Minister for Environment and Conservation v Hedges - [2007] SASC 121

Supreme Court of South Australia
(Full Court)
MINISTER FOR ENVIRONMENT AND CONSERVATION v HEDGES & ANOR
[2007] SASC 121
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice Anderson)
5 April 2007
ENERGY AND RESOURCES - WATER - WATER MANAGEMENT - WATER USAGE RIGHTS - WATER ALLOCATION
Application for allocation of ground water – substantial farming enterprise - proposals to irrigate the farm land - whether respondents engaged in a development, project or undertaking with the meaning of the Water Resources Act 1997 – whether the works commenced by the respondents constituted one project or three - whether the respondents had committed significant financial and other resources to a development, project or undertaking before the beginning of the prescribed period.
Environment Resources and Development Court Act 1993 s 30; Water Resources Act 1997 s 7, s 8, s 9, s 36; Water Resources (Tintinara-Coonalpyn Prescribed Wells Area) Regulations 2000 reg 4, reg 5, reg 6, referred to.
Minister for Environment & Conservation v Wylie Group Pty Ltd (2005) 91 SASR 242, applied.

WORDS AND PHRASES CONSIDERED/DEFINED
"development", "project", "undertaking"

MINISTER FOR ENVIRONMENT AND CONSERVATION v HEDGES & ANOR
[2007] SASC 121
Full Court: Doyle CJ, Debelle and Anderson JJ

DOYLE CJ. I have had the benefit of reading the reasons of Debelle J.
To the extent that s 30(2) of the Environment Resources and Development Court Act 1993 requires the grant of permission to appeal on questions of fact, I would grant permission. The questions of fact that arise in this case are intertwined with questions of principle.
Having granted permission to appeal, I would dismiss the appeal.
I agree with the reasons of Debelle J, except for one point. I am not persuaded that the Judge below was wrong in declining to take into account expenditure on clay spreading, even though I see the force of the point made by Debelle J about that. But the outcome of the case does not turn on a decision on this issue, and I am content to leave it there.
For those reasons I would dismiss the appeal.
DEBELLE J. This is an appeal from a decision of a judge of the Environment Resources and Development Court allowing an appeal to that Court against a decision of the Minister of Environment and Conservation by which the Minister had granted the appellants an allocation of ground water. The respondents had appealed on the ground that the allocation was not adequate for the irrigation to which the respondents were committed. The judge increased the allocation. The question in this appeal is whether the judge erred in finding that the respondents were engaged in a development, project or undertaking within the meaning of the Water Resources Act 1997 and in finding that the respondents had made a commitment of significant financial or other resources to that project.
The Water Resources Act
The issues turn on the meaning and effect of s 36 of the Water Resources Act 1997. That Act was repealed by the Natural Resources Management Act 2004 which came into operation on 1 July 2005. It is common ground that the issues must be determined under the terms of the Water Resources Act.
The Water Resources Act (“the Act”) is intended to establish a régime for the prudent use and management of the water resources of this State. For present purposes it is sufficient to note the following provisions.
Under s 8(2) of the Act the Governor may by regulation declare that part of the State is a surface water prescribed area. After such a declaration has been made, restrictions are imposed on the taking of water from the area: s 9 of the Act. In particular, a person cannot take water except for certain purposes nominated in s 9 unless that person is the holder of a water licence. The respondents have a farming property within a prescribed water area. They may take water from a well for irrigation only if they hold a water licence and no more than the limit fixed by the water allocation.
The Act prescribes the means by which a water licence may be obtained and for the allocation of the volume of water which may be taken pursuant to the licence. Section 36 of the Act provides for the rights of persons who are existing users of water from a surface water prescribed area. It is common ground that the respondents are existing users as defined by the Act. The questions in the appeal turn on the meaning and effect of s 36 of the Water Resources Act and in particular on the meaning and effect of s 36(2). It is necessary to note only subsections (1) and (2) of s 36 which provide:
36. (1) On declaration of a watercourse, lake or well as a prescribed watercourse, lake or well or declaration of a part of the State as a surface water prescribed area, an existing user of water from the water resource concerned –
(a)may, subject to a restriction or prohibition under section 16, continue to use water without a licence until the end of the prescribed period or, if he or she applies for a licence within six months after the publication in the Gazette of the regulation declaring the resource to be a prescribed resource, until the application is granted or refused;
(b)is, subject to subsection (3), entitled to have endorsed on the licence without the payment of a purchase price a water (taking) allocation determined by the Minister under subsection (2) after consultation with the existing user.
