Minister for Environment and Conservation v Simes - [2007] SASC 248

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
MINISTER FOR ENVIRONMENT AND CONSERVATION v SIMES
[2007] SASC 248
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Sulan)
4 July 2007
ENERGY AND RESOURCES - WATER - WATER MANAGEMENT - WATER USAGE RIGHTS
Refusal of Minister to grant water (taking) licence – Natural Resources Management Act 2004 (SA) – Minister’s decision set aside on appeal to Environment, Resources and Development Court – Issue of licence dependent on water allocations – Whether water allocation could be made consistently with the relevant Water Allocation Plan – Consideration of legislative scheme of Natural Resources Management Act 2004 (SA) – Consideration and proper construction of the Water Allocation Plan – Appeal allowed – Order of the ERD Court set aside.
Water Resources Act 1997 (SA) s 36; s 46; s 101; Natural Resources Management Act 2004 (SA) Clause 54, Schedule 4; s 74; s 75; s 76; s 77; s 78; s 79; s 80; s 81; s 124; s 126; s 128; s 146; s 150; s 151; s 152; s 155; s 156, referred to.
Ward v Williams (1955) 92 CLR 496; Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106; Julius v Bishop of Oxford (1880) 5 App Cas 214, applied.
Simes v Minister for Environment and Conservation [2006] SAERDC 90, not followed.
Simes v Minister for Environment and Conservation [2003] SAERDC 75; Simes v Minister for Environment and Conservation (2004) 88 SASR 174; Michelmore v Minister for Environment and Conservation (2004) 137 LGERA 306, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Consistent with"

MINISTER FOR ENVIRONMENT AND CONSERVATION v SIMES
[2007] SASC 248
Full Court: Doyle CJ, Bleby and Sulan JJ

DOYLE CJ: I agree with the orders proposed by Bleby J. There is nothing that I wish to add to his reasons.
BLEBY J:
Introduction
By application dated 4 February 2002, the respondent applied to the Minister for a water licence, seeking a water (taking) allocation based on the area of his land situated within the McLaren Vale Prescribed Wells Area. The application was made under the Water Resources Act 1997 (SA). The applicant claimed entitlement as an existing user. The Minister refused the application on the basis that an allocation could not be made consistently with the water allocation plan for the McLaren Vale Prescribed Wells Area (“the WAP”) because the respondent was not an existing user. The WAP had been adopted by the Minister on 6 November 2000.
As result of an unsuccessful purported appeal to the Environment Resources and Development Court (“the ERDC”)[1] and an unsuccessful appeal to this Court,[2] the respondent’s application was remitted to the Minister for the respondent to make further submissions as to how an allocation could be made (to him) consistently with the Plan. In those proceedings the Court held that the respondent was not an existing user because, although he had lawfully been taking water from a bore on his property for some years and had not been identified as a user in a Departmental user survey, he had not applied for a licence within the time prescribed by s 36 of the Water Resources Act 1987. The Court was not then asked to consider whether an allocation could be made on some other basis consistently with the WAP.
[1] Simes v Minister for Environment and Conservation [2003] SAERDC 75.
[2] Simes v Minister for Environment and Conservation (2004) 88 SASR 175; [2004] SASC 84.
On 16 April 2004 the respondent lodged an amendment to his original application. In its amended form, he sought a water (taking) licence with a water allocation of 23.0ML. In his submission to the Minister that claim was reduced to 19.87ML.
In the meantime, the Water Resources Act was repealed by the Natural Resources Management Act 2004 (SA) (“the NRM Act”), the relevant parts of which took effect on 1 July 2005. The respondent’s application to the Minister then fell to be determined under the NRM Act.[3] The Plan, which had been made under the Water Resources Act, was continued in force under the NRM Act.[4] The WAP remained in the same form throughout the consideration by the Minister, and subsequently the ERDC, of the respondent’s application.
[3] NRM Act clause 54(6), Schedule 4.
[4] NRM Act clause 54(9), Schedule 4.
The Minister refused the respondent’s amended application by letter dated 24 February 2006. The refusal was made on the basis that the water allocation could not be made consistently with the WAP.
The respondent appealed to the ERDC. That Court allowed the appeal, reversed the decision of the Minister, and remitted the application to the Minister for the issue of a licence with an allocation to be determined by the Minister. The Minister now appeals against that decision to this Court.
