court] may-
(a)    affirm or vary the decision, direction or restriction appealed again, or substitute any decision, direction or restriction that should have been made in the first instance;
(b)    remit the subject matter of the appeal to the Minister or other authority for further consideration;
(c)    make or give any consequential or ancillary order or direction.”
Insofar as the ERD Court is empowered to reach the decision “that should have been made in the first instance”, the ERD Court stands in the shoes of the Minister. That is certainly the view taken by the ERD Court in a series of decisions.[2] Likewise, the powers of this Court on an appeal from the ERD Court in a matter such as this, are in my view similarly confined.
[2] Schutz v Minister for Environment & Conservation [2003] SAERDC 12 at [3]-[4]; Welford v Minister for Environment & Conservation [2004] SAERDC 83 at [8]-[11]; Elandes Nominees Pty Ltd v Minister for Water Resources [2002] SAERDC 130 at [23]; Strachan v Minister for Water Resources (No 1) [2001] SAERDC 37 at [51], [65]; Bald v Minister for Environment & Conservation [2003] SAERDC 77 at [5]. In my view, certain other decisions of the ERD Court to the contrary, should not be followed. Cases cited by counsel in that category are Saunders v Minister for Environment and Heritage [1998] EDLR 97, Spinato v Minister for Environment and Heritage (2000) EDLR 108, Gilmore v Minister for Water Resources [2001] SAERDC 7, Spehr v Minister for Water Resources [2001] SAERDC 31 and McKay v Minister for Water Resources [2002] SAERDC 36.
Whether or not there is any discretion as to the application of the four criteria to be found in principle 6.2.2 of the plan, is not a question the answer to which could vary depending upon whether it was the Minister making the decision, or the ERD Court on appeal, or this Court on any further appeal.
Section 21 and s 33 of the ERD Court Act cannot be given a construction which would override either the plan or what I have found to be the Minister’s obligation to refuse to grant a water licence pursuant to s 29(3)(a) and s 35 of the Act, if it is not possible to endorse a water allocation on the licence consistently with the relevant water allocation plan.
It follows that the only relevant question for this Court is whether the appellants are able to demonstrate that in making the decision in question, the Minister fell into error in his construction and application of the relevant provisions of the Act and the plan.
The appellants contended that there is a distinction between the determination by the Minister of the quantity of an allocation to be made and as to matters of mere procedure by which the application comes to be considered.
Having regard to the criteria set out in principle 6.2.2, the appellants contended on the hearing of the appeal that, given the fact that the appellants on the face of it satisfied the criteria set out in principles 6.2.2(a) (that the current water use was in existence during the year prior to 10 April 1997), in 6.2.2(b) (that the water is to be used for wash down and washing up in the course of the operation of a dairy, and 6.2.2(c) (that the source aquifer nominated on the application is the same as that from which the water was being taken as at 12 February 2001), the further requirement that the application be received pursuant to sub-clause (d) within the stated period of time, is a matter of mere procedure as to which the Minister could exercise a discretion to extend the period.
In my view, upon a proper construction of the plan and the Act, the suggested distinction cannot be sustained.
Looking at the plan as a whole, it is clear that the terms of the plan are the expression of a policy to strictly confine the use to be made of water resources in such a manner as to allow reasonable use by persons who have a legitimate reason to have access to the resources, but at the same time to confine the use of the resources to limits which will ensure their ongoing availability.
The ability of existing non-licensed water users to secure an allocation is very much an exception to principle 6.2.1, which prohibits the making of an allocation from the unconfined aquifer where the allocation would cause the total amount allocated on all licences to exceed the VLA.
Against that background, the provisions of principle 6.2.2 were properly described in the various announcements which were made to publicise the procedures to obtain such an allocation, as an amnesty.
Once allocations have been made to those who applied within the period which expired on 31 July 2002, any remaining water becomes available for further “allocation in accordance with” the plan. It is only once the allocations to pre-existing non-licensed water users has been made that the Minister is in a position to determine whether any water remains available for allocation pursuant to principle 6.2.4.
I would accept the contention of the respondent that the purpose of principle 6.2.2-
“… is to flush out the remaining unlicensed pre-existing users within a strictly limited period, after which they are to be dealt with under the general principles of the plan, including those in 6.2.1 and 6.2.4.”[3]
[3] Respondent’s written outline of argument, par 23.
Another reason to reject the construction of principle 6.2.2 suggested by the appellants is that there is nothing in the terms of the principle to justify the suggestion that there is a discretion as to one limb of the principle (6.2.2(d)), but not as to the others.
Once it is accepted that the relevant principles should be construed in the manner which I have suggested, the remaining arguments of the appellants, in which they submit, for example, that there would be no prejudice to the management of the Naracoorte Ranges prescribed wells area if the appellants’ application was to be granted, whereas if it was not to be granted, considerable financial hardship would be suffered by the appellants, cease to be relevant considerations.
In expressing that view, I accept that if denied a water allocation the appellants will suffer fairly substantial financial hardship. But on the other hand, they had every opportunity to apply for an allocation in time, and no blame can be levelled at the respondent for their failure to do so.
I should say before parting with the matter, that after the completion of the hearing of the appeal to this Court, the appellants lodged with the Court further written submissions. In those submissions, contrary to the position taken when presenting oral argument, the appellants abandoned the distinction which they had sought to draw between principles 6.2.2(a), (b) and (c) and principle 6.2.2(d). They contended that, insofar as none of sub-principles (a), (b), (c) and (d) dealt with the computation of the amount of water to be allocated, the Minister had a discretion to waive the requirements of any of them.
I would reject that contention for the reasons advanced by the respondent in his reply to the submission. I accept his contention that to accept such a construction of the principles would deprive the requirement in s 29(3) and s 35(1) that any decision as to the water allocation must be consistent with the relevant water allocation plan, of meaningful content.
In my view, the appeal to this Court should be dismissed, and the order of the ERD Court dismissing the appeal to it should be confirmed.
VANSTONE J. I agree that the appeal should be dismissed for the reasons given by Perry J.

[2004] SASC 415

10 December 2004

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Appeal

Jurisdiction

Statutory Interpretation

Administrative Decisions (Review) Act

Water Resources Act 1997