(2) The water allocation will be the quantity of water that will, in the opinion of the Minister, meet the future requirements of the existing user –
(a)based on his or her reasonable requirements in the establishment period; or
(b)for water for a development, project or other undertaking to which he or she was legally committed or in respect of which he or she had committed significant financial or other resources before the commencement of the prescribed period; or
(c)under both paragraphs (a) and (b).
Section 36(10) defines the expressions “the establishment period”, “existing user” and “the prescribed period”. It is unnecessary to refer to the definitions since it is common ground:
·that the respondents had made an application within the required period;
·that the establishment period was 30 June 1995 to 10 May 2002; and
·that the prescribed period was 11 May 2000 to 31 October 2002.
Section 36(2) prescribes the basis on which the Minister is to allocate water for the future requirements of an existing user. The allocation will be the quantity of water that will, in the Minister’s opinion, meet the future requirements of the existing user
(a)based on the reasonable requirements of the existing user in the establishment period, that is to say, in the period 30 June 1995 to 10 May 2002; or
(b)for the water requirements for a development, project or undertaking to which the existing user was legally committed or to which the existing user had committed significant financial or other resources before the beginning of the prescribed period, that is to say, before 11 May 2000; or
(c)under both paragraphs (a) and (b).
The terms of s 36(2) effectively provide three alternative basis for the allocation. There are no criteria by which to determine the circumstances in which the Minister may decide to make the allocation by reference to both paragraphs (a) and (b). The issues in this appeal concern paragraph (b) of s 36(2).
In Minister for Environment & Conservation v Wylie Group Pty Ltd (2005) 91 SASR 242 at [51] Doyle CJ explained the purpose of s 36 in these terms:
The purpose of s 36 is reasonably clear. It is to provide some protection and preference for existing users when restrictions come into force. Protection is provided to people who are actually using water. It is also provided to those who are sufficiently involved in, or committed to, a proposed use of water to make it appropriate to give them protection and a degree of preference. I will refer to such persons as “new users”. Because water is a finite resource, and demand might well exceed supply, s 36 limits the category of persons entitled to protection and to preference. It also gives the Minister, by s 36(3), power to reduce allocations if the allocations made exceed the capacity of the resource.
The issues in this appeal do not concern the question whether the respondents as existing users were legally committed to a development, project or undertaking. Instead, the question is whether they had committed significant financial and other resources to a development, project or undertaking and had done so before 11 May 2000. The judge found in favour of the respondents on both grounds.
The issues which had to considered on the appeal in the Environment Court included
1.what were the reasonable requirements of the respondents in the establishment period, the period 30 June 1995 to 10 May 2002?, and
2.what were the water requirements for a development, project or undertaking to which the respondents were legally committed or to which they had committed significant financial resources or other resources before 11 May 2000, the beginning of the prescribed period?
The issues in this appeal concern only the second question. The resolution of that question requires consideration of the respondents’ proposals for irrigation of the land.
Plans to Irrigate
The respondents are the directors of Bugle Downs Pty Ltd which is the registered proprietor of a substantial area of land comprising some 1912 ha in the Hundred of McCallum. The property is known as Balargorang. The respondents conduct a farming enterprise on that land. The whole of the land is within the Tintinara-Coonalpyn Prescribed Water Area.
Bugle Downs Pty Ltd purchased Balargorang in 1977. The respondents used the land as a sheep grazing property with some dry land lucerne grown for pasture and seed production. In the mid-1990s the respondents decided that the company should take advantage of improved pumping technology and use ground water to improve their pastures and seed production. They developed proposals to irrigate parts of the land. They made inquiries about irrigating the land in late 1996 and early 1997.
In January 1997 the Department of Environment and Natural Resources (the then name of the Department administering the Act) informed the respondents that a strip of land 800 metres wide on the eastern side of their land was within the area of the Tatiara Prescribed Water Area (“the Tatiara PWA”). As the area in which the respondents then wished to sink wells was within that area, the respondents could only take ground water for irrigation if they acquired a water licence. The information provided by the Department was incorrect. The whole of the respondent’s land was, in fact, within the Tintinara-Coonalpyn Prescribed Water Area (“the Tintinara-Coonalpyn PWA”). No part of it was within the Tatiara PWA.