The appeal raises a question concerning the effect of a water allocation plan on the Minister’s ability to grant a water (taking) licence, and on the water allocation to be endorsed on the licence. It also raises a question as to the proper construction of the WAP.
The Natural Resources ManagementAct
So far as is relevant, the NRM Act requires the preparation of a State Natural Resources Management Plan.[5] That Plan is an expression of policy and does not in itself affect rights or liabilities.[6] The Act also requires the preparation of regional Natural Resources Management Plans[7] and a water allocation plan for each of the prescribed water resources in the relevant region.[8] A water allocation plan is taken to form part of a regional Natural Resources Management Plan.[9] By contrast with the State Natural Resources Management Plan, the NRM Act does not provide that a water allocation plan does not affect rights or liabilities.
[5] NRM Act, s 74.
[6] Ibid s 74(12).
[7] Ibid s 75.
[8] Ibid s 76(1).
[9] Ibid s 76(2).
A water allocation plan is prepared after a series of consultations,[10] and is then adopted by the Minister.[11]
[10] See ibid ss 77-80.
[11] Ibid s 80.
Section 76(4) of the NRM Act prescribes what must be included in a water allocation plan. It requires the identification and assessment of a number of features of the prescribed water resource, of the sustainability of taking water from the prescribed resource and of the capacity of the resource to meet the present and future needs of occupiers of land who might use the resource. Besides the requirement to identify and assess certain matters the section also requires the plan to “provide” for certain things. In particular the section requires the Plan to:
(b)provide for the allocation (including the quantity of water that is to be available for allocation) and use of water so that—
(i)     an equitable balance is achieved between environmental, social and economic needs for the water; and
(ii)    the rate of use of the water is sustainable; and
…
(f)    provide for the transfer of, and other dealings with, water allocations; and
…
The allocation of water must take into account the present and future needs for water of occupiers of land.[12]
[12] Ibid s 76(4)(c).
A water allocation plan can be amended at any time, but the amendment, with some exceptions, must be made in accordance with the procedure prescribed for the making of a water allocation plan.[13] Section 76(8) provides:
(8)A water allocation plan may, in order to improve the management of a water resource, change the basis on which water is allocated from the resource notwithstanding that a consequential variation of a water licence to maintain consistency with the plan results in a reduction or increase in the quantity of water allocated by the licence.
If a change in the basis of allocation is made, it may result in a variation of an existing water licence by providing for a reduction or increase in the quantity of water allocated by the licence. It is not necessary to decide in this case whether a change in the basis of allocation can be effected either by removing existing licences or by creating new ones with fresh allocations. As will be seen, this case turns on the interpretation of the WAP.
[13] Ibid s 81(6).
As mentioned above, the WAP was prepared under the Water Resources Act but continued in operation under the NRM Act. Section 101(4) of the Water Resources Act contained relevantly similar requirements for a plan prepared under that Act.
Chapter 7 of the NRM Act provides for the management and protection of water resources, whether derived from watercourses, lakes or wells. Authorisation in the form of a water licence or under s 128 of the NRM Act, which is not relevant for present purposes, is required to take water from a prescribed watercourse, lake or well or to take surface water from a surface water prescribed area.[14]
[14] Ibid s 124(3).
Chapter 7, Part 3 of the NRM Act provides for the licensing and allocation of water. Licences can only be granted by the Minister.[15] Section 146 relevantly provides:
[15] Ibid s 126(1).
(1)     A licence granted by the Minister under this Part—
(a)     will, if the licence is endorsed with a water (taking) allocation, authorise the holder of the licence to take water from the prescribed watercourse, lake or well or to take surface water from the surface water prescribed area specified in the licence;
…
(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; or
(b)     if, in the opinion of the Minister, the water to be taken pursuant to the licence is so contaminated that its use would create a risk to the health of people or animals; or
(c)     to a person, or to the associate of a person, who formerly held a licence that was cancelled under this Act; or
(d)     to a person who has acted in contravention of this Act; or
(e)     on any other reasonable ground.
As the respondent’s land was within a prescribed wells area, the respondent required a licence endorsed with a water (taking) allocation before he could take water from the well on his property for the purposes of irrigation. It will be noted that the Minister “may refuse” to grant a licence if it is not possible to endorse a water allocation on the licence consistently with the relevant water allocation plan.