In the result, nothing turns on the mistaken advice given by the Department because on 11 May 2000 the Minister announced an intention to recommend that all wells in the Tintinara-Coonalpyn area be prescribed wells pursuant to s 8(1) of the Act (“the Tintinara-Coonalpyn PWA”). Effect was given to that intention, when, on 2 November 2000, the Water Resources (Tintinara-Coonalpyn Prescribed Wells Area) Regulations 2000 were made. Regulation 4 declared that all existing wells and all future wells drilled in that area be prescribed wells. Regulation 5(1) provided that the establishment period commenced on 30 June 1995 and ended on 11 May 2000. Regulation 5(2) provided that the prescribed period commenced on 11 May 2000 and was to end on 31 October 2002. Regulation 6 provided that the Regulations did not exclude the operation of s 7(5) of the Act. The effect of the combined operation of Regulation 6 and s 7(5) of the Act is that users of water for existing wells were able to continue to take water from those wells.
The Respondents’ Proposals
As the judge observed, the history of this matter is complicated. The complexity is the greater because the Department had incorrectly informed the respondents that the eastern part of the land was in the Tatiara PWA. It is unnecessary to note all of the respondents’ proposals to irrigate their land as the issues in the appeal concern only the question whether the respondents had one or more than one development, project or undertaking to irrigate the land and the financial and other resources committed to it by 11 May 2000. The following narrative is based on the judge’s findings of fact which were not challenged.
The respondents had divided their land into a series of numbered paddocks. A plan of the paddocks as appears below. It is a diagrammatic representation only.

The respondents’ plans for irrigation ultimately concerned paddocks B1 and B2 which are the two paddocks at the bottom right-hand side of the plan as well as paddocks B3 and B4 and paddocks C5 and C7. Paddocks C5 and C7 are some two kilometres from paddocks B3 and B4.
On 12 February 1998 the respondents applied for an allocation of water to irrigate 170 ha of land for crops. The application showed that they proposed to drill three wells. They proposed to drill a well on paddock B2 and use the water for flood irrigation of paddocks B1 and B2. They proposed also to irrigate paddocks G6 and G8 by a centre pivot irrigator. On 26 May 1998 the Department granted a water licence entitling the respondents to an allocation of 110 ha irrigation equivalent which the Department believed was adequate to irrigate 170 ha of lucerne.
Sometime after the water licence had been issued and before August 1998, the respondents were approached by Mr Ian Sobey of Sobey & Co. Mr Sobey wished to lease parts of Balargorang to grow potatoes. The respondents believed that Mr Sobey presented them with an opportunity to proceed with their irrigation plans at a time when they were going to have to defer them for financial reasons. The judge found that they agreed to lease him part of the land. There is no formal lease. The lease agreement is constituted by a letter to the respondents dated 12 August 1998 from Mr Sobey in which he proposed the terms of the lease. The letter was in these terms:
Dear Tony
Re Grower – Balargorang
Following a conversation with our farm manager, Neil Nolan, we submit the following proposal.
1.Approx 120 acre centre pivot on site discussed with view to shifting around on your property for at least three years – five if preferred.
We will pay cost of installing any irrigation bores needed.
2.Payment - $100 per acre per crop. To be paid 30 days after completion of harvest.
The proposed Pivot will need [sic] installed in early November 1998. We would look to sow potatoes in December 1998 with the view to harvest in June – July 1999. Ideally we would like to sow a green manure crop and plant again in December 1999 for a June 2000 harvest before shifting this pivot to another site.
We intend to run this pivot on our water licence.
Assuming the above proposal is satisfactory for both parties we would be keen to explain this arrangement.
Due to tight scheduling of these crops we seek a written reply as soon as possible including allotment numbers for bore permits.
Yours faithfully
Ian Sobey
The essential terms were:
1.that Sobey & Co would irrigate a 120 acre site by centre pivot irrigation.
2. that Sobey & Co would pay the cost of installing the bores.
3.that Sobey & Co intended to shift the pivot to another site on the respondents’ land.
It is important to note that Sobey & Co proposed to rotate potato crops on the land. There was evidence that potatoes cannot be grown on the same land in consecutive years making it necessary to rotate crops.
Mr Sobey undertook to pay the costs of drilling the bore. He wished to drill a bore with a diameter of ten inches. The respondents had received expert advice that their irrigation plans would best be served by a bore 12 inches in diameter. They agreed with Mr Sobey that a 12 inch bore would be drilled, with Mr Sobey paying the cost of a ten inch bore and the respondents paying the extra cost of a 12 inch bore. Mr Sobey was to use his own water licence for the purpose of extracting the water.
The rental was agreed at $100 per acre for each crop of potatoes. The evidence was that the respondents accepted a lower rent because Mr Sobey had incurred the major costs of drilling the bore.
The arrangements with Sobey & Co caused the respondents to modify their plans. Paddocks B2 and B4 (60 ha) were to be developed by Sobey & Co to be irrigated by a central pivot irrigator for growing potatoes, paddocks B1 and B3 (50 ha) were to be developed by the respondents for flood irrigation, and paddocks C5 and C7 (60 ha) were to be developed for centre pivot irrigation for potato crops grown in rotation with paddocks B2 and B4. The total area was 170 ha. By letter dated 21 January 1999 Mr Hedges informed the Department that the respondents had modified their plans and that they applied for another 60 ha licence to take water for a second centre pivot irrigation area to irrigate paddocks C5 and C7. The letter informed the Department of the arrangements with Sobey & Co. The effect of the application was to seek an increased allocation of water, that is to say, from an allocation higher than the 110 ha irrigation equivalent already granted.
The judge found that the application was intended for the paddocks C5 and C7. That finding was based on the evidence that potatoes cannot be grown in the same land in consecutive years, the evidence that Mr Sobey was a potato grower and had sought to grow potatoes with a centre pivot irrigation in more than one location on Balargorang, and that the appellants had agreed that paddocks C5 and C7 were a better growing location than paddocks G6 and G8 which they had initially intended to irrigate for potatoes. The application was treated as an application for a further allocation of water and was ultimately refused.
On 14 December 1999, the respondents submitted to the Department a revised Irrigation and Development Management Plan showing their proposals for irrigation from June 1998 to June 2001. That plan reflected the amendments consequent on the arrangements with Sobey & Co. It shows that 50 ha was to be flood irrigated instead of 60 ha and two areas each of 50 ha were to be irrigated by centre pivot instead of one area of 50 ha.
On 11 May 2000, the Minister published in the Government Gazette notice of the proposed prescription under the Water Resources Act of all wells in the Tintinara-Coonalpyn PWA. That area included the Hundred of McCallum in which the respondents’ land is situated. In mid-2000 officers in the Department realised that the whole of the respondents’ land was in the Tintinara-Coonalpyn PWA and that none of it was in the Tatiara PWA. However, no one in the Department informed the respondents of that fact.
It was not until 27 September 2002 that the Department informed the respondents by letter that the land from which ground water could be drawn pursuant to the licence issued on 26 May 1998 was not within the Tatiara PWA but within the Tintinara-Coonalpyn PWA. This information was provided more than four years after the licence had been issued and some two years after the Department had become aware of the true position.
Sometime after the Governor had made the Water Resources (Tintinara-Coonalpyn Prescribed Wells Area) Regulations on 2 November 2000, the respondents were invited to apply for a grant of a water licence in the Tintinara-Coonalpyn PWA. On 9 April 2001 they lodged their application. They applied for water to irrigate an additional 50 ha by centre pivot irrigator for potato crops growing in paddocks C5 and C7. They sought an annual volume of 500 megalitres. At that time, they still did not know that the Department had erroneously informed them of the prescribed water area in which they were located. They believed that their existing application in the Tatiara PWA continued so that they had only to apply for an additional allocation from the Tintinara-Coonalpyn PWA.

On 16 April 2003 the Department issued a water licence authorising the respondents to take 965.4 megalitres of water annually from the Tintinara-Coonalpyn aquifer. That is the allocation which is the subject of this appeal. Effectively, the licence permitted the respondents to irrigate by flood irrigation 60 ha of lucerne and irrigate by centre pivot irrigation 50 ha of potatoes. There were other conditions of the licence which, for present purposes, can be put to one side. The effect of the grant was that the respondents could not irrigate the additional 50 ha of potatoes on paddocks C5 and C7. That is the reason for the appeal.