Section 150 of the NRM Act provides that a water (taking) allocation may be fixed by reference to the volume of water to be taken and used or by reference to the purpose for which the water may be taken and used or in some other manner. Section 151 relevantly provides:
(1)The water allocation, or a component of the water allocation, of a licence may be obtained—
(a)    from the Minister; or
(b)    from the holder of another licence; or
(c)    in the case of a water (taking) allocation, on conversion under section 153 of a water (holding) allocation or part of such an allocation; or
(d)    under an Interstate Water Entitlements Transfer Scheme.
In this case paras (c) and (d) are not relevant. The respondent had not obtained a water allocation from the holder of another licence. Therefore, the only way that an allocation could be endorsed on any licence granted by the Minister to the respondent was by means of an allocation obtained from the Minister.
So far as is relevant s 152 provides:
(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
…
When a watercourse, lake or well is declared to be a prescribed watercourse, lake or well, s 155 provides for the allocation of water to existing users only, and also specifies what is to happen after a prescribed period. Subsection (3) provides:
(3)If at the expiration of the prescribed period, the aggregate of the allocations of water to which existing users are entitled under subsection (1) exceeds, in the opinion of the Minister, the capacity of the resource, the Minister may—
(a) reduce the allocation to which each existing user is entitled proportionately; or
(b) reduce the allocations pursuant to a scheme set out in the regulations.
Subsection (8) provides what is to happen if the quantity of water available exceeds the entitlements of existing users. It provides:
(8)If the quantity of water available for allocation exceeds the entitlements of existing users, the Minister may allocate the excess in accordance with this Act and the relevant water allocation plan.
It is to be noted that the allocation of any excess water is not within the discretion of the Minister but must be made in accordance with the relevant water allocation plan. There is no relevant provision in the NRM Act for the making of allocations by the Minister where the quantity of water available exceeds the entitlement of existing users. Assuming for present purposes, that a water allocation plan can provide for the allocation of excess water to other than existing users, the Minister’s ability to make such allocations therefore turns on the provisions of the WAP.
Section 156 of the NRM Act enables the Minister to reduce water (taking) allocations proportionately or pursuant to a scheme set out in the Regulations in the event of drought or over utilisation.
The Water Allocation Plan
Before turning to consider the provisions of the WAP itself, it necessary to provide some additional background to the adoption of the Plan.
On 1 April 1993 the then Minister, acting under the Water Resources Act 1990 (SA), imposed a restriction on the taking of water in respect of an area which included the respondent’s land. The restriction applied to the taking of water from any watercourse, lake or well within the area in amounts which exceeded the then existing use at the date of the notice. That moratorium was for a period of two years which was subsequently extended to 31 December 2000.
On 24 December 1998 the Minister administering the Water Resources Act 1997 declared that all existing and future wells in the relevant area were prescribed wells under that Act. The effect of that prescription was that a land owner could continue to use water without a licence for the prescribed period or until the grant or refusal of a licence which had to be applied for within six months of the prescription, whichever date occurred first. The prescribed period was from 21 August 1997 to 1 July 2000. Section 36 of the Water Resources Act 1997 specified the basis for the initial allocation by the Minister of water to a licence granted in that period. As mentioned above, for reasons explained in earlier litigation,[16] the respondent did not qualify as an existing user.
[16] See para [2] above.
It follows that by the time of the adoption of the WAP on 6 November 2000, the only persons who could lawfully take water from wells in the prescribed area were those who had been granted licences, each of the licences containing a water allocation granted by the Minister in accordance with the requirements of s 46 of the Water Resources Act 1997.
The WAP relates to the McLaren Vale Prescribed Wells Area. Among other things, in Parts 1-4 it provides an assessment of the needs of dependent ecosystems in the area, an assessment of whether the taking of underground water will have a detrimental effect on the quality and quantity of water available from other resources and an assessment of the capacity of the underground water resource to meet demands. The Plan notes:
The likely effect of allocation policy in this WAP is to sustain the underground water resource at current levels which will provide certainty of supply to current and future occupiers of the land and therefore maintain (or enhance) the value of the land.[17]
[17] Water Allocation Plan for the McLaren Vale Prescribed Wells Area, Part 4.2.
Part 5 of the Plan contains the criteria for water allocation. It is significant for the resolution of this appeal. I return to it below.