Requirements in the Establishment Period
The judge in the Environment Resources and Development Court (“the Environment Court”) first examined what were the respondents’ reasonable requirements for water during the establishment period. The judge found the following facts:
1.That a 14 inch bore had been drilled on 27 April 1999 and had been used for flood irrigation between December 1999 and February 2000. The levelled area was 24 ha. The area of the lucerne crop was 26 ha.
2.The 12 inch bore drilled by Sobey & Co had provided water to irrigate by centre pivot a potato crop of 50 ha between December 1999 and June 2000. However, as the water had been drawn under the water licence of Sobey & Co and the water was provided for potatoes grown by Sobey & Co, it was Sobey & Co which took the water and not the respondents.
3.The respondents had intended to laser level a further 22 ha but this had been deferred to January to February 2001 by a breakdown of plant and wet weather.
Thus, based on actual usage, the reasonable requirements of the respondents during the establishment period amounted to sufficient water for flood irrigation of a lucerne crop of approximately 25 ha. There is no appeal nor cross-appeal against that finding.
A Commitment To A Project?
Section 36(2)(b) provides that a water allocation can be determined by reference to the future requirements of an existing user for water for a development, project or other undertaking to which the user was legally committed or in respect of which the user had committed significant financial or other resources before 11 May 2000. (For convenience I will refer to “a development, project or other undertaking” as “a project”). As already noted, it was common ground that the respondents were an existing user.
The judge found that by late 1998 the respondents intended, as part of their farming enterprise, to irrigate three areas of Balargorang, namely:
1.Flood irrigation of 50 ha in paddocks B1 and B3 (this could, she found, be described as two areas each of 25 ha for flood irrigation).
2.Centre pivot irrigation of 50 ha on paddocks B2 and B4. That was the land on which Sobey & Co intended to grow potatoes.
3.Centre pivot irrigation of 50 ha on paddocks C5 and C7, the land which Sobey & Co would use in rotation to grow potatoes.
The judge found that the respondents’ original plans had changed because Sobey & Co wished to grow potatoes by rotation on two parts of their land, that is to say, on the paddocks B2 and B4 and on the paddocks C5 and C7. That had caused the respondents to decide to establish flood irrigation on paddocks B1 and B3. The judge then considered what had been undertaken in accordance with those plans by mid-1999 and found that the following works had been undertaken:
·On paddock B1, the respondents had laser levelled 25 ha and had drilled a 14 inch bore.
·The respondents had caused clay spreading and relocating of a clay bed to be undertaken on paddocks B2 and B4, an area of 50ha.
·A 12 inch bore had been drilled on paddock B4 by Sobey & Co for which the appellants had paid the difference between a 10 inch bore and a 12 inch bore.
·That Sobey & Co had planted a 50 ha crop of potatoes on paddock B4.
·All well construction permits had been obtained by the respondents.
The respondents intended to laser level a further 25 ha of flood irrigation on paddock B3 and intended to prepare paddocks C5 and C7 for irrigation.
The question on this appeal and on the appeal in the Environment Court was whether these works constituted one project. The Minister had contended that it was not a single project but three. The Minister submitted that, while the respondents were financially committed to the projects to develop paddocks B1 and B3 and paddocks B2 and B4, they were not financially committed to the project for paddock C5 and C7.
The judge rejected the Department’s argument that there were three separate projects and found that the respondents had one project on hand. That project was the irrigation of three separate areas on Balargorang for cropping for either lucernes or potatoes. Although the plans were amended both as to the crops to be grown and the paddocks to be used, it was one project to irrigate three areas. The judge found that the respondents had a single project to develop their farming enterprise by establishing three discrete areas on Balargorang where crops could be grown under irrigation, be that irrigation by flooding or a centre pivot irrigator.
The judge found that the respondents were not legally committed to a project. She then examined the evidence of the financial and human resources expended on the project before 11 May 2000. She found that the expenditure by the respondents on each of the three areas was:
Paddocks B1 and B3 (flood irrigation)  $112,764.00

Paddocks B2 and B4 (centre pivot irrigation)   $3,816.00

Paddocks C5 and C7 (centre pivot irrigation)                         Nil

Total:  $116,580.00
In making that finding, the judge did not allow the cost of clay spreading on paddocks B2 and B4 ($17,737.00) or on paddocks C5 and C7 ($12,281.00). Her reason for doing so was grounded on expert evidence that clay spreading is a benefit for sandy soils both for dry land cropping as well as for irrigated crops. Thus, notwithstanding unequivocal evidence from Mr Hughes that the respondents would not have undertaken clay spreading if they were not to be permitted to irrigate the land, she found that the cost of clay spreading was not a cost of the project. The judge held that the respondents’ intentions concerning the clay spreading was not critical. She based her finding on evidence from a land management consultant advising Government departments that clay spreading was of benefit even for crops grown without irrigation.
In my view, the judge erred in making that deduction. The fact that the expenditure is beneficial for both dry land crops and irrigated crops is not a reason for deducting the cost from the irrigation project. The question is not whether the respondents would benefit in any event. Instead, the question is what financial resources had the respondents committed to an irrigation project. If their intention was to undertake clay spreading as part of a planned irrigation project, it is expenditure incurred for that project, especially where, as here, the evidence is that the expenditure would not have been incurred unless it would assist an irrigated crop. The expenditure was incurred as part of the planned irrigation project and for no other purpose, especially given the evidence that clay spreading is desirable for annual irrigated potato crops. The clay spreading was committed to the irrigated potato crop. It was, therefore, relevant expenditure. However, for the reasons which appear later, this error on the part of the judge does not affect the ultimate conclusion.
In reaching the conclusion that the expenditure on the clay spreading for paddocks C5 and C7 should be disregarded, the judge might have been relying on the proposition of Doyle CJ in Wylie Group at [78] that financial and other resources are committed if there is a risk of losing them or losing the benefit of them if the project does not proceed. That might be one test. It is not the only test. More relevantly, that test does not have the consequence that financial expenditure that will be of some kind of benefit even if the project does not proceed should not be regarded as part of the financial expenditure committed to an irrigation project. That money will have been committed to a project especially if that money would not have been spent had it been known that the project was not going to proceed.
In addition to the total expenditure of $116,580.00, the judge found that the respondents had made a commitment of human resources in that they had committed many hours to the project in planning and preparing it, in the time of their sons who assisted in the clay spreading, in time spent in discussions with their farm management advisors and other advisors, in time spent in discussions with Mr Sobey, and in time spent in discussions with officers of the Department. She therefore allowed for a commitment of human resources but did not quantify that commitment in monetary terms. The finding as to the commitment of human resources was not challenged in any respect.
The judge held that the resources, both financial and human, committed to the project were substantial and as such the resources committed to the project before 11 May 2000 were significant.
One Project or Three?
The Minister does not challenge the findings of fact made by the judge but challenges the conclusion that the respondents were committed to one irrigation project. The Solicitor-General, who appeared for the Minister, contended that there were in fact three separate irrigation projects and that they could only be considered to be one project if they were in some way interdependent. The Solicitor-General submitted that the judge had relied too heavily on the intention of the respondents. If there was more than one irrigation project, he submitted, the respondents had not committed significant financial resource to the project to irrigate paddocks C5 and C7.
The Solicitor-General acknowledged that a single project may consist of a number of distinct irrigation systems. However, he contended that the question whether more than one system constituted one project or a number of different projects depended on whether the irrigation activities are interdependent. In other words, if the elements of the project are not financially or practically interdependent, they cannot be regarded as part of the one project. He pointed to the fact that, as the paddocks C5 and C7 are some two kilometres from the paddocks B1, B2, B3 and B4, the irrigation systems could not be integrated so that they could not physically constitute one project. The effect of the Solicitor-General’s argument is that, unless the elements of a development, project or undertaking are interdependent so as to form a coordinated whole, there is not one development, project or undertaking but so many developments, projects or undertakings as there are separate elements. One flaw in this contention is that an existing user might be legally committed to one project which might involve irrigation at different points some distance apart on a substantial farm property. There is no reason in principle why an existing user could not have one project to which he is financially committed notwithstanding that the elements of that project are some distance from each other. For the reasons which follow, that is to place a restriction on the ordinary meaning of at least “development” if not also “project”, a restriction which is not justified by the purposes of the Act.