Part 6 of the WAP specifies the only criteria for the transfer of water allocations from one licensee to another. Part 7 specifies criteria for the activity of draining or discharging water directly or indirectly into a well and for the use of imported and reclaimed water. The remaining Parts of the WAP are not material for present purposes.
Part 5 of the plan provides different formulae for allocations prior to 1 July 2003[18] and from 1 July 2003.[19] The case has proceeded, and there appears to be no argument that it should not proceed, on the basis of allocations provided in the Plan as from 1 July 2003.
[18] Ibid Part 5.1, clause 2-13.
[19] Ibid Part 5.1, clauses 14-19
It is not necessary to go into the details of criteria for allocation from 1 July 2003. Clause 15 of Part 5.1 of the Plan provides that with one exception, allocation will be by volume. Clauses 16 and 17 make clear that that is volume per hectare of land per year regardless of the purpose of the use of the water, whereas in the previous period many allocations were related to the crops grown. Those clauses do not authorise allocations. They merely prescribe a method of allocation by volume per hectare.
Clauses 16 and 17 are the operative clauses. Clause 16 allocates an amount per hectare per year to licences already endorsed with an allocation expressed as an entitlement to irrigate an authorised area specified in the licence. Clause 18 specifies how the relevant authorised area is determined for this group of licences. It operates by reference only to licences in existence at the adoption of the Plan or to licences to which an allocation has been transferred since adoption of the Plan. Clause 19 prescribes an additional allowance in some circumstances for this group of licences by reference only to licences already endorsed with an allocation expressed as an entitlement to irrigate a particular authorised area. The additional amount relates to use for a period which includes part of the prescribed period following the prescription of wells from 24 December 1998. It is clear from these two clauses that allocation under clause 16 after 1 July 2003 can only be in respect of licences that were in existence on adoption of the WAP or to licences to which an allocation has been transferred. The actual allocation is fixed by the WAP. There is no power for the Minister to grant additional allocations.
Clause 17 relates to “existing licences” endorsed with an allocation expressed as a volume of water to be taken and used, i.e. not related to the crops irrigated. It prescribes an allocation as a volume of water to be taken by reference to the allocation in existence immediately before the adoption of the Plan. For the purpose of Part 5 of the Plan “existing licence” is defined as meaning a licence in existence of the date of adoption of the Plan by the Minister. As in the case of clause 16, the actual allocation is fixed by the WAP and only in respect of existing licences. There is no power for the Minister to grant additional allocations.
It follows that both methods of allocation available from 1 July 2003 relate only to licences endorsed with an allocation at the beginning of that period or to licences to which an existing allocation has been transferred.
A reading of the WAP as a whole indicates that the allocation for the period before 1 July 2003 contained a reduction for most users from their average use of the preceding years. For the period after 1 July 2003 there was a further reduction in allocation. Nowhere in the WAP is there provision for the allocation of additional entitlements to be allocated by the Minister to anyone, let alone to persons who did not hold a licence at the beginning of the period.

Part 5.1, clause 1 of the WAP provides that the maximum annual quantity of water available for allocation from the McLaren Vale Prescribed Wells Area prior to 1 July 2003 is 7,063ML, and from 1 July 2003, 6,600ML. That is a further indication of the policy of the WAP to reduce water allocations over the period of the Plan. That is consistent with the Plan not providing for any additional allocations by the Minister during the period of operation of the Plan.
None of the operative provisions in respect of the period from 1 July 2003 are cast in terms of granting additional allocations other than to existing licence holders. They only provide the formulae for how allocations are to be determined and how allocations from that date are to be expressed, and then only in relation to licences already endorsed with an allocation.
The decision of the ERDC
The Minister had refused the respondent’s application for a licence on the following grounds:
1.The Minister took the view that the WAP only permitted water to be allocated to a person who held a licence in existence at the date of the adoption of the Plan; and
2.The Minister understood at the time that the maximum annual quantity of water available for allocation in the McLaren Vale Prescribed Wells Area from 1 July 2003 (6,600ML) had already been fully allocated.
On 13 July 2006, after the refusal of the application, the Minister concluded an audit of licensed water allocations within the McLaren Vale Prescribed Wells Area and determined that 6,504.852ML of water had been allocated to licensees. This was less than the maximum available for allocation in accordance with the WAP.
In the proceedings before the ERDC the Minister did not seek to uphold the refusal on the basis that the maximum quantity of water available had been fully allocated. The Court proceeded on the basis that approximately 95ML of the resource was unallocated.
The Court noted the relevant provisions of the NRM Act and summarised the first four Parts of the WAP. It considered, in my view correctly, that by the language of Part 5 water could only be allocated to existing licence holders, but it considered that the premise underlying the Plan and the allocation provisions was that, after 1 July 2003, 6,600ML of water would be available for allocation in the area, and accordingly that 95ML was presently unallocated. In discussing whether an allocation would be consistent with WAP[20] the Court concluded that the allocation must be “in harmony with” the Plan. The Court concluded:
Given the right that inheres in an allocation of water pursuant to a water licence under the NRM Act, it would not appear to be in the public interest that an application for a water allocation be refused when the total volume of water, determined on a sustainable basis to be available for allocation – all other needs having been taken into account - has not been allocated. The needs of dependent ecosystems having been taken into account, which the Plan allows for, it follows that an allocation to an applicant who does not presently hold a licence, in the amount of 23 ML as sought by the appellant, would be in harmony, and therefore consistent with the Water Allocation Plan. An allocation of this magnitude is compatible and consistent with the Water Allocation Plan, and is possible having regard to the volume available for allocation and the volume that presently has been allocated. In the circumstances, where the needs of dependant ecosystems have been assessed and catered for, such an allocation would be consistent with the objects of the Act referred to earlier in these reasons.[21]
[20] See NRM Act ss 146(3)(a) and 152(1)(a).
[21] Simes v Minister for Environment & Conservation [2006] SAERDC 90 at [26].
The Court then concluded that as the allocation sought by the respondent would be consistent with the Plan, and as nothing was put to suggest that an allocation would not be in the public interest, an allocation to the respondent would be in the public interest. No reasons were given by the Court as to why it would be in the public interest to make the allocation. The application was therefore referred back to the Minister to determine the amount of the allocation.
Resolution of the Appeal
On appeal to this Court the Minister argued that the word “may” in s 146(3) of the NRM Act did not import a discretion, and that the section required the Minister to refuse to grant an application for a water licence if it could not be granted consistently with the relevant water allocation plan.
I think the Minister’s argument is correct but only when s 146(3) is read in the context of other sections, particularly ss 146 and 152. One must begin with the prima facie presumption that a permissive or facultative expression operates according to its ordinary natural meaning,[22] and that it will not normally impose an obligation. In Julius v Bishop of Oxford[23] Earl Cairns LC considered the use of the words “it shall be lawful”, a similar type of facultative expression. He said:
The words “it shall be lawful” are not equivocal. They are plain and unambiguous. They are words merely making that legal and possible which there would otherwise be no right or authority to do. They confer a faculty or power, and they do not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so.[24]
[22] Ward v Williams (1955) 92 CLR 496 at 505. See also Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 138.
[23] (1880) 5 App Cas 214.
[24] Ibid at 222-3.
There is no doubt that the context in which such a facultative expression appears may impose an obligation. As Windeyer J said in Finance Facilities Pty Ltd v Federal Commissioner of Taxation:[25]
Here the scope of the permission or power given is circumscribed. Conditions precedent for its exercise are specified as alternatives. The question then is, must the permitted power be exercised if one of those conditions be fulfilled?
This does not depend on the abstract meaning of the word "may" but of (sic) whether the particular context of words and circumstance make it not only an empowering word but indicate circumstances in which the power is to be exercised - so that in those events the "may" becomes a "must". Illustrative cases go back to 1663 : R. v. Barlow. Today it is enough to cite Julius vBishop of Oxford; and add in this Court Ward v. Williams. But I select one other reference out of a multitude : Macdougall v Paterson. There Jervis C.J. said in the course of the argument "The word 'may' is merely used to confer the authority: and the authority must be exercised, if the circumstances are such as to call for its exercise". And, giving judgment, he said:
"We are of opinion that the word 'may' is not used to give a discretion, but to confer a power upon the court and judges ; and that the exercise of such power depends, not upon the discretion of the court or judge, but upon the proof of the particular case out of which such power arises."
[Footnotes omitted]
[25] (1971) 127 CLR 106 at 134.