Plainly, the question what constitutes a project is a question of fact to be determined on the facts and circumstances of each individual case. It is not possible to identify a general prescription of universal application by which to determine whether an existing user has committed to a project. When determining the financial and other resources committed to it, a project is not to be narrowly defined: Wylie Group at [81]. Section 36(2)(a) imposes a two-fold test. The existing user must demonstrate both that a project exists and that there is a significant commitment to it of financial or human resources. The user’s intention is one relevant factor because what is proposed or intended provides a starting point for identifying the project. However, there is no project unless effect has been given to intention, that is to say, unless steps have been taken to implement the intention. One means by which to determine whether there is a project to which a financial commitment has been made is to determine whether there has been a substantial commencement of the project in the sense that work has commenced on the intended project and expenditure has been incurred. However, it is by no means an exclusive test. For example, it might be possible to prove that an existing user is legally or financially committed to a project but work on that project has not commenced. The task of determining whether a project exists, the nature of that project and whether the existing user is committed to it either legally, financially, or in some other way requires the facts to be considered objectively and in a practical sense. Where an owner of land intends to redevelop or improve different paddocks on that land by one or more separate sets of works, the mere intention to carry out the works cannot and does not mean that the works constitute one project. It is necessary to examine the intended works to determine whether they do in fact constitute one project. Regard will be had to the nature and extent of the project.
Although the respondents do not seek to rely on a legal commitment to undertake the project, their agreement with Sobey & Co to permit it to grow potatoes on the two areas constituted by paddocks B2 and B4 and paddocks C5 and C7 is a fact relevant to the question whether the respondents had a project and had committed financial and other resources to it.
The words “development”, “project” and “undertaking” are not defined in the Act. In ordinary usage, the primary meaning of “development” is the act or process of developing or the gradual unfolding or evolution of something: see Macquarie Dictionary and Oxford English Dictionary. So one speaks of the development of land, the development of an idea, or the development of a musical phrase. From that primary meaning is derived the other meanings of a completed development. Similarly, “project” means something which is planned as well as an enterprise or undertaking which is in train or is the completed result of the planning: see Macquarie Dictionary and Oxford English Dictionary. In this context, “undertaking” means a task or enterprise which either is being undertaken or has been undertaken.
Each of the three words may, therefore, denote either something in the course of being developed or undertaken or a completed development, project or undertaking. There is nothing in either the content of s 36(2) or in the purposes of the Act which requires that one meaning be preferred to the other. Indeed, the reference in s 36(2)(b) to a development, project or other undertaking to which an existing user is legally committed allows for what has been planned but not yet commenced. That fact only serves to reinforce the conclusion that the reference to a development, project or other undertaking in s 36(2)(b) can refer to that which is in the course of being undertaken as well as that which has been completed.
A development, project or undertaking will often comprise a number of separate elements or separate sets of works. In other cases, the works will constitute an integrated or interdependent whole. It is not a necessary element of a development, project or undertaking that each element of the works be interdependent or constitute an integrated whole. That is particularly so where the development of a large area of rural land is involved. If what is contemplated by an existing user is the improvement of separate parts of a large property, it may, depending on circumstances, constitute either one or more than one development, project or undertaking. The fact that the elements of a project are connected or are in some other way interdependent may assist in determining that there is one project. However, the fact that the elements are not interdependent does not necessarily mean that there is not one project. There is nothing express or implicit in s 36(2)(b) which requires that a development, project or undertaking must involve no more than one single set of works. If it did, s 36 would have a very restricted operation quite inconsistent with the purposes of the Act.
The Solicitor-General’s contentions depend on a physical connection or interdependence of irrigation systems. There is nothing either in the terms of s 36 nor in the policy underlying the Water Resources Act which requires such a limitation or restriction. An existing user might be committed either legally or financially to one project which involves, say, three or four different bores at different sites on a large rural property. Alternatively, a farming property might be divided by a public road. The farmer may have one project by which to irrigate land on each side of the road. It will be one project notwithstanding that there will be two irrigation systems on each side of the road. In every case it will be a question of fact and degree whether there is one project or more than one project. There is no rule of universal application which will assist in determining whether there is one or more than one project. Each case will depend on its circumstances.
The judge in the Environment Court dealt with the issues on the footing that it was not necessary for the irrigation areas to be interdependent for there to be one development, project or undertaking. It is an approach which is consistent with the ordinary meaning of the expression “development, project or other undertaking” in s 36(2)(b) and with the intent of the Act.
The judge found that the respondents’ project was to improve their land by developing three large areas for irrigation by either flood irrigation or centre pivot irrigation. Notwithstanding amendments as to the areas to be involved, that was their consistent goal. It is confirmed by financial reports and budgets prepared for them by David L Price & Associates in 1998 and in 1999. By mid-1999 they had decided to develop paddocks B1 and B3, B2 and B4, and C5 and C7. That was the project to which they had already committed financial and other resources in this prescribed period. For the reasons already expressed, it was open to the judge to find that the respondents were committed to one project and not three. They had one project which was in the course of being developed. The judge did not, therefore, err in treating the development intended by the respondents as one project. The respondents had not only intended to irrigate three areas of their land but had also implemented that intention in each of the three areas albeit in different degrees.
To the extent that interdependence might be a criterion, viewed at its worst, the respondents’ proposals constitute two projects only. One project is to irrigate a lucerne crop on paddocks B1 and B2. The other might be called “the potato project.” That is the project to use the paddocks B3 and B4 and the paddocks C5 and C7 in rotation to grow potatoes and to irrigate those potatoes by centre pivot irrigation. The evidence was that they are the preferred areas for those crops. Land must be used in rotation for potato crops. Notwithstanding the distance between them, there is one project to grow potatoes on the land. As the findings of the trial judge show, there has been a significant financial commitment in respect of each of these two projects.
Ultimately, the question which the judge in the Environment Court had to determine was a question of fact. The Minister requires leave to appeal on questions of fact: s 30(2) of the Environment Resources and Development Court Act 1993. There is such an overlap of issues of principle with questions of fact that I would grant leave to appeal. However, the Minister has not demonstrated that there is any proper ground for interfering with the finding of fact that the respondents had one irrigation project.
A Financial Commitment?

The next question is whether the respondents were financially committed to the project within the meaning of s 36(2)(b). The respondents’ case was that they had committed significant financial and human resources to the project. The judge accepted that contention. For the reasons which follow, there is no proper ground on which this Court can interfere with that finding.
As I understand the Solicitor-General’s submission, if the finding that there is one project stands, he does not dispute that the respondents had made a significant financial contribution to it.
One means by which to determine whether an existing user has committed significant financial resources to a project is to examine the amounts spent in absolute terms for the purpose of determining whether it is significant. Another is to consider that expenditure as a portion of the total cost of the project. It is not necessary that the amount spent should be especially substantial. It is an obvious fact that the nature of irrigation projects can be so varied that some might involve a relatively small cost while others involve a very substantial cost.
The judge found that the respondents had expended $116,580.00 before 11 May 2000. That is on any view a substantial sum. In calculating that expenditure, the judge did not allow for the cost of clay spreading on paddocks B2 and B4 ($17,737.00) and on paddock C5 ($12,281.00). For the reasons already given, the judge erred in not allowing for that expenditure. Those two sums add a further $30,018.00, increasing the total expenditure to the more substantial sum of $146,598.00. That is, in my view, significant expenditure. It therefore represents a significant financial commitment, when viewed in absolute terms.
The same conclusion is also reached if regard is had to the expenditure in the prescribed period as a proportion of the total expenditure. The development of paddocks B1 and B3 and B2 and B4 is to all intents and purposes complete. What remains is the cost of developing paddocks C5 and C7. Those costs include the costs of drilling and casing a bore, a cost which by reference to the costs incurred for the bore on paddocks B1 and B3 would be some $25,000.00 to $30,000.00. In addition, there will be the cost of the centre pivot and pump. The respondents were able to purchase that plant from the receiver of Sobey & Co at a cost of $99,000.00. In addition, a further $10,000.00 might have to be allowed for other pumps. They will, therefore, incur a further cost of some $140,000.00. The respondents have, therefore, expended a little more than half the required expenditure. That is a significant financial expenditure for the purposes of s 36(2)(b). It represents a significant financial commitment.
In Wylie Group at [69] Doyle CJ said that the significance of a financial commitment does not turn on the proportion that the resources committed there to the resources required to complete a project. I respectfully agree. However, that observation must be understood against the facts of that case. I do not understand that passage to mean that an examination of the proportion of the resources committed to the total funding required cannot in appropriate circumstances assist in the determination of the significance of the financial commitment.
Conclusion
For these reasons, it has not been demonstrated that the judge in the Environment Court erred in reaching her conclusion. The appeal must therefore be dismissed.
ANDERSON J. I agree with the reasons of Debelle J. I would grant permission to appeal but dismiss the appeal.