In s 146(3) of the NRM Act the word “may”, if read in the context of the subsection alone, and particularly given its conjunction with paragraph (e), would suggest that the section confers a discretion to refuse to grant a licence if any of the provisions of the following paragraphs are fulfilled. However, s 146(6)(c) provides that a licence must be endorsed with a water allocation. The Minister’s ability to grant a water allocation is confined by the provisions of s 152(1)(a), which requires that the water allocation to be endorsed on a licence “must be consistent with” the relevant water allocation plan. That is a mandatory requirement. It follows that if a water allocation is not consistent with the water allocation plan, no allocation can be endorsed on the licence, and the Minister must refuse to grant the water licence. By reference to these other sections, s 146(3)(a) imposes an obligation on the Minister to refuse to grant a water licence if it is not possible to endorse a water allocation on the licence consistently with the WAP.
This is consistent with the view taken by Perry J in Michelmore v Minister for Environment and Conservation[26] in relation to similar provisions contained in the Water Resources Act1997. It follows that, if an allocation is not consistent with the relevant water allocation plan, the Minister cannot grant a licence.
[26] (2004) 137 LGERA 306 at 309-310; [2004] SASC 415 at [16] – [19].
In holding that an allocation would be consistent with the WAP in this case, the ERDC considered that an allocation would be “in harmony with” the WAP and therefore consistent with it. In doing so, in my opinion it erred. There is a danger in applying other words said to have a similar meaning instead of the words actually used in the Act. The phrase “in harmony with” does not necessarily mean “consistent with”. In a symphony orchestra, a French horn player will only play the instrument consistent with the score for the French horn by following the appropriate line of music in that score. The player can play in harmony with that score by playing a different line which is not consistent with the relevant score. It is the phrase used in the Act and not some other phrase which must be applied to the circumstances of the case.
As the NRM Act contemplates, certain parts of a water allocation plan will be advisory and certain parts will be prescriptive. Those relating to the allocation of water to a licence are prescriptive. They prescribe the total amount of water which may be allocated in a prescribed area. They prescribe how it is to be allocated to licences. As the ERDC acknowledged, there is no express provision in the WAP for allocating water by the Minister over and above that which had been allocated before the commencement of the Plan. Because of the need to reduce the overall taking of water from the area, the provisions of the WAP in this case allocate water only in respect of existing licences and then by progressively reducing the allocation. One would expect that, if the resource exceeded the total of the existing allocations, provision might be made either to increase existing allocations pro rata or according to some other formula. Alternatively, assuming that it is possible under the Act, provision might be made for the Minister to grant additional allocations to individuals and to prescribe the criteria governing such grants. The WAP does none of those things. That is not surprising, given that the whole purpose and effect of the licensing regime has been to control and reduce extractions from the resource to sustainable levels.
The fact that actual allocations were shown to be below the maximum available did not give the Minister or the ERDC authority to make an additional allocation. That was not authorised by the Plan nor was it consistent with the Plan. If studies continue to reveal an excess availability over allocations, the question of whether further allocations should be made and how they should be made is a matter for variation of the Plan, if considered appropriate and possible, after compliance with the consultation requirements contained in the NRM Act.
That is enough to dispose of the appeal. However, I would add that the ERDC was also wrong in making a finding that the grant of a licence to the respondent would be in the public interest, as required by s 152(1) of the NRM Act. It was quite inappropriate for the ERDC to hold that, because nothing was put to suggest that an allocation would not be in the public interest, the making of an allocation would be in the public interest. There would have to be positive reasons identified as to why the grant of a licence to this particular applicant is in the public interest and not just that of the applicant.
The Minister was therefore correct in deciding that he had no power under the Plan to made additional water allocations. That is not to say that allocations are restricted to those who held licences at the commencement of the Plan. A water allocation can be transferred in whole or in part from the holder of another licence.[27] There is no reason why a person who did not hold a licence at the commencement of the Plan should not acquire an allocation from another licence holder and be granted by the Minister a licence in respect of that allocation. But the Minister is unable, consistent with the Plan, to grant an additional allocation. As the respondent held no allocation, it was not possible for the Minister to grant him a licence.
[27] Section 151, NRM Act and Part 6, WAP.
Conclusion
It follows that I would allow the appeal. I would set aside the order of the ERDC made on 18 December 2006. I would substitute for that order an order that the appeal to that Court be dismissed.
SULAN J: I would allow the appeal. I agree with the reasons of Bleby J. I agree with the orders proposed by Bleby